Weekly Reder for November 11, 2016

These are summaries of cases reported in the November 11, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

Appellant’s challenge of a non-final order granting temporary injunctive relief was rendered “moot due to Appellant’s decision to move to dissolve the injunction before the trial court.”  Saidin v Korecki, 41 Fla. L. Weekly D2473 (Fla. 1st DCA Nov. 4, 2016) and AAOEP USA, Inc. v. Pex German OE Parts, LLC, 41 Fla. L. Weekly D2473 (Fla. 1st DCA Nov. 4, 2016).

 

Appellate court issued a writ of mandamus ordering Department of Education to conduct a hearing on a parent’s petition seeking “a permanent exemption from statewide standardized testing for her daughter who has a number of serious medical conditions.”  Drew v. Florida Dept. of Education, 41 Fla. L. Weekly D2459 (Fla. 1st DCA Nov. 2, 2016).

 

On appellant mortgagor’s motion for rehearing, appellate court explained that the order denying appellant’s motion to quash was a nonfinal, nonappeable order, but explained in a footnote the appellant could challenge the order at the conclusion of the case.  Vujin v. U.S. Bank National Association, 41 Fla. L. Weekly D2456 (Fla. 3d DCA Nov. 2, 2016).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court abused its discretion in denying a 57.105, Florida Statute motion for attorney’s fees on basis that defendant had raised an affirmative defense that was not “entirely basis” because the trial court’s analysis was based on the pre 1999 version of section 57.105, because in this case the plaintiff was able to get the defendant to admit in deposition it had no evidence to support its affirmative defense of setoff.  Infiniti Employment Solutions, Inc. v. MS Liquidators of Arizona, LLC, 41 Fla. L. Weekly D2469 (Fla. 5th DCA Nov. 4, 2016).

 

Trial court erred in denying motion for attorney’s fees on the basis no claim was made in the wherefore clause of the complaint because plaintiff was aware of plaintiff’s claim. Zurro v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D2454 (Fla. 2d DCA Nov. 2, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Judge of Compensation Claims properly denied claimant’s attorney’s request for attorney’s fees because the employer/carrier accepted responsibility for medical expenses within the thirty-day grace period even though it did not pay the medical bills until after the thirty days.  Sansone v. Frank Crum/Frank Winston Crum Ins., Inc., 41 Fla. L. Weekly D2463 (Fla. 1st DCA Nov. 2, 2016).

 

 

 

CIVIL PROCEDURE

 

Trial court erred by entering a final summary judgment in a replevin action because there were “diametrically opposed versions of the facts in their respective sworn affidavits” . . . “regarding removal of Appellant’s property from the house.”  Skelton v. Real Estate Solutions Home Sellers, LLC, 41 Fla. L. Weekly D2466 (Fla. 5th DCA Nov. 4, 2016).

 

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

Trial court did not depart from essential requirements of law in denying motion for protective order claiming that the notice of depositions of the president and chief executive officer was for purposes of harassment and neither had anything to do with the day-to-day operations of the corporation because the affidavits also admitted to meeting with plaintiff’s president and discussing the management of the hotel with lower-level employees.  Remington Lodging & Hospitality, LLC v. Southernmost House, Ltd., 41 Fla. L. Weekly D2457 (Fla. 3d DCA Nov. 2, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

Trial court erred in denying an aide’s motion requesting court to enforce an “earlier order appointing the ward’s son to pay a $25,000 gift to the aide upon the ward’s death” because the motion required an evidentiary hearing to determine the timing of the ward’s gifts and the conditions by which the ward was to make the gifts.  Cajuste v. Herlitschek, 41 Fla. L. Weekly D2445 (Fla. 4th DCA Nov. 2, 2016).

 

INSURANCE

 

 

 

 

REAL PROPERTY

 

Trial court did not error in temporarily enjoining a condominium association for collecting assessments for anticipated non-recurring legal and engineering fees because “the assessments were ‘special assessments’ that required a different approval process versus the amended budget process that the Association used.”  Shores of Panama Resort Community Association, Inc. v. Shores of Panama City, LLC, 41 Fla. L. Weekly D2458 (Fla. 1st DCA Nov. 2, 2016).

 

Trial court abused its discretion in denying motion to vacate a final judgment of dismissal premised upon the entry of a clerk’s default because plaintiff “had actual knowledge both that [defendant] intended to defend the foreclosure lawsuit and that [defendant] was represented by counsel.”  Jacaranda, LLC v. Green Tree Servicing, LLC, 41 Fla. L. Weekly D2454 (Fla. 2d DCA Nov. 2, 2016).

 

Trial court properly entered a final judgment of mortgage foreclosure because “bank’s pre-complaint pooling and servicing agreement and corresponding mortgage loan schedule expressly indicated that the agreement included the borrower’s loan.”  Bolous v. U.S. Bank National Association, 41 Fla. L. weekly D2448 (Fla. 4th DCA Nov. 2, 2016).

 

 

 

TORT

 

Trial court did not error in dismissing with prejudice a third amended complaint that alleged negligence of a 911 operator in responding to a call for medical assistance because there were no allegations of a “special relationship and there was no increased risk of harm to make the undertaker’s doctrine applicable.  Jordan v. Nienhuis, 41 Fla. L. Weekly D2464 (Fla. 5th DCA Nov. 4, 2016).

 

Appellate court affirmed trial court’s dismissal of complaint by former wife against her former husband’s employer for conspiring with her former husband to fraudulently conceal his true income because the complaint was seeking to establish a new cause of action, but certified the following as a question of great public importance:

“May a former spouse pursue an independent tort claim against the employer of the other former spouse for fraudulent conduct that (1) occurs after the final judgment and (2) falsely depresses that spouse’s income so as to limit the obligation for child support?”

Chanin v. Feigenheimer, 41 Fla. L. Weekly D2446 (Fla. 4th DCA Nov. 2, 2016).

 

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.