Weekly Reder for January 6, 2017

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the January 6, 2017, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

“[T]he Florida Fair Housing Act, sections 76020-760.37 of the Florida Statutes requires a private claimant to engage in a statutory conciliation process directed by the Florida Commission on Human Relations as a condition precedent to the filing of a civil action under the statute.”  Housing Opportunities Project v. SPV Realty, LC, 42 Fla. L. Weekly D44 (Fla. 3d DCA Dec. 21, 2016).

 

APPELLATE

 

In negligent wrongful death action against an adult congregate living facility, Appellate court granted writ of certiorari “because trial court departed from essential requirements of law and denied Petitioner due process by granting the motion to amend to assert claims for punitive damages without holding a hearing.”  WG Evergreen Woods SH, LLC v. Fares, 42 Fla. L. Weekly D66 (Fla. 5th DCA Dec. 30, 2016).

 

Appellate court sua sponte dismissed appeal for lack of jurisdiction because orders granting motion to deem requests for admissions admitted, denying motion to vacate default judgment, and granting motion for summary judgment as to liability did not “individually or together, dispose of all issues involved; in particular . . . the issue of damages.”  Hamze v. Hall, 42 Fla. L. Weekly D7 (Fla. 4th DCA Dec. 21, 2016).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

In a birth-related neurological injury administrative proceeding, the Administrative Law Judge erred by issuing a final order denying Appellants’ motion for attorneys fees and costs because section 766.31(1) (c), Florida Statutes provides for fees and costs incurred for filing a claim even though the claimants were not the prevailing party in that they did not receive the amount of benefits they requested.  Lampert v. Florida Birth-Related Neurological Injury Compensation Association, 41 Fla. L. Weekly D88 (Fla. 1st DCA Dec. 30, 2016)(denying motion for rehearing or rehearing en banc but substituting opinion for clarification of opinion reported at 41 Fla. L. Weekly D2549a).

 

BUSINESS AND EMPLOYMENT

 

Trial court abused its discretion by entering a final judgment containing a judicial appraisal that valued a shareholder’s interest in the corporation at $1.9 million because the trial court rejected the testimony of both parties’ expert witnesses and based the valuation on the shareholder’s testimony.  Lally Orange Buick Pontiac GMC, Inc. v. Sandhu, 42 Fla. L. Weekly D63 (Fla. 5th DCA Dec. 22, 2016).

 

CIVIL PROCEDURE

 

Trial court abused its discretion in denying plaintiff’s motion for leave to file an amended complaint because it was plaintiff’s first proposed amended complaint and it was in the early stages of the action so there would be no prejudice to defendant.  Saidi v. Saqr, 42 Fla. L. Weekly D86 (Fla. 5th DCA Dec. 30, 2016).

 

Trial court erred in denying motion to quash service of process because “service of a summons is still required, even where the plaintiff purports to effectuate service on a foreign defendant under “Article 0(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial matters (‘the Hague Convention’).”  Amos v. Reich, 42 Fla. L. Weekly D79 (Fla. 3d DCA Dec. 28, 2016).

 

Trial court did not abuse its discretion in granting motion to transfer venue from Miami-Dade County to Indian River County on basis of forum non conveniens because the airplane was manufactured and Piper, Inc. has always been located there and “none of the parties, decedents, or witnesses are or were located in Miami-Dade County.”  Theobald v. Piper Aircraft, Inc., 42 Fla. L. Weekly D52 (Fla. 3d DCA Dec. 21, 2016).

 

Trial court erred by entering a final declaratory judgment because it failed make any findings of fact or conclusions of law.  Trump Endeavor 12, LLC v. Florida Pritikin Center, LLC, 42 Fla. L. Weekly D26 (Fla. 3d DCA Dec. 21, 2016).

