Weekly Reder for August 19, 2016

These are summaries of cases reported in the August 19, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.


Trial court erred by enjoining a student government election because it lacked jurisdiction per section 1004.26(5), Florida Statutes.  Florida A & M University Board of Trustees v. Bruno, 41 Fla. L. Weekly D1886 (Fla. 1st DCA Aug. 15, 2016).


Appellate court dismissed appeal by Department of Business and Professional Regulation of a trial court’s order of summary judgment finding plaintiffs were entitled to a declaratory judgment in their favor because such order was neither a temporary injunction nor a partial summary judgment.  Dept. of Business and Professional Regulation v. Florida Association of Wholesale Distributors, Inc., 41 Fla. L. Weekly D1851 (Fla. 2d DCA Aug. 10, 2016).


In a forfeiture proceeding, appellate court affirmed trial court’s denial of motion for damages, costs, and attorney’s fees because the case was voluntarily dismissed when the sheriff’s office returned the plaintiff’s vehicle and therefore no forfeiture order had been entered, but criticized the language in section 932.704, Florida Statutes and certified conflict with Cox v. Dept. of Highway Safety & Motor Vehicles, 881 So.2d 641 (Fla. 5th DCA 2004). Underwood v. State of Florida, 41 Fla. L. Weekly D1848 (Fla. 2d DCA Aug. 10, 2016).



Trial court erred by entering a final order dismissing complaint on basis for forum selection clauses in two contracts with respect to two tort-base counts alleging “converted, or fraudulently misappropriated, escrowed monies.”  Turnkey Projects Resources Limited v. Gawad, 41 Fla. L. Weekly D1873 (Fla. 5th DCA Aug. 12, 2016).

On remand from The Florida Supreme Court, the District Court of Appeals, Fifth District found that “the trial court abused its discretion in denying [Appellant’s] motion for remittitur” because plaintiff’s testimony that he was self-employed and could make $100,00 to $200,000 in a “good year” was unsubstantiated, speculative testimony.  Safeco Ins. Co. of Illinois v. Fridman, 41 Fla. L. Weekly D1870 (Fla. 5th DCA Aug. 12, 2016).

“A party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court until after the time for filing an appeal has expired.”  Waters v. Childers, 41 Fla. L. Weekly D1864 (Fla. 1st DCA Aug. 11, 2016).

Trial court erred in dismissing complaint for legal malpractice for failure to serve the law firm within the time parameters of Florida Rule of Civil Procedure 1.070(j) because the involuntary bankruptcy of the prime plaintiff established excusable neglect. Banyon Income Fund, LLC v. Hutchison & Steffen, LLC, 41 Fla. L. Weekly D1829 (Fla. 4th DCA Aug. 18, 2016).

Trial court erred in dismissing homeowner’s association third amended complaint alleging negligence against a paint manufacturer as being time barred because time began to run when the plaintiff began suffering damages when the paint began to fail, not when the defendant inspected the premises. Riverwalk at Sunrise Homeowners Ass’n.,  Inc. v. Biscayne Painting Corp., 41 Fla. L. Weekly D1828 (Fla. 4th DCA Aug. 10, 2016).


Trial court erred in granting summary judgment declaring a judgment lien valid because the address listed in the judgment was the judgment creditor’s attorney instead of the judgment creditor as required by section 55.10, Florida Statutes.  Gomez v. Timberoof Roofing Co., Inc., 41 Fla. L. Weekly D1827 (Fla. 4th DCA Aug. 10, 2016).


Trial court properly dismissed suit brought by the Florida Education Association, the Florida Congress of Teachers, Inc., the League of Women Voters of Florida, Inc. the Florida State Conference of Branches of the NAACP, a group of parents of children in public schools, teachers employed by public schools, and religious and community leaders challenging the constitutionality that the Florida Tax Credit Scholarship Program (FTSCP)violated the Florida Constitution by diverting public funds from Florida’s public schools to religiously affiliated schools because the Appellants lacked standing as they had failed to allege they suffered a harm distinct from that suffered by the general public.  McCall v. Scott, 41 Fla. L. Weekly D1889 (Fla. 1st DCA Aug. 16, 2016).


Trial court erred in dismissing action claiming violation of Florida’s Unfair and Deceptive Trade Practices act on basis assented to arbitration provision by responding to a mailer sent in 2012 because the lawsuit was premised on a 2010 invoice that did not mention arbitration.  All-South Subcontractors, Inc v. Amerigas Propane, Inc., 41 Fla. L. Weekly D1859 (Fla. 1st DCA Aug. 11, 2016).



