Portales
v. Another Beautiful Corp., 2012 Fla. App. LEXIS 7614 (Fla. 3d DCA May 16,
2012) held that
the trial court did not err in not conducting another hearing on the defendant’s
renewed motion for summary judgment where it had already held a hearing and
denied it without prejudice to allow the parties to develop the record further.
The parties came back before the court two weeks later on a call of the
calendar, where the defendant orally renewed its motion for summary judgment,
The trial court instructed the defendant to submit a legal memoranda and neither
party objected to this procedure. After the submissions, the trial court
granted the motion and later heard arguments on plaintiff’s motion for
rehearing. By failing to object, plaintiff
waived the objection by acquiescence.
http://www.3dca.flcourts.org/Opinions/3D11-1903.pdf
PERSONAL JURISDICTION
Schwartzberg
v. Knobloch, 2012 Fla. App. LEXIS 7829 (Fla. 2d DCA May 16, 2012) reversed the circuit court’s denial of the
defendants’ motion to dismiss for lack of personal jurisdiction. The court explained that a plaintiff may establish personal jurisdiction of
an upstream, nonresident parent of a nursing home in three ways. First, the plaintiff
may show that the non-Florida parent company independently satisfies the test
for jurisdiction under Florida’s long-arm statutes. Second, the plaintiff may establish facts
that justify piercing the corporate veil. Third, the plaintiff may show that
the parent exercises sufficient control over the subsidiary to render the
subsidiary an agent or alter ego of the parent, thus establishing jurisdiction. In this case, plaintiff established
only that the defendants have indirect ownership interests in the nursing home’s
operating and management companies. But nothing about the defendants’ financial
interests in the nursing home was related to plaintiff’s claims, thus failing
to establish any connexity between those financial interests and the alleged
abuse from which her claims arose.
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/May/May%2016,%202012/2D11-2867.pdf
Nastasi
v. Thomas, 2012 Fla. App. LEXIS 7833 (Fla. 4th DCA May 16, 2012) held that
an order sending the parties to mediation is not a final order nor a nonfinal
appealable order.
http://www.4dca.org/opinions/May%202012/05-16-12/4D09-5063%20&%204D10-722.op.pdf
DUE PROCESS
Yue
Yan v. Byers, 2012 Fla. App. LEXIS 7837 (Fla. 4th DCA May 16, 2012)
reversed a jury verdict because the trial court abused its discretion in
denying the landlord’s motion for new trial based on the lack of reasonable
notice of the trial.
http://www.4dca.org/opinions/May%202012/05-16-12/4D10-3436.op.pdf
MOTION FOR RELIEF
FROM JUDGMENT
Acosta
v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 7838 (Fla. 4th DCA May
16, 2012) finding an abuse of discretion in an order denying, without an
evidentiary hearing, the defendant’s rule 1.540(b) motion for relief from a
final summary judgment of foreclosure. This did not
qualify as a “floating forum selection clause,” which is a clause which, rather
than designating a forum by immutable geographical place name, designates the
exclusive forum for all litigation regarding the agreement which contains the
clause by reference to mutable facts, namely, the location of the main office,
headquarters, principal office, or principal place of business of one of the
parties to the agreement, or that party's assigns. This did not eliminate
uncertainty but instead left it to the whim
of the defendants’ choice.
http://www.4dca.org/opinions/May%202012/05-16-12/4D11-3820.op.pdf
Lash
& Goldberg LLP v. Clarke, 2012 Fla. App. LEXIS 7851 (Fla. 4th DCA May 16,
2012) reversed an order denying a motion to compel arbitration where the
complaint’s allegations of concerted conduct between parties and non-parties to
the arbitration agreement permit the non-parties to insist on arbitration under
the agreement. Although a non-signatory to an arbitration agreement cannot
generally compel a signatory to submit to arbitration, the
one exception to the rule is that a
non-signatory can compel arbitration when the signatory to the contract
containing the arbitration clause alleges substantially interdependent and
concerted misconduct by both the non-signatory and one or more of the
signatories. This
exception is based on the doctrine of equitable estoppel. Here, although plaintiff
tried to spin the legal malpractice count as involving only her independent
attorney-client relationship, her
complaint generally tied those defendants to the others who were parties to the
arbitration agreement.