 

In construction-related litigation concerning a condominium, trial court erred by entering an order granting defendants’ motion for a collateral set-off of $375,000 because settlement agreement specifically provided that of that amount $500 was for damages and $374,500 was for attorney’s fees and there was no claim against the settling defendants for attorney’s fees so therefore there was no “windfall.”  Escadote I Corp. v. Ocean Three Limited Partnership, 42 Fla. L. Weekly D23 (Fla. 3d DCA Dec. 21, 2016).

 

Appellate court affirmed trial court’s entering a temporary injunction because the trial judge followed all the proper procedures per Florida Rule of Civil Procedure 1.610 and rejected Appellee’s argument that the court should follow non-Florida Federal cases holding that the presence of another putative defendant in another lawsuit precludes the anti-suit injunction.  United Brands, S.A. v. Diageo Dominicana, S.R.L., 42 Fla. L. Weekly D19 (Fla. 3d DCA Dec. 21, 2016).

 

Although a judge’s comment “There are so many right-hand men with our Italian folks here” was unnecessary and improper, it was not legally sufficient to support a motion for disqualification.  Pugliese v. Deluca, 42 Fla. L. Weekly D5 (Fla. 4th DCA Dec. 21, 2016).

 

COLLECTIONS

 

In suit brought against homeowners’ association for violation of Florida’s Deceptive and Unfair Trade Practices Act, trial court did not abuse its discretion in certifying a main class consisting of current and former owners of real property in the Reserve, but did abuse its discretion in certifying as a subclass of members who were late or delinquent in making their monthly assessments because of failure to comply with numerosity requirement. Hartwood Reserve Homeowners’ Association, Inc., v. Allen, 42 Fla. L. Weekly D84 (Fla. 5th DCA Dec. 30, 2016).

 

 

CONSTITUTIONAL LAW

 

 

In medical malpractice action, trial court departed from essential requirements of law by preventing plaintiffs from taking deposition of defendant a certified registered nurse anesthetist on basis was previously deposed as a fact witness in a previous brought by plaintiffs against other different defendants because defendant failed to provide a strong showing of good cause.  Shindorf v. Bell, 42 Fla. L. Weekly D70 (Fla. 2d DCA Dec. 28, 2016).

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

In mortgage foreclosure deficiency action, “the trial court erred in concluding that it was constrained to select either the opinion of one party’s expert witness or the conflicting opinion of the other party’s expert witness when determining the fair market value of the foreclosed property.”  Ramphal v. TD Bank National Association, 42 Fla. L. Weekly D57 (Fla. 5th DCA Dec. 22, 2016).

 

In workers compensation case, Judge of Compensation Claim’s order compelling claimant to turn over a video he commissioned of an independent medical examination because, although the video constitutes work product, the issue of whether the privilege was waived was premature as the video had not yet been listed as an exhibit.  Medina v. American Airlines, 42 Fla. L. Weekly D11 (Fla. 1st DCA Dec. 21, 2016).

 

In mortgage foreclosure action, trial court did not abuse its discretion in allowing a loan servicer’s late disclosed witness to testify “because her testimony was largely cumulative of the testimony from the witness for the current loan servicer.”  Pinnock v. Bank of New York Mellon, 42 Fla. L. Weekly D6 (Fla. 4th DCA Dec.21, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

GOVERNMENT

 

Palm Beach County’s ordinance creating an Office of Inspector General and requiring payment from all municipalities was subject to the doctrine of sovereign immunity which was not waived by passages of referendum in some of the municipalities.  The Court certified the following question as of great public importance: “Whether municipal sovereign immunity bars a county from charging a municipality for a countywide inspector general program implemented pursuant to a voter-approved referendum requiring the establishment by ordinance—applicable to the county and all municipalities approving the referendum—of an independent inspector general to be funded by the county commission and all other governmental entities subject to the authority of the inspector general?”  Town of Gulf Stream v. Palm Beach County, 42 Fla. L. Weekly D3 (Fla. 4th DCA Dec. 21, 2016).

