Sunday, October 28, 2012

NEW OPINIONS - October 2012


Hanson v. Fowler, White Burnett, P.A., 2012 Fla. App. LEXIS 17935 (Fla. 3d DCA Oct. 17, 2012) affirmed summary judgment in favor of plaintiff’s former lawyer and his law firm in a legal malpractice action.  With Judge Schwartz dissenting, the court reviewed the litigation in federal court to conclude that the issue which formed the basis of the alleged malpractice was raised, argued and ruled upon in plaintiff’s favor, but no one could have anticipated that the district court on remand would not apply its prior determination.  The dissent pointed out that the client lost a claim because it had not been pled.


Blue Star Palms, LLC v. LED Trust, LLC, 2012 Fla. App. LEXIS 18416 (Fla. 3d DCA May 31, 2012) quashed an order denying a motion to dissolve a writ of lis pendens because there was an insufficient nexus between the claims and the property.  Under the parties’ alleged contract, legal title to the condominium units would be held by the Blue Star entities, with any ownership interest in the properties two levels removed (as membership interests in the parent company). The respondents’ claims for constructive trust and equitable lien failed to show that the allegations were connected to the title of the condominium units held.


R.J. Reynolds Tobacco Co. v. Koballa, 2012 Fla. App. LEXIS 18758 (Fla. October 26, 2012) certified as a question of great public importance whether accepting as res judicata the eight Phase I finding approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violated the tobacco companies’ due process rights.


Soffer v. R. J. Reynolds Tobacco Co., 2012 Fla. App. LEXIS 18385 (Fla. Dist. Ct. App. 1st Dist. Oct. 24, 2012) held that under the preclusive effect of the Engle class-wide findings, a member of the class cannot seek punitive damages as additional relief for negligence and strict liability.  The Engle plaintiffs benefit from res judicata effect of certain factual findings made by Engle, and a lengthy tolling of the statute of limitations.  The trial court in Engle denied as untimely plaintiffs’ motion to amend to seek punitive damages under negligence and strict liability, but limited punitive damages to two intentional tort counts.  The court concluded that, as members of the Engle Class, the plaintiffs “are subject to the posture of the case as it exists, which includes the established prohibition on punitive damages for the negligence and strict liability theories as to all class members; principles of equitable tolling do not revive claims for punitive damages that were not timely presented in the first instance.”  But the court certified the question as one of great public importance.


Philip Morris USA, Inc. v. Barbanell, 2012 Fla. App. LEXIS 18140 (Fla. 4th DCA Oct. 17, 2012), a divided court withdraws the prior opinion reported in this blog on February 24, 2012 by agreeing with R .J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012), also previously discussed in this blog on April 20th, to reach a contrary result. The prior opinion had reversed the trial court for denying defendant’s motion for judgment as a matter of law because plaintiff’s claims were barred as a result of the statute of limitations because the jury had returned a special interrogatory verdict finding that the statute of limitations had run.  The court found the facts even more compelling than in Webb, where the decedent was determined to know or have reason to believe that he had COPD prior to May 5, 1990. As Webb noted, a person with COPD may not develop lung cancer, and it was undisputed that the decedent was not diagnosed with lung cancer until 1991. In this case, the trial court directed a verdict on the affirmative defense that the statute of limitations barred plaintiff’s claim of wrongful death from lung cancer, and the jury made the finding that the decedent did not know or have reason to know that she had COPD prior to May 5, 1990. Therefore, the unspecified injury that the jury determined that decedent was aware of prior to May 5, 1990, was not COPD nor was it the lung cancer.


GEICO v. DeGrandchamp, --- So. 3d --- (Fla. 2d DCA October 24, 2012) held that an order awarding “contingent” attorneys’ fees is not appealable and is it not binding on the finder of fact in any subsequent bad faith proceeding.


Rich v. Kaiser Gypsum Co., 2012 Fla. App. LEXIS 18519 (Fla. 4th DCA Oct. 24, 2012) interpreted F.S. § 90.804, which allows former testimony where it “given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination.”  It used federal precedent to allow such testimony where the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  The court thus allowed testimony from prior cases involving different plaintiffs but with the same defendant, the same ingredient, the same product, the same injury, and the same issues regarding the general use of asbestos.  Furthermore, the testimony was cumulative, so any error was harmless.


Roberts v. Albertson's Inc., 2012 Fla. App. LEXIS 18518 (Fla. 4th DCA Oct. 24, 2012) held that a Medicaid recipient had a right to seek a judicial determination of the equitable lien amount of the settlement and to limit the recoupment of the lien by that amount.


Garvin v. Tidwell, 2012 Fla. App. LEXIS 18508 (Fla. 4th DCA Oct. 24, 2012) concluded that a party may rescind a mediated settlement where it can establish that the opponent violated its discovery obligations.  The court explained that a trial court may rescind an agreement based on unilateral mistake if (1) the mistake did not result from an inexcusable lack of due care, (2) the opponent’s position did not so change in reliance that it would be unconscionable to set aside the agreement, and (3) the court weighs whether the unilateral mistake goes to the very substance of the agreement.  Becauseour system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.”


Berkowitz v. Delaire Country Club, Inc., 2012 Fla. App. LEXIS 18504 (Fla. 4th DCA Oct. 24, 2012) reversed a summary judgment in part because the trial court considered unautheticated documents attached to the motion.


D.J.S. v. W.R.R., --- So. 3d --- (Fla. 2d DCA October 24, 2012) reversed an order dismissing a petition for modification of child support for lack of jurisdiction because it was filed after the child reached eighteen years of age.


Bosh v. Mathis, --- So. 3d ---, (Fla. 5th DCA October 26, 2012) reversed an order entered after the court, sua sponte, set the case for a status hearing and heard argument on contested factual issues, then made several rulings that were not noticed, not sought, and not based on the presentation of evidence.

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