Virtual Legal Associate is pleased to provide a hyperlinked snapshot of select Florida civil appellate opinions. Cases are arranged by practice area so you can quickly identify those that may be of particular interest. Please subscribe to Fully Briefed to receive regular updates in your Inbox.
Igwe v. City of Miami (3rd DCA): Igwe appealed the trial court’s entry of final summary judgment in favor of the City of Miami, disposing of Igwe’s retaliatory discharge claim, which was brought pursuant to section 112.3187, Florida Statutes (2011) (“the Whistle-blower’s Act”), based on the trial court’s conclusion that Florida whistle-blower protection does not extend to individuals who report misconduct as a part of their job description. The 3rd DCA concluded that the trial court erred in its determination that Igwe was precluded from whistle-blower protection on the ground that he reported the City’s misconduct while carrying out his duties as the Independent Auditor General for the City, and reversed.
Vila v. Philip Morris (3rd DCA): In this Engle-progeny case, the jury returned a verdict in favor of the defendant, Philip Morris, finding that smoking cigarettes manufactured by Philip Morris was not a legal cause of the plaintiff’s laryngeal cancer. The trial court entered a final judgment in favor of Philip Morris and denied Vila’s motion for a new trial. The 3rd DCA affirmed with a discussion of the legal difference between asserting an “empty chair” defense and seeking an apportionment of fault under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
Appellate and Civil Procedure
Selton v. Nelson (5th DCA): Petitioners filed a petition seeking the issuance of a writ of certiorari to quash the trial court’s order compelling Petitioners to provide copies of all sworn witness statements to Respondents. The lower court had ordered production of the witness statements solely because they were sworn affidavits. No showing was made by Respondents to the trial court that any of the exceptions of rule 1.280(b) applied. The court compelled production of these witness statements without conducting an in camera inspection to determine if the statements at issue were actually work product and without finding that Respondents would be unable to secure the equivalent without undue hardship. The 5th DCA held that this constituted a departure from the essential requirements of the law which resulted in material injury to Petitioners for which there was no adequate remedy on final appeal. The order compelling Petitioners to produce the sworn witness statements was quashed and the case remanded.
American Eagle Veteran Contracting v. Eiland (5th DCA): American Eagle argued the trial court erred in entering summary judgment against it without ruling on its motion to compel arbitration. The 5th DCA agreed and reversed. American Eagle consistently insisted on its right to compel arbitration, and nothing in the record established a waiver of that right. Failing to rule on the motion to compel arbitration presented American Eagle with a Hobson’s choice—either defend against summary judgment and waive the right to arbitrate or accept final summary judgment against it.
Griffin v. ARX Holding Corp. (2d DCA): A former CFO appealed a final summary judgment, a judgment entered after jury trial, and several post-trial orders entered in favor of his former employer, ARX Holding Corporation, a company that operated several insurance businesses in Florida. The CFO sued ARX for compensation due under the terms of an employment contract. ARX contended that the contract was void, illegal, and unenforceable. ARX counterclaimed for payment due on a promissory note executed and delivered by the former CFO. The trial court entered a final summary judgment on the compensation claim. A jury found for ARX on its counterclaim. The court affirmed on all issues raised.
Keurst v. Keurst (2d DCA): Marital dissolution action involving the trial court’s equitable distribution decisions concerning the marital home and a beachfront condominium. The trial court erroneously awarded the former wife a “special equity” in these properties in violation of the equitable distribution statute and otherwise failed to follow the procedures set forth therein.
Berger v. Berger (4th DCA): The wife appealed the circuit court’s amended final judgment of dissolution of marriage arguing primarily that the court erred in not awarding her permanent alimony because: (1) even though the marriage was a long term marriage under section 61.08, Florida Statutes (2014), the court did not find that a rebuttable presumption existed in favor of permanent alimony; (2) the court’s findings were insufficient to rebut the presumption in favor of permanent alimony; and (3) permanent alimony is appropriate. The 4th DCA agreed with these arguments and reversed.
