HAPPY HOLIDAYS!

CHRISTMAS DELAY

The Third District, like UPS and FEDEX, was delayed until after Christmas to publish their opinions--until Thursday the 26th, but no one is complaining about the Third.

ATTORNEY'S FEES

Bull Motors, LLC v. Borders, 2013 Fla. App. LEXIS 20336 (Fla. 3d DCA Dec. 26, 2013) affirmed an award of $62,000.00 in attorney’s fees and costs in a consumer arbitration case in which Borders was awarded $5,626.00.  The arbitrator found that Bull Motors dba Maroone had violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and that Borders was the prevailing party, a proper finding as Maroone did not assert any affirmative claims. “There is no express requirement of proportionality between the amount of the FDUTPA judgment and the attorney’s fees and costs incurred in obtaining that judgment.

“Maroone’s second argument is also unpersuasive. Maroone’s offers of judgment addressed Ms. Borders’ claim for equitable relief as well as her claims for damages. The offer of judgment statute, section 768.79, Florida Statutes (2007), does not apply to cases that, as here, involve a general offer seeking release of all claims in the case, both equitable and monetary.” 

http://www.3dca.flcourts.org/Opinions/3D12-2223.pdf

FORECLOSURE SALE

Chase Fin. Servs., LLC v. Edelsberg, 2013 Fla. App. LEXIS 20337 (Fla. 3d DCA Dec. 26, 2013) reversed an order setting aside a foreclosure sale despite factual findings by the trial court in support of its decision.  The court reviewed the objections raised by the owner and the transcript of the hearing and determined that the first one was proved to be untrue. The second objection amounted to no more than a failure to act diligently.

http://www.3dca.flcourts.org/Opinions/3D13-1008.pdf

ARBITRATION

Fed. Contr., Inc. v. Bimini Shipping, LLC, 2013 Fla. App. LEXIS 19975 (Fla. 3d DCA Dec. 18, 2013) reversed an order dismissing a complaint to compel arbitration because the suit was barred by the one-year statute of limitations for such actions provided in the Carriage of Goods by Sea Act, 46 U.S.C. app. § 1303 ("COGSA"), even though appellant had argued that the limitations period defense had to be decided by an arbitrator under the broad arbitration clause.  The issue of timeliness should have been decided by the arbitrator.

http://www.3dca.flcourts.org/Opinions/3D13-1466.pdf

He's Back!

The blogs are back.  After a long absence, and many requests, I have decided to bring this blog back to life.  I don't know whether to apologize for the absence of postings or for the postings. Anyway, here they go:

DISCOVERY / SANCTIONS – When enough is not enough

Toll v. Korge, 2013 Fla. App. LEXIS 19272 (Fla. 3d DCA Dec. 4, 2013)

vacating a final default judgment and remanding for an evidentiary hearing, explaining that while the record certainly established a persistent pattern of foot-dragging and failure to comply with court orders, the trial court still abused its discretion in striking Toll's pleadings and granting a default judgment against him in the absence of compliance with the requisite procedures outlined in Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) and Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)  to justify the extreme sanction imposed. The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants' collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll's counsel.  “If, on remand, the trial court determines that dismissal is appropriate, the trial court shall include in its written order findings of fact with respect to each factor, and individualized findings with regard to the conduct of each of the sanctioned parties and their counsel.”

Shepherd, C.J., dissented:  “The majority opinion portrays one reading of the facts of this case. The detailed and thorough eleven-page order rendered by the trial court portrays another.”  Ouch.

http://www.3dca.flcourts.org/Opinions/3D11-0897.pdf

ZONING – The Tipsy Coachman Strikes Again

Detournay v. City of Coral Gables, 2013 Fla. App. LEXIS 19270 (Fla. 3d DCA Dec. 4, 2013)

affirming an order that dismissed a case for lack of standing in the middle of trial, but not for that reason.  Instead the court affirmed the dismissal on a ground that had never been raised at the trial level nor in the briefs:  separation of powers.  I am quoting from the dissent by Lagoa, J.  Having watched the oral arguments, I don’t recall that doctrine even coming up then.  Not being a zoning expert, I don’t know enough to comment on the merits, but procedurally, it seems an issue should not come up for the first time in an appellate opinion.  [In the interest of full disclosure, my wife was the president of the neighborhood association at the time of trial].

http://www.3dca.flcourts.org/Opinions/3D11-2012.pdf

MOTIONS TO DISMISS

RC Aluminum Indus. v. Regions Bank, 2013 Fla. App. LEXIS 19271 (Fla. 3d DCA Dec. 4, 2013)

reversing an order dismissing with prejudice a first amended complaint, seeking to impose an equitable lien on construction loan proceeds and for unjust enrichment. As Shepherd, C. J., wrote:  “A casual perusal of the order makes it apparent that the trial court went beyond the four corners of the complaint in reaching its decision.”  Ouch again.

