Tipsy Coachman and Equine Activities: Snapshot of Florida Civil Appellate Opinions July 11-15, 2016

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.

Highlighted Cases

Miller v. Florida Ins. Guaranty Ass. (2d DCA): In a sinkhole insurance case, the court held that the undisputed facts showed that FIGA did not deny Miller’s claim by affirmative action, and absent some evidence that FIGA denied Miller’s claim by affirmative action, Miller was not entitled to attorney’s fees under §631.70. Accordingly, there was ample basis in the record to affirm the trial court’s denial of fees even though it based its denial on two statutory misinterpretations. To hold otherwise would have essentially allowed a trial court to rewrite a statute, by default, and ironically, thereby impose a result contrary to its intent. In accord with the tipsy coachman doctrine, the court found that there was no reversible error in the trial court’s denial of Miller’s motion to tax attorney’s fees.

Germer v. The Churchill Downs Mgmt (3rd DCA): The court affirmed a summary judgment entered by the trial court in favor of the defendants because Florida’s Equine Activities Liability Act immunized the defendants for the injuries occasioned by a horse biting the plaintiff while he was engaged in an equine activity. The plaintiff was a former licensed jockey and while he was en route through a barn to see his roommate’s horse, another horse named Forever Happy jumped out of his stall and bit plaintiff’s chest.

Appellate and Civil Procedure

Annex Indust. Park v. Corner Land (3rd DCA): Annex and Corner Land own adjacent commercial parcels and for several years, Annex, with the permission of Corner Land, used a portion of Corner Land’s property for vehicular access to Annex’s heavy-equipment storage business. The court agreed that a temporary injunction may be entered to protect a party’s private property rights when, as here, the temporary injunction prevents an alleged ongoing trespass. The trial court does not abuse its discretion by entering the injunction even if the injunction effectively disrupts, rather than preserves, the status quo.

Medley Plaza v. The Rama Fund (3rd DCA): The court dismissed the case for lack of jurisdiction because the notice of appeal was filed outside the jurisdictional time limits established by Florida Rule of Appellate Procedure 9.110(b). Medley Plaza argued that Florida Rule of Judicial Administration 2.514(b) provides an additional five days to file the notice of appeal. Rule 2.514(b) reads “[w]hen a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire.” The additional five days provided by rule 2.514(b) does not operate to extend the time to file a notice of appeal.

Contract/Landlord Tenant

Lucas Games v. Morris AR (4th DCA): Commercial tenants appealed an order granting partial final summary judgment in favor of the landlord in a lease dispute. The court found that the trial court erred in granting summary judgment against the tenants because the landlord failed to rebut the tenants’ affirmative defense of illegality of contract. The parties did not dispute that the amendment to section 849.16 rendered the types of games operated by the tenants at Vegas Fun illegal. Although the tenants could have retrofitted or changed the games to comply with section 849.161 by converting the game machines to coin-operated machines, the subject lease directly prohibited the use of coin-operated games. The restrictiveness of the lease prevented the defendants from both operating legally and complying with the lease.

Victory Christian World Ministries v. MJP Distribution (4th DCA): The liquidated damages clauses at issue here provided that, if Buyer failed to perform, Seller was entitled to retain all deposits that had been made. If Seller failed to perform, Buyer was entitled only to the return of the deposits. The Seller was ready, willing, and able to perform. As such, any lack of mutuality of obligation was cured. Therefore, although Seller would not have been able to enforce the provision of the liquidated damages clause requiring only the return of the deposits had it been the breaching party, it may enforce the contractual stipulation allowing it to keep the deposits when it is not at fault. The court affirmed the trial court’s judgment enforcing the liquidated damages clause of the contract.

Family Law

Slaton v. Slaton (2d DCA): The Mother appealed the trial court’s nonfinal order that temporarily transferred primary residential custody of her two children to the Father. The court affirmed the trial court’s order to the extent that it gives temporary primary residential custody of the parties’ children to the Father. However, because the order does not provide the Mother with any guidance as to the steps she must take if she wishes to reestablish primary residential custody and because the order does not include a timesharing schedule, it reversed and remanded for further proceedings.

Sherlock v. Sherlock (4th DCA): The court affirmed a final judgment of dissolution of marriage, denying the former husband’s request for permanent, periodic alimony. The husband complains that the trial court’s ruling would require him to liquidate assets, but Florida law suggests that a spouse should be required to change the character of an underperforming investment asset and the husband “chooses not to seek income from many of his assets.” For example, the husband chose to keep empty lots worth $300,000 that produce no income. It would be unfair to require the wife, whose net worth is about half of the husband’s net worth, to use her postdissolution income to support the husband simply because he chooses not to use his assets in a manner that would produce the income necessary to support him. The court could not say that no reasonable person would have denied the husband’s request for alimony.

Insurance

Florida Wellness & Rehab. v. Allstate (3rd DCA): Five county court orders contained the following certified question: Does an insurance policy, which contains a “limits of liability” provision that states, “Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle NoFault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules,” clearly and unambiguously elect the section 627.736(5)(a)2, Florida Statutes (2008), methodology of reimbursement as required by the Florida Supreme Court in GEICO v. Virtual Imaging Servs., Inc., 141 So. 3d 147 (Fla. 2013)? The court answered the question in the affirmative, affirmed the county court orders, and certified conflict with the Fourth District’s opinion in Orthopedic Specialists v. Allstate Insurance Company, 177 So. 3d 19 (Fla. 4th DCA 2015).

Personal Injury

Diaz v. Home Depot (3rd DCA): The plaintiff sued Home Depot alleging she was injured in one of its stores when a fire extinguisher fell from the wall above her and hit her in the neck and shoulder. Home Depot filed a motion to dismiss the complaint for fraud on the court. After an evidentiary hearing, the trial court granted Home Depot’s motion to dismiss, finding plaintiff provided false and misleading testimony and that the evidence shows “clearly and convincingly” that she “has demonstrated a willingness to give false testimony under oath and has evinced a total and flagrant disregard for the integrity of the civil justice system;” has “engaged in a pattern of fraudulent misconduct designed to improperly bolster her claims and compromise [Home Depot’s] defenses;” leaving the court in “no doubt that [Diaz’s] conduct is intentional and designed for improper purposes.” The court concluded that all of the trial court’s findings were amply supported by the record, and found no abuse of discretion in its decision to dismiss the complaint with prejudice.

Taival v. Barrett (5th DCA): In this medical malpractice case, defendant appealed the non-final order denying her motion for summary judgment on the issue of sovereign immunity. See §768.28(9), Fla. Stat. (2012). Dr. Taival asserts that this court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x), because the issue of her immunity from suit turns on a question of law; however, an order that simply denies the defendant’s motion for summary judgment, but does not determine, as a matter of law, that summary judgment is improper, is not appealable. The court dismissed the appeal for lack of jurisdiction.

Klemish v. Villacastin (5th DCA): Plaintiffs appealed the trial court’s non-final order compelling arbitration of their medical malpractice claims. Determining that the arbitration agreement entered into by the parties was void because it violates public policy, the court reversed. The court certified conflict with the decision of the Second DCA in Santiago v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014).

Foreclosure

Hyperlinks only are provided for these cases.

Collins Asset Group v. Property Asset Mgmt (1st DCA)

Bank of America v. Kipps Colony II Condo Ass. (2d DCA)

Sanabria v. Pennymac Mortgage (2d DCA)

The Bank of New York Mellon v. Ruiz (2d DCA)

Aluia v. Dyck-O’Neal (2d DCA)

U.S. Bank v. Rodriguez (3rd DCA)

Marsden v. BAC Home Loans Servicing (4th DCA)

Wells Fargo v. Williamson (4th DCA)

Craven-Lazarus v. Pennymac Holdings (4th DCA)

Cruz v. Citimortgage (4th DCA)

Dyck-O’Neal v. Rojas (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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

4th of July Snapshot of Florida Civil Appellate Opinions: July 4-8, 2016

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.

Appellate and Civil Procedure

Suntrust Bank v. Arrow Energy (4th DCA): Suntrust appealed an order denying its motion for relief from a final judgment of garnishment, contending that the final judgment was void to the extent that it included postjudgment interest on the amount of funds held by Suntrust. The court agreed with Suntrust that the judgment was void because there is no authority to assess interest to be paid by the garnishee.

