Weekly Reder for January 13 & 20, 2017

These are summaries of decisions of The Florida Supreme Court and the Five District Court of Appeal reported in the January 13 and 20, 2017, editions of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

Appellate court issued writ of certiorari and quashed trial court order denying motion to dismiss a tortuous interference claim brought by a former city manager against an elected city council member because the defendant’s comments however false and malicious were made in connection with the dismissal and therefore protected by absolute privilege.  Prins v. Farley, 42 Fla. L. Weekly D173 (Fla. 1st DCA Jan. 17, 2017).

 

Appellate court denied petition for writ of mandamus because although the trial court had not appointed a guardian ad litem for certain purposes, there is “no authority for the proposition that the circuit court has a time deadline to issue an order appointing a guardian.”  Cason v. Ross, 42 Fla. L. Weekly D148 (Fla. 1st DCA Jan. 10, 2017).

 

Appellate court affirmed trial court’s dismissal of mortgage foreclosure action on basis of plaintiff’s repeated failure to comply with court orders to provide appropriate discovery responses because appellant failed to present a transcript of the hearing.  Bank of New York Mellon v. Sandhill, 42 Fla. L. Weekly D145 (Fla. 5th DCA Oct. 28, 2016).

 

On remand from appellate court reversing award for attorneys’ fees in favor of defendant but instructing trial court to award fees for time spent on seeking injunctive relief, trial court erred in not awarding attorney’s fees to defendants on basis they did not prove the amount of time spent on seeking injunctive relief because plaintiff’s attorney testified as to the percentage of time spent on the entire case was related to seeking injunctive relief and plaintiff presented expert witness testimony that such amount was reasonable.  Boswell v. Shirley’s Personal Care Service, 42 Fla. L. Weekly D123 (Fla. 4th DCA Jan. 4, 2017).

 

In tobacco litigation case, defendant tobacco company failed to preserve issue of improper arguments during closing argument because, even though there were numerous violations, all of tobacco company’s objections were sustained but there was no motion for mistrial.  R.J. Reynolds Tobacco Co. v. Grossman, 42 Fla. L. Weekly, D106 (Fla. 4th DCA Jan. 4, 2017).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court erred in denying motion for attorney’s fees on basis two paragraphs in the release failed to specifically name the defendant because when the settlement and the agreement were read as a whole there was no ambiguity. Kiefer v. Sunset Beach Investments, LLC, 42 Fla. L. Weekly D132 (Fla. 4th DCA Jan. 4, 2017).

 

In dispute between contractor and homeowner, trial court properly found for homeowner that lien was fraudulent because many of the charges used to support the lien were not enforceable and also properly entered judgment in favor of contractor for breach of contract and quantum meruit because the contractor was the prevailing party on the most significant issue.  Newman v. Guerra, 42 Fla. L. Weekly D127 (Fla. 4th DCA Jan. 4, 2017).

 

Trial court “erred in invalidating the proposal for settlement because: (1) the proposal’s use of the word ‘claims’ instead of the word ‘damages’ did not render the proposal ambiguous; and (2) it was unnecessary for the proposal to state ‘whether attorney’s fees are part of the legal claim’ when the plaintiff’s complaint did not request attorney’s fees.”  American Home Assurance Co. v. D’Agostino, 42 Fla. L. Weekly D113 (Fla. 4th DCA Jan. 4, 2017) (rehearing of opinion issued on October 27, 2016) (rehearing of opinion at 41 Fla. L. Weekly D263a and substituting opinion at 41 Fla. L. Weekly D1517a).

 

BUSINESS AND EMPLOYMENT

 

Appellate court reversed final order by the Florida Reemployment Assistance Appeals Commission denying reemployment assistance benefits, finding there was insufficient, competent, substantial evidence to support the hearing officer’s findings of fact because there was “confusion between the claimant and the referee” and remanded for a new hearing.  Bagarotti v. Reemployment Assistance Appeals Commission, 42 Fla. L. Weekly D159 (Fla. 3d DCA Jan. 11, 2017).

 

Trial court properly determined a board resolution to be invalid because it was signed by only one director and a shareholder who was not a director and the corporate records showed there were three directors.  Fonseca v. Taverna Imports, Inc., 42 Fla. L. Weekly D95 (Fla. 3d DCA Jan. 4, 2017).

 

 

Trial court properly entered summary judgment finding an unsigned contract valid because mutuality of consent was established by conduct even though un-negotiated checks tendered to purchase shares of stock were returned after the recipient had accepted the checks as full consideration.  Fonseca v. Taverna Imports, Inc., 42 Fla. L. Weekly D95 (Fla. 3d DCA Jan. 4, 2017).

