Releases 01/27/12

ARBITRATION

Lepisto v. Senior Lifestyle Newport Ltd. P'ship,  78 So. 3d 89, 2012 Fla. App. LEXIS 979 (Fla. 4th DCA 2012) reversed an order compelling arbitration where the wife enrolled her husband into an assisted living facility and signed the agreement containing the arbitration clause, where it was clear from the layout of the agreement that she was signing only as the Financially Responsible Party, not as the Resident’s Representative.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-16.op.pdf

DEFAULT

In Baleanu v. Sandulescu, 78 So. 3d 98, 2012 Fla. App. LEXIS 976 (Fla. 4th DCA 2012), the court held that where an individual defendant and a corporate defendant are sued, and on the day of trial, the individual appears pro se for himself and for the corporate defendant, it was error for the court to enter a default against the corporate defendant without prior notice, but the final judgment against the individual defendant was affirmed for lack of a transcript.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-2736.op.pdf

MOTION FOR REHEARING

In Brander v. Stoddard, 78 So. 3d 101, 2012 Fla. App. LEXIS 982 (Fla. 4th DCA 2012), the court reversed a dismissal for failure to serve indispensable parties within 120 days of filing the complaint under Fla. R. Civ. P. 1.070(j).  At the hearing, plaintiff’s counsel mistakenly advised the trial court that the indispensable parties had not been served.  Plaintiff moved for rehearing, claiming that the parties had indeed been served.  The motion was summarily denied.  “The invited error rule is inapplicable because [plaintiff] brought the mistake to the trial court’s attention in a motion for rehearing, rather than raising the issue for the first time on appeal.”

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-4667.op.pdf

MOTION FOR RELIEF FROM JUDGMENT

Lake Charleston Homeowners Ass'n v. Haswell, 77 So. 3d 922, 2012 Fla. App. LEXIS 984 (Fla. 4th DCA 2012) reversed an order granting a motion for relief from judgment pursuant to Fla. R. Civ. P. 1.540(b)(3), based on the fact that the association misnamed itself in the affidavit in support of its motion for summary judgment.  The trial court found that there was no intent to defraud, but it had been simply an error.  The trial court thus misapplied its findings of fact to the law, which required fraud, misrepresentation or other misconduct.

http://www.4dca.org/opinions/Jan%202012/01-25-12/4D10-4974.op.pdf

SETTLEMENTS

Trout v. Apicella, 78 So. 3d 681, 2012 Fla. App. LEXIS 1049 (Fla. 5th DCA 2012) is another example of an insurance company trying ineffectively to settle a case for the policy limits in an accident involving serious injuries.  The court reasoned that the offer by plaintiff's attorney was an offer for a unilateral contract that required performance by Geico.  "Instead of performing, however, Geico proffered a release that did not just fail to meet the terms of [plaintiff's] offer, it blatantly failed."  Simply stating that the carrier did not consider the release to be a document creating new terms or conditions did not make it so.  Thus, there was no settlement and summary judgment for Geico was improperly granted.

http://www.5dca.org/Opinions/Opin2012/012312/5D11-592.op.pdf