Family Law

Holaway v. Holaway (5th DCA): Former husband had ownership interests in three corporations, each of which operated various restaurants in Florida. The court affirmed on all issues except for those related to child support, equitable distribution, property valuation dates, and the award of post-valuation profits from the former husband’s business interests.

HOA/Condo

Winding Wood Condo VI Ass. v. Walls (2d DCA) affirmed an order denying a motion to set aside a default, but reversed the entry of the final judgment to the extent it awarded money damages and attorney’s fees in favor of Walls and remanded for a jury trial on the issue of damages and reconsideration of the award of attorney’s fees. Walls had filed a complaint asserting four claims: breach of contract; negligence and breach of fiduciary duty; breach of the common law obligation of good faith and fair dealing; and injunctive relief, all arising out of alleged water intrusion into Walls’ condominium unit.

Le Scampi Condo Ass. v. Hall (2d DCA) reversed a summary judgment in which the trial court ruled that portions of the Rules and Regulations were unenforceable because they conflicted with the Declarations of Condominium. Le Scampi had sought declaratory and injunctive relief against the condominium unit owners, asserting that they were leasing their unit for less than one month and without the Association’s prior approval in violation of the Association’s Rules and Regulations.

Udick v. Harbor Hills (5th DCA) reversed an award of fees where prior to filing suit, Udick requested mediation pursuant to the terms of §720.311, Fla. Stats. (2013). Appellees failed or refused to participate in the mediation process, and were therefore not entitled to recover attorney’s fees or costs. See §720.311(2)(b).

Insurance

Citizens v. Stieben (2d DCA) reversed a judgment for damages to the extent that it was payable directly to the homeowners without regard to the policy’s loss settlement provision, under which Citizens only had the obligation to pay for sinkhole repairs as the work was performed under a subsurface repair contract.

Negligence/Tort

Bery v. Fahel (3rd DCA) affirmed a trial court order awarding attorney’s fees and costs to the defendant after the defendant successfully challenged the plaintiff’s compliance with Florida’s presuit investigatory requirements under §766.206, Fla. Stats. (2011), and obtained dismissal of the plaintiff’s claim for medical malpractice.

Foreclosure

Hyperlinks only are provided for these cases.

Stoltz v. Aurora Loan Services (2d DCA)

Wells Fargo v. Russell (3rd DCA)

Campbell v. Wells Fargo (4th DCA)

Citimortgage v. Hoskinson (5th DCA)

Alaoui v. Westfield Lakes (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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

“Stand Your Ground” in Civil Cases: Snapshot of Florida Civil Appellate Opinions June 27 – July 1, 2016

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.

Highlighted Cases

Patel v. Kumar (2d DCA) granted a petition for a writ of prohibition to prevent the circuit court from proceeding in a civil action against a defendant claiming immunity from the suit under Florida’s so-called Stand Your Ground law, §776.032(1), Fla. Stats. (2008). The court held that someone who has successfully demonstrated that he has such immunity in a criminal proceeding need not prove it again in a subsequent civil suit. The litigants had been engaged in a bar fight, in which one suffered a permanent injury to his eye. The court certified conflict with the decision of the Third DCA in Professional Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524 (Fla. 3d DCA 2014).

Appellate and Civil Procedure

Hall v. Clay County Auto Parts (1st DCA) reversed in part an award of costs for the use of six expert witnesses where the only evidence regarding the reasonableness of such costs came from an attorney-witness who was not a qualified expert in the same fields.

Parrish v. RL Regi Financial (2d DCA) addressed a petition for a writ of certiorari seeking to quash an order imposing sanctions against an attorney and his firm. The court treated the petition as an appeal, and reversed the order insofar as it imposed nonmonetary sanctions, including a direction that the attorney self-report a violation to The Florida Bar. Because the monetary sanctions were not ripe for review, it dismissed that portion of the appeal.

Watson v. Stewart Tilghman Fox & Bianchi, P.A. (4th DCA) reversed as to one portion of a fee award and clarified the law regarding when a trial court, on its own initiative, may order a party to pay attorney’s fees pursuant to §57.105. The court held that the trial court does not abuse its discretion in ordering a party to pay attorney’s fees pursuant to §57.105(1), on the court’s own initiative, when a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of the rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party’s defective motion.

HCA Health Services v. Byers-Mcpheeters (4th DCA) granted a petition for certiorari relief where the trial court departed from the essential requirements of the law in allowing Respondents to plead a punitive damages claim without first determining whether the heightened requirements of §768.72(3), which established a heightened standard for imposing punitive damages on an employer rather than adopting the common law rules of agency and vicarious liability, were met.

Dr. Ashraf v. Adventist Health System (5th DCA) affirmed a dismissal of a complaint for defamation where the two-year statute of limitations under the single publication rule barred Dr. Ashraf’s claim. The court also certified a question of great public importance to the Florida Supreme Court: Does the single publication rule bar any defamation claim based upon information reported to the NPDB (National Practitioner Data Bank) if not commenced within two years of the date of the report?

Contract/Business Law

HCA Health Services v. Cyberknife Center (4th DCA) reversed an amended final judgment awarding the plaintiff/appellee $1,842,392 in damages for lost revenue on CyberKnife’s claim for breach of contract, concluding that lost revenue was an improper measure of damages, and that appellee offered no proof at trial regarding the correct measure of damages.

Family Law

Freiha v. Freiha (1st DCA) determined the absence of a parenting plan which included a timesharing schedule amounted to fundamental error, and reversed the final judgment for the trial court to enter such a timesharing schedule and to recalculate the former husband’s child support obligation in consideration of the timesharing schedule. It also reversed the life insurance maintenance requirement because, although the trial court did not abuse its discretion in requiring the former husband to maintain a life insurance policy to secure the alimony and child support awarded to the former wife, the amount of coverage which the former husband was ordered to maintain lacked a sufficient evidentiary basis because the record contained no evidence of the availability or cost of the insurance or the former husband’s ability to pay that unknown cost.

Dunkel v. Dunkel (2d DCA) struck an award of temporary alimony and remanded for further proceedings in that regard, but otherwise affirmed without discussion the former husband’s challenges to the finding that he dissipated marital assets, the amount of marital cash determined to be available for distribution, the denial of his motions for disqualification, and the award of continued temporary alimony.

Smith v. Smith (4th DCA) held that because of its implications on the fundamental right to marry and its potential impact on wards, the interpretation of §744.3215(2)(a), Fla. Stats., is a question of great public importance, and certified the following question: Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?

Pachter v. Pachter (4th DCA) reversed a final order of dissolution of marriage with regard to: (1) the trial court’s double imposition of income tax consequences; and (2) the order requiring the former husband to pay all of the expenses of the marital residence pending its sale, without reimbursement for one-half of those expenses from the sale proceeds.

Fischer v. Fischer (4th DCA) agreed with the former husband’s arguments that: (1) the trial court violated the former husband’s due process rights by involuntarily dismissing his petition for modification before he had finished presenting his case; and (2) the trial court erred in dismissing the entire petition based on the former husband’s inability to establish only one of the listed grounds for modification.

Personal Injury/Negligence

Faber v. Karl of Pasco (2d DCA) reversed an order denying plaintiff’s motion for leave to amend a premises liability complaint for injuries suffered when she fell after a bar fight broke out.

Sovereign Healthcare of Tampa v. The Estate of Otto N. Schmitt (2d DCA) addressed arbitration provisions included in two Resident Admission and Financial Agreements signed prior to admission in a nursing home, where there were allegations of negligence.

Foreclosure

Hyperlinks only are provided for these cases.

Morgan v. The Bank of New York Mellon (1st DCA)

Gulf Eagle v. Park East Development (2d DCA)

Deutsche Bank v. Kummer (2d DCA)

Barnsdale Holdings v. Nationstar (4th DCA)

Miller v. Wells Fargo (4th DCA)

Jallali v. Knightsbridge Village HOA (4th DCA)

Matthews v. U.S. Bank (4th DCA)

US Bank v. Laird (5th DCA)

Dyck-O’Neal v. Beckett (5th DCA)

Dyck-O’Neal v. Hendrick (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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

Miami International Boat Show and Teacher Pay: Snapshot of Florida Civil Appellate Opinions June 20-24, 2016

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.

