Weekly Reder for January 27, 2017

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the January 27, 2017, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

State Board of Education erred in denying charter school application because the Charter School Appeal Commission failed to include fact-based justification in its recommendation to the School Board as required by section 1002.33(6)(e)5, Florida Statues.  School Board of Palm Beach County v. Florida Charter Education Foundation, Inc., 42 Fla. L. Weekly D189 (Fla. 4th DCA Jan. 18, 2017).

 

Florida Public Service Commission did not error in denying request for sequestration because “the Florida Evidence Code is not applicable to administrative proceedings.”  Florida Industrial Power Users Group v. Graham, 42 Fla. L. Weekly S42 (Fla. Jan. 26, 2017).

 

APPELLATE

 

In reviewing post-judgment order allowing the depositions of jurors, appellate court declined to issue writ of certiorari because petitioner was not irreparably harmed as he would have right to appeal if judge were to enter an order granting defendant’s motion for new trial.  Laycock v. TMS Logistics, Inc., 42 Fla. L. Weekly D208 (Fla. 1st DCA Jan. 19, 2017).

 

In reviewing a non-final agency action where Administrative Law Judge (ALJ) ordered an evidentiary hearing on Respondent’s motion to seek attorney’s fees as a sanction, appellate court held scope of review is analogous to review by writ of certiorari, found the ALJ departed from the essential requirements of law because the motion was filed after Petitioner had filed a voluntary dismissal, and quashed the order.  State of Florida, Agency for Health Care Administration v. Planned Parenthood of Southwest and Central Florida, Inc., 42 Fla. L. Weekly D205 (Fla. 1st DCA Jan. 19, 2017).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

In suit successfully brought by property owners against a voluntary homeowners association by obtaining a ruling that an Amended Declaration of Covenants and Restrictions adopted by a majority of the property owners did not apply to them, trial court erred by awarding property owners attorney’s fees per a provision in the amended declaration and the reciprocal provision of section 57105(7), Florida Statutes (2015) because no contract existed between the two parties.  Sand Lake Hills Homeowners Association, Inc. v. Busch, 42 Fla. L. Weekly D219 (Fla. 5th DCA Jan. 20, 2017).

 

In suit successfully brought by property owners against a voluntary homeowners association by obtaining a ruling that an Amended Declaration of Covenants and Restrictions adopted by a majority of the property owners did not apply to them, trial court properly awarded property owners per section 712.08, Florida Statutes (2015) of the Marketable Record Title Act because the association fell within the definition of person and there was no requirement that a filer of a of a false notice do so knowingly or intentionally.  Sand Lake Hills Homeowners Association, Inc. v. Busch, 42 Fla. L. Weekly D219 (Fla. 5th DCA Jan. 20, 2017).

 

BUSINESS AND EMPLOYMENT

 

An employer/carrier’s failure to respond to employee’s one-time change in physician per section 440.13(2) (f), Florida Statutes (2016) does not “entitle [the employee] to a physician in a different specialty from that of the originally authorized physician.”  Retailfirst Insurance Co. v. Davis, 42 Fla. L. Weekly D222 (Fla. 1st DCA Jan. 23, 2017).

 

In breach of contract dispute, trial court erroneously entered summary judgment on contractor’s affirmative defense of substantial performance because neither the order nor final summary judgment addressed defendant’s affirmative defense.  Lucey v. 1010 Logic, Inc., 42 Fla. L. Weekly D210 (Fla. 2d DCA Jan. 20, 2017).

 

Judge of Compensation Claims erred in rejecting affirmative defenses of misrepresentation because he applied civil case law on fraud “characterizing the ‘inconsistencies’ in Claimant’s testimony as ‘impeachment’ instead of applying two step analysis per section 440.105(4), Florida Statutes of 1) whether there was fraudulent misrepresentations and 2) whether the statement was intended by the Claimant to be for the purpose of obtaining benefits.  City of Hialeah v. Bono, 42 Fla. L. Weekly D205 (Fla. 1st DCA Jan. 19, 2017).

 

In suit for breach of independent contractor agreement, trial court erred by entering a final summary judgment for broker because there was a disputed issue of material fact as to whether there was another agent involved.  Schumacher v. Reback Realty, Inc., 42 Fla. L. Weekly D179 (Fla. 4th DCA Jan. 18, 2017).

 

 

CIVIL PROCEDURE

 

In action against nursing home, trial court properly denied motion to compel arbitration because the testimony of the person who signed the admission agreement a power-of-attorney that she had told the nursing home’s representative she did not have poser-of-attorney and the evidence that the plaintiff was competent and able to sign the agreement was sufficient to support the trial court’s conclusion there was no agreement to waive jury trial and submit to arbitration.  Palm Garden of Healthcare Holdings, LLC v. Haydu, 42 Fla. L. Weekly D215 (Fla. 5th DCA Jan. 20, 2017).

 

In resolving a conflict among various district court of appeals’ decisions regarding the “relate back” rule, the Florida Supreme Court disapproved the bright-line rule that a new cause of action did necessarily relate back to the date of the original compliant, but that amendments to pleadings can relate back “if the claims are not factually distinct from those within the original complaint.”  Palm Beach County School Board v. Doe, 42 Fla. L. Weekly S23 (Fla. Jan. 26, 2017).

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

The charter school statute’s appeal provision, section 1992, 33(6) (c) Florida Statute is facially constitutional and does not infringe upon a school board’s constitution powers to “operate, control and supervise all free public schools within the school district.”  School Board of Palm Beach County v. Florida Charter Education Foundation, Inc., 42 Fla. L. Weekly D189 (Fla. 4th DCA Jan. 18, 2017) (emphasis in original quote).