http://www.3dca.flcourts.org/Opinions/3D11-2488.pdf

PERSONAL JURISDICTION

Taylor v. Gutierrez, 2013 Fla. App. LEXIS 19277 (Fla. 3d DCA Dec. 4, 2013) reversed an order denying a motion to dismiss for lack of jurisdiction because the trial court erred in determining that the contacts of a cruise line physician with the State of Florida were sufficient to confer general jurisdiction over him under Florida’s long arm statute, F.S. § 48.193(2), and because federal due process considerations were not met. 

The court based its finding of general jurisdiction on the following contacts between the doctor and the State of Florida, all of which relate to his nine-year career as a shipboard doctor: entering into employment agreements in Florida with Florida-based cruise lines (Carnival Cruise Lines and Royal Caribbean Cruise Lines); attending annual medical conferences in Florida and from time to time making presentations at same; receiving advanced cardiac life support recertification in Florida; vacationing from time to time in Florida; having two bank accounts in Florida; and working aboard a cruise ship that embarked/disembarked at a Florida port one day a week.  

A dissent by Salter, J. reasoned that the trial court was correct because the doctor routinely rendered medical treatment within the State of Florida when the ship docked at the port.

http://www.3dca.flcourts.org/Opinions/3D12-3045.pdf

New Chief Judge-Elect; New Opinions

NEW CHIEF JUDGE-ELECT

Congratulations to Judge Suarez on his election to chief judge-elect!  Coincidentally, the two opinions below were both authored by him.

INADVERTENT DISCLOSURE OF PRIVILEGED DOCUMENTS

Constr. Sys. of Am. v. Travelers Cas. & Sur. Co. of Am., 2013 Fla. App. LEXIS 12329 (Fla.  3d DCA August 7, 2013) involved a petition for certiorari in a seven-year-old suit where counsel inadvertently received privileged documents. A motion to compel return of the documents and a motion to disqualify the law firm were referred to a special magistrate.

The special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded the privilege had been waived and recommended denial of both motions. The trial court rejected the recommendation and granted the motions, concluding that no waiver had occurred and the possibility counsel had gained an unfair informational advantage from the disclosure required disqualification.

The opinion reviews the five-factor analysis established in prior cases: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.

Upon reviewing the magistrate’s report and the trial court’s order on the motion to compel, the trial court did not exceed its authority by accepting the facts as found by the magistrate but correctly determining the magistrate misconceived the legal effect of the evidence. Therefore, order compelling return of the documents was left unscathed, but the order disqualifying counsel was quashed because the trial court made extensive findings and credibility determinations based on testimony presented to the magistrate. “This was error. Upon determining the privilege was not waived, the trial court should have remanded the matter to the magistrate for further findings.”

http://www.3dca.flcourts.org/Opinions/3D12-3397.pdf

WRIT OF ATTACHMENT

G.E. v. Chuly Int'l, 2013 Fla. App. LEXIS 12334 (Fla.  3d DCA August 7, 2013) reversed an order denying GE’s motion for pre-judgment writ of attachment against Chuly’s property.  GE had sued Millennium and a guarantor, but while the action was pending, the guarantor gave a $1.74 million loan to Chuly, a company owned by the guarantor’s then girlfriend.  This loan was subsequently forgiven.  When GE discovered this, it filed a verified motion for a prejudgment writ of attachment against Chuly for the amount of the Chuly loan and was willing to post a bond in excess of the amount it sought from Chuly. After an evidentiary hearing, the circuit court summarily denied GE's motion for prejudgment writ of attachment or garnishment.

In an action for relief against an allegedly fraudulent transfer sought pursuant to Chapter 726, Florida Statutes, a creditor may seek an attachment against the transferred asset. § 726.108(1)(b), Fla. Stat. (2013). Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Those “badges of fraud” are set forth in section 726.105, Florida Statutes (2013).

“At the hearing on GE’s motion for garnishment or attachment, GE presented competent, substantial evidence to support issuance of the writ. GE was not required at that time to prove by a preponderance of the evidence that the loan forgiveness was, actually, a fraudulent transfer.  GE merely had to raise a rebuttable presumption of fraudulent intent by asserting the existence of certain badges of fraud, thereby creating a prima facie case for fraudulent transfer to be determined later in the litigation between the parties. GE's complaint clearly alleges several of these badges of fraud, and adequately stated a cause of action for fraudulent transfer.”