Wilkinson v. Wilkinson (5th DCA): The Former Husband appealed the final judgment distributing marital assets upon dissolving his marriage of over twenty years to the Former Wife. The Former Husband argued that the final judgment was invalid because, in adopting verbatim the Former Wife’s proposed final order, the trial court failed to exercise its independent judgment. He further argued that mathematical error along with significant inconsistencies between and within the trial transcript, the trial court’s oral findings, and its written order called the final judgment into question. Because there were inconsistencies and computational errors in the trial court’s oral and written rulings, the 5th DCA reversed the equitable distribution portion of the final judgment.
Saucier v. Nowak (5th DCA): The father appealed the trial court’s final judgment awarding majority timesharing of his child to the child’s mother. He argued that the trial court erred in: (1) failing to create a videoconferencing schedule in the written judgment; (2) failing to impute the correct income to the mother in calculating child support; (3) failing to address the contested issue of which parent will make medical decisions for the child; and (4) awarding majority timesharing to the mother. On cross-appeal, the mother argued that the trial court erred in awarding daily videoconferences between the father and the child and failing to assess child support arrears. The order was affirmed in part and reversed in part with discussion of each issue.
Florida Peninsula Ins. Co. v. Cespedes (2d DCA): The 2d DCA had previously reversed a partial summary judgment in favor of the appellee, Cespedes, which found her homeowner’s insurance policy covered sinkhole damage, but left open the amount of damages. Because it concluded that the policy unambiguously excluded sinkhole damage, it “was error for the trial court to deny Florida Peninsula’s motion for summary judgment,” and the court directed the trial court to enter a judgment in favor of the appellant, Florida Peninsula. The trial court, however, disregarded the mandate and refused to enter a judgment in favor of Florida Peninsula, apparently believing that the direction to enter a judgment for Florida Peninsula did not mean a “final” judgment and that it was empowered to let the litigation continue. This was error. The motion to enforce the mandate was granted and the case remanded, again, for entry of final judgment in favor of Florida Peninsula.
Prepared Ins. Co. v. Gal (4th DCA): The appellant, an insurance company, raised four issues for review: (1) whether a replacement cost homeowners’ policy requires an insurer to replace damaged property, as a matter of law, or whether the insurer may limit its liability and repair the property; (2) whether the trial court correctly determined the insured was entitled to judgment as a matter of law on the issue of liability because the insurer failed to pay a general contractor’s overhead and profit; (3) whether the trial court abused its discretion in striking all of the insurer’s witnesses because they were not general contractors; and finally, (4) whether the trial court abused its discretion when the court prohibited the insurer from cross-examining the insured’s expert as to matters that may have affected the witness’s opinion. The 4th DCA agreed with the insurer on all four issues. The insurer should have had an opportunity to argue that it could repair the damaged property and that hiring a general contractor was unnecessary. The insurer’s witnesses should not have been stricken, nor should the insurer have been prohibited from cross-examining the insured’s expert as to facts weighing on the credibility of his opinion. Any one of these errors would have required reversal for a new trial, though the court addressed all four.
Hyperlinks only are provided for these cases.
Branch Banking v. Taylor, et al. (1st DCA)
Powers v. HSBC Bank (2d DCA)
720 South Howard v. Gina Investments (2d DCA)
Collazo v. HSBC Bank (3rd DCA)
Dhanasar v. JP Morgan Chase (3rd DCA)
HSBC Bank v. Frenkel (3rd DCA)
BOA v. Siefker (4th DCA)
State Trust Realty v. Deutsche Bank (4th DCA)
Hall v. ALS VII RVC (5th DCA)
U.S. Bank v. Anthony (5th DCA)
*Please note that decisions are not final until any timely filed motions for rehearing are considered and disposed of by the appellate courts. Opinions are also subject to formal revision before publication in the Southern Reporter, 3rd Series.
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