 

 

CIVIL PROCEDURE

 

In suit alleging violations of Florida’s Assisted Living Facilities Act, chapter 429, Florida Statutes, trial court erred by entering an order compelling arbitration because “the arbitration agreement was silent as to whether successors-in-interest . . . could enforce the agreement” and because the agreement was signed by the decedent’s alternate attorney-in-fact but there was no evidence that the named attorney-in-fact had resigned or was unable or to serve as attorney-in-fact.  Dea v. PH Fort Myers, LLC, 42 Fla. L. Weekly D168 (Fla. 2d DCA Jan. 13, 2017).

 

Trial court erred in denying motion to quash service of process because plaintiff failed to comply with section 48.161, Florida Statutes governing substitute service in that it 1) did not mail a copy of the notice of service and a copy of the process to defendant by registered or certified mail, 2) did not file the return receipt from such mailing, and 3) did not file its counsel’s affidavit of compliance.”  Green Emerald Homes, LLC v. PNC Bank, N.A., 42 Fla. L. Weekly D161 (Fla. 5th DCA Jan. 13, 2017).

 

Trial court erred by entering an order of dismissal for lack of prosecution because at the time there was a previous order staying the matter by a previous judge (which the current judge was unaware).  Gomez v. State Farm Florida Ins. Co., 42 Fla. L. Weekly D104 (Fla. 3d DCA Jan. 4, 2017).

 

In tobacco litigation case, trial court erred in refusing to reduce jury’s compensatory damage by plaintiff’s comparative negligence because under Engle progeny suits are principally grounded on negligence.  R.J. Reynolds Tobacco Co. v. Grossman, 42 Fla. L. Weekly D106 (Fla. 4th DCA Jan. 4, 2017).

 

 

Trial court abused its discretion in denying motion uninsured motorist carrier’s motion for directed verdict because plaintiff’s testimony that he was taking prescription drugs and was prevented from working on hydrotesting and repairing dive tanks was insufficient to support a jury verdict of future economic losses. GEICO General Ins. Co. v. Dixon, 42 Fla. L. Weekly D101 (Fla. 3d DCA Jan. 4, 2017).

 

 

COLLECTIONS

 

Trial court erred by entering a post-judgment order authorizing judgment creditor to execute and levy on corporate stock because it should have applied judgment creditor’s judgment in another case as an offset.  Fonseca v. Taverna Imports, Inc., 42 Fla. L. Weekly D95 (Fla. 3d DCA Jan. 4, 2017).

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

Trial court properly allowed the testimony of an undisclosed testimony because the witness had unexpectedly returned from Ecuador, the other party was given allowed to depose the witness, and the testimony was limited to his signing a letter which was listed on the exhibit list.  Fonseca v. Taverna Imports, Inc., 42 Fla. L. Weekly D95 (Fla. 3d DCA Jan. 4, 2017).

 

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

GOVERNMENT

 

INSURANCE

 

Trial court properly entered final summary judgment in favor of homeowners’ insurer because “the damage to the floor tiles was a loss that constituted ‘marring,’ which was expressly excluded from coverage under the terms of the insurance policy.”  Gamero v. Foremost Ins. Co., 42 Fla. L. Weekly D158 (Fla. 3d DCA Jan. 11, 2017).

 

In a bad faith case, trial court erred by denying insurer’s motion for summary judgment because the “insurer unconditionally tendered the estate the policy limits nine days after the accident, the insurer notified the insured that the estate wanted a statement seventeen days after the request, and the insured subsequently failed to provide a statement to the estate despite having the opportunity to do so before the suit was filed” and because the “insured failed  to show that he would have provided the requested statement but for” the insurer’s alleged “bad faith” for not handling the claim more promptly. GEICO General Ins. Co. v. Dixon, 42 Fla. L. Weekly D101 (Fla. 3d DCA Jan. 4, 2017).

 

In claim for compensatory damages against uninsured motorist company, trial court erred in allowing the “admission of evidence showing that the uninsured motorist was intoxicated beyond the legal limit at the time of the crash” because such evidence was irrelevant and any probative value such as credibility of the witness was substantially outweighed by the danger of unfair prejudice.  GEICO General Ins. Co. v. Dixon, 42 Fla. L. Weekly D101 (Fla. 3d DCA Jan. 4, 2017).

 

 

REAL PROPERTY

 

Trial court erred by permanently enjoining property owners from operating a skydiving on their 290-acre farm because the county failed to establish a clear legal right to an injunction as the county’s code enforcement board had previously ruled property owners’ business did not violate the county’s zoning code.  Nipper v. Walton County, 42 Fla. L. Weekly D171 (Fla. 1st DCA Jan. 11, 2017).