The record revealed that the transfer was made to an insider without adequate consideration; the transfer was concealed and it was made shortly before or shortly after a substantial debt was incurred. Chuly did not present sufficient evidence to rebut the initial presumption of fraudulent transfer. Further, GE asserted it would provide a bond in the amount of $3,200,000.00, more than twice the amount of the debt sought against Chuly. See § 76.12, Fla. Stat. (2013).

http://www.3dca.flcourts.org/Opinions/3D13-0803.pdf

New Name - New Focus

NEW NAME

I have renamed the blog because I will be including cases from federal circuit courts and the U.S. Supreme Court, in addition to opinions out of the Florida appellate courts.  Coverage will also extend to ADR cases, such as the following:

MEDIATION / CONFIDENTIALITY

Benes v. A.B. Data, Ltd., 2013 U.S. App. LEXIS 15270 (7th Cir. Wis. July 26, 2013)

Are mediations really confidential?

The facts as set forth in the opinion are that Benes was an employee who sued his employer after only for four months on the job, alleging sex discrimination.  At the EEOC-arranged mediation, the parties caucused after an initial joint session and, upon receiving the settlement proposal, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I'll see you in court.” Benes stalked out, and, within an hour, the employer “accepted Benes’s counterproposal: it fired him.”  Benes then proceeded with an anti-retaliation claim and abandoned his sex discrimination claim.  The district court granted summary judgment in favor of the employer, holding that because the employee was fired for misconduct during the mediation, not for making or supporting a charge of discrimination, he had no claim for retaliation.

The Seventh Circuit affirmed, stating:  “Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [42 U.S.C.] §2000e-3(a). Benes has not cited any case holding that misconduct during a mediation must be ignored. Many cases show that misconduct during litigation may be the basis of sanctions (by the court, if not by another litigant).  We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.” (citations omitted).   

       

This case should give pause to those of us that tell the litigants that everything is confidential.  See Ellen E. Deason, “Predictable Mediation Confidentiality in the U.S. Federal System,” 17 Ohio St. J. on Disp. Resol. 239 (2002).

ARBITRATION

Lagstein v. Certain Underwriters at Lloyd's of London, 2013 U.S. App. LEXIS 16114 (9^th Cir. Aug. 5, 2013) is the latest in the protracted battle between Dr. Lagstein, a nuclear cardiologist, who made a claim in 2001 on a disability insurance policy against Lloyd's of London.  “Lloyd’s pussyfooted for years only to eventually deny the claim, so Dr. Lagstein sued in the United States District Court for the District of Nevada. Lloyd's moved to arbitrate pursuant to the policy, and the District Court granted the motion.

Illustrating the maxim ‘be careful what you wish for,’ the arbitration was wildly successful for Dr. Lagstein, resulting in a total damages award of over $6 million against Lloyd's, including $4 million in punitive damages. Lloyd's, unhappy with the result of the arbitration it had demanded, successfully moved in the District Court to vacate the award. Dr. Lagstein appealed, and this court reversed and remanded with instructions to confirm the award. The District Court then confirmed the award but denied Dr. Lagstein’s request for interest and attorneys’ fees.”

The court now reversed the ruling on interest and attorneys’ fees, confirming the power of the arbitrators to award pre-award interest on contract damages, the power of the court to award post-award prejudgment interest on the total award, including non-contract damages and caps it off by awarding post-judgment interest on the total judgment, including pre-judgment interest to the date of the judgment confirming the award.

EMPLOYMENT

Dejesus v. Hf Mgmt. Servs., 2013 U.S. App. LEXIS 16105 (2d Cir. August 5, 2013) affirmed the dismissal of a suit filed by an employee based on allegations by a plaintiff that she was a wage-earning employee of defendant for three years and that she worked more than forty hours per week during “some or all weeks” of her employment and, in violation of the FLSA, was not paid at a rate of at least 1.5 times her regular wage for each hour in excess of forty hours, was insufficient.  Plaintiff relied on the FLSA's provision in 29 U.S.C. § 207(a)(1).  In affirming, the court reasoned that the complaint must contain sufficient factual matter to state a claim, citing to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  More specifically, in Lundy v. Catholic Health System of Long Island, 711 F.3d 106 (2d Cir. 2013), the court had concluded that “to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114. 

Dejesus provided less factual specificity than did the plaintiff in Lundy. “She did not estimate her hours in any or all weeks or provide any other factual context or content. Indeed, her complaint was devoid of any numbers to consider beyond those plucked from the statute… Whatever the precise level of specificity that was required of the complaint, Dejesus at least was required to do more than repeat the language of the statute.”