http://www.4dca.org/opinions/May%202012/05-16-12/4D11-4344.op.pdf
CONDITIONS PRECEDENT
Whistler’s
Park v. Fla. Ins. Guar., 2011 Fla. App. LEXIS 21345 (Fla. 5th DCA May 18, 2011) reversed summary judgment for the insurer relying on State Farm Mutual
Automobile Insurance Company v. Curran, 83 So. 3d 793, 803 (Fla. 5th DCA
2011), which held: “[T]o avoid liability under the insurance policy based on
non-compliance with the CME clause, it was essential that [the insurer] plead
and prove a material breach, which means a breach causing prejudice.” The court stated that most policies provide
that an insurer can demand multiple EUO's [Examinations Under Oath] and
unlimited records. “The breadth of this power, combined with the promise of
forfeiture if the insured is not compliant, has had predictable results, an
example of which can be seen in the recent decision of the Third District Court
of Appeal in De Leon v. Great American Assurance Co., 78 So. 3d 585, 591
(Fla. 3d DCA 2011). There, the court concluded that the insurer took advantage
of its contractual right to conduct an EUO by ‘unwarranted’ and ‘intrusive’ EUO
questioning that the court found to be impertinent, improper and irrelevant to
the claim.” In this case, insurer requested
an EUO, but never set a time or place for it. When the insurer raised the
failure to submit to an EUO as a defense, the offer to submit was renewed. The
insurer never pled or asserted prejudice.
Thus, dismissal without prejudice to allow belated compliance with the
EUO provision is the most prudent course of action.
http://www.5dca.org/Opinions/Opin2012/051412/5D10-2410.op.pdf
ATTORNEY’S FEES /
PUBLIC RECORDS REQUEST
Hewlings
v. Orange County, 2012 Fla. App. LEXIS 7986 (Fla. 5th DCA May 18, 2012)
held that it is the delay in complying with a records request, not
delay in responding to a records request that triggers entitlement to attorney’s fees under the statute.
http://www.5dca.org/Opinions/Opin2012/051412/5D11-2715.op.pdf
SUPERSEDEAS BOND
Wells
v. Circle Redmont, 2012 Fla. App. LEXIS 7988 (Fla. 5th DCA May 18, 2012)
reversed an order denying the release of personal property and permitting the
accumulation of storage fees
because when appellant posted a “good and
sufficient” cash supersedeas bond in an amount which represented the judgment
amount and statutory interest, including amounts sufficient to cover any
additional storage fees, appellant became entitled to possession of the personal
property and to relief from the accumulation of storage fees.
LACHES (It actually exists!)
Trevett
v. Walker, 2012 Fla. App. LEXIS 8132 (Fla. 3d DCA May 23, 2012) reviewed the
elements to establish the affirmative defense of laches and applied the
doctrine to a boundary dispute.
Gonzalez
v. NAFH Nat'l Bank, 2012 Fla. App. LEXIS 8140 (Fla. 3d DCA May 23, 2012)
explained that Florida Rule of Civil Procedure 1.140(f) allows the court to
strike from any pleading at any time any redundant, immaterial, impertinent, or
scandalous matter, but an affirmative defense may not be stricken merely
because it appears to a judge that the defendant may be unable to produce
evidence at trial to sustain such a defense.
Here NAFH Bank challenged only the Gonzalez’s purported lack of evidence
to support their defense and then provided non-record evidence allegedly
demonstrating that they could not prevail on this defense. This was not an
appropriate basis for striking a defense.
But the appellate court then found the defense legally insufficient.
No comments:
Post a Comment