Highlighted Cases

City of Miami v. Village of Key Biscayne (3rd DCA) addressed two petitions for writs of prohibition filed by the City seeking to prohibit the trial court from further adjudicating a lawsuit by the Village against the City and Miami-Dade County regarding the Miami International Boat Show at Marine Stadium. The City’s first petition challenged the trial court’s denial of the City’s motion to disqualify the trial judge, and the second petition challenged the trial court’s denial of the City’s motion to dismiss, which alleged that the trial court was without subject matter jurisdiction over the case without the inclusion of the National Marine Manufacturer’s Association (“NMMA”) as a party. The court denied the City’s petition directed to the trial court’s disqualification order and dismissed as premature the City’s petition directed to the trial court’s denial of the City’s motion to dismiss.

Broward Teachers Union v. The School Board of Broward County (4th DCA) addressed the meaning of a statutory provision, which provides that teachers “on annual contract as of July 1, 2014, shall be placed on the performance salary schedule . . . .” §1012.22(1)(c)4.a., Fla. Stat. (2014). The Union interpreted the provision to mean that only those teachers hired on or after July 1, 2014, are to be placed on the performance salary schedule, while the Board’s interpretation was that those teachers on annual contract at the time of the effective date are to be put on the performance salary schedule. The court affirmed the circuit court’s adoption of the Board’s statutory interpretation.

Appellate and Civil Procedure

Jackson v. Jackson (3rd DCA) reversed a final judgment for dissolution of marriage where the appellant, through no fault of his own, was unable to provide the court with a transcript of the final hearing below, and the parties and the trial court were unable to reconstruct the record. The court reporter present at the trial died before the attorney received the transcript. The parties subsequently attempted to reconstruct the record in accordance with Florida Rule of Appellate Procedure 9.200; however, both parties objected to the other’s version of the facts on appeal.

Inphynet Contracting Services v. R.V. Matthews (4th DCA) was a consolidated appeal of a trial court order granting bilateral class certification, certifying both a plaintiff and a defendant class, in an action challenging fees charged for copies of health care records. This portion of the order was appealable as a non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). The court reversed the order insofar as it certified a defendant class and a defendant subclass. It affirmed, without discussion, the order certifying a plaintiff class. The court granted certiorari relief and quashed the order denying stay of the entire action pending resolution of two other prior-filed class actions currently pending in the Circuit Court of Hillsborough County. It also quashed that portion of the trial court order that applied a limited stay to the plaintiff subclass, and reversed the imposition of that subclass.

Employment Law

Allen v. United Faculty of Miami Dade College (3rd DCA) affirmed the final order of the State of Florida Public Employees Relations Commission (“PERC”), which had affirmed the General Counsel’s summary dismissal of an amended unfair labor practice charge. The plaintiff was employed by Miami-Dade College (“MDC”) as a professor, and was a member of a Union. Following her termination by MDC, she filed an unfair labor practice charge against the Union, alleging a violation of §447.501(2)(a), (b), and (d), Fla. Stats. The charge was summarily dismissed by the General Counsel, based on the plaintiff’s failure to provide a clear and concise statement of the facts constituting the alleged unfair labor practice.

Family Law

McFatter v. McFatter (1st DCA) addressed the issue of the paternal grandmother’s name being added to the children’s pick-up lists at childcare facilities that the Mother had enrolled them in.

Golden v. Bass (1st DCA) reversed the trial court’s order temporarily modifying custody because the former wife did not receive the due process to which she was entitled; although the former husband had filed a petition for modification seeking to become the primary residential parent, as well as motions seeking other relief, the petition for modification was not set for hearing and the former wife was not given notice that modification would be at issue in the hearing.

Tramble v. Tramble (5th DCA) reversed on one issue of substance—the trial court’s failure to address the former wife’s request for child support retroactive to the date of separation, and it remanded for the trial court to determine the former husband’s liability, if any, for retroactive child support. The court’s review was limited to error appearing on the face of the final judgment or in the pleadings and other matters in the record, as there was no transcript.

Martin v. Robbins (5th DCA) reversed the trial court’s order approving the report and recommendation of the general magistrate, which denied the former husband’s petition for modification of his alimony obligation where the former wife had entered into a supportive relationship. They had held themselves out to be a married couple, participated in a wedding ceremony, lived together for two and one-half years, and shared household finances. A trial court may reduce or terminate an alimony award when a former spouse enters into a supportive relationship with an individual and resides with him or her.

J.N.S. v. A.M.A. (5th DCA) reversed in part a trial court order establishing a parenting plan and child support. The review was significantly hampered by the lack of a trial transcript. Among other things, the Mother argued on appeal that the trial court’s order failed to state, as required by statute, that the court considered evidence of domestic violence, as evidenced by police reports. The court also found error in the application of the child-support guidelines.

Insurance

Citizens Property Insurance v. Nunez (2d DCA) discussed Florida’s statutory scheme to resolve sinkhole claims. It affirmed the trial court’s final judgment to the extent that a repair contract was not a condition precedent to filing a lawsuit for breach of contract as well as the trial court’s denial of a motion for a new trial on the amount of subsurface repair damages. It reversed that portion of the final judgment that required Citizens to pay the judgment for subsurface repairs before the insureds executed a contract for those repairs as well as the award of prejudgment interest on the subsurface damages award.

Tax

Valleycrest Landscape Maintenance v. Florida Dept. of Revenue (1st DCA) affirmed a summary judgment order dismissing a tax refund action against the Florida Department of Revenue. Valleycrest had requested a refund of taxes paid on gasoline used in the lawn care equipment of its landscaping business, arguing that Florida’s taxing scheme does not apply to off-road uses of gasoline and, if it does, that it violates the Equal Protection Clause. The court disagreed, discussing §206.41, Fla. Stats., which imposes eight separate taxes on “motor fuel.”

Tort/Negligence

Coffey-Garcia v. South Miami Hospital (3rd DCA) granted a petition for a writ of certiorari to review an order compelling the plaintiff to answer deposition questions regarding lawyers she consulted relating to the medical malpractice claim at issue. After testifying that her current counsel was not the first attorney she consulted, the plaintiff had declined to answer any other questions based on the attorney-client privilege. The court quashed the order to the extent it required the plaintiff to answer all questions related to the reasons why she sought subsequent counsel. The issue was relevant to a statute of limitations defense.

Allen v. Montalvan, Debusk and Progressive Ins. (4th DCA) reversed an order enforcing a settlement agreement and dismissing a parents’ suit (brought on behalf of children who were injured in an auto accident), holding that the settlement agreement was invalid as to the claims of the children. The record indicated that Progressive, in good faith, left the amounts given to each injured party to be determined by the mother and her attorneys; however, Progressive and the two other appellees, as parties to the settlement agreement, had an obligation to ensure the settlement was legally binding. Because the proposed settlement did not comply with the requirements of §744.3025, it was invalid as to the claims of the children.

Nunez v. Allen (5th DCA) reversed a final judgment awarding attorney’s fees in an auto accident case, concluding that the proposals for settlement served and filed by Appellee were ambiguous and therefore invalid.

Foreclosure

Hyperlinks only are provided for these cases.

The Bank of New York Mellon v. Welker (2d DCA)

Whitburn v. Wells Fargo (2d DCA)

Aldama v. JPMorgan Chase (3rd DCA)

Frost v. Christiana Trust (4th DCA)

Amanzimtoti Properties v. Ocwen Loan Servicing (4th DCA)

Floyd v. Bank of America (5th DCA)

Home Outlet v. U.S. Bank (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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

New Jury Instructions and Sovereign Immunity: Snapshot of Florida Civil Appellate Opinions June 13-17, 2016

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.

Highlighted Cases

In Re: Standard Jury Instructions in Civil Cases (Florida Supreme Court) is a corrected opinion authorizing changes to the following civil jury instructions: 1) 402.4 Medical Negligence; 2) 501.5 Other Contributing Causes of Damages; 3) 501.7 Reduction of Damages to Present Value; and 4) 502.7 Reduction of Damages to Present Value. The opinion also created instruction 301.11 Failure to Maintain Evidence or Keep a Record.