Not Summer Reruns

CLASS ACTION CERTIFICATION REVERSED BY THE THIRD –So what’s new?

Alderwoods Group v. Garcia, 2013 Fla. App. LEXIS 12002 (Fla.  3d DCA July 31, 2013) reversed a class action certification of:  “All persons with burial plots or family members at Graceland Memorial Park South who were buried before 1994, that are unable to readily locate family members due to inadequate recordkeeping and identifying markers.”  The Third District again conducted a merits analysis to reverse the class certification order, instead of explaining how the trial court abused its discretion.  The court first ruled that the procedure to be employed for determining class membership would provide the Representative Plaintiffs with the ultimate injunctive relief they were seeking. 

Second, because there had been a prior administrative procedure, res judicata prevented relitigation of resulted in defendant having to correct its faulty record keeping and ensure that every gravesite was properly marked and accounted for.   “Res judicata bars the Representative Plaintiffs from seeking a permanent mandatory injunction that would redress the same issues litigated in the administrative action.”

The remaining claims were also not deemed amenable to class treatment because they required highly individualized proof.

http://www.3dca.flcourts.org/Opinions/3D11-1497.pdf

ATTORNEY’S FEES

State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 2013 Fla. App. LEXIS 12010 (Fla.  3d DCA July 31, 2013) reversed the denial of attorney’s fees based on the trial judge’s determination that the proposal for settlement—a nominal amount—was not made in good faith.  Even though it was an abuse of discretion standard, the court stated that the terms of the policy required the insured to assist State Farm in its investigation of the claim and the insured did not respond to any of State Farm’s requests and failed to submit a Sworn Proof of Loss.  The insured also failed to respond to State Farm’s discovery requests. Additionally, she failed to submit any credible evidence to support her supplemental claim, other than the public adjuster's report.  The court then concluded that State Farm had a reasonable basis to believe that its exposure was nominal and did not act in bad faith when it made the settlement offer. 

But why was the trial court’s contrary conclusion an abuse of discretion?

http://www.3dca.flcourts.org/Opinions/3D12-0675.pdf

ATTORNEY’S FEES

HSBC Bank United States v. Williams, 2013 Fla. App. LEXIS 12007 (Fla.  3d DCA July 31, 2013) affirmed the award of $74,429 in costs and attorney’s fees against the bank given the bank’s history in the case of disobeying court orders.

http://www.3dca.flcourts.org/Opinions/3D12-1784.pdf

ATTORNEY’S FEES / ARBITRATION

Carvajal v. Banc of Am. Inv. Serv., 2013 Fla. App. LEXIS 12009 (Fla.  3d DCA July 3, 2013) explained that the Florida Arbitration Code confers on parties a statutory right to have a court determine entitlement to attorney’s fees.  [Note that the Revised Florida Arbitration Code changes that.]  “In finding that the parties agreed to submit the issue of attorney’s fees to the arbitrator, the trial court relied on Carvajal’s request for attorney’s fees in his initial arbitration statement of claim. However, requests for attorney’s fees in arbitration pleadings are not sufficient evidence of an express waiver.”

http://www.3dca.flcourts.org/Opinions/3D12-2283.pdf

Publix Supermarkets v. Santos, --- So. 3d --- (Fla.  3d DCA July 31, 2013) quashed an order that granted discovery regarding falls at all stores throughout the state for the last three years, reasoning that although overbreadth is generally insufficient to warrant certiorari review, it is appropriate where the discovery grants “carte blanche” to irrelevant discovery.

http://www.3dca.flcourts.org/Opinions/3D12-3053.pdf

DEFAULT JUDGMENTS

Peterson v. Lake Surprise II Condo. Assoc., 2013 Fla. App. LEXIS 12021 (Fla.  3d DCA July 31, 2013) reversed an order granting a Fla. R. Civ. P. 1.540(b)(1) motion for relief from the default judgment, which was based upon the mortgagee’s conscious and deliberate - but sadly mistaken - decision, made contrary to advice of counsel, that it was not necessary to answer the complaint. A conscious decision not to comply with the requirements of the law cannot be "excusable neglect" under the rule or any other equivalent requirement.

http://www.3dca.flcourts.org/Opinions/3D13-0352.pdf

SETTLEMENTS / FAIR LABOR STANDARDS ACT (FLSA)

Nall v. Mal-Motels, Inc., 2013 U.S. App. LEXIS 15378 (11th Cir. Fla. July 29, 2013) reversed an order approving and enforcing a settlement agreement because it was neither (1) reached under the supervision of the Secretary of Labor, nor (2) was the district court presented with a proposed settlement which the court scrutinized for fairness.  The circuit opinion explained that Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982) applied equally to a current employee as to a former employee.  Lynn's Food recognized Congress' concern that "there are often great inequalities in bargaining power between employers and employees." Id. at 1352. The most cause for concern exists when the plaintiff employee is still working for the defendant employer.  But the court concluded that the rule of Lynn's Food should also apply to settlements between former employees and employers.