“[W]here there is no ultimate determination of incapacity and no ultimate appointment of a plenary or limited guardian, counsel to an emergency temporary guardian and to the ward of such a guardianship are entitled to an award of fees and costs under section 744.108(1).”  Kemp v. Berschback, 41 Fla. L. Weekly D1840 (Fla. 2d DCA Aug. 10, 2016).


The “trial court abused its discretion in not admitting evidence of the amount the [insureds] received to repair the home from a prior insurance company after the previous sinkhole claim on the same property.” Tower Hill Signature Ins. Co. v. Speck, 41 Fla. L. Weekly D1869 (Fla. 5th DCA Aug. 12, 2016).


Trial court erred by dismissing a suit to recover a deficiency judgment because the court that entered a judgment of foreclosure had not granted or denied a claim for a deficiency judgment.  Dyck-O’Neal, Inc. v. McKenna, 41 Fla. L Weekly D1885 (Fla. 4th DCA Aug. 12, 2016. Clarifying conflict with Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

Trial court improperly entered a summary judgment against a contractor brought by a condominium association because there were disputed genuine issues of material fact as to whether the dispute had been resolved in prior litigation between the contractor and developer.  Ventana Condominium Association, Inc. v. Chancey Design Partnership, Inc., 41 Fla. L. Weekly D1880 (Fla. 2d DCA Aug. 12, 2016).

Although trial court properly ruled plaintiff was not entitled to file six quiet title actions in one lawsuit as there were different trusts involved, the trial court erred by dismissing the entire action instead of severing five of the counts and proceeding to quiet title to one of the properties.  Crescenzo v. Marshall, 41 Fla. L. Weekly D1874 (Fla. 2d DCA Aug. 12, 2016).

An assignee of a promissory note is entitled to recover the original note from a court file even though the action had been dismissed because of the assignor’s failure to establish standing.  Kajaine Estates, LLC v. US Bank National Association, 41 Fla. L. Weekly D1872 (Fla. 5th DCA Aug. 12, 2016).

In mortgage foreclosure action, trial court erred by denying an inmate’s motion for transport to the foreclosure hearing without holding a hearing.  Hicks v. Sarping, LLC, 41 Fla. L. Weekly D1871 (Fla. 5th DCA Aug. 12, 2016).

Trial court improperly entered final judgment of mortgage foreclosure because plaintiff failed to respond to borrowers’ requests for admissions that Nationstar was not in possession, was not the owner, had not sent a pre-suit letter per paragraph 22 at the inception of the lawsuit.  Poag v. Nationstar Mortgage, LLC, 41 Fla. L. Weekly D1863 (Fla. 1st DCA Aug. 11, 2016).

Trial court properly entered a final judgment of foreclosure because the mortgage did not require any pre-notice where the mortgage was accelerated due to the borrower’s death.  LaFaille v. Nationstar Mortgage LLC, 41 Fla. L. Weekly D1887 (Fla. 3d DCA Aug. 10, 2016).

In an independent deficiency action, appellate court ruled trial court properly denied motion for relief from judgment which argued original foreclosure court had subject matter jurisdiction because that court did not grant or deny the foreclosure claim, certifying conflict with. Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

Trial court erred by entering a final judgment of mortgage foreclosure because “the bank failed to prove the allonge was specially endorsed in its favor and affixed to the original note prior to filing its complaint.”  Elman v. U.S. Bank, N.A., 41 Fla. L. Weekly D1833 (Fla. 4th DCA Aug. 10, 2016) (clarifying standard of review used in opinion reported at 41 Fla. L. Weekly D872).

Trial court erred by dismissing a mortgage a foreclosure after determining there was insufficient evidence of standing and damages because plaintiff presented evidence that World Savings Bank FSB changed its name to Wachovia Mortgage, FSB and because the payment history clearly set forth the principal balance due even though it was erroneously admitted evidence, the court remanded with instructions to take additional testimony on evidence.  Wachovia Mortgage, F.S.B. v. Goodwill, 41 Fla. L. Weekly D1832 (Fla. 4th DCA Aug. 10, 2016).


In tortuous interference with a business relationship action, trial court properly determined that defendant’s subsequent distribution payments did not make the “continuing tort” doctrine applicable and therefore the action was barred by the statute of limitations.  Effs v. Sony Pictures Home Entertainment, Inc., 41 Fla. L. Weekly D1858 (Fla. 3d DCA Aug. 10, 2016).

Appellate court trial court’s final judgment in favor of deceased’s estate in tobacco litigation case “because the implied preemption argument is not only barred by res judicata but is also without merit.”  Philip Morris USA, Inc. v. Lourie, 41 Fla. L. Weekly D1855 (Fla. 2d DCA Aug. 10, 2016).

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