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.

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