The agreement here was not made under the supervision of the Secretary of Labor, so it is valid only if the district court entered a "stipulated judgment" approving it. Lynn's Food, 679 F.2d at 1352-54. The court did enter a judgment approving the settlement, but it was not a stipulated one.  “[I]t takes two (or more) to stipulate, and a judgment to which one side objects is not a stipulated one.”  Here, plaintiff’s attorney objected to approval, contending that the terms were not fair and reasonable.

http://www.ca11.uscourts.gov/opinions/ops/201213528.pdf

ARBITRATIONS

LJL 33rd St. Assocs. v. Pitcairn Props., 2013 U.S. App. LEXIS 15625 (2d. Cir. July 31, 2013) reversed a district judge who vacated an arbitrator’s determination based on his conclusion that the arbitrator committed misconduct in violation of the Federal Arbitration Act, 9 U.S.C. § 10(a)(3), in excluding certain hearsay evidence offered by Pitcairn. That statute provides that a reviewing court may vacate an arbitration award “where the arbitrators were guilty of misconduct in . . . refusing to hear evidence pertinent and material to the controversy.”

The district court recognized that the excluded valuations were all hearsay. It noted, however, that in arbitration proceedings there is no need to comply with strict evidentiary rules.  “While it is indisputably correct that arbitrators are not bound by the rules of evidence and may consider hearsay, it does not follow that arbitrators are prohibited from excluding hearsay evidence, especially when (a) the evidence could be presented without reliance on hearsay and (b) its hearsay nature is unfairly prejudicial to the adversary. As to Pitcairn’s four exhibits, both conditions applied. So far as appears, there was no good reason for Pitcairn to rely on hearsay. It could have presented this evidence, unencumbered by the hearsay objection, merely by calling the makers of the exhibits — thus providing LJL with the opportunity to cross-examine these witnesses in an effort to undermine the probative value of the exhibits.”

http://www.ca2.uscourts.gov/decisions/

Similarly, in Doral Financial v. García-Vélez, the losing party sought before the First Circuit to vacate the resulting arbitration award in the latter matter for “misconduct in refusing to hear evidence pertinent and material to the controversy” under §10(a)(3) of the Federal Arbitration Act.  The First Circuit Court of Appeals rejected that challenge based on the argument that the arbitration tribunal engaged in misconduct by denying the issuance of pre-hearing and hearing subpoenas.  

"Every failure of an arbitrator to hear relevant evidence does not constitute misconduct requiring vacatur of an arbitrator's award. …  Vacatur is appropriate only when the exclusion of relevant evidence so affects the rights of a party that it may be said that he was deprived of a fair hearing."

Two from the Second

EXPERT TESTIMONY

Olesky v. Stapleton, 2013 Fla. App. LEXIS 11737 (Fla. 2d DCA July 26, 2013) reversed a defense verdict in a medical malpractice case where the judge prevented plaintiff from presenting the testimony of its expert based on Young-Chin v. City of Homestead, 597 So. 2d 879 (Fla. 3d DCA 1992), which  concluded that the expert had testified without a factual predicate.  Young-Chin thus stands in part for the proposition that expert witnesses must base their opinions on facts even if those facts are not introduced into evidence.  It does not mean that when a test was not performed, an expert cannot testify as to what the test would be expected to reveal.  In this failure-to-diagnose case, the trial court erred in failing to admit the expert’s opinion that an echocardiogram would have shown a cardiac condition if one had been performed.  

“The crux of a failure-to-diagnose case is nonfeasance in the determination of the cause of one’s illness when medical personnel should have been able to do so if certain diagnostic tools, including examinations, had been used.  To require testimony based only on tests actually performed would eviscerate the evidence necessary in such cases.”

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/July/July%2026,%202013/2D11-5147.pdf

ATTORNEY’S FEES / PREVAILING PARTY

Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 2013 Fla. App. LEXIS 11736 (Fla. 2d DCA July 26, 2013) reversed an award of attorney’s fees explaining that the general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.  But this does not apply without exception. A court may look behind a voluntary dismissal at the facts of the litigation "to determine whether a party was a “substantially” prevailing party.

