LEGAL MALPRACTICE
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.
LIS PENDENS
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.
RES JUDICATA /
TOBACCO / ENGLE
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.
CLASS ACTION /
TOBACCO / ENGLE
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.
STATUTE OF
LIMITATIONS / TOBACCO
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.
ATTORNEY’S FEES /
APPEALS
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.
EVIDENCE / ASBESTOS
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.
PERSONAL INJURY /
MEDICAID LIEN
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.
DISCOVERY /
SETTLEMENT / RESCISSION
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. Because “our system of justice depends
on truthful discovery, misconduct in discovery must be discouraged by
disallowing the settlement which is the fruit of such misconduct.”
SUMMARY JUDGMENT
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.
CHILD SUPPORT /
JURISDICTION
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.
FAMILY LAW / DUE
PROCESS
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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