Saturday, November 3, 2012



BKD Twenty-One Mgmt. Co. v. Delsordo, 2012 Fla. App. LEXIS 18985 (Fla. 4th DCA Oct. 31, 2012) reversed an order denying a motion to compel arbitration in a trip and fall action against the defendants-lessors.  The arbitration clause provided that “any claim or dispute (including those based on contract, negligence or statute) amongst the Parties… arising out of or related to this Agreement, the Establishment or the services/care provided to the Resident, shall be resolved by binding arbitration….” The arbitration provision does not define the term “Establishment.”  The lease covered an independent retirement living facility.  The court states that cases decided after Seifert v. United States Home Corp., 750 So. 2d 633 (Fla. 1999) [See Ramirez, 2-28 Florida Civil Procedure § 28-5 fn. 74-75] have made clear that an arbitration agreement may be drafted to expressly mandate arbitration of tort claims.  It concluded that the term “Establishment” in the context of the lease agreement meant “place of business.”  Thus, plaintiff’s negligence claim was subject to arbitration.


GMPF Framing, LLC v. Villages at Lake Lily Assoc., LLC, --- So. 3d --- (Fla. 5th DCA November 2, 2012) reversed an award of attorney’s fees pursuant to F.S. § 713.29, the claim of lien statute.  Even though the trial court discharged the claim of lien, there remained pending additional claims for the imposition of an equitable lien and unjust enrichment. Under F.S. § 713.29, the prevailing party is not necessarily the party who recovers a net judgment, but instead to that party that has prevailed on “significant issues” in the case.  See Prosperi v. Code, 626 So. 2d 1360 (Fla. 1993) [See also Ramirez, 2-24 Florida Civil Procedure § 24-5].  Here, because significant counts remained, it was impossible to determine the substantially prevailing party until the pending counts were resolved.


Braaksma v. Pratt, --- So. 3d --- (Fla. 2d DCA November 2, 2012) held that once a party complies with the technical requirements of F.S. § 768.79 and rule 1.442, the trial court may only disallow fees upon a finding that the offer was not made in good faith.  Here the judge denied fees because rejection of the offer did not result in any additional delay costs and expenses, a factor not authorized.


Am. K-9 Detection Servs. v. Cicero, 2012 Fla. App. LEXIS 19085 (Fla. 5th DCA Nov. 2, 2012) affirmed the trial court for finding that a clause providing that “[t]he Parties hereby expressly consent to: (a) the personal jurisdiction of the federal and state courts within Central Florida,” was a permissive forum selection clause allowing plaintiff to file suit in Orange County.  Although the terms “venue” and “jurisdiction” are not synonymous, “there have been many instances in which Florida courts have interpreted provisions that omit the words ‘forum’ or ‘venue’ and refer only to ‘jurisdiction’ in a particular location to be forum selection clauses.” Any ambiguity had to be construed against the drafter (defendant). [See Ramirez,


Bedwell v. Rucks, 2012 Fla. App. LEXIS 18963 (Fla. 4th DCA Oct. 31, 2012) reversed an order denying defendants’ motion to transfer venue in an action for violation of the Uniform Fraudulent Transfer Act, F.S. § 726.106.  The suit was filed in Okeechobee County.  It was undisputed that defendants resided in Miami-Dade or Broward County, and no property was at issue.  Therefore, the issue was where the action accrued.  A cause of action accrues when the last element necessary to complete it occurs. See F.S. § 47.011 [See also Ramirez, 1-4 Florida Civil Procedure § 4-9, fn. 194].  The court reasoned that proof of damages in the underlying claim is not an element of a Fraudulent Transfer Act claim. The Fraudulent Transfer Act only requires that a creditor’s claim arise before the alleged transfer.  Accordingly, the place where damages occurred in the underlying claim is irrelevant to determining when and where a fraudulent transfer claim accrued.  The court relied on the applicable statute of limitations, which states “within 4 years after the transfer was made…” F.S. § 726.110(2). A Fraudulent Transfer Act claim accrues at the moment the alleged transfer occurs.  Here, defendants presented evidence that the alleged fraudulent transfers took place in either Miami-Dade or Broward County. This was sufficient to shift the burden back to plaintiffs to demonstrate that venue was proper in Okeechobee County.  To rebut defendants’ evidence, plaintiffs relied only on facts relevant to a separately filed professional malpractice claim. This was insufficient to meet their burden.


Vidal v. Liquidation Props., 2012 Fla. App. LEXIS 18960 (Fla. 4th DCA Oct. 31, 2012) reversed summary judgment where, to demonstrate standing, the plaintiff produced the original note and mortgage, an undated allonge endorsed in blank, and a mortgage assignment executed on February 6, 2009, with an effective date of January 15, 2009, where suit was filed on February 5 2009.  The court reasoned that the back-dated assignment did not demonstrate, as a matter of law, that a legal or equitable transfer of the note and mortgage had occurred prior to the filing of the complaint.


Clarke v. State Farm Fla. Ins., 2012 Fla. App. LEXIS 18961 (Fla. 4th DCA Oct. 31, 2012) affirmed a declaratory judgment for the insurer because the plaintiff’s claims fell outside the plain language that defined the scope of the policy’s coverage. State Farm agreed to defend and indemnify Clarke for claims brought against Clarke “for damages because of bodily injury.” The policy excluded from the definition of “bodily injury” communicable diseases “transmitted by any insured to any other person.” The plaintiff based all four of her causes of action on the fact that she “was exposed to a high risk HSV virus and contracted the herpes virus from the Defendant” as a result of his actions.  The court stated that the complaint alleged injuries expressly excluded by the policy.


Voort v. Universal Prop. & Cas. Ins. Co., 2012 Fla. App. LEXIS 18964 (Fla. 4th DCA Oct. 31, 2012) reversed summary judgment explaining that, while it is the insured’s burden to prove the essential elements of its cause of action at trial, on a motion for summary judgment, it was the insurer’s burden to prove the nonexistence of a material fact.  Thus, at this stage, the insureds did not have to prove that the loss occurred during the policy period; the insurer had to prove that it did not.


Weber v. Marino Parking Sys., Inc., --- So. 3d --- (Fla. 2d DCA November 2, 2012) held that, as a matter of law, a valet parking service owed no duty to third parties to refrain from returning car keys to an obviously intoxicated customer, and that customer collided with and killed Weber.


R. J. Reynolds Tobacco Co. v. Jewett, 2012 Fla. App. LEXIS 18994 (Fla. 1st DCA Nov. 2, 2012) reversed for a new trial for failure to give a jury instruction requested by the defendant, stating that a trial court abuses its discretion when it fails to give a proposed instruction that is (1) an accurate statement of the law, (2) supported by the facts of the case, and (3) necessary for the jury to properly resolve the issues, so long as the subject of the proposed instruction is not covered in other instructions given to the jury and the failure to instruct is shown to be prejudicial.  Defendants requested that the jury be told that they did not need to prove that plaintiff “was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself.”
Defendant also requested that following:  That plaintiff “knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what [plaintiff] knew prior to May 5, 1990, concerning the health risks of cigarettes.”

No comments:

Post a Comment