In this case, the trial court inappropriately made its determination of the prevailing party by focusing on a procedural maneuver—the voluntary dismissal—without reference to the substance of what occurred in the litigation:  that claims were dismissed that had become moot for reasons unrelated to the merits of the litigation. In addition, the trial court made a determination of the prevailing party while the parties were still litigating their closely related claims in other proceedings. Thus the trial court made its determination of the prevailing party prematurely—before all of the information necessary to an informed determination of the issue was available.

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/July/July%2026,%202013/2D12-1177.pdf

Opinions from the Fourth

TRIP AND FALL

De Cruz-Haymer v. Festival Food Mkt., Inc., 2013 Fla. App. LEXIS 11591 (Fla. 4th DCA July 24, 2013) stating “A landowner owes a business invitee two independent duties: ‘(1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils.’  [Plaintiff] alleged a breach of both duties in her complaint. While the fact that a danger is obvious discharges a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain his premises.”

http://www.4dca.org/opinions/July%202013/07-24-13/4D11-3580.op.pdf

SETTLEMENTS / EVIDENCE

Jackson v. Albright, 2013 Fla. App. LEXIS 11587 (Fla. 4th DCA July 24, 2013) affirmed the trial court’s ruling that if the plaintiff tried to explain her sporadic medical care by claiming financial inability to afford treatment, the defense would be permitted to bring out the fact that she had recovered a large monetary settlement in an unrelated case less than a year before the accident. 

http://www.4dca.org/opinions/July%202013/07-24-13/4D10-5142.op.pdf

DISSOLUTION OF MARRIAGE / ATTORNEY’S FEES

Duncan-Osiyemi v. Osiyemi, 2013 Fla. App. LEXIS 11595 (Fla. 4th DCA July 24, 2013) reversing the denial of attorney’s fees to the wife based on Derrevere v. Derrevere, 899 So. 2d 1152 (Fla. 4th DCA 2005).  Derrevere involved a situation where the trial court equalized the financial situation of the parties, both as to assets and income.  In Derrevere, the court held that an award of fees to the wife was improper simply because the husband had “superior future income prospects.”  In this case, by contrast, the husband has a present ability to pay based on a regular and continuous income derived from a well-established medical practice.
http://www.4dca.org/opinions/July%202013/07-24-13/4D11-3375.op.pdf

DISSOLUTION OF MARRIAGE / SANCTIONS

Tobin v. Tobin, 2013 Fla. App. LEXIS 11599 (Fla. 4th DCA July 24, 2013) reversed an order striking the wife’s pleadings and entering a final judgment without affording her an opportunity to be heard at an evidentiary hearing and offer mitigating or extenuating evidence.

http://www.4dca.org/opinions/July%202013/07-24-13/4D12-2613.op.pdf

INJUNCTIONS

Agemy v. Health Bus. Solutions, LLC, 2013 Fla. App. LEXIS 11603 (Fla. 4th DCA July 24, 2013) explained that generally trial courts do not abuse their discretion in denying motions to modify where there is no change in circumstances and the enjoined party merely raises arguments it could have raised at the evidentiary hearing on the injunction.  But here the predecessor judge did not hold an evidentiary hearing, nor reach the merits of the requests for injunctions.

“Confronted with a pro se defendant who requested a continuance to obtain an attorney and disputed the merits of the motion, and a plaintiff who opposed any continuance, the court made statements that reasonably could have been taken as a compromise--there would be a temporary restraining order until Agemy hired an attorney, at which time he could move to dissolve the temporary injunction and the Appellee would be required to establish entitlement to a temporary injunction. The predecessor judge made similar statements at the hearing on the second motion for injunction. It is not apparent the successor judge was aware of all this when she ruled on the motion to dissolve.”

http://www.4dca.org/opinions/July%202013/07-24-13/4D13-18.op.pdf

FORECLOSURE / RULE 1.540

NAFH Nat'l Bank v. Aristizabal, 2013 Fla. App. LEXIS 11609 (Fla. Dist. Ct. App. 4th Dist. July 24, 2013) reversed an order granting a Rule 1.540 motion based on an allegation of fraud: that the copy of the promissory note attached to the complaint for foreclosure differed from the original note, explaining that only extrinsic fraud may constitute fraud on the court.

