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.
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.
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.
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.
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).
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).
Hyperlinks only are provided for these cases.
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.
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