Saturday, February 25, 2012

Opinions for the Week of February 24, 2012


Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 2012 Fla. LEXIS 428, 37 Fla. L. Weekly S 130 (Fla. Feb. 23, 2012) held that a district court may exercise its discretion to grant certiorari review of a circuit court decision reviewing an administrative order, so long as the decision under review violated a clearly established principle of law resulting in a miscarriage of justice, even if the circuit court decision was based on precedent from another district.


Regions Bank v. Capital Square, 83 So. 3d 900, 2012 Fla. App. LEXIS 2621 (Fla. 3d DCA 2012)  reversed the trial court for failing to give the requested Fabre instruction in a suit against the bank for negligence and statutory conversion for not stopping plaintiff’s employee from diverting its checks as part of an embezzling scheme.  The court held that the denial of the instruction asking the jury to apportion blame against plaintiff’s own accountants was error where the bank had properly raised the issue in its affirmative defense.


Dolan v. Dolan, 81 So. 3d 558, 2012 Fla. App. LEXIS 2620 (Fla. 3d DCA 2012) reversed the dismissal where the wife had responded the husband’s petition addressing the merits and did not raise the sufficiency of the service of process.  A year later, the wife filed another motion to dismiss, this time raising lack of service.  The husband moved to amend his petition.  The trial court again denied the wife’s motion, but at a later hearing in which it granted the motion to amend, the court gave the husband five day to serve the wife with the amended petition.  The district court reversed because the issue of service had been waived more than a year before.  Furthermore, the issue was not waived by not filing a motion for rehearing.


Fong v. Courvoisier Courts Condo., 81 So. 3d 562, 2012 Fla. App. LEXIS 2581 (Fla. 3d DCA 2012) held that where an injunction had been improperly entered a year earlier and no appeal was taken, and then the matter comes back on a motion to dissolve, the trial court properly denied the motion because now the Fongs were required to show a change in circumstances, not that the injunction was improperly entered.


Agate v. Clampitt, 80 So. 3d 450, 2012 Fla. App. LEXIS 3011 (Fla. 2d DCA 2012) reversed on a case that was filed in 2004 and added that because the cause was being remanded for further proceedings and there was no imminent trial date set, plaintiff should be permitted to amend their complaint to add a claim of quantum meruit, because it was based on the same conduct and transactions upon which the suit was based, so defendant should not be unduly prejudiced and plaintiff had not abused the privilege.


Newbold-Ferguson v. AMISUB (North Ridge Hosp.), Inc., 85 So. 3d 502, 2012 Fla. App. LEXIS 2653 (Fla. 4th DCA 2012) reversing a defense verdict so that the plaintiff may “amend the complaint to clearly allege that the hospital had a non-delegable duty to provide competent emergency care to the plaintiff’s husband, and must plead the specific source of the hospital’s non-delegable duty that the plaintiff seeks to rely upon – an implied contract, an express contract, a statute, an administrative regulation, or some combination thereof.”


Philip Morris USA, Inc. v. Barbanell, 2012 Fla. App. LEXIS 2657 (Fla. 4th DCA Feb. 22, 2012) concluded that from the presented evidence, the jury had the right to conclude that the decedent “knew, or should have known in the exercise of reasonable care, prior to May 5, 1990, that she had been injured, and that there was a reasonable possibility that her injury was caused by cigarette smoking.”  Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000). Where there are “conflicting reasonable inferences” that “can be drawn from the record,” then the issue becomes a “question of fact for the jury to resolve.” Carter, 778 So. 2d at 938. The jury resolved the conflicting reasonable inferences regarding the statute of limitations in favor of defendant, and, as such, the trial court should have entered a judgment in accordance with the jury’s finding. Although the decedent was not diagnosed with cancer until 1996, “[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1276 (Fla. 2006).  (May 5, 1990, signifies the date four years prior to the filing of the Engle class action).  THIS OPINION WAS WITHDRAWN ON REHEARING


Lewis v. State, 80 So. 3d 442, 2012 Fla. App. LEXIS 2666 (Fla. 4th DCA 2012) reversed a conviction where the investigating officer was allowed to testify on direct that he developed a suspect after speaking with two non-testifying witnesses and that from the name he received, he generated a photo line-up and that defendant was the target. Such testimony constituted harmful error.