 

In commercial lease dispute, trial court properly entered summary judgment in favor of landlord for possession, but erred by entering summary judgment for past and future rent because landlord’s affidavit “did not conclusively refute Tenant’s affirmative defenses of impossibility, impracticality, frustration of purpose, and commercial frustration of purpose.”  Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC, 42 Fla. L. Weekly D164 (Fla. 5th DCA Jan. 13, 2017).

 

Trial court erred by dismissing a mortgage foreclosure action and not entering a final summary judgment of foreclosure because 1) the dismissal “was based on the unpled, and thus waived, affirmative defense regarding an alleged deficiency in the deed conveying the subject property,” 2) “reformation of the deed was not necessary to foreclose the mortgage in this case,” and 3) “the trial court improperly entered a monetary judgment against [defendant] because the foreclosure count did not seek monetary damages.”  Heartwood 2, LLC v. Dori, 42 Fla. L. Weekly D155 (Fla. 3d DCA Jan. 11, 2017).

 

Trial court erred by entering an order dismissing mortgage foreclosure action on basis plaintiff failed to prove the amount of its damages because a loan payment history was submitted into evidence which established a prima facie case on damages.  Bayview Loan Servicing, LLC v. Del Lupo, 42 Fla. L. Weekly D144 (Fla. 4th DCA Jan. 4, 2017).

 

Trial court erred by entering a final judgment of foreclosure, because bank did not substantially comply with paragraph 22 of the mortgage in that it filed suit eight days after the pre-suit notice was delivered instead of the requisite thirty days.  Dixon v. Wells Fargo Bank, N.A., 42 Fla. L. Weekly D142 (Fla. 4th DCA Jan. 4, 2017).

 

In mortgage deficiency action, trial court erred by granting summary judgment in favor of mortgage insurance company that was a successor in interest because it never filed a motion to be substituted or to intervene and therefore was a non-party to the suit.  Ibanez v. 21st Mortgage Corp., 42 Fla. L. Weekly D117 (Fla. 4th DCA Jan. 4, 2017).

 

In mortgage foreclosure action, trial court erred by entering a final order granting an involuntary dismissal because the plaintiff, who was in possession of the original note endorsed in blank, was not required “to prove a chain of transfers.”  Pennymac Corp. v. Frost, 42 Fla. L. Weekly D117 (Fla. 4th DCA Jan. 4, 2017).

 

A “holder of the note, who is not also the owner, can qualify for the safe harbor provision” of section 718,116(1) (b), Florida Statutes which limits the /liability of a first mortgagee and its successors and assigns for past due condominium assessments.  San Matera The Gardens Condominium Association, Inc. v. Federal Home Loan Mortgage Corp., 42 Fla. L. Weekly D109 (Fla. 4th DCA Jan. 4, 2017).

 

Trial court properly entered summary judgment dismissing lawsuit seeking an injunction to require a condominium association to refrain from approving a vertical unit combination because 1) an application had not yet been filed, 2) if filed, the application may not be approved, and 3) if unlawfully approved, there would be sufficient legal and equitable remedies. Zweig v. IL Villaggio Condominium Association, Inc., 42 Fla. L. Weekly D101 (Fla. 3d DCA Jan. 4, 2017).

 

Trial court properly entered final judgment after jury verdict finding board of director breach of fiduciary duty because there was evidence that the director had prepared, signed and acted upon a board resolution that had not been adopted by a majority of the directors.  Fonseca v. Taverna Imports, Inc., 42 Fla. L. Weekly D95 (Fla. 3d DCA Jan. 4, 2017).

 

 

TORT

 

Trial court did not depart from essential requirements of law in denying hospital’s motion for summary judgment with respect count 1 of the complaint because allegations that mental health patient was sexually assaulted by hospital employee was one of negligence not subject to the requirements set forth in Chapter 766, Florida Statutes (2010).  St. Joseph’s Hospital, Inc. v. Doe, 42 Fla. L. Weekly D170 (Fla. 2d DCA Jan. 13, 2017).

 

Trial court departed from essential requirements of law in denying hospital’s motion for summary judgment with respect to count II of the complaint which alleged violation of section 395.0197, Florida Statutes, governing comprehensive risk management because that statute necessarily relates to the providing of medical service and is therefore subject to the presuit requirements of Chapter 766, Florida Statutes (2010).  St. Joseph’s Hospital, Inc. v. Doe, 42 Fla. L. Weekly D170 (Fla. 2d DCA Jan. 13, 2017).

 

In suit brought against several defendants for professional negligence, trial court properly entered summary judgment dismissing count against the project manager because the defendant was not a licensed engineer.  Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 42 Fla. L. Weekly D130 (Fla. 4th DCA Jan. 4, 2017).

 

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