Saturday, March 30, 2013

More Opinions


Kopel v. Kopel, 2013 Fla. App. LEXIS 4512 (Fla. 3d DCA  Mar. 20, 2013) reversed a judgment in a commercial family dispute because there was no relation back for a suit filed in 1994, a second amendment to the complaint in 1997, and a trial in 2008, where, for the first time and over objection, plaintiff claimed that various conversations were not settlement discussions but were independent oral agreement to pay him $5 million in exchange for his interest in the business.  The court explained that “for an amended pleading to survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations.  See Fla. R. Civ. P. 1.190(c). To relate back, the pleading must not state a new cause of action.”  Here the Fifth Amended complaint added a new cause of action that had not been raised until 14 years after the original pleading. The alleged oral promise to pay Leon $5 million was new, different, and distinct from that which was originally pled. 


Fla. Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 2013 Fla. App. LEXIS 4441 (Fla. 3d DCA Mar. 20, 2013) explained that once the appellate court determined in a prior appeal that a party is entitled to fees pursuant to a proposal for settlement, that becomes the law of the case and the trial court is not at liberty to revisit the issue.


Mauna Loa Invs., LLC v. Santiago, 2013 Fla. App. LEXIS 4439 (Fla. 3d DCA Mar. 20, 2013) reversed the denial of a motion to set aside a default final judgment after a jury trial on damages because the defendant did not own the property where plaintiff fell at the time of the incident.  This meant that the complaint failed to state a cause of action.  Under these circumstances, the motion to set aside a default judgment required no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.  The trial court has no discretion, but is obligated to vacate the default judgment.


Bank of N.Y. Mellon v. Reyes, 2013 Fla. App. LEXIS 4435 (Fla. 3d DCA Mar. 20, 2013) concluded that the default final judgment was void where the mortgagors filed a counterclaim to the complaint for foreclosure alleging that the bank breached its contract by seeking to foreclose after it had reached a loan modification agreement with them. Because the counterclaim alleged no more than a breach of contract, no rescission, not even rescission of the mortgage agreement and the mortgage itself, could be granted. "[A] judgment which grants relief wholly outside the pleadings is void.”

Wells Fargo Bank, N.A. v. Aristo Mortgage, LLC, 2013 Fla. App. LEXIS 4442 (Fla. 3d DCA Mar. 20, 2013) reversed when counsel for Aristo led the trial judge into error. Relying on a motion that misrepresented the undisputed priorities and a notice of hearing that contained an erroneous hearing date on its face, Aristo obtained that which it was not entitled  to obtain—the surplus proceeds.


DK Arena v. EB Acquisitions, 2013 Fla. App. LEXIS 5023 (Fla. March 28, 2013) reiterated the holding in Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So. 2d 777, 779 (Fla. 1966), which unequivocally rejected a promissory estoppel exception to Florida’s Statute of Frauds.

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.