Best v. Educ. Affiliates, Inc., 82 So. 3d 143, 2012 Fla. App. LEXIS 2659 (Fla. 4th DCA 2012) affirmed an order compelling arbitration where there was no transcript of the proceeding of the hearing on the motion to compel.  While appellants did proffer some affidavits with their motion for rehearing, the trial court was not compelled to consider evidence proffered for the first time in a motion for rehearing. Appellants also argue that the court erred in compelling arbitration because the arbitration agreement was invalid on its face due to its limitation on remedies, contrary to public policy. The court rejected this argument because the arbitration agreement expressly delegated to the arbitrators the determination of the validity of the agreement, relying on Rent-A-Center, West, Inc. v. Jackson, 130 S.Ct. 2772, 177 L. Ed. 2d 403 (2010).

Wednesday, February 15, 2012

Releases 02/15/12


Bendross v. Readon, 2012 Fla. App. LEXIS 2162, 3D11-1526 (Fla. 3d February 15, 2012) held that the doctrine is not apply to a suit alleging that the defendants had improperly attempted to remove members of the Board of Trustees because it was entirely controlled by neutral application of F.S.§ 617.0808, and did not implicate religious doctrine, policies or practices.


In Mejia v. United Auto. Ins. Co., 83 So. 3d 897 (Fla. 3d DCA 2012), the plaintiff voluntarily dismissed his lawsuit and United Auto obtained a cost judgment, which Mejia appealed.  After affirming, the circuit court awarded United Auto appellate attorney’s fees pursuant to F.S.§ 768.79.  The district court granted certiorari explaining that United Auto was not entitled to fees because Mejia’s dismissal had been without prejudice.

In Mercury Ins. Co. v. RPM Medical Ctr., 2012 Fla. App. LEXIS 2165, 3D11-2466 (Fla. 3d DCA February 15, 2012), the court likewise quashed an award of appellate attorney’s fees where it was not conditioned upon the insured ultimately prevailing in the underlying proceeding.

In King v. State, 2012 Fla. LEXIS 302 (Fla. February 9, 2012), the Florida Supreme Court explained that the right of cross examination in a criminal case is not without limitation.  Here, the defendant made statements in questions to the witness that introduced a theory of defense that someone else committed the crime.  To do that, there must be sufficient evidence in the record to support that underlying theory. Questions asked during cross-examination must have a good-faith basis.  The court concluded that the trial court’s decision to strike three questions for lack of sufficient evidence in the record to support those allegations (or defense counsel’s theory) was a reasonable and sound use of discretion.


R.J. Reynolds Tobacco Co. v. Townsend, 2012 Fla. App. LEXIS 2122 (Fla. 1st DCA February 14, 2012) affirmed a jury verdict of $10.8 million compensatory damages, and punitive damages of $80 million, which assigned the tobacco company 51% responsible, for a reduced final judgment in the amount of $46.308 million.  The court held that defendant did not preserve its claim with respect to the plaintiff’s “closing argument” issue because it waited until the end of closing argument to object and it failed to object specifically to distinct portions of the argument.  The court also rejected defendant’s claim that the $40.8 million punitive damages violated due process, but because the trial court reduced it by 49% as with compensatory damages, it reversed for the limited purpose of allowing plaintiff to choose between a new jury trial on punitive damages or acceptance of a remittitur judgment to be established by the trial court.  The court noted that punitive damages are not typically subject to apportionment based on comparative fault.


Sauriol v. Sauriol, 79 So. 3d 204, 2012 Fla. App. LEXIS 1945 (Fla. 2d DCA 2012) reversed an order holding the husband in contempt for sending an email to his wife in violation of a domestic violence injunction.  Although the court issued an order to show cause, the procedures for indirect criminal contempt under Florida Rule of Criminal Procedure 3.840 were not further invoked.  The trial court was obviously trying to punish Mr. Sauriol using civil contempt, which is only available to compensate the losses of the injured party or to coerce compliance.


Chacha v. Transp. USA, Inc., 78 So. 3d 727, 2012 Fla. App. LEXIS 1778 (Fla. 4th DCA 2012) (reversing the dismissal for fraud on the court.  “While we have never explicitly imposed a requirement that a trial court make express written findings of fact supporting its conclusion that a plaintiff perpetrated (or attempted to perpetrate) a fraud on the court, the Florida Supreme Court has recognized such a requirement where a dismissal is based on a violation of a discovery order. See Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004)… We believe that the same reasoning which makes it an abuse of discretion to dismiss an action based on the violation of a discovery order without express written findings of fact applies equally where dismissal is based on a plaintiff’s fraud on the court….  We therefore reverse and remand for the trial court to make express written findings…”).


