Tuesday, July 30, 2013

Two from the Second


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.”


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.

Monday, July 29, 2013

Opinions from the Fourth

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.”

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. 

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.

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.

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.”
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.

Wednesday, July 24, 2013

New Posts During the Summer Heat


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.

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.
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.

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.
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.
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.

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.

Thursday, July 4, 2013

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. 


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.”


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).


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.


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.).


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.


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).”

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.