MMMG v. Seminole Tribe (4th DCA) affirmed dismissal of a complaint against a federal tribal corporation affiliated with the Seminole Tribe because the tribal corporation enjoyed sovereign immunity from suit, which was not effectively waived according to the procedure required in the corporation’s charter and bylaws.

Appellate and Civil Procedure

Selyem v. Nathalie’s Hair (3rd DCA) affirmed an order dismissing a complaint with prejudice, but dismissed the appeal of the order granting entitlement to attorney’s fees as premature because an order that merely determines entitlement to attorney’s fees without actually awarding an amount of fees is not final and, therefore, not appealable.

Gerstein v. Int. Asset Value Group (4th DCA) affirmed dismissal of a fourth amended complaint with prejudice where the plaintiff failed to fruitfully amend a twenty-page complaint with confusing allegations surrounding certain business relationships of the parties and which alleged seven different counts, each of which incorporated initial paragraphs without providing an explanation as to the manner in which each allegation pertained to the claims.

Preudhomme v. Matthews (4th DCA) reversed an order granting a motion to quash service of process. Appellant met her initial burden of establishing the validity of service, as the return of service was regular on its face. The burden thus shifted to appellee to demonstrate that the place of service was not his usual place of abode, and Appellee presented no documentation or live testimony at the hearing on the motion to quash, only his affidavit, which fell short of the “clear and convincing evidence” standard.

Discount Sleep v. City of Ocala (5th DCA) reversed a dismissal finding that the plaintiff had timely filed its complaint within the four-year limitations period set forth in §95.11(3)(p), Fla. Stats. (2014). The plaintiff was challenging the validity of certain fire service fees, which the City had established, repealed, and later reenacted.

Business/Contract Law

Hawthorne v. Lyons (1st DCA) reversed an order of summary judgment in litigation arising from a failed partnership which owned a rental property. One partner encumbered the property with a home equity loan and subsequently allowed the property to go into foreclosure. The other partner filed a complaint alleging a claim for civil theft.

Construction Law

TRG Desert Inn Venture v. Berezovsky (3rd DCA) denied a petition for writ of certiorari seeking review of an order granting respondent’s motion for leave to add a claim for punitive damages. The case involved the assignment of a pre-construction purchase and sale contract for a condo unit, and the court held that the trial court’s application of the correct law (here §768.72) is not reviewable by certiorari, even if the appellate court were to disagree with the conclusion reached by the trial court.

Family Law

Edge v. Edge (2d DCA) reversed a marital dissolution order where, among other things, the trial court erred in calculating the husband’s income, failing to account for a raise and regular bonuses.

Haritos v. Haritos (2d DCA) held that the former husband was entitled to be heard on dissolution issues that were not decided by the trial court in a final order and that the trial court erred in ruling that a final order had already been entered on the issue of child support and in denying the former husband’s request to modify child support for that reason.

Insurance

Citizens Property Ins. v. Retz (2d DCA) reversed a final judgment to the extent that it awarded money damages for subsurface repairs from sinkhole damage without requiring the homeowner to enter into a contract for those repairs consistent with the jury verdict.

Certain Underwriters at Lloyd’s London v. Jimenez (3rd DCA) reversed an order determining that Lloyd’s was not entitled to rescission where the misrepresentation by the homeowners in the insurance application was material and was detrimentally relied upon by Lloyd’s, precluding coverage for a kitchen fire. The policy was given a discount because of the representation that a central station alarm monitoring for smoke, temperature, and burglary was in place, and the quote for the policy stated that the discount was conditioned on the representation of the presence of a central station monitored alarm in the home.

Tort/Negligence

The State of Florida v. MidFirst Bank (3rd DCA) held that the State’s amended complaint stated a cognizable claim to enjoin an alleged nuisance where the State pled that squatters and drug dealers engage in illegal activity on the Bank’s property; that they trespass onto the State’s property from time to time; that their illegal activity is frightening and deterring patrons from entering the State’s establishment; and that the nuisance is continuous, currently occurring and is causing the State irreparable harm.

Townes v. The National Deaf Academy (5th DCA) was a case wherein a resident of NDA suffered a partial leg amputation following staff members’ attempts to restrain her from throwing rocks. The court reversed summary judgment with regard to certain counts alleging medical malpractice as it found that the use of the TACT protective hold was not for treatment or diagnosis of any condition, was not employed to meet daily needs during care, and did not require medical skill or judgment as non-medical staff were taught the procedure and were authorized to decide whether to employ it; therefore, the claims sounded in ordinary negligence, rather than medical malpractice. With regard to two other counts, the court found that the trial court correctly concluded that the medical malpractice statute of limitations had expired before suit was filed. The court also held that certain Baker Act counts related back to the original complaint.

Foreclosure

Hyperlinks only are provided for these cases.

Wells Fargo v. Ousley (1st DCA)

Federal National Mort. Ass. v. Morton (2d DCA)

Cruz v. JPMorgan Bank (4th DCA)

Magaldi v. Deutsche Bank (4th 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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

Fixed Interest Rates and Proposals for Settlement: Snapshot of Florida Civil Appellate Opinions June 6-10, 2016

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.

Highlighted Cases                                                         

Townsend v. R.J. Reynolds (Florida Supreme Court) held that through its enactment of §55.03(3), Fla. Stats., in 1998, the Legislature granted litigants obtaining a judgment a vested right to a fixed rate of interest that expressly fixed the rate of interest until the judgment was paid. As a result, subsequent enactments, including the 2011 amendments, cannot divest judgment holders of the right to a fixed rate of interest without offending due process, so long as those judgments were obtained while the 1998 version of §55.03(3) was in effect. Thus, the 2011 amendment to §55.03(3) does not apply to a judgment entered between October 1998 and June 30, 2011.

Florida Peninsula v. Brunner (3d DCA) affirmed an order denying a motion for attorney’s fees based on a proposal for settlement where the proposal purported to impose liability for an indeterminate category of “other claims of third parties” on appellee’s counsel, a non-party.

Contract/Landlord Tenant

Benson v. State of Florida Dept. of Corrections (1st DCA) affirmed summary judgment in favor of the Florida Department of Corrections concluding that it did not breach a lease for office space because the parties’ lease agreement conditioned the Department’s performance upon annual legislative appropriations, and the General Appropriations Act of 2011 effectively ended the Department’s obligation under the lease by cutting its overall appropriation for office leases and including a restrictive proviso that prevented the Department from paying rent once it vacated the property. Neither the proviso, nor the Department’s response, violated the Florida Constitution.

Packaging & Distribution Resources v. Duke Realty (4th DCA) reversed and remanded for the trial court to conduct a limited evidentiary hearing on the issues of personal jurisdiction because the affidavits and deposition could not be reconciled with respect to the extent of each guarantor’s contacts with the debtor/tenant or with Florida generally.

Family Law

McWilson v. McWilson (1st DCA) reversed a final judgment where the gross income used on the child support guidelines worksheet did not match the figures on the parties’ most recent financial affidavits and the court could not determine whether the award was made in accordance with the guidelines.

Kruse v. Levesque (2d DCA) held that because the former wife was disabled and the undisputed evidence established that she was unable to return to work, the trial court abused its discretion in awarding durational instead of permanent periodic alimony.

D.A.D v. J.S. (2d DCA) reversed the circuit court’s modification of the parties’ paternity judgment from Texas on the ground that the circuit court improperly modified a domesticated paternity judgment in ways that were not pleaded in the modification petition.

Powers v. Powers (2d DCA) reversed and remanded the circuit court’s denial of the former wife’s request for attorneys’ fees and costs where the final judgment contained no findings and the appellate court was unable to determine whether the circuit court correctly denied the request. The circuit court was ordered to make findings of fact as to the parties’ relative financial needs and abilities sufficient to permit meaningful appellate review.

Hurst v. Hurst (5th DCA) reversed an order finding the former husband in contempt for failure to pay temporary child support and requiring him to bring his child support payments current within five days because he was not afforded procedural due process.

Insurance

Citizens Property Ins. Corp. v. Duenas (2d DCA) reversed a portion of a final judgment that required Citizens to pay for subsurface repairs from sinkhole damage before the insureds contracted to make those repairs.

