Sunday, March 17, 2013

New Decisions from Florida Appellate Courts


Deutsche Bank Nat'l Trust Co. v. Santiago, 2013 Fla. App. LEXIS 3936 (Fla. 3d DCA Mar. 13, 2013) reversed the trial judge for dismissing sua sponte during the testimony of the first witness during a bench trial.  Under Rule 1.420(b), an involuntary dismissal is only permissible after the party seeking affirmative relief has completed its presentation of evidence.

Steiner Transocean Ltd. v. Efremova, 2013 Fla. App. LEXIS 3945 (Fla. 3d DCA Mar. 13, 2013) reversed the denial of a motion to dismiss based on a mandatory forum selection clause based on its reasoning that it was limited to the four corners of the complaint.  Plaintiff filed a Jones Act complaint and the judge that had not attached a copy of the employment contract containing the forum selection clause.  The Third District agreed that, as a general rule, trial court is limited to the four corners of the complaint and any attachments, but listed the exceptions: challenges to (1) subject matter jurisdiction; (2) personal jurisdiction; (3) inconvenient forum; (4) improper venue.  “A motion to dismiss based on a contractual forum selection clause is similar, in many respects, to a motion to dismiss for improper venue. We can discern no reason for treating them differently for purposes of applying the exception to the ‘four corners’ rule.”


Philip Morris USA, Inc. v. Douglas, 2013 Fla. LEXIS 440 (Fla. March 14, 2013) held that accepting as res judicata the eight Phase I Findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) did not violate the Engle defendants’ due process rights.


Tiara Condo. Ass'n v. Marsh & McLennan Cos., 2013 Fla. LEXIS 343 (Fla. Mar. 7, 2013) held, in a five-to-two decision, that the economic loss rule is limited to products liability cases.


Nicoll v. Magical Cruise Co., 2013 Fla. App. LEXIS 4194 (Fla. 5th DCA March 15, 2013) explained that in maritime cases, a plaintiff is not entitled to attorney’s fees, even where a state statute establishes such entitlement.  Here the statute establishing entitlement, F.S. § 768.79 creates a substantive right, but maritime cases are governed by federal admiralty law and under federal admiralty law, the prevailing party is not entitled to fees absent a federal statute or a contract providing for such fees.  The court noted that its decision was in conflict with Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992), but that decision was recently called into question in Royal Caribbean Cruises, Ltd. v. Cox, 2012 Fla. App. LEXIS 13918 (Fla. 3d DCA Aug. 22, 2012)


Band v. Libby, 2013 Fla. App. LEXIS 4055 (Fla. 2d DCA March 13, 2013) held that a party may waive a claim for breach of fiduciary duty.


State Farm Mut. Auto. Ins. Co. v. Thorne, 2013 Fla. App. LEXIS 3749 (Fla. 2d DCA Mar. 8, 2013) reversed a verdict where the trial court limited the testimony of an expert witness whose identity had been disclosed 69 days before trial, where the plaintiff had been provided with a summary of his opinion, his full report, and had taken his deposition.  Under Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), there was no prejudice (“surprise in fact”).  The error was compounded when the trial court allowed plaintiff’s counsel to argue about the lack of evidence on the issue, saying “it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented.”


Deutsche Bank Nat'l Trust Co. v. Prevratil, 2013 Fla. App. LEXIS 3751 (Fla. 2d DCA Mar. 8, 2013) quashed an order that required Deutsche Bank, not the loan servicer, to verify the complaint pursuant to Rule 1.110(b).  In granting the motion to dismiss, the trial court imposed a verification requirement that Rule 1.110(b) did not.


  1. i just want to know that case about smoking. please help me out.

    1. I provide a hyperlink to all the cases. Just click on the link, and you can read the opinion. The top link is to Lexis, so if you don't subscribe, use the link at the bottom. That takes to the court's webpage where you can read it for free.