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

In wrongful death medical malpractice case, trial court abused its discretion by permitting plaintiff to present prejudicial, undisclosed expert testimony and by excluding the deposition testimony of the emergency room physician.  Doctors Company v. Plummer, 43 Fla. L. Weekly D217 (Fla. 5th DCA Jan. 20, 2017).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

Probate Court abused its discretion in granting an insurance company’s motion to intervene because Florida Rule of Civil Procedure 1.230 does not apply to probate proceedings and insurance company should have instituted an adverse proceeding per Florida Probate Rule 1.525.  In Re: Estate of Jorge Luis Arroyo, Jr., v. Infinity Indemnity Ins. Co., 42 Fla. L. Weekly D192 (Fla. 3d DCA Jan. 18, 2017).

 

Probate Court abused its discretion in granting an insurance company’s motion to intervene because the motion was injecting a new issue — whether the personal representative could enter into a Coblentz agreement — into the case.  In Re: Estate of Jorge Luis Arroyo, Jr., v. Infinity Indemnity Ins. Co., 42 Fla. L. Weekly D192 (Fla. 3d DCA Jan. 18, 2017).

 

Probate Court erred by determining personal representative did not have authority to settle lawsuit against the estate because insurance company was absolutely prohibiting from raising defenses it could have raised had it chosen to defend the state.  In Re: Estate of Jorge Luis Arroyo, Jr., v. Infinity Indemnity Ins. Co., 42 Fla. L. Weekly D192 (Fla. 3d DCA Jan. 18, 2017).

 

 

 

GOVERNMENT

 

Trial court properly entered final judgment declaring a municipality’s special assessment against a privately owned country club invalid because municipality merely showed 97% of the work done by its police force was for private development, but did not submit any evidence that special assessment would increase property values, prevent vandalism, enhance safety, or reduce premiums.  Indian Creek Country Club, Inc. v. Indian Creek Village, 42 Fla. L. Weekly D199 (Fla. 3d DCA Jan. 18, 2017).

 

INSURANCE

 

Appellate court reversed summary judgment finding homeowners’ insurer was liable for tearing out and replacing a portion of a slab to reach and repair a sanitary drain. Homeowners Choice Property & Casualty v. Maspons, 42 Fla. L. Weekly D203 (Fla. 3d DCA Jan. 18, 2017).

 

In bad faith action trial court erred by entering final summary judgment in favor of insurer because insurer because insurer was barred from raising defenses it could have raised if it had defended the estate in a negligence action. In Re: Estate of Jorge Luis Arroyo, Jr., v. Infinity Indemnity Ins. Co., 42 Fla. L. Weekly D192 (Fla. 3d DCA Jan. 18, 2017).

 

 

 

An auto carrier’s policy excluding damages to property “transported by” the insured includes a motorcycle of an insured’s friend which was damaged while being transported in a trailer and should not be interpreted so as to require that the insured exercise dominion and control.  Ducksbury v. Progressive Express Ins. Co., 42 Fla. L. Weekly D178 (Fla. 4th DCA Jan. 18, 2017).

 

A PIP insurance policy that provides all payments shall be subject to the limitations authorized by section 627.736, Florida Statutes unambiguously applies to reimbursement payments as well as medical expenses.  Allstate Ins. Co. v. Orthopedic Specialists, 42 Fla. L. Weekly S38 (Fla. Jan. 26, 2017).

 

 

REAL PROPERTY

 

Trial court erred by ruling borrower had waived affirmative defense of failure to conduct a “face-to-face” because borrower had “denied with specificity that Appellant had conducted a ‘face-to-face’ interview, which provided “sufficient notice to apprise the plaintiff of the precise basis for the defense.”  Delacruz v. Wells Fargo Bank, N.A., 42 Fla. L. Weekly D213 (Fla. 5th DCA Jan. 20, 2017).

 

In mortgage foreclosure action, trial court erred by ruling on merits of defendant’s motion to vacate final judgment because motion claiming extrinsic fraud was filed over a year after the judgment and therefore should have been dismissed for that reason alone.  Romero v. Wells Fargo Bank, N.A., 42 Fla. L. Weekly D213 (Fla. 2d DCA Jan.20, 2017).

 

In mortgage foreclosure action, trial court properly denied subordinate lienholder’s claim for surplus funds because the claim was not filed within sixty days after the date of sale as required by section 45.03(7)(b), Florida Statutes.  Bank of New York Mellon v. Glenville, 42 Fla. L. Weekly D212 (Fla. 2d DCA Jan. 20, 2017).

 

Trial court erred by entering a post-judgment order vacating a foreclosure judgment because defendant’s motion neither alleged nor argued entitlement to relief per Rule 1.540(b) and because an ex parte motion does not constitute evidence of misconduct per Rule 1.540(b)(3)nor new circumstances making judgment “no longer equitable” per Rule 1.540(b)(5).  Bank of New York Mellon v. Estate of James D. Peterson, 42 Fla. L. Weekly D182 (Fla. 2d DCA Jan. 18, 2017).

 

TORT

 

“[T]he foreign-body presumption of negligence set forth in section 766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence.”  Dockswell v. Bethesda Memorial Hospital, Inc., 42 Fla. L. Weekly S32 (Fla. Jan. 26, 2017).

 

Trial court did not error by entering final judgment after jury verdict in favor of unjust enrichment claim because evidence of breach of oral promise and because special verdict form did not apportion amount of damages among the various counts.  Kopel v. Kopel, 42 Fla. L. Weekly S26 (Fla. Jan. 26, 2017).

 

 

 

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