Start to Finish Restoration v. Homeowners Choice (2d DCA) reversed a summary judgment that had found that an assignment of benefits between a homeowner and a restoration company was unlawful or otherwise improper to confer standing. The court reiterated “that postloss insurance claims are freely assignable without the consent of the insurer.”

Allen v. State Farm (2d DCA) granted a petition for writ of certiorari and quashed a discovery order that required the plaintiffs to disclose financial information regarding a settlement agreement with an insurer that had been dismissed from the case because State Farm did not establish that the settlement amount was relevant to defending its liability and the jury’s determination of damages.

Personal Injury

James v. City of Tampa (2d DCA) reversed a final judgment entered after a jury trial for personal injuries stemming from a collision between a sanitation truck owned and operated by the City and an automobile. Because plaintiff presented expert testimony in support of his claim of a permanent injury, the trial court erred in directing a verdict on that issue in favor of the City. Plaintiff presented expert testimony from his treating physician and a consulting neurologist.

Morejon v. Mariners Hospital (3d DCA) held that because the plain meaning of §395.1041, Fla. Stats., entitled “Access to Emergency Services and Care,” specifically permits and does not obligate a hospital to transfer a patient to another hospital, it does not create a statutory duty to transfer patients. The court rejected the claim that plaintiffs had pled a viable statutory cause of action.

Suker v. White Family Ltd. (4th DCA) reversed a summary judgment in favor of the defendant where the plaintiffs filed the depositions of three witnesses, including the deposition of an employee of the defendant, that tended to show the defendant’s actual or constructive knowledge of the dangerous conditions that existed at the tiled entrance to the establishment when the tile was wet.

Workers’ Compensation

City of St. Petersburg v. Westphal (Florida Supreme Court) held that §440.15(2)(a), Fla. Stats. (2009), which cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement, is unconstitutional under article I, section 21, of the Florida Constitution, as a denial of the right of access to courts, because it deprives an injured worker of disability benefits under these circumstances for an indefinite amount of time—thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation.

Foreclosure

Hyperlinks only are provided for these cases.

Higgins v. Dyck O’Neal, Inc. (1st DCA)

Nowlin v. Nationstar Mortgage (2d DCA)

Florida Community Bank v. Red Road Residential (3d DCA)

Barrett v. The Escape of Arrowhead Ass. (4th DCA)

Jallali v. Christiana Trust (4th DCA)

Meilleur v. HSBC Bank (4th DCA)

Vogel v. Wells Fargo (4th DCA)

Cornelius v. Holzman (4th 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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

Maserati Dealers and Daubert Experts: Snapshot of Florida Civil Appellate Opinions May 30-June 3, 2016

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.

Highlighted Cases

Recovery Racing v. State of Florida Dept. of Highway Safety and Motor Vehicles (4th DCA) affirmed an administrative order in which the Department of Highway Safety and Motor Vehicles determined that Recovery Racing lacked standing to protest Rick Case Weston, LLC, d/b/a Rick Case Maserati’s proposal to establish a new Maserati dealership. The opinion discusses the legislative framework governing the licensing of automotive dealerships in Florida and Chapter 320 of the Florida Statutes, the provisions of which the Department is charged with administering and enforcing.

Bunin v. Matrixx Initiatives, et al. (4th DCA) affirmed summary judgment in a products liability action, concluding that the trial court did not abuse its discretion in excluding causation testimony under §90.702, Fla. Stats. (2013), pursuant to which the defendants had moved to exclude the opinion of the plaintiff’s causation expert, based on the recent change to §90.702, requiring trial courts to apply the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) in ruling on the admissibility of expert testimony. The plaintiff argued that the 2013 amendments to §90.702 were substantive in nature and should not be applied retroactively to her case, which was filed in 2009. The court disagreed, finding that a statute that merely “relates to the admission of evidence” is generally considered procedural, thus §90.702 of the Florida Evidence Code indisputably applied retrospectively.

Business Law

Cassedy v. Alland Investments (1st DCA) addressed a complaint seeking an accounting of funds related to an investment of $315,000 in a failed effort to purchase and develop real estate in Texas, the primary allegation being the appellees’ misappropriation, concealment, and squandering of monies on improper and extravagant items unrelated to the purpose of the venture.

Smart Pharmacy v. Viccari, et al. (1st DCA) reversed and remanded for entry of a temporary injunction in a non-compete case because the trial court erroneously concluded that Smart Pharmacy had an adequate remedy at law and that it did not have a substantial likelihood of success on the merits of its claims.

Family Law

Lowery v. Carney (1st DCA) affirmed an order where the mother did not present an adequate record to demonstrate reversible error, where she argued that her due process rights were violated because she was not given proper notice of a hearing because the wrong address was used.

Cilenti v. Cilenti (2d DCA) reversed a final judgment of dissolution of marriage with regard to the health insurance for the parties’ child with respect to the award of prospective child support and the determination that the wife’s credit card debt was a marital debt.

The Northern Trust Company v. Shaw (2d DCA) reversed an order of summary judgment in favor of the widowed wife because she had received at least $500,000 from the deceased husband’s IRA and in tangible personal property, and was not entitled to an additional $500,000 distribution from his “estate” under the plain language of a prenuptial agreement. The court applied North Carolina law.

Carlson v. Carlson (4th DCA) is a marital dissolution case addressing, among other things, the wife’s imputed monthly gift income and her request to require daycare expenses be paid through an income deduction order.

Storey v. Storey (4th DCA) reversed and remanded for entry of an amended qualified domestic relations order (“QDRO”) where the former husband argued that the former wife was receiving a greater monthly benefit from his pension than she was entitled to under the terms of the parties’ martial settlement agreement and controlling law.

Foreclosure

Hewett v. Wells Fargo (2d DCA) dismissed an appeal of a foreclosure judgment where the bank argued that the only notice of appeal ever filed, although admittedly timely, was nevertheless void by virtue of the homeowner’s then-pending bankruptcy petition, which he had filed seven days before filing his notice of appeal. The court commended the issue for the Appellate Court Rules Committee’s consideration regarding whether a new or amended rule of appellate procedure would be appropriate to incorporate the tolling provisions of 11 U.S.C. § 108(c) or another period that explicitly addresses the effect of an automatic stay in bankruptcy on the filing of a notice of appeal.

Federal National Mortgage Ass. v. Linner, et al. (2d DCA) affirmed a dismissal of a foreclosure complaint without prejudice where FNMA failed to appear at a case management conference and held that for sanctions falling short of dismissal with prejudice or its functional equivalent, a trial court does not err by failing to consider the factors set out in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). The court certified conflict with the First and Third DCAs.

Wells Fargo v. Sawh (3rd DCA) agreed with Wells Fargo that the amount due to redeem the mortgage at issue was unliquidated and required evidentiary support. The court reversed the final order of dismissal, vacated the redemption order, and remanded for an evidentiary hearing to determine the amount that must be paid to redeem the mortgage.

Segall v. Wachovia (4th DCA) held that because Wachovia failed to sufficiently prove that Chase Home merged with Chase Bank, and that Chase Bank thus acquired the note, there was no evidence that Chase Bank had the authority to further transfer the note by assigning the mortgage to Wachovia. As such, Wachovia failed to prove that it had standing to foreclose.

Green Tree Servicing v. Goins (4th DCA) reversed a final judgment in favor of the homeowner, holding that “a notice of default need only substantially comply with a mortgage’s condition precedent.”

Rattigan v. Central Mortgage Co. (4th DCA) reversed a foreclosure where the bank failed to introduce the modified note under which it was proceeding for the foreclosure, producing only the original note.

Deutsche Bank v. Baker, et al. (4th DCA) reversed an involuntary dismissal and remanded for a new trial on damages where the court found that the bank did not lay a foundation for admitting, as a business record, the starting principal balance in the current servicer’s payment history. The bank did present a prima facie case, even though its evidence of damages was erroneously admitted without a proper foundation.

Trust Mortgage v. Ferlanti (4th DCA) reversed an award of sanctions under §57.105, Fla. Stats. (2015) following a summary judgment in favor of the property owner.

