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.

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