Weekly Reder for September 30, 2016

These are summaries of cases reported in the September 30, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court erred in denying motion for appellate attorney’s for the reason that plaintiff made a joint proposal for settlement to two defendants because prior case law holding such proposals were invalid were superseded by the addition of a provision to Florida Rule of Civil Procedure 1.442(c) in 2010 that specifically authorizes a joint proposal to two defendants where one of them is vicariously liable. Saterbo v. Markuson, 41 Fla. L. Weekly D2169 (Fla. 2d DCA Sept. 21, 2016).

 

The Florida Supreme Court found that the Fifth District Court of Appeal’s decision in Omega Ins. Co. v. Johnson, 39 Fla. L. Weekly D1911 (Fla. 5th DCA Sept. 5, 2014) conflicted with its decision in Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla. 2000), and held “that a recovery for attorney’s fees under section 627.428 requires an incorrect denial of benefits by the insurance company, not a bad faith denial.”  Johnson v. Omega Ins. Co., 41 Fla. L. Weekly S415 (Fla. Sept. 29, 2016) (emphasis in original).

 

 

BUSINESS AND EMPLOYMENT

 

 

CIVIL PROCEDURE

 

In tobacco litigation case, trial court erred by refusing to instruct the jury on the detrimental reliance element of the fraud-based claim.  R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

In a suit for writ of mandamus, trial court erred by proceeding to hold a hearing on the merits without first following the procedures outline in Florida Rule of Civil Procedure 1.630 requiring the court to issue a show cause order if the complaint sets forth a prima facie case.  Miami-Dade County Board of County Commissioners v. An Accountable Miami-Dade, 41 Fla. L. Weekly D2171 (Fla. 3d DCA Sept. 20, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

 

INSURANCE

 

The Florida Supreme Court found that the Fifth District Court of Appeal’s decision in Omega Ins. Co. v. Johnson, 39 Fla. L. Weekly D1911 (Fla. 5th DCA Sept. 5, 2014) conflicted with its decision in Universal Ins. Co. of North America v, Warfield, 82 So.3d 47 (Fla. 2012), and held “that the presumption of correctness granted to the insurer’s investigative report in section 627.7073(1)(c) of the sinkhole statutes is only applicable to the sinkhole initial claims process, and does not continue to apply during the trial stage.” Johnson v. Omega Ins. Co., 41 Fla. L. Weekly S415 (Fla. Sept. 29, 2016) (emphasis in original).

 

 

REAL PROPERTY

 

Trial court erred by entering a final judgment of mortgage foreclosure because the court lacked jurisdiction to enter a judgment after the filing of a notice of removal to federal court and before the federal court remanded the case back to the trial court.  Perkins v. Wells Fargo Bank N.A., 41 Fla. L. Weekly D2186 (Fla. 5th DCA Sept. 23, 2016).

 

In an action to foreclose on a reverse mortgage, trial court erred by entering a final judgment of foreclosure where the plaintiff proceeded to foreclose on the sole basis the signor of the promissory note did not establish or plead that his wife had died or no longer used the property as her primary residence and who was considered to be a “Borrower” as she signed the mortgage and who also may have had homestead rights.  Smith v. Reverse Mortgage Solutions, Inc., 41 Fla. L. Weekly D2179 (Fla. 3d DCA Sept. 21, 2016).

 

Trial court erred in dismissing a mortgage foreclosure complaint on basis of failure to comply with condition precedent of paragraph 21 of the mortgage as the pre-suit notice substantially complied by adequately informing the borrower there would be a judicial foreclosure proceeding and of his right to assert defenses.  Federal National Mortgage Association v. Linares, 41 Fla. L Weekly D2179 (Fla. 3d DCA Sept. 21, 2016).

 

In mortgage foreclosure case, trial court erred by entering a dismissal for lack of proof of standing because it had previously struck defendant’s affirmative defense and the final hearing was on damages only.  LNV Corporation v. Gonzalez, 41 Fla. L. Weekly D2178 (Fla. 3d DCA Sept. 21, 2016).

 

Trial court erred in dismissing a claim that a development order was inconsistent with the town’s land use plan because “(1) the comprehensive plan is clear and unambiguous, (2) the comprehensive plan requires that the project include residential uses; (3) the project does not contain any residential uses; and thus, (4) the development order approving the project’s site plan is inconsistent with the comprehensive plan.”  Realty Associates Fund IX, LP v. Town of Cutler Bay, 41 Fla. L. Weekly D2176 (Fla. 3d DCA Sept. 21, 2016).

 

In a mortgage foreclosure case, the appellate court found there was insufficient evidence to support the total amount of damages reflected in the final judgment and remanded for further proceedings.  Ottawa Properties 2, LLC v. Central Mortgage Co., 41 Fla. L. Weekly D2166 (Fla. 4th DCA Sept. 21, 2016).

 

The trial court properly granted summary judgment finding that alluvium (newly formed) land becomes a part of the original property as a matter of law from the moment of its creation and is therefore subject to a mortgage on the original property.  Accardi v. Regions Bank, 41 Fla. L. Weekly D2164 (Fla. 4th DCA Sept. 21, 2016).

 

TORT

 

In tobacco litigation case, trial court erred by failing to reduce the compensatory damage based on the jury’s finding that the plaintiff was 20.55 comparatively negligent even though the complaint included counts for intentional fraud because all the claims were based on products liability theory.  R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

In tobacco litigation case, trial court abused its discretion in denying defendant’s motion for new trial because “plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize” and because the “closing argument included inflammatory remarks, statement evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial.” R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

Trial court erred by entering a summary judgment dismissing a complaint for conversion because it adequately pled all the essential elements and the defendant allegedly refused plaintiff’s demand to return the property used as collateral and because plaintiff was not limited to seeking recourse through replevin.  Beach Community Bank v. Disposal Services, LLC, 41 Fla. L. Weekly D2185 (Fla. 1st DCA Sept. 21, 2016).

 

 

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