Dyck-O’Neal, Inc. v. Doherty (5th DCA) reversed a dismissal of a deficiency judgment action stating that although the court does not condone counsel’s failure to attend the scheduled case management conference, the trial court abused its discretion in dismissing a claim pursuant to Florida Rule of Civil Procedure 1.070(j), for failure to serve process, where the statute of limitations for the claim had expired and service of process had, in fact, been perfected prior to the deadline imposed by the trial court.

Insurance

Florida Peninsula Ins. Co. v. Wagner (2d DCA) reversed the circuit court’s order granting the Wagners’ motion for attorney’s fees to the extent that it applied a multiplier to the fee award.

State Farm v. Smith, et al. (2d DCA) reversed a final judgment insofar as it determined that Smith was covered under the uninsured motorist provision of Smith’s auto insurance policy. The court held that the policy’s definition of “uninsured motor vehicle” unambiguously excludes motor vehicles insured under its liability provisions. The court reasoned that because the Motzenbeckers’ vehicle when driven by Smith was insured under the liability provisions of the policy, the trial court erred by holding that the claimed exclusion did not apply. Neither the policy’s definition nor the mere fact that the policy’s liability coverage was insufficient as applied to specific injuries impermissibly limited the coverage the uninsured motorist statute otherwise requires.

Diaz v. Florida Peninsula Ins. Co. (4th DCA) granted a homeowner’s petition for certiorari, quashed an abatement order, and remanded where the homeowners had sued FPIC for breach of contract and declaratory judgment. The trial court’s abatement order departed from the essential requirements of law because it effectively disposed of the complaint and completely precluded the homeowner from obtaining a determination as to whether FPIC properly exercised the right to repair clause and, if so, what the parties’ rights and obligations were under that clause. With respect to the disputed scope of repairs, a homeowner is entitled to dispute the scope of repairs before the repairs are completed.

People’s Trust Ins. Co. v. Pesta (4th DCA) granted a petition for certiorari where the insurer sought review of an order denying a motion to dismiss a class action suit and the plaintiff had not exhausted available administrative remedies. The plaintiff had alleged that the insurer improperly collected a $25 managing general agent (MGA) fee on all of its insurance policies in violation of §626.7451, Fla. Stats. The insurer moved to dismiss arguing that the homeowner’s challenge to the MGA fee was an administrative matter related to the rate and premium that must first be addressed with the Office of Insurance Regulation (OIR) pursuant to §627.731.

Personal Injury/Tort

Valladares v. Bank of America (Florida Supreme Court) held that a cause of action is available to one injured as a result of a false report of criminal behavior to law enforcement when the report is made by a party which has knowledge or by the exercise of reasonable diligence should have knowledge that the accusations are false or acts in a gross or flagrant manner in reckless disregard of the rights of the party exposed, or acts with indifference or wantonness or recklessness equivalent to punitive conduct.

Dismex Food v. Harris (3rd DCA) reversed an order granting a new trial in an auto case, which was based on the trial court’s finding that the plaintiff was prejudiced and denied a fair trial by the cumulative effect of defense counsel’s violation of the sequestration rule and the defense witness’s violation of the trial court’s ruling confining his testimony to the opinions in his report. The trial court’s findings were not supported by the evidence in the record.

Tax Law

Sowell v. Panama Commons (Florida Supreme Court) held that because Panama Commons’ right to a tax exemption under §196.1978, Fla. Stats., had not vested before the Legislature repealed the exemption for limited partnerships in 2013, applying the repeal to Panama Commons for the 2013 tax year did not violate due process.

*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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

Ecclesiastical Abstention and the Hague Convention: Snapshot of Florida Civil Appellate Opinions May 23-27, 2016

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.

Highlighted Cases

Florida Dept. of Revenue v. American Business USA Corp. (Florida Supreme Court) quashed the decision of the Fourth DCA to the extent that it holds that the assessment of sales tax on sales of flowers, gift baskets, and other items of tangible personal property ordered by out-of-state customers for out-of-state delivery violates the dormant Commerce Clause of the United States Constitution. The Florida Supreme Court also expressly found that §212.05(1)(l), Fla. Stats. (2012), is constitutional and does not violate the dormant Commerce Clause.

Bevilacqua v. U.S. Bank (3rd DCA) affirmed an order denying a homeowner’s motion to dismiss or quash service of process made pursuant to the laws of Italy and the Hague Convention. U.S. Bank established prima facie evidence of proper service, and the property owner failed to meet his burden of establishing that he lacked actual notice of the proceedings or that he was prejudiced as a result of the alleged deficiency in service of process.

Mammon v. SCI Funeral Services of Florida (4th DCA) held that a court’s determination of whether cemetery companies violated the Cemetery Services Act and FDUTPA, by misrepresenting to a widow that they would bury her husband in accordance with “Jewish burial customs and traditions,” would require the court first to determine what constituted “Jewish burial customs and traditions.” That preliminary determination would violate the ecclesiastical abstention doctrine. The court affirmed the trial court’s final order dismissing with prejudice the widow’s complaint against the cemetery companies for lack of subject matter jurisdiction.

Appellate and Civil Procedure

Daher v. Pacha (3rd DCA) reversed the trial court’s dismissal of a personal injury case based on plaintiff’s (a citizen of Brazil) failure to appear for trial. His motion to continue should have been granted due to his inability to attend, and because the significant prior delays had been caused primarily by the defendants. The court nonetheless recognized the high degree of deference normally afforded to the trial court with respect to this type of discretionary decision.

Solonenko v. Vogue Properties (4th DCA) was a quiet title action in which the court agreed with appellant’s argument in a motion for rehearing, following a dismissal with prejudice, that she had the right to amend her complaint (for the first time) even if it appears likely that the amended complaint would be meritless.

Jean-Pierre v. Glaberman (4th DCA) reversed an order granting a motion for § 57.105 attorney’s fees where the trial court failed to make written findings regarding the reasons for granting the motion.

Jones v. GEICO (4th DCA) reversed an order denying the defendants’ rule 1.540 motion, which alleged with sworn affidavits that they did not receive notice of the hearing on GEICO’s motion for summary judgment in time to attend the hearing. The court remanded for an evidentiary hearing on the issue of lack of notice.

Family Law

Shulstad v. Shulstad (2d DCA) held that the trial court erred in ordering the former husband to increase his life insurance coverage to secure his postdissolution support obligations.

Maciekowich v. Maciekowich (4th DCA) reversed a final judgment of dissolution of marriage, agreeing with the former wife that the court erred in awarding her only $1 per year of alimony when it found that she had established a “compelling case” for her need for permanent alimony.

Stark v. Stark (5th DCA) is a marital dissolution case wherein the court found that following a long-term marriage, the evidence failed to demonstrate that the wife’s need or the husband’s ability to pay would be materially different at the end of the durational alimony period than it was at the time the amended final judgment was entered, and held that the trial court abused its discretion in failing to make the entire alimony award following the bridge-the-gap alimony period permanent alimony.

Foreclosure

Keeter v. The Bank of NY Mellon (1st DCA) affirmed a foreclosure judgment due to lack of proper preservation, but without prejudice to appellant filing in the trial court a motion seeking relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The clerk could not enter a default where the homeowner had filed a motion the previous day.

Guerra v. Bank of America (3rd DCA) granted a petition seeking certiorari review of the trial court’s order denying a motion to cancel a foreclosure sale because there was a pending rule 1.530 motion for rehearing directed toward the foreclosure judgment at the time of the foreclosure sale.

Brooks v. Bank of America (4th DCA) held that because the lender did not factually refute the borrowers’ legally sufficient affirmative defense of failure to comply with conditions precedent, there was a disputed genuine issue of material fact preventing the entry of summary judgment.

U.S. Bank v. Clarke (4th DCA) held that where the copy of the note attached to the complaint contained a blank endorsement and the original note was introduced into evidence at trial and matched the copy of the note attached to the complaint, the evidence was sufficient to establish, absent any testimony or other evidence to the contrary, that U.S. Bank had possession of the blank-endorsed note at the time the complaint was filed and therefore had standing to bring the foreclosure action as the holder of the note.

Bank of NY Mellon v. Baloun (5th DCA) reversed an order dismissing a foreclosure action where the bank’s default letter substantially complied with its notice obligations under the mortgage.

