Weekly Reder for December 16, 2016

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the December 16, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

Administrative Law Judge did not err by entering a final order determining the Agency for Health Care Administration (AHCA) was entitled to the full amount of its Medicaid lien from a settlement recovery in a product liability/negligence action because the Medicaid recipient’s evidence that the settlement agreement prepared by his counsel showing an allocation of $13,881 for past medical expenses was not sufficient to prove by clear and convincing evidence that a lesser portion of the total recovery should be allocated and because AHCA’s lien also extended to future medical expenses.  Giraldo v. Agency for Health Care Administration, 41 Fla. L. Weekly D2743 (Fla. 1st DCA Dec. 12, 2016).

 

Trial court properly denied motions filed for attorney’s fees by a county attorney and a county commissioner who were targets of an unsuccessful ethics complaint because, although the complaint contained numerous false statements, none were “material to a violation” of the Ethics Code as required by section 112.317 (7), Florida Statutes.  Hadeed v. State of Florida, Commission on Ethics, 41 Fla. L. Weekly D2742 (Fla. 1st DCA Dec. 12, 2016).

 

Trial court properly dismissed suit by retired firefighters against City and Union claiming they were duped into selecting three-year Deferred Retirement Option Plan because jurisdiction was with the Public Employees Relations Commission. Amato v. City of Miami Beach, 41 Fla. L. Weekly D2712 (Fla. 3d DCA Dec. 7, 2016).

 

APPELLATE

 

Appellate court did not have jurisdiction to review trial court order determining party was entitled to attorney’s fees as a sanction for opposing party’s egregious conduct during the course of discovery proceedings because an amount had not yet been determined. SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

Appellate court issued writ of certiorari because trial court departed from essential requirements of law in denying tobacco company’s motion to disqualify attorney and law firm from representing personal representative in wrongful death action as they had represented defendant in an Engle progeny case which was “a products liability case involving the identical products.”  Philip Morris USA, Inc. v. Caro, 41 Fla. L. Weekly D2722 (Fla. 4th DCA Dec. 7, 2016).

 

Appellate court issued writ of prohibition because motion for disqualification alleging “trial judge engaged in ex parte communications with Respondent on several occasions before entering a Final Judgment nearly identical to Respondent’s proposed final judgment” was legally sufficient.  Isan v. Isan, 41 Fla. L. Weekly D2705 (Fla. 5th DCA Dec. 6, 2010).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

 

Trial court erred in awarding attorney’s fee incurred in dissolving a temporary injunction because the injunction was unenforceable as trial court failed to require a bond and therefore there was no statutory basis per section 60.07, Florida Statutes, which “presupposes the existence of a bond.”  Vital Pharmaceuticals, Inc. v. Professional Supplements, LLC, 41 Fla. L. Weekly D2721 (Fla. 4th DCA Dec. 7, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Trial judge erred by stating in final judgment that payments due under a promissory note “may not be held to set-off against any potential attorney fee or costs reserved in this Final Judgment” because it clearly contravened the parties’ agreement and promissory note which defined losses as including reasonable attorney’s fees.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

 

 

CIVIL PROCEDURE

 

In action for fraud, slander of title, and abuse of process, trial court erred by granting plaintiff summary judgment because neither the motion nor the sworn declaration filed per section 95.525, Florida Statutes addressed the affirmative defenses raised in the answers to the first two counts and because the court had not ruled on the defendant’s motion to dismiss the third count.  T-Quip of Florida, Inc. v. Tietig, 41 Fla. L. Weekly D2740 (Fla. 5th DCA Dec. 9, 2016).

 

In mortgage foreclosure action, “the trial court erred in entering a judicial default while the borrowers’ motion to dismiss the complaint was pending.”  Sansbury v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D2738 (Fla. 5th DCA Dec. 9, 2016).

 

Trial court erred by not awarding prejudgment interest on claims for breach of warranty and for fraud based on the breach of warranty once the liquidated damages had been determined.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

Trial court erred by not correcting amounts stated in partial final judgment and final judgment that erroneously stated the amount in an escrow that was to be applied as an offset.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

GOVERNMENT

 

In Florida Public Records Act case requesting production of official ballots, trial court properly ruled Supervisor of Elections charge of $189.21 per hour was reasonable because section 119.07(4), Florida Statutes, provides state agency may charge labor costs “actually incurred” and should not be interpreted as requiring the charge to be based on the labor cost of the lowest paid employee.  Trout v. Bucher, 41 Fla. L. Weekly D2724 (Fla. 4th DCA Dec. 7, 2016).

 

INSURANCE

 

Trial court erred by enter a final summary judgment dismissing a first-party bad faith claim against homeowners’ insurance carrier on basis insureds had accepted insurer’s proposal for settlement for less than policy limits in prior suit for breach of contract because section 624.155, Florida Statutes does not require an insured to obtain the full amount of his or her damages in settling a case.  Barton v. Capitol Preferred Ins. Co., Inc., 41 Fla. L. Weekly D2736 (Fla. 5th DCA Dec. 9, 2017).

 

In uninsured motorist case, trial court abused its discretion by denying insurer’s motion for remittitur as to award for future medical expenses because plaintiff failed to submit any evidence as to life expectancy.  General Employees Ins. Co. v. Isaacs, 41 Fla. L. Weekly D2715 (Fla. 4th DCA, Dec. 7, 2016).

 

 

REAL PROPERTY

 

Appellate court reversed trial court’s dismissal of one-count complaint seeking a deficiency judgment because section 702.06, Florida Statutes specifically authorizes an independent deficiency action, certifying conflict with Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376(Fla. 1st DCA June 9, 2016).  Dyck-O’Neal, Inc. v. Konstantinos, 41 Fla. L. Weekly D2728 (Fla. 2d DCA Dec. 9, 2016).

 

In commercial lease dispute, trial court properly entered a final judgment holding landlord liable for wrongful eviction because landlord was not entitled to use the self-help provisions in the lease agreement, but rather was limited to the provisions of section 83.05(2), Florida Statutes in gaining possession.  Palm Beach Florida Hotel and Office Building Limited Partnership v. Nantucket Enterprises, Inc., 41 Fla. L. Weekly D2719 (Fla. 4th DCA Dec. 7, 2016).

 

In commercial lease dispute, trial court erred by entering a judgment against landlord after jury verdict for conversion because (1) landlord did not convert tenant’s catering contracts, (2) “Landlord did not convert the newly remodeled space because real property cannot be converted,” and (3) claim for food and beverages rights would be one for breach of contract.  Palm Beach Florida Hotel and Office Building Limited Partnership v. Nantucket Enterprises, Inc., 41 Fla. L. Weekly D2719 (Fla. 4th DCA Dec. 7, 2016).

 

Trial court erred by entering a final judgment of involuntary dismissal of a mortgage foreclosure action because plaintiff mortgage servicing company submitted a form letter from HUD showing request to proceed with foreclosure was approved and because mortgagee’s failure to pay property taxes and hazard insurance was a material breach justifying mortgage foreclosure.  Liberty Home Equity Solutions, Inc. v. Raulston, 41 Fla. L. Weekly D2715 (Fla. 4th DCA Dec. 7, 2016).

 

 

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