Weekly Reder for December 9, 2016

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the December 9, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

In mortgage foreclosure action, appellate court issued writ of prohibition to prevent trial court from compelling deposition of bank’s corporate representative because bank had voluntarily dismissed the case within the safe harbor period of section 57.104(4), Florida Statutes.  Bank of America, N.A. v. Turkanovic, 41 Fla. L. Weekly D2689 (Fla. 1st DCA Dec. 1, 2016).

 

Appellate court denied petition for writ of certiorari to quash a non-final order disqualifying petitioner’s counsel although there was irreparable harm because the trial court held a hearing and made findings so there was no departure from the essential requirements of law.  Chessler v. All American Semiconductor, Inc., 41 Fla. L. Weekly D2680 (Fla. 3d DCA Nov. 30, 2016).

 

In a dismissal of an appeal of a mortgage foreclosure judgment, Bank was not entitled to an award for attorney’s fees because it sought fees as a sanction per section 57.105, Florida Statutes, yet fails to comply with the requirements of Florida Rule of Appellate Procedure 9.410(b).  Jarrette Bay Investments Corp. v. BankUnited, N.A., 41 Fla. L. Weekly D2661 (Fla. 3d DCA Nov. 30, 2016).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

In suit brought by homeowner’s association, trial court abused its discretion in denying property owner’s motion of attorney’s fees on basis there was no prevailing party because property owner prevailed on all the counts where homeowner’s association was seeking attorney’s fees under the restrictive covenants.  Olson v. Pickett Downs Unit IV Homeowner’s Association, Inc., 41 Fla. L. Weekly D2699 (Fla. 5th DCA Dec. 2, 2016).

 

In mortgage foreclosure action, trial court properly awarded attorney’s to the borrowers because even though the borrowers’ failed to plead entitle in their pro se answers, the bank was on notice they were requesting attorney’s fees when borrowers’ counsel pleaded for fees in a motion for judgment on the pleadings and a motion for summary judgment and the failed to object.  BankUnited, N.A, v. Ajabshir, 41 Fla. L. Weekly D2685 (Fla. 3d DCA Nov. 30, 2016).

 

BUSINESS AND EMPLOYMENT

 

 

CIVIL PROCEDURE

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

Hospitals have standing to challenge the constitutionality of Florida’s Neurological Injury Compensation Act.  Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Ass’n., 41 Fla. L. Weekly D2702 (Fla. 1st DCA Dec. 5, 2016).

 

Florida’s Neurological Injury Compensation Act which contains differing birth weight requirements in section 766.302(2), does not violate Florida’s constitutional right to equal protection because there is a rational basis for making a distinction between “single gestations” and “multiple gestations.”  Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Ass’n., 41 Fla. L. Weekly D2702 (Fla. 1st DCA Dec. 5, 2016).

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

Trial court erred by dismissing beneficiary’s claim against trustee for breach of fiduciary duty on basis of  six month time requirement of section 736.1008(2), Florida Statutes, because although fact that loan was disclosed in the accounting because the accounting failed to disclose that the promissory note the trustee gave to the trust was worthless. Turkish v. Brody, 41 Fla. L. Weekly D2681 (Fla. 3d DCA Nov. 30, 2016).

 

 

 

 

In applying New York law, trial court properly found that a Supplemental Release Agreement (SRA) between a trustee and IRS was invalid and unenforceable the terms of the agreement were not fully disclosed to one of the beneficiaries. Turkish v. Brody, 41 Fla. L. Weekly D2681 (Fla. 3d DCA Nov. 30, 2016).

 

 

Trial court erred by entering a judgment against a trustee for breach of fiduciary duty because the trust specifically provided the trustee had “absolute discretion” to make distributions from the principal “in equal or unequal amounts and to either [beneficiary] to the exclusion of the other.”  Turkish v. Brody, 41 Fla. L. Weekly D2681 (Fla. 3d DCA Nov. 30, 2016).

 

 

INSURANCE

 

Trial court erred by entering a final declaratory judgment following a jury trial finding there was coverage but ruling there was no proof of damages because the parties had stipulated at pretrial conference that the only issue was whether there was a theft of the truck.  S&M Transportation, Inc. v. Northland Ins. Co., 41 Fla. L. Weekly D2696 (Fla. 5th DCA Dec. 2, 2016).

 

REAL PROPERTY

 

Trial court erred by entering a final judgment of mortgage foreclosure and denying borrower’s motion for involuntary dismissal because bank had failed to comply with HUD regulation requiring a face-to-face interview, which is a condition precedent.  Palma v. JP Morgan Chase Bank, N.A., 41 Fla. L. Weekly D2694 (Fla. 5th DCA Dec. 2, 2016).

 

In a claim by a commercial tenant for constructive eviction, trial court did not abuse its discretion by allowing tenant to deposit rent money into the court registry because Rule of Civil Procedure 1.600 offers broad discretion in accepting or rejecting a voluntary deposit.  Tixie Designs, Inc. v. Green Ice, Inc., 41 Fla. L. Weekly D2679 (Fla. 3d DCA Nov. 30, 2016).

 

In mortgage foreclosure action, trial court erred by including in the amount of final judgment amounts for interest, late charges, taxes, insurance, inspection fees, court costs and attorney’s fees because there was no competent, substantial evidence supporting these amounts.  Tervil v. U.S. Bank, N.A., 41 Fla. L. Weekly D2678 (Fla. 4th DCA Nov. 30, 2016),

 

Trial court properly entered a final judgment of mortgage foreclosure despite borrower’s protestations that the signatures on the promissory note and mortgage were not hers because she had failed to raise these allegations as an affirmative defense and because the trial court, which allowed her to testify anyway, weighed her credibility in making its determination.  Polonsky v. HSBC Bank USA, N.A., 41 Fla. L. Weekly D2664 (Fla. 3d DCA Nov. 30, 2016).

 

 

 

Trial court erred by entering final judgment of involuntary dismissal in a mortgage foreclosure case because the borrower’s expert witness’s testimony that the trust was not the holder of the note and therefore lacked standing were legal conclusions and because the borrowers lacked standing to challenge trust documents. Citibank, N.A. v. Olsak, 41 Fla. L. Weekly D2658 (Fla. 3d DCA Nov. 30, 2016).

 

TORT

 

In tobacco litigation case, appellate affirmed the final judgment but reversed and remanded for remittitur because the jury’s award of $6 million in compensatory damages to an adult child living independently was excessive.  R.J. Reynolds Tobacco Co. v. Odom, 41 Fla. L. Weekly D2670 (Fla. 4th DCA Nov. 30, 2016).

 

The trial court erred by entering a final judgment against a nursing home for negligent supervision of an employee who was terminated for accepting gifts from one of its patients because there was no evidence that the nursing home knew of any propensity of the employee to take advantage of the patient and because there was no evidence that any of its other employees committed any tort. ACTS Retirement-Life Communities, Inc. v. Estate of Robert Zimmer Sr., 41 Fla. L. Weekly D2668 (Fla. 4th DCA Nov. 30, 2016).

 

In dog bite case, trial court erred by entering a summary judgment determining as a matter of law that Plaintiff’s action constituted an intervening cause because Florida’s dog bite statute section 767.04, Florida Statute imposes strict liability on dog owners, subject only to a plaintiff’s comparative negligence, which in this case where the plaintiff was bitten by two dogs she had fed and sheltered while trying to locate their owner should be tried by a jury.  Arellano v. Broward K-9/Miami K-9 Services, Inc., 41 Fla. L. Weekly D2659 (Fla. 3d DCA Nov. 30, 2016).

 

 

 

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