 

INSURANCE

REAL PROPERTY

 

Trial court erred in dismissing property owners’ suit against homeowners’ association for declaratory relief, quiet title, and slander of title because allegations that the property owners were not subject to amendments to the declaration of covenants and restrictions and that the association was misrepresenting it was an age restricted community stated valid causes of action which were not refuted by the amended declaration of covenants and restriction attached to the complaint.  Van Loan v. Heather Hills Property Owners Association, Inc., 42 Fla. L. Weekly D80 (Fla. 2d DCA Dec. 30, 2016).

 

In suit by property owner against mortgagee for breach of contract, breach of implied covenant of good faith and fair dealing, declaratory judgment, and unjust enrichment alleging she was unable to repair her property because of the mortgagee’s failure to disburse insurance proceeds, trial court erred by entering final summary judgment in favor of mortgagee on basis the cost of repair was greater than the value of the property because the defendant’s evidence of the value of the property did not take into account the value after the repairs were made.  Alvarez-Mejia v. Bellissimo Properties, LLC, 42 Fla. L. Weekly D73 (Fla. 3d DCA Dec. 28, 2016).

 

In mortgage foreclosure action, trial court did not err by denying a third-party purchaser’s motion to intervene.  Trust No.602W0 Dated 7/16/15, DEMA Investments, LLC v. Wells Fargo Bank, N.A., 42 Fla. L. Weekly D63 (Fla. 5th DCA Dec. 22, 2016).

 

In unit owners’ suit against developer and homeowners association claiming developer failed to meet its obligations to make capital contributions to HOA’s reserve accounts when it controlled the HOA, the trial court erred by granting a final summary of judgment of dismissal based on its interpretation of section 720.308(1) (b), Florida Statues because “section 720.303(6), Florida Statutes (2015) required [developer] to continue the reserve accounts once they were established.”  MacKenzie v. Centex Homes, 42 Fla. L. Weekly D59 (Fla. 5th DCA Dec. 22, 2016).

 

Trial court erred in granting summary judgment determining recorded deeds did not transfer right to receive rent because, although there was no recorded notice of a transfer of the right to receive rent subject to Florida’s notice statute, section 695.01(1), Florida Statutes, there was a genuine issue of material fact as to whether the purchasers were bona fide.  Harkless v. Laubhan, 42 Fla. L. Weekly D15 (Fla. 2d DCA Dec. 21, 2016).

 

 

Trial court erred in granting summary judgment determining recorded deeds did not transfer right to receive rent because a transfer of a lease ordinarily refers to a transfer of the right to receive rent and because a reservation of a right to receive rent was contained in a purchase created an ambiguity so that the trial court should have considered parole evidence of the parties’ intent.  Harkless v. Laubhan, 42 Fla. L. Weekly D15 (Fla. 2d DCA Dec. 21, 2016).

 

Appellate court reversed final judgment of mortgage foreclosure because the figures in the final judgment differed from the amount listed in a “judgment figures exhibit” and because the loan payment history was not self-explanatory and remanded for further proceedings.  Markland v. Bank of New York Mellon, 42 Fla. L. Weekly D6 (Fla. 4th DCA Dec. 21, 2016).

 

TORT

 

In tobacco litigation wrongful death case, trial court erred by denying personal representative’s motion for leave to amend to plead punitive damages for non-intentional tort claims.  Hardin v. Estate of Thomas B. Hardin, 42 Fla. L. Weekly D52 (Fla. 3d DCA Dec. 21, 2016).
In medical malpractice action, trial court did not depart from the essential requirements of law in denying motion to dismiss for failure to comply with presuit requirements contained in section 766.106, Florida Statutes because allegations that plaintiff tripped on a parking bumper while walking to a mobile radiation van were of simple negligence.  Mark E. Pomper, M.D., P.A. v. Ferraro, 42 Fla. L. Weekly D7 (Fla. 4th DCA Dec. 21, 2016).

 

 

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