Wilmington Savings Fund v. Aldape (5th DCA) held that the trial court abused its discretion when it found that a certificate of authenticity was untimely filed where the bank served “reasonable written notice” under §90.803(6)(c), Fla. Stats. (2014), when it filed its notice of intent to offer evidence by means of certification or declaration.

Deutsche Bank v. Patino (5th DCA) reversed an order denying a Florida Rule of Civil Procedure 1.540(b) motion to vacate final judgment because the judgment granted relief on a matter which was outside of the pleadings and which was not tried by consent of the parties.

Personal Injury/Intentional Tort

Angeli v. Kluka, et al. (1st DCA) held that the consent of one parent to a nonemergency medical procedure for a minor child is sufficient to permit the health care provider to render such care or treatment, even when the health care provider allegedly knew or should have known that the other parent objected to the care or treatment. The father had filed a complaint for battery and intentional interference with the parent-child relationship against the health care provider. The court noted that “Florida law does not require health care providers to assume the burden of refereeing or going to court to resolve disputes between parents….”

Smith v. Wiker (2d DCA) reversed that portion of an injunction order that prohibits appellant from lingering on his driveway and remanded for the trial court to more narrowly tailor the provision to prevent harassment of the neighbor. The prohibition was overbroad because it encompassed conduct that could constitute stalking by harassing the neighbor, but could have also encompassed activity that is perfectly legal.

Bogatov v. City of Hallandale Beach and Kidz Zone (4th DCA) reversed a summary judgment in favor of a jungle gym manufacturer where summary judgment evidence demonstrated a genuine issue of material fact as to the cause of the child’s injury. The evidence included inconsistent testimony from the nanny given in her deposition and a police report and a medical report with statements from the family.

David v. Schack (4th DCA) reversed an injunction for protection against stalking where there was not competent and substantial evidence to support the injunction. Even if the evidence presented had been sufficient, the injunction would have been reversed because the trial court did not give appellant an opportunity to present his case.

Fye v. Bennett (4th DCA) held that appellant’s petition for injunction against stalking was facially sufficient, especially in light of appellee’s recent plea agreement, including his agreement to cooperate with the entry of a permanent injunction against stalking. The court reversed and remanded for the trial court to conduct an evidentiary hearing on the petition pursuant to §784.0485(4), Florida Statutes.    

*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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts. 

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

FPL Rates and Wal-Mart Trespass: Snapshot of Florida Civil Appellate Opinions May 16-20, 2016

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.

Highlighted Cases                                                                                   

Citizens of the State of Florida v. Art Graham, et al./Florida Industrial Power Users Group v. Art Graham, et al. (Florida Supreme Court) held that the Florida Public Service Commission (PSC) lacks the statutory authority to allow Florida Power and Light (FPL) to recover the capital investment and operations costs incurred through its joint venture with an oil and natural gas company to engage in the acquisition, exploration, drilling, and development of natural gas wells in Oklahoma through the rates it charges consumers. The recovery as fuel costs paid by FPL’s customers in its utility rates were considered by the PSC to be a long-term physical hedge. The Florida Supreme Court held that treating these activities as a hedge impermissibly required FPL’s end-user consumers to guarantee the capital investment and operations of a speculative oil and gas venture without the Florida Legislature’s authority.

Board of County Commissioners Indian River County v. Art Graham, et al. (Florida Supreme Court) held that given the County’s position that the expiration of its franchise agreement voids the Public Service Commission’s (PSC) territorial orders and effectively evicts the City as the authorized electric service provider in unincorporated areas of the County, the City had standing to request a declaratory judgment regarding its responsibilities under the PSC’s territorial orders obligating it to serve those areas. The PSC’s declaration that the City “has the right and obligation to continue to provide retail electric service in the territory described in the Territorial Orders upon expiration of the Franchise Agreement” is within the PSC’s “exclusive and superior” statutory jurisdiction to determine utility service areas. The PSC’s declaration does not impermissibly grant the County’s property rights to the City or violate section 366.13’s prohibition against the PSC affecting a franchise fee.

United Food and Commercial v. Wal-Mart (5th DCA) addressed whether Wal-Mart’s trespass claim, based on Florida law, is preempted by the National Labor Relations Act (“NLRA”). 29 U.S.C. §§ 151-169 (2016). The court held that Wal-Mart’s claim was not preempted because it fell under the exception to NLRA preemption recognized in Sears, Roebuck, & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 199-208 (1978), and affirmed an injunction against further trespasses by UFCW, a national labor organization staging demonstrations inside and outside of Wal-Mart stores.

Appellate and Civil Procedure

Beanblossom v. School Board of Bay County (1st DCA) dismissed an appeal as premature where the order on appeal did not “dispose of a separate and distinct cause of action that is not interdependent with other pleaded claims.” Fla. R. App. P. 9.110(k).

Fonseca v. Taverna Imports (3rd DCA) granted a petition seeking prohibition preventing the trial court from entering an order granting a motion for offset because the trial court lacked jurisdiction to modify certain adjudications, which had appeals currently pending in the appellate court.

Suntrust Bank v. Arrow Energy, et al. (4th DCA) addressed whether interest can be awarded on a garnishment judgment, which the court held is technically not a judgment for money, but a judgment to permit the garnishor to obtain monies owed by the judgment debtor, but held by the garnishee.

McKenzie Check Advance v. Betts, et al. (4th DCA) is an appeal from the circuit court’s non-final order referring to an arbitrator the issue of whether an arbitration provision in the parties’ loan contracts permits the plaintiffs to pursue their class action claims in arbitration. The court agreed that the prior appellate proceedings already determined that the arbitration provision’s class action waiver is enforceable.

Business Law/Contract

Arizona Chemical Co. v. Mohawk (1st DCA) is a lengthy opinion issued in a case with claims for breach of contract, breach of express warranty and breach of implied warranty of fitness for a particular purpose, seeking recovery for the cost of the relevant claims and the loss of profits from unrealized sales regarding a resin used for a carpet backing system.

Frieri v. Capital Investment Services/Escobio v. Frieri (3rd DCA) addressed an appeal from claims of breach of fiduciary duty as trustee of a trust, breach of contract, negligent misrepresentation, fraudulent inducement, fraud and constructive trust.

Construction

Gozzo Development v. Esker, et al. (4th DCA) held that there remained issues of material fact as to whether section 553.84, Florida Statutes (2005), precluded appellant from seeking indemnification; further, as appellant sought indemnity for violations of both statutory and non-statutory building standards, it was error to grant summary judgment on the indemnity claim under a provision that applies only to statutory liability. The court affirmed the summary judgment on the contribution claim, as appellant’s right to contribution had not arisen by the effective date of the revised statute barring joint and several liability.

Family Law

Henry v. Henry (4th DCA) is a marital dissolution case that addressed miscalculations in the parties’ income, prospective child support and alimony, retroactive child support and alimony, and attorney’s fees.

Watford v. Watford (4th DCA) is a marital dissolution case reversing an award of alimony where the final judgment did not include factual findings as to each of the factors listed in the statute and the trial court used the husband’s gross income rather than his net income for the calculation.

Serbousek v. Lucas (5th DCA) is a marital dissolution case wherein the court addressed alleged errors in the equitable distribution, errors in the amount of permanent periodic alimony awarded, the trial court’s failure to award retroactive alimony and its failure to award attorney’s fees.

Foreclosure/Real Property

Wells Fargo v. Bilecki (4th DCA) reversed summary judgment in favor of the homeowners where the trial court erred in placing the burden on Wells Fargo to produce evidence in opposition to the homeowners’ motion, as they failed to meet their initial burden and thereby shift the burden of proof to Wells Fargo.

Bank of America v. Fogel (4th DCA) reversed an amended final judgment, which vacated a prior final judgment in favor of the bank, where the inadequate notice period between the scheduling order’s mailing and the hearing date violated the bank’s due process rights.

Billington v. Ginn-La Pine Island, et al. (5th DCA) addressed the effect of contractual “disclaimer” clauses on fraud claims in a high-end residential lot sale. The court held that the “non-reliance” and “waiver” components of the disclaimer clauses negated appellant’s fraud claims, but certified several questions of great public importance to the Florida Supreme Court because it has not addressed the effect of disclaimer clauses in this context in nearly 75 years, and its last pronouncement has resulted in conflicting interpretations. The 5th DCA also certified conflict with the 4th DCA in Lower Fees, Inc. v. Bankrate, Inc., 74 So. 3d 517 (Fla. 4th DCA 2011).

