Weekly Reder for December 23, 2016

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the December 23, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.







Appellate court dismissed petition to review non-final order of administrative law judge granting hospitals’ motions to unseal files relevant to two Medicaid provi8der overpayment complaints because the Agency for Health Care Administration failed to establish that the order causes material injury that cannot be remedied on appeal.  Agency for Health Care Administration v. South Broward Hospital District, 41 Fla. L. Weekly D2792 (Fla. 1st DCA Dec. 16, 2016).




In mortgage foreclosure action, trial court did not abuse its discretion in vacating an order of involuntary dismissal because Bank filed motion to vacate per Florida Rules of Civil Procedure 1.540 with supporting affidavit as to why Plaintiff did appear at a case management conference and although “due diligence” may play a role in seeking a relief, it is not required by Rule 1.540.  Fields v. Beneficial Florida, Inc., 41 Fla. L. Weekly D2777 (Fla. 5th DCA Dec. 16, 2016).


Trial court erred in denying Rule 1.540 motion to vacate dismissal premised on lack of prosecution because plaintiff had filed a Notice for Trial within sixty days of receipt of the notice of non-activity.  Reyes v. Aqua Life Corp., 41 Fla. L. Weekly D2768 (Fla. 3d DCA Dec. 14, 2016).


Trial court erred in denying motion to dismiss for lack of personal jurisdiction because in breach of contract action because defendant corporation had no representatives in Florida, the contract did not require substantial services to be performed in Florida, the eventual buyer was from Iowa, the pre-buy inspection took place in Wisconsin, and the ultimate sale of the aircraft took place in Oklahoma.  Moro Aircraft Leasing, Inc. v. International Aviation Marketing, Inc., 41 Fla. L. Weekly D2757 (Fla. 2d DCA Dec. 14, 2016).


The Florida Supreme Court held that a medical malpractice arbitration was void as against public policy because it excluded required provisions of the Medical Malpractice Act, approving the decision in Crespo v. Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014) and disapproving the decision in Santiago v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014).  Hernandez v. Crespo, 41 Fla. L. Weekly S625 (Fla. Dec. 22, 2016).




A city ordinance imposing a deadline for police officers to decide whether or not to participate in the Deferred Retirement Option Plan (“DROP”) program is not an unconstitutional impairment of contract nor an unlawful taking of private property without compensation.  City of Hollywood v. Bien, 41 Fla. L. Weekly D2761 (Fla. 4th DCA Dec. 14, 2016).





Trial court departed from essential requirements of law by ordering attorneys and law firm to produce a privilege log with respect to certain categories that clearly request production of documents that are privileged under the attorney-client or work-product doctrines resulting in a material harm that cannot be remedied on appeal.  Finn Law Group, P.A. v. Orange Lake Country Club, Inc., 41 Fla. L. Weekly D2784 (Fla. 5th DCA Dec. 16, 2016).





In a rehearing en banc, the Third District Court of Appeal vacated a panel decision in De La Osa v. Wells Fargo Bank, N/A., No. 3d14-1455, 2016 WL 517466,at *4, 41 Fla. L. Weekly D382b (Fla. 3d DCA 2016) and affirmed the trial court’s order setting aside a “final order” dismissing action for failure of Plaintiff’s counsel to appear because Plaintiff was not given any notice of the hearing or copy of the dismissal and therefore the order was void per Florida Rule of Civil 5.140(b)(4) which applies to orders as well as judgments and decrees.  De La Osa v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D2771 (Fla. 3d DCA Dec. 14, 2016).


Trial court erred by entering a final summary judgment finding a contractor liable for playground and landscaping defects because the City failed to provide an opportunity to cure the defects as required by the contract.  Magnum Construction Management Corp. v. City of Miami Beach, 41 Fla. L. Weekly D2766 (Fla. 3d DCA Dec. 14, 2016).


Circuit Court sitting in its appellate capacity did not depart from the essential requirements in law in determining that the Special Magistrate properly found that issuance of certificates of appropriateness by the Historical Architectural Review Commission of the City of Key West were consistent with its guidelines.  Far Niente, LLC v. City of Key West, 41 Fla. L. Weekly D2764 (Fla. 3d DCA Dec. 14, 2016).


Tri8al court erred by entering a temporary injunction in favor of property management company concerning the validity of an election of a new board of directors because the property management firm failed to show a substantial likelihood of success since the election was held on the first Wednesday in March as required by the bylaws and the validity of the Board’s decision to postpone the election was highly questionable.  M&M Property Management, LLC v. Palm-Aire Country Club Condominium Association No. 2, Inc., 41 Fla. L. Weekly D2758 (Fla. 4th DCA Dec. 14, 2016).




Trial court properly entered summary judgment dismissing a personal injury case because a Bobcat loader is not a “dangerous instrumentality.”  Newton v. Caterpillar Financial Services Corp., 41 Fla. L. Weekly D2755 (Fla. 2d DCA Dec. 14, 2016).







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