Weekly Reder for September 23, 2016

These are summaries of cases reported in the September 23, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

In a case involving the termination of a teacher, the circuit court sitting in its appellate capacity erred by reviewing the case de novo instead of applying the competent and substantial evidence standard.  School Board of Hillsborough County v. Tenney, 41 Fla. L. Weekly D2149 (Fla. 2d DCA Sept. 16 2016).

 

The trial court’s denial of a motion to substitute parties after one of the parties has died is a non-final, non-appealable order.  Gomez v. Fradin, 41 Fla. L. Weekly D2132 (Fla. 4th DCA Sept. 14, 2016).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

 

BUSINESS AND EMPLOYMENT

 

 

CIVIL PROCEDURE

 

Trial court abused its discretion by entering a final summary judgment dismissing buyers’ post-closing suit against seller’s agents because the buyers should have been allowed to finish deposing the agents and because their claims for statutory violations did not contradict the contract’s provision that the buyers were not to rely on representations by sale agents.  Kjellander v. Abbott, 41 Fla. L. Weekly 2155 (Fla. 1st DCA Sept. 19, 2016).

 

In an asbestos exposure case, trial court abused its discretion in denying defendant’s motion for remittitur because plaintiff’s lawyer’s comments to the jurors that they should base their verdict upon the rates the parties compensated their experts improperly focused on the defendant’s ability to pay.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016).

 

Trial court erred in dismissing a complaint by stating that plaintiff’s multiple violations of a pre-trial order were willful or contumacious was not a proper analysis nor a written determination required by the decision in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).  Gordon v. Gatlin Commons Property Owners Association, Inc., 41 Fla. L. Weekly D2126 (Fla. 4th DCA Sept. 14, 2016).

 

Trial court erred in denying a motion to dismiss for failure to arbitrate because it did not make a decision as to whether a valid written agreement to arbitrate exists as required by section 682.03(7), Florida Statutes.  Cirrus Holdings USA, LLC v. Welch, 41 Fla. L. Weekly D2125 (Fla. 4th DCA Sept. 4, 2016).

A resident is not bound by the arbitration clause in a nursing home contract which he did not sign because the third-party beneficiary doctrine applies to cases where a third-party is seeking to bind one of the contracting parties and does not enable two contracting parties to bind a third, non-signatory party. Mendez v. Hampton Court Nursing Center, LLC, 41 Fla. L. Weekly S394 (Fla. Sept. 22, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

In asbestos exposure case, trial court abused its discretion in allowing three of plaintiff’s expert witnesses to testify because their testimony did not satisfy the standard in Daubert that their opinion had to be based upon reliable studies and data and establish a causal link.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016).

 

“[T]he trial court departed from the essential requirements of law in allowing the party to call the reporter as a witness without prior notice and without any showing that the reporter had any relevant testimony.”  Palm Beach Newspapers, LLC v. Colin, 41 Fla. L. Weekly D2125 (Fla. 4th DCA Sept. 14, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

 

INSURANCE

 

The circuit court sitting in its appellate capacity departed from the essential requirements of law in holding that an insurance company waive its right to litigate the reasonableness of medical bills by not specifically electing to use Medicare’s fee schedules in its policy.  Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, 41 Fla. L. Weekly D2145 (Fla. 5th DCA Sept. 16, 2016).

 

In a response to a question certified by the Eleventh Judicial Circuit, The Florida Supreme Court held that a party cannot “challenge the validity of a life insurance policy after the two-year contestability period established by section 627.455 because of its creation through a [stranger-originated life insurance] STOLI scheme.”  Wells Fargo Bank, N.A. v. Pruco Life Ins. Co., 41 Fla. L. Weekly S403 (Fla. Sept. 22, 2016).

 

 

REAL PROPERTY

 

In mortgage foreclosure action, trial court abused its discretion in denying property owner’s motion for leave to amend her answer to raise affirmative defenses because it was the first time she filed such a motion and the affirmative defenses were properly pled.  Morgan v. Bank of New York Mellon, 41 Fla. L. Weekly D2157 (Fla. 1st DCA Sept. 19, 2016).

 

TORT

 

 

 

 

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