Mims v. Broxton (5th DCA) granted a petition for certiorari in a foreclosure action where the trial court denied a motion for leave to amend the complaint to add an indispensable party (the joint note holder).

Personal Injury

Ochoa v. Koppel and Progressive Select Insurance Co. (2d DCA) is a auto accident case wherein the court held that where appellee failed to accept a proposal for settlement during the thirty-day period provided for in rule 1.442(f)(1), the thirty-day period was not tolled while a motion to enlarge the time to accept the proposal was pending. The 2d DCA certified conflict with the 5th DCA’s decision in Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997).

Kotlyar v. Metropolitan Casualty Insurance (4th DCA) is an auto accident case addressing appellant’s arguments that the trial court erred in (1) determining the nature of the damages (liquidated or not), and in turn, entering a final default judgment for damages without an evidentiary hearing, and (2) in denying his motion to vacate the default and judgment, where allowing a default judgment to stand against him, without an adjudication as to the liability of his wife, could lead to an absurd and unjust result.

Rosen v. McCobb (4th DCA) is a personal injury case in which the court granted in part and denied in part a petition for a writ of certiorari with regard to certain discovery requests relating to net worth.

The Insurance Company of the State of Penn. v. Ramirez (4th DCA) denied a petition for certiorari from an order denying a motion to join an indispensable party in an auto accident claim where the party sought to be joined was also injured in the accident. He could not be considered indispensable where it is not a departure from the essential requirements of law to deny consolidation of two claims arising out of the same accident.

*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.

Virtual Legal Associate provides legal research and writing services to busy attorneys. All work is performed by Kasey L. Prato, a Florida licensed attorney with extensive experience working in Florida trial and appellate courts.

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com

Contracting in the Keys and a Reminder to Always Have a Transcript: Snapshot of Florida Civil Appellate Opinions May 9-13, 2016

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.

Highlighted Case

Steeprow v. Penfold (5th DCA) held that where there is no transcript of the proceedings, the appellate court’s review is limited to the pleadings, judgment and other matters in the record. Because the judgment was not fundamentally erroneous, it was affirmed.

Appellate and Civil Procedure

Manuel Diaz Farms v. Delgado (3rd DCA) awarded attorney’s fees pursuant to a proposal for settlement under Rule 1.442 and Fla. Stat. §768.79.

Colonnade 101 SE, Inc. v. Cordero (3rd DCA) held that in granting the appellants the specific relief they requested in their motion by dissolving certain notices of lis pendens on the grounds that they were procedurally improper, the trial court was not required to address the alternative substantive grounds raised in support of the relief sought.

Pinnacle Three Corp. v. EVS Investments, Inc., et al. (3rd DCA) enforced an attorney’s fees provision where one party raised a dispute arising from a settlement agreement, and then lost that dispute.

City of Miami v. Village of Key Biscayne and Miami-Dade County (3rd DCA) denied the City’s petition for a writ of mandamus requiring the trial court to rule on the City’s motion to intervene because the trial court has no role in determining the City’s participation in conflict resolution proceedings under Chapter 164, Florida Statutes, which is designed to provide Florida’s governmental entities with a formal, out-of-court mechanism to resolve conflicts.

Contract/Construction

Underwater Engineering v. Utility Board of the City of Key West (3rd DCA) addressed a breach of contract action, including notice and opportunity to cure provisions regarding the repair of over-the-water concrete and steel poles.

Haynes v. Arman, et al. (5th DCA) held that where the plaintiff demanded a jury trial, the defendant was entitled to have the jury determine the amount of any punitive damages in a case alleging, inter alia, fraud in the inducement, breach of contract and intentional infliction of emotional distress.

Family Law

Bellant v. Bellant (2d DCA) is a marital dissolution case in which the husband was awarded attorney’s fees under Fla. R. Civ. P. 1.380(a)(4) where the trial court denied the wife’s motion to compel discovery.

B.B.S., et al. v. Rodriguez-Murguia (4th DCA) held that the trial court should have allowed the children to establish maternity by way of a declaratory action under Chapter 86, Florida Statutes; the mother had used a fictitious name on the birth certificates.

Davis v. Hengen, et al. (4th DCA) held that a child who has reached the age of majority does not have standing to bring a claim for unpaid child support owed pursuant to a marital support agreement if the parent has filed a claim.

Moore v. Yahr (4th DCA) reversed the final judgment regarding a father’s timesharing because it should have set forth the specific steps required to establish unsupervised timesharing and because it implicitly conditioned the father’s timesharing on his payment of the timesharing supervisor by making him solely responsible for payment of the timesharing supervisor’s charges.

Steinman v. Steinman (4th DCA) addressed a parent’s rights with regard to religious education and upbringing of the children during timesharing.

Songur v. Songur (5th DCA) held that the trial court erred in granting ultimate educational decision-making authority to the former husband absent a finding that shared parental responsibility would be detrimental to the child and in imputing income to both parents without any evidentiary basis for the amounts imputed.

Foreclosure/Real Property

Michel v. The Bank of New York, et al. (2d DCA) addressed admission of business records and attorney’s fees in a foreclosure.

Rosa v. Deutsche Bank (2d DCA) found that the bank did not have standing at the inception of the foreclosure action.

Wells Fargo v. Voorhees, et al. (2d DCA) found that the trial court erred in failing to grant the bank relief from technical admissions.

Arnoux v. Bank of New York, et al. (3rd DCA) relied on the Third DCA’s recent en banc decision in Deutsche Bank Trust Company Americas v. Beauvais, No. 3D14-575 (Fla. 3d DCA April 13, 2106), and reiterated that the five-year statute of limitations in foreclosure actions does not bar a second foreclosure suit filed on a subsequent payment default if it occurred within the five-year period preceding the second suit.

Nationstar Mortgage v. Craig (3rd DCA) found that the default notice substantially complied with the requirements set forth in the mortgage.

Reano v. US Bank, et al. (4th DCA) found that although the bank provided a notice of intent to accelerate via its breach letter, it did not actually accelerate the note prior to the point appellants tendered payment; therefore, appellants’ payment cured the default.

Goodman v. Rose Realty West, et al. (4th DCA) was a fraudulent nondisclosure action by a buyer of residential real estate against the seller and the seller’s real estate broker, where the seller was his own real estate agent.

McConnell v. JPMorgan Chase (4th DCA) held that as JPMorgan was the holder of the note, having possession of a note endorsed in blank when it filed the complaint, it had standing at the suit’s inception.

Homeowner’s Association

Hibbs Grove Plantation HOA v. Aviv (4th DCA) found that the fact that a homeowner’s association sought to compel homeowners to pressure clean the exterior walls of their home in its prayer for relief did not obviate the need to remediate the staining problem if pressure cleaning did not cure the violation; summary judgment in favor of the homeowners was reversed.

Insurance

Case v. Tower Hill Prime Ins. (2d DCA) was a homeowner’s insurance dispute regarding the proper method of repair for subsurface sinkhole damage.

Certified Priority Restoration v. State Farm (4th DCA) addressed the appraisal clause of a homeowner’s insurance policy and found that the policy provisions did not impose a “duty to adjust” solely on the insured, and thus did not preclude assignment of benefits to a vendor providing services.

Personal Injury/Negligence

Sorenson v. Professional Compounding, et al. (2d DCA) addressed a wrongful death negligence action and concluded that plaintiff properly alleged a breach of a cognizable duty to use due and proper care in filling a prescription.

Broward Executive Builders v. Zota (4th DCA) held that the while circumstantial evidence supported a finding that the plaintiff fell on her head from a height of several feet with no clear indication of how or why, it does not establish that it is more likely than not she fell from a certain location on a catwalk because no guardrails were in place to prevent the fall. The jury verdict was reversed as it improperly stacked inferences.

*Please note that decisions are not final until any timely filed motions for rehearing are considered and disposed of by the appellate court. Opinions are also subject to formal revision before publication in the Southern Reporter, 3rd Series.

Virtual Legal Associate provides legal research and writing services for busy attorneys.

Phone: 561-922-8050 / Email: KPrato@VirtualLegalAssociate.com