http://www.4dca.org/opinions/July%202013/07-24-13/4D13-83.op.pdf

New Posts During the Summer Heat

PROPOSALS FOR SETTLEMENT: When Giving In Doesn’t Cut It

United Auto. Ins. Co.v. John S. Virga, D.C., P.A., a/a/o Gaviria, --- So. 3d --- (Fla.  3d DCA July 24, 2013) is a case where the appellant kept trying to confess error, but the confession was not accepted by the circuit court appellate panel.  The Third District not only accepted it, but found that the circuit judges had departed from the essential requirements of law.  The court found that it was error to deny appellate attorney’s fees under the proposal for settlement statute, F.S. § 768.79.  The circuit court read the language in the statute “pursuant to a policy of liability insurance” in section 768.79(1) so as to require a defendant-insurer “to refer to the policy provision providing the substantive basis for fees.” However, this language relied upon by the circuit court merely refers to third-party actions where the insurer seeks to recover attorney’s fees based on an insurance policy provision requiring the insurer to provide a legal defense for its insured. Section 768.79(1) does not require a policy provision regarding attorney’s fees in actions where, as here, the insurer is the defendant, incurring attorney’s fees on its own behalf.

http://www.3dca.flcourts.org/Opinions/3D13-0558.pdf

DEPOSITIONS

Marshall v. Buttonwood Bay Condo. Ass’n, Inc., --- So. 3d --- (Fla.  3d DCA July 24, 2013) quashed a protective order barring the defendant from deposing the Association’s corporate representative simply because defendant had taken a deposition in another pending action.

http://www.3dca.flcourts.org/Opinions/3D13-0641.pdf

MIAMI ELECTIONS

Spence-Jones v. Dunn, --- So. 3d --- (Fla. 3d DCA July 24, 2013) affirmed the well-reasoned opinion of Judge Cueto that the commissioner was ineligible to seek a third term, even though she had been temporarily suspended.
http://www.3dca.flcourts.org/Opinions/3D13-1182.pdf

CONSTRUCTION WARRANTIES

Maronda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, 2013 Fla. LEXIS 1430 (Fla. July 11, 2013) held that the implied warranties of fitness and merchantability applied to the improvements that provide essential services to Homeowners Association and that F.S. § 553.835 does not apply to any causes of action that accrued before the effective date of the section.  That statute, applicable to “offsite improvements,” had attempted to overturn the decision of the district court by making it apply retroactively.  The supreme court refused to do so.

http://www.floridasupremecourt.org/decisions/2013/sc10-2292.pdf

Arsali v. Chase Home Fin. LLC, 2013 Fla. LEXIS 1428 (Fla. July 11, 2013) held that the inadequacy of the bid price does not need to be alleged and proved to set aside a judicial foreclosure sale.

http://www.floridasupremecourt.org/decisions/2013/sc12-600.pdf

BANKING

Regions Bank v. Maroone Chevrolet, L.L.C., 2013 Fla. App. LEXIS 11234 (Fla. 3d DCA July 17, 2013) was an appeal of a judgment entered in favor of Maroone after InterAmerican Car Rental, Inc. went out of business.  Maroone sued InterAmerican's depository bank and financing banks claiming Regions Bank accepted for deposit into InterAmerican's operating account a number of checks made payable to both InterAmerican and Maroone, but were not properly endorsed by Maroone.  The opinion does not address why the bank was liable in the first place when a number of prior checks were handled the same way, by InterAmerican typing in the name of Maroone and cashing them without Maroone’s endorsement, and Maroone never complained about this procedure until InterAmerican went under and Maroone did not receive payment.

http://www.3dca.flcourts.org/Opinions/3D10-1656.pdf

Wolfe v. Foreman, 2013 Fla. App. LEXIS 11230 (Fla. 3d DCA July 17, 2013) held that the litigation privilege, which protects actions taken in the course of and related to a judicial proceeding from civil liability, applies to causes of action for: (1) abuse of process; and (2) malicious prosecution. Here, the attorneys withdrew as soon as they realized the client had misrepresented the facts.

http://www.3dca.flcourts.org/Opinions/3D10-3055.pdf

Happy Fourth of July!

The decisions of my former colleagues have not been faring well lately with the Florida Supreme Court, although this week they were batting .500, which would be a good average for a batter. 

SCOPE OF REPLACEMENT COST INSURANCE COVERAGE

In Trinidad v. Fla. Peninsula Ins. Co., 2013 Fla. LEXIS 1379 (Fla. July 3, 2013), an opinion authored by Judge Rothenberg, the Third District was quashed for concluding that the insurance company was not required by either its replacement cost homeowner’s insurance policy or the applicable provisions of section 627.7011, Florida Statutes (2008), to pay its insured costs for a general contractor’s overhead and profit because the insured did not repair or contract to repair the damage to his home.  “Because section 627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer's obligation to make payment, the insurer was not authorized to withhold, pending actual repair, its payment for replacement costs, which is measured by what it would cost the insured to repair or replace the damaged structure on the same premises if the insured were to do so.”

