Case Summaries for week of Nov 18, 2016

These are summaries of cases reported in the November 18, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.




The administrative law judge erred by denying appellants’ motion for attorney’s fees, even though the judge ruled in favor of appellee as to amount of benefits that should be awarded, because section 766.31, Florida Statutes is not dependent upon prevailing party determination but compels payment of fees and costs incurred in connection with claim.  Lampert v. Florida Birth-Related Neurological Injury Compensation Association, 41 Fla. L. Weekly D2549 (Fla. 1st DCA Nov. 14, 2016).


The Department of Environmental Protection properly dismissed a petition challenging the issuance of a five-year environmental resource permit because the petitioner, which was an island community occupying the central portion Key Biscayne, did not have third-party standing to challenge the permit approving installation of 830 temporary water slips to facilitate a week-end long boat show as it failed to allege actual injury in fact or an immediate threat of direct injury.  Village of Key Biscayne v. Dept. of Environmental Protection, 41 Fla. L. Weekly D2503 (Fla. 3d DCA Nov. 9, 2016).




Appellate court dismissed appeal of the portion of an order that denied motion to sever or bifurcate as it was not an appealable non-final order recognized in Florida Rule of Appellate Procedure 9.130 and denied certiorari because of lack of irreparable harm.  Hartford Fire Ins. Co. v. Smith, 41 Fla. L. Weekly D2539 (Fla. 4th DCA Nov. 9, 2016).




In a fifth appeal from an order awarding attorney’s fees as a sanction in civil litigation, the appellate affirmed, finding that the successor judge had authority to take additional testimony as there were no instructions in the previous opinion as to the remand, but remanded with instructions to include interest.  Cox v. Great American Ins. Co., 41 Fla. L. Weekly D2525 (Fla. 4th DCA Nov. 9, 2016).





Trial court erred by entering a final order dismissing an amended complaint for breach of contract against successor entities by concluding “successor liability and continuation of business are post judgment theories appropriate only if the Plaintiff is first able to obtain a judgment” because of “longstanding case law permitting claims to be made against successor corporations and alter egos.”  Oceanside Plaza Condominium Association, Inc. v. Foam King Industries, Inc., 41 Fla. L. Weekly D2505 (Fla. 3d DCA Nov. 9, 2016).


Judge of Compensation Claims correctly denied claim for permanent total disability benefits was premature, not because claimant remained totally disabled at the end of the 104-week eligibility for temporary total benefits per section 440.15(2) (a), Florida Statutes, but because that section had been declared unconstitutional, thereby reviving “the pre-1994 statute that provided for a limitation of 260 weeks of temporary total disability benefits.”  Jones v. Food Lion, Inc., 41 Fla. L. Weekly D2490 (Fla. 1st DCA Nov. 9, 2016).





Trial court did not abuse its discretion in denying motion to transfer venue for convenience because, although several witnesses were not located in Palm Beach County, defendant failed to demonstrate he actually intended to call them or indicate the significance of their testimony.  Hartford Fire Ins. Co. v. Smith, 41 Fla. L. Weekly D2539 (Fla. 4th DCA Nov. 9, 2016).


Trial court erred in dismissing a bank’s declaratory action against a condominium association seeking entitlement to the safe harbor protection for unpaid assessment contained in section 718.116, Florida Statutes because the dismissal of the association in a previous mortgage foreclosure action by the bank’s predecessor precluded the imposition of the doctrine of collateral estoppels and because the issue of lien priority was never actually litigated.  PNC Bank, National Association v. Inlet Village Condominium Association, Inc., 41 Fla. L. Weekly D2523 (Fla. 4th DCA Nov. 9, 2016).


Trial court erred by entering an amended final judgment because plaintiff had filed a notice of voluntary dismissal, thereby divesting the trial court of jurisdiction.  Bank of New York Mellon v. Poker Run Acquisitions, Inc., 41 Fla. L. Weekly D2518 (Fla. 3d DCA Nov. 9, 2016).


Trial court did not abuse its discretion in denying motion for new trial and imposing sanctions on a partner primarily responsible for the trial because he “repeatedly violated the court’s directions, and exposed the jury to inadmissible evidence,” but did abuse its discretion by imposing sanctions on the associate attorney who assisted her partner who had on one occasion mistakenly stated she had spoken with a witness when in fact it was a summer intern who had done so.  Robinson v. Ward, 41 Fla. L. Weekly D2497 (Fla. 2d DCA Nov. 9, 2016).


Trial court properly dismissed a declaratory action seeking a tax refund on basis of res judicata because the complaint referenced a case decided in a different circuit which addressed the same issue and involved the same parties.  Seminole Tribe of Florida v. Dept. of Revenue, 41 Fla. L. Weekly D2477 (Fla. 1st DCA Nov. 9, 2016).





Trial court erred by entering a final judgment of garnishment because the court failed to consider the merits of the city’s motion to dissolve and erred in holding that the second motion to dissolve was untimely as it was filed within 20 days of receipt of the bank’s amended answer.  City of Delray Beach v. Desisto, 41 Fla. L. Weekly D2529 (Fla. 4th DCA Nov. 9, 2016).