Burton v. MDC PGA Plaza Corp., 78 So. 3d 732, 2012 Fla. App. LEXIS 1772 (Fla. 4th DCA 2012) reversed a summary judgment, explaining that a landowner owes an invitee two duties: (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils. Here, the plaintiff conceded that she knew about the pothole before she fell into it and that her knowledge discharged the defendants of their duty to warn her of the dangerous condition.  But the defendants still owed the plaintiff a duty to maintain the premises in a reasonably safe condition.  The fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition.  A plaintiff’s awareness of a dangerous condition does not negate a defendant’s potential liability for negligence in allowing the dangerous condition to exist; it may be relevant, however, to a determination of comparative  negligence.


Phadael v. Deutsche Bank Trust Co. Ams., 83 So. 3d 893, 2012 Fla. App. LEXIS 1766 (Fla. 4th DCA  2012) affirmed the denial of a motion to vacate a summary final judgment of foreclosure that asserted lack of standing by the bank.  The defendant never filed an answer.  The court explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver. The issue of standing cannot be raised for the first time in a motion to set aside a judgment under Fla. R. Civ. P. 1.540(b)(4).  Such a motion is not a substitute for a motion for rehearing or an appeal.  Even where a judgment is entered in favor of a plaintiff that lacks standing, the judgment is merely voidable, not void. A judgment that is merely voidable cannot be set aside under Fla. R. Civ. P. 1.540(b)(4).  The claim that the bank lacked standing at the inception of the suit would, at most, render the judgment voidable, not void.


L. B. v. Naked Truth III, Inc., 2012 Fla. App. LEXIS 1545 (Fla. 3d DCA February 8, 2012) reversed and remanded for a new trial a defense verdict on a negligent security claim.  The plaintiff, who worked as a store clerk on the overnight shift, sued her employer after she was raped by a male customer one night.  The reversal was based on the admission of testimony by the defense expert that the attack was a “victim-targeted” crime which was unforeseeable and unpreventable by any security measures.  The expert was qualified to testify as to security matters not as to the assailant’s motives.  Testimony by a co-worker, however, that the assailant had been at the store three days prior to the incident and asked if the victim was working was admissible under F.S.§ 90.803(3), the state-of-mind exception to the hearsay rule to explain the assailant’s subsequent conduct.

Monday, February 6, 2012

Florida Supreme Court Opinion on Attorney's Fees

Southeast Floating Docks v. Auto-Owners Ins. Co., 82 So. 3d 73 (Fla. 2012) held that F.S.§ 768.79 does not apply to cases that are governed by the substantive law of another jurisdiction because, being a fee-shifting statute, it modifies the American rule which requires each party to pay its own attorney’s fees.  By altering the common law, the statute creates a substantive right.  Thus, under conflict of law analysis, when the parties have agreed to be bound by the law of another jurisdiction, F.S.§ 768.79 does not apply.  The case disapproved of prior decisions from the Fourth and Fifth District Courts of Appeal.  

Wednesday, February 1, 2012

Releases from the 3d DCA on 2/1/12


In Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), the court held that the law does not permit the deceased husband’s plan for the disposition of the property to be honored in the face of the widow’s objection that the property was indisputably protected homestead.  Thus, because the decedent’s wife survived him, the homestead was not subject to disposition through a trust and at the moment of his death, his homestead property passed outside of probate to his wife for life, and thereafter to his surviving sons per stirpes.  Furthermore, there was no basis in law to charge the remaindermen with the obligation to reimburse the widow for the amount she paid to satisfy a mortgage on the homestead property before her husband's death, even if she did so under the mistaken belief that she was the titleholder to the property.


In Perez v. State, 79 So. 3d 140 (Fla. 3d 2012), the court reversed a conviction based on the admission of irrelevant evidence.  Defendant had moved in limine to exclude reference at trial that he was the target of an ongoing investigation.  The trial court erroneously allowed the arresting officers to testify that defendant was stopped pursuant to a narcotics investigation.


A divided court affirmed a jury verdict in Demchak v. Davia, --- So. 3d ---, Case No. 3D10-366 (Fla. 3d DCA February 1, 2012), where the evidence supported plaintiffs' argument that after they invested $450,000 to purchase property in Key West, the defendants were supposed to invest $1 million, but instead simply used plaintiffs’ money as a down payment, took out a mortgage, and never contributed anything.


Cukierman v. BankAtlantic, --- So. 3d ---, Case No. 3D11-647 (Fla. 3d DCA February 1, 2012) held that the guarantors had no standing to challenge a foreclosure sale because they had no right of redemption.