http://www.floridasupremecourt.org/decisions/2013/sc11-1643.pdf

PIP / LIMITING REIMBURSEMENTS

Geico Gen. Ins. Co. v. Virtual Imaging Servs., 2013 Fla. LEXIS 1387 (Fla. July 3, 2013) answered the certified question that, with respect to PIP policies issued after January 1, 2008, an insurer may not limit reimburements based on the Medicare fee schedules identified in Section 627.736(5)(a), Florida Statutes, without providing notice in its policy of an election to use the medicare fee schedules as the basis for calculating reimbursements.  It approved Geico Indem. Co. v. Virtual Imaging Servs., Inc. ("Virtual I"), 79 So. 3d 55, 58 (Fla. 3d DCA 2011) (Rothenberg, J., dissenting).

http://www.floridasupremecourt.org/decisions/2013/sc12-905.pdf

NEW RULE / ELECTRONIC DEVICES

In Re: Amendments to the Florida Rules of Judicial Administration-Rule 2.451 (Use of Electronic Devices), --- So. 3d --- (Fla. July 3, 2013), approves a new rule effective October 1, 2013, defining, then directing how the presiding judge should/must control their use by jurors and others.  I believe the rule just reiterates the general practice throughout the state.

http://www.floridasupremecourt.org/decisions/2013/sc12-764.pdf

DISCOVERY OF CORPORATE FINANCIAL RECORDS

Omes v. Ultra Enterprises, Inc., 2013 Fla. App. LEXIS 10603 (Fla. 3d DCA July 3, 2013) (affirming the discovery ordered under F.S. § 607.1602 stating that the statutory inspection rights of shareholders are not tantamount to a free-ranging bill of discovery for corporate financial records, nor do they obligate a corporation to prepare a record that does not exist, but the procedure utilized here afforded Omes ample access to records for the purposes of valuation expressed in his requests for corporate information. Tellingly, the exhibits attached to the Complaint disclose that Omes' sweeping allegations against new management and the Ultra entities' operations involve much more than a simple request for corporate financial statements. Pre-filing discovery (to attempt to find or substantiate shareholder claims for a later lawsuit) is not part of the letter or spirit of the records inspection statutes.).

http://www.3dca.flcourts.org/Opinions/3D12-0814.pdf

FAILURE TO PROSECUTE

JP Morgan Home Fin. v. Valencia, 2013 Fla. App. LEXIS 10599 (Fla. 3d DCA July 3, 2013) reminding trial judges again that the Florida Supreme Court has held that under the 2006 amendments to Rule 1.420(e) any filing of record within the sixty-day grace period precludes dismissal. Chemrock Corp. v. Tampa Elec. Co., 71 So. 3d 786, 792 (Fla. 2011). The record reflects that JP Morgan made multiple filings within the relevant sixty-day period, including a showing of good cause.

http://www.3dca.flcourts.org/Opinions/3D12-2014.pdf

DISCRIMINATION AGAINST PREGNANT WOMEN

Blanco v. Monique & Me, 2013 Fla. App. LEXIS 10597 (Fla. 3d DCA July 3, 2013) affirmed the dismissal with prejudice of Blanco’s action against her employers under the Florida Civil Rights Act (FCRA), sections 760.01-11, 509.092, Florida Statutes (2010), after her termination, alleging employment discrimination based on pregnancy. “Because the State of Florida has not chosen to include a prohibition against pregnancy-based discrimination under the FCRA, we reluctantly affirm, following this Court's precedent in Delva v. Continental Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012), review granted,  [2] No. SC12-2315 (Fla. May 2, 2013).”

http://www.3dca.flcourts.org/Opinions/3D12-2887.pdf

SETTING FOR TRIAL / “AT ISSUE”

Lopez v. United States Bank, N.A., 2013 Fla. App. LEXIS 10598 (Fla. 3d DCA July 3, 2013) “On appeal, U.S. Bank properly confessed that the final judgment must be reversed as the case was not ‘at issue’ pursuant to Rule 1.440 until twenty days after service of Lopez's answer and affirmative defenses. Moreover, U.S. Bank had not waived its right to serve motions directed at Lopez's answer and affirmative defenses by filing a notice of trial. See Fla. R. Civ. P. 1.440(a).

Because ‘[f]ailure to adhere strictly to the mandates of Rule 1.440 is reversible error,’ Precision Constructors, Inc. v. Valtec Constr. Cor., 825 So. 2d 1062, 1063 (Fla. 3d DCA 2002), we reverse the final judgment in favor of U.S. Bank and remand for a new trial.

http://www.3dca.flcourts.org/Opinions/3D13-0458.pdf