The United States Supreme Court’s decision in Crawford v, Washington, 541 U,S. 36 (2004)and the Sixth Amendment confrontation clause of the United State Constitution do not abrogate Florida’s dying declaration exception to the hearsay rule, section 90.804(2)(b), Florida Statutes. Davis v. State of Florida, 41 Fla. L. Weekly S528 (Fla. Nov. 10, 2016).






Trial court erred by entering a final summary judgment dismissing a claim of individual negligence against a school bus driver because an earlier appeal holding the school board had not duty was not the law of the case and because there were disputed issues of fact as to whether the school bus driver required the students to cross the street in violation of school board policy and whether such actions placed him beyond the protection of sovereign immunity per section 768,28(9)(a), Florida Statues.  Davis v. Baez, 41 Fla. L. Weekly D2510 (Fla. 3d DCA Nov. 9, 2016).




Trial court erred by entering a summary judgment holding a UM carrier liable because the plaintiff had exited the insured vehicle thirty minutes previous to being struck by an underinsured motorist while standing ten feet away and the policy unambiguously provided coverage to non-owners who were occupying the insured vehicle.  State Farm Mutual Automobile Ins. Co. v. Bailey, 41 Fla. L. Weekly D2493 (Fla. 2d DCA Nov. 9, 2016).





In mortgage foreclosure action, trial court erred by dismissing action on basis of improper verification because “certification executed by appellant’s counsel complied with” section 702.015(4), Florida Statutes.  Bank of America, N.A. v. Leonard, 41 Fla. L. Weekly D2549 (Fla. 1st DCA Nov. 14, 2016).


In mortgage foreclosure action, trial court properly denied mortgagor’s Rule 1.540(b) (4) motion alleging judgment was void for lack of standing because the entity that brought the action and obtained a final judgment was U.S. Bank the “fact that the caption of the final judgment identified Bank of America, N.A. was no more than a scrivener’s error.”  Rincon v. Bank of America, N.A., 41 Fla. L. Weekly D2509 (Fla. 3d DCA Nov. 9 2016).


Trial court erred by entering a final order dismissing on basis of statute of limitations an amended complaint for breach of contract and damages allegedly resulting from faulty roofing materials because it relied upon allegations made in the original complaint which was abandoned and no longer a pleading when the amended complaint was filed.  Oceanside Plaza Condominium Association, Inc. v. Foam King Industries, Inc., 41 Fla. L. Weekly D2505 (Fla. 3d DCA Nov. 9, 2016).


Trial court properly denied motion to vacate foreclosure sale claiming section 702.035, Florida Statutes was an unconstitutional special law because the property owner failed to comply with the requirements of Florida Rule of Civil Procedure 1.071, which requires service of any motion raising a constitutional issue to be served on the Attorney General or the state attorney.  Shelton v. Bank of New York Mellon, 41 Fla. L. Weekly D2495 (Fla. 2d DCA Nov. 9, 2016).




Trial court properly granted summary judgment dismissing wrongful death action for negligent supervision brought by parents of a sixteen year old son who died from falling off an all-terrain vehicle driven by defendants’ minor son because the uncontroverted evidence was defendants’ son drove the vehicle for the first time without his parents’ permission or knowledge.  Perez v. Rodriguez, 41 Fla. L. Weekly D2540 (Fla. 4th DCA Nov. 9, 2016).


In a tobacco litigation case, the appellate court held the court abused its discretion in admitting expert testimony because the expert did not explain the Bradford Hill criteria nor provide any data or studies of the association between mesothelioma and chrysotile asbestos as required by the Daubert standard.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2532 (Fla. 4th DCA Nov. 9, 2016) (denying motion for rehearing but substituting opinion reported at 41 Fla. L. Weekly D2133).


In defamation action, trial court properly entered final summary judgment of dismissal because appellant failed to present any evidence to refute affidavits and deposition testimony from defendant that he did not write the alleged defamatory statement on a postcard sent through the mail and had no knowledge that it was done by his son.  Navellier v. Shortz, 41 Fla. L. Weekly D2530 (Fla. 4th DCA Nov. 9, 2016).


In a suit brought by a senior in high school against a security guard company for negligent hiring, retaining, and supervising a guard who videotaped her undressed, trial court erred by entering a final judgment after jury verdict, because “Florida’s impact rule precludes recovery of damages in tort cases for emotional distress absent any physical injury.”  G4S Secure Solutions, USA, Inc. v. Golzar, 41 Fla. L. Weekly D2514 (Fla. 3d DCA Nov. 9, 2016).


In defamation case, trial court erred by instructing jury that malice could be inferred “where the false publication was made with such gross and reckless negligence as to amount to actual malice” and the error was not harmless because “the jury’s verdict found that the wrongful conduct arose ‘solely’ from an economic motivation, not malevolence.”  Crestview Hospital Corp. v. Coastal Anesthesia, P.A., 41 Fla. L. Weekly D2479 (Fla. 1st DCA Nov. 9, 2016).




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