Florida Appellate Court Decisions – December 2, 2017

These are summaries of Florida Appellate court decisions reported in the December 2, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

Appellate court affirmed trial court’s award of post-judgment interest at the rate of 1.49% despite appellee’s argument was not entitled to any post-judgment interest because appellee agreed to the amount at trial and therefore could not cross-appeal this issue.  Futernick v. Trushina, 41 Fla. L. Weekly D2642 (Fla. 3d DCA Nov. 23, 2016).

 

Appellate court affirmed final judgment, but remanded for a new trial on the interest rate the bank was entitled to because there was no testimony about the relevant LIBOR index and any of the change dates so the interest amount was not a simple ministerial function.  Gonzalez v. OneWest Bank, FSB, 41 Fla. L. Weekly D2635 (Fla. 4th DCA Nov. 23, 2016).

 

Appellant failed to preserve issue of the trial court’s failure to retain jurisdiction to award attorney’s fees by not presenting the argument in her initial brief. Gooden v. City of Riviera Beach, 41 Fla. L. Weekly D2630 (Fla. 4th DCA 2016).

 

Appellate court issued a writ of mandamus ordering trial court to hold an immediate hearing on a challenge to a candidate’s eligibility to run for office.  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2623 (Fla. 1st DCA Nov. 22, 2016).

 

Appellate court denied petition for writ of prohibition because petitioner “failed to take appropriate and timely steps to seek our review of the order denying disqualification.”  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2645 (Fla. 1st DCA Nov. 23, 2016).

 

Because of the unusual facts in the case, the appellate court exercised its authority under article V, section 4(b)(3) of the Florida Constitution to issue “other writs necessary to the complete exercise of [our] jurisdiction” to prevent an elected candidate for mayor from taking office pending a final judgment from the trial court on whether the candidate met the residency requirements for qualification.  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2645 (Fla. 1st DCA Nov. 23, 2016).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court erred in awarding law firm attorney’s fees against a former client because 1) the court erred by denying the former client his right to depose the corporate officers who were specifically identified in the notice of taking deposition and 2) the law firm failed to present any expert witness testimony with regard to the reasonableness of its fees.  Ghannam v. Mark D. Shelnutt, P.A., 41 Fla. L. Weekly D2626 (Fla. 5th DCA June 17, 2016).

 

BUSINESS AND EMPLOYMENT

 

Trial court properly entered a final summary judgment in a breach of contract action brought by Florida Power and Light against Verizon for amounts owed for placing equipment on its poles because an Order issued by the Federal Communications Commission in 2011 stating rates had to “just and reasonable” was not applicable since Verizon unilaterally paid a reduced rate instead of filing a complaint with FCC.  Frontier Florida, LLC v. Florida Power & Light Co., 41 Fla. L. Weekly D2640 (Fla. 3d DCA Nov. 23, 1016).

 

CIVIL PROCEDURE

 

In a dispute involving the extent of a tenant’s rights under a long-term lease, the trial court erred by entering a temporary injunction in order to maintain the status quo because it failed to make specific factual findings or require the posting of bond as required by Florida Rule of Civil Procedure 1.610.  Aligned Bayshore Marina, LLC, v. American Watersports Coconut Grove, LLC, 41 Fla. L. Weekly D2644 (Fla. 3d DCA Nov. 23, 2016).

 

Trial court erred by reversing itself on motion for rehearing because it considered an accountant’s excluded report in calculating damages thereby preventing the defense from submitting any contrary evidence.  Willson v. Big Lake Partners, LLC, 41 Fla. L. Weekly D2631 (Fla. 4th DCA Nov. 23, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

Trial court erred in awarding law firm attorney’s fees against a former client because 1) the court erred by denying the former client his right to depose the corporate officers who were specifically identified in the notice of taking deposition and 2) the law firm failed to present any expert witness testimony with regard to the reasonableness of its fees.  Ghannam v. Mark D. Shelnutt, P.A., 41 Fla. L. Weekly D2626 (Fla. 5th DCA June 17, 2016).

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

INSURANCE

 

In a case involving the interpretation of an all-risks policy, The Florida Supreme Court explained that when two or more perils to cause  a loss and one is excluded the “courts have developed competing theories on how to determine coverage: the efficient proximate cause and concurring cause doctrines.”  The Court explained these doctrines and adopted the concurrent cause doctrine which “provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause.”  Sebo v. American Home Assurance Co., Inc., 41 Fla. L. Weekly S582 (Fla. Dec. 1, 2016).

 

 

REAL PROPERTY

 

Trial court erred by entering a final deficiency summary judgment because there were factual issues raised by the borrowers’ affirmative defenses and counterclaim alleging wrongful withholding of insurance proceeds which were not waived by the borrowers in a loan modification agreement.  Rodriguez v. Ocean Bank, 41 Fla. L. Weekly D2637 (Fla. 3d DCA Nov. 23, 2016).

 

Trial court properly ruled that Federal National Mortgage Association when it obtained title to a piece of real property through a foreclosure action was liable for the full amount of the unpaid homeowner association assessments and was not entitled to the one-year limitation per the “safe harbor” statute, section 720.3085(2)(c), Florida Statutes, which unambiguously states it applies when the homeowners association is “initially joined” in the foreclosure action.  Federal National Mortgage Association v. Mirabella at Mirasol Homeowners’ Association, Inc., 41 Fla. L. Weekly D2633 (Fla. 4th DCA Nov. 23, 2016).

 

 

TORT

 

 

 

 

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