CONDOMINIUMS
/ CLASS ACTIONS
Castellanos
v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 13056 (Fla. 3d DCA Aug. 8,
2012) reiterates the Association’s power to assign a post-loss insurance claim
to the owners, even though a provision in the condominium documents the unit
owners irrevocably granted the Association a power of attorney to compromise
claims. The court also reversed the
trial court for decertifying the class.
A dissent by Judge Shepherd thought the Association could not effect
such an assignment.
CLASS
ACTIONS / DEPOSITING RENT INTO COURT REGISTRY
In Friedman
v. Benenson Capital Co., 2007 U.S. Dist. LEXIS 37377 (S.D. Fla. Apr. 27, 2007),
Judge Hurley ruled that only the named plaintiffs could deposit the disputed
rental payments into the court registry pursuant to F.S. § 718.401(1)(d)(1),
not the putative class members where the class had not been certified.
NURSING HOME ARBITRATION
LTCSP-St. Petersburg, LLC v. Robinson,
--- So. 3d --- (Fla. 2d DCA August 10, 2012) involved another nursing home with
an arbitration agreement. The court
reversed that part of the order that refused to enforce the arbitration agreement
with respect to the first admission to the nursing home, but affirmed as to all
subsequent admissions because the home did not comply with its own contractual
requirements. The court also applied Shotts
v. OP Winter Haven, Inc., 86 So. 3d 456 (Fla. 2011) to provisions limiting
liability but added that they could be severed from the agreement.
Entrekin v. Internal Med. Assocs. of Dothan, 2012 U.S.
App. LEXIS 16655 (11th Cir. Ala. Aug. 9, 2012) dealt with Alabama
law but is nevertheless instructive in dealing with the issue of whether a decedent’s agreement with a
nursing home to arbitrate any claims that she or her executor may have in the
future against the nursing home bind her executor to arbitrate a wrongful death
claim against the nursing home. The
court first dealt with the issue of what law to apply and stated: “Because ‘arbitration is a matter of
contract,’ Rent-A-Center, W., Inc. v. Jackson, 30 S.Ct. 2772, 2776
(2010), determining whether a claim falls within the scope of an arbitration
agreement ‘is generally a matter of state law,’ Stolt-Nielsen S.A. v.
AnimalFeeds Int'l Corp., 130 S.Ct. 1758, 1773 (2010). As a result, when
considering whether the arbitration agreement at issue in this case requires
the parties to arbitrate the executor’s wrongful death claim, we ‘apply
ordinary state-law principles that govern the formation of contracts.’ First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924
(1995).” It thus decided to apply
Alabama law. Next the court refused to
apply a “delegation clause” which made the arbitrator, not the courts, the
authority to resolve any dispute relating to the dispute resolution agreement,
because the argument was never made to the district court. Finally, it interpreted Alabama law to state
that a decedent can bind the executors of her estate to arbitrate a wrongful
death action, reversing the district court’s order to the contrary.
ALIMONY
Walters
v. Walters, 2012 Fla. App. LEXIS 13207 (Fla. 4th DCA Aug. 8, 2012) affirmed the trial court’s denial of
retroactive modification of alimony because the former husband unduly delayed
his notice to set the cause for trial.
Although retroactivity is the rule, rather than the exception, the
standard of review is abuse of discretion and here there was no such abuse
where the former husband’s earnings were sufficient to cover the alimony. The court properly found him in contempt of
court where he unilaterally decided not to pay the full amount of alimony due
to the former wife. The trial court
erred, however, in ruling that the wife’s needs had been established at the
time of the dissolution, instead of reassessing them upon the filing of the
petition for modification.
SERVICE
OF PROCESS
Nirk
v. Bank of Am., N.A., 2012 Fla. App. LEXIS 13206 (Fla. 4th DCA Aug. 8, 2012)
held that under F.S. § 48.031(5), a
process server must place the required notations on only the copy of the
summons, and not on the copy of the complaint.
Prior opinions had created confusion.
ATTORNEY’S
FEES / DISCOVERY OF BILLING RECORDS
Estilien
v. Dyda, 2012 Fla. App. LEXIS 13205 (Fla. Dist. Ct. App. 4th Dist. Aug. 8,
2012) quashed an order granting discovery of the defense counsel’s billing
records in this personal injury case, where plaintiff was entitled to fees
pursuant to a rejected proposal for settlement under F.S. § 768.79. Plaintiff’s counsel alleged he needed the
information to reconstruct how much time he had spent on the case because he
worked on a contingency fee basis and did not keep time records. The order had allowed defendant to redact any
privileged information. The district court
nevertheless granted certiorari, stating that counsel’s failure to keep his own
billing records was an insufficient basis for ordering production.
PERSONAL
INJURY / NEW TRIAL / EVIDENCE
Rubrecht v. Cone Distributing, Inc., ---
So. 3d --- (Fla. 5th DCA August 10, 2012) granted a new trial where the jury
awarded $20,000 in damages and the plaintiff had presented evidence of $414,554
in past medical expenses, based on evidentiary rulings. First, the trial court erred in allowing the
defense to impeach the plaintiff with the contents of an offer of settlement
letter his attorney had presented for an auto accident that occurred about a
month before the one in issue. The
opinion rejected the argument that the interrogation was not within the limitations
of F.S. § 90.408, because the settlement negotiations in the first case did not
involve the claim in the second case. A
key issue at trial was whether plaintiff’s claim for damages could be apportion
between the two accidents. It also made
no difference that the actual letter was not admitted in evidence. The trial court also erred in taking judicial
notice of statements made in an opinion published by a district court in
connection with the treating physician’s divorce, that the physician’s fees
came from litigation proceeds pursuant to letters of protection from the
patients’ personal injury attorneys. The
trial court then read the quote to the jury at the close of the evidence. The statements in the appellate opinion were
hearsay. “An appellate opinion is a
writing by a judge that derives its substance from many sources. A statement made in an opinion maybe true
only as far as evidence appears in that case; it may be an interpretation of
evidence. A statement made in an
appellate opinion cannot substitute for proof of the fact.”
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