Author: rdeditor

Case Summaries May 5 and 12

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the May 5 and 12, 2017, editions of the Florida Law Weekly concerning real estate law. The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

AGENTS AND BROKERS

Trial court erred by entering a final summary judgment dismissing a vicarious liability claim against real estate broker on basis wrongful acts were committed by real estate agent because the broker’s “receipt of commissions on the alleged wrongful real estate deals, as well as it possible knowledge that [agent] was wrongfully using Appellant’s funds to purchase real estate, raised issues of fact precluding summary judgment.” Trevarthen v. Wilson, 42 Fla. L. Weekly D1004 (Fla. 4th DCA Feb. 5, 2013).

APPELLATE

Circuit court sitting in its appellate capacity departed from the essential requirements of law by agreeing with applicants for a variance from an ordinance governing fences on basis there was no competent substantial evidence supporting the Board of Adjustment’s denial because the order was based on incorrect law as the burden of proof was on the applicants to prove they were entitled to a variance. City of Satellite Beach v. Goersch, 42 Fla. L. Weekly D959 (Fla. 5th DCA April 28, 2017).

ATTORNEYS AND ATTORNEYS’ FEES

Trial court erred in awarding attorney’s fees in favor of condominium association against unit owners because the court had appointed a successor receiver, which was substantially the relief the Owners had sought and was more favorable than the arbitration award the association was granted. Gonzalez v. International Park Condominium I Association, Inc., 42 Fla. L. Weekly D956 (Fla. 3d DCA April 26, 2017).

CIVIL PROCEDURE

In mortgage foreclosure action, trial court erred in denying motion to quash service of process because the filing of a motion for protective order and request for sanctions did not constitute the type of affirmative relief that amounts to submission to the trial court’s jurisdiction. Bornstein v. Bank of New York Mellon, 42 Fla. L. Weekly D1009 (Fla. 4th DCA May 3, 2017).

Trial court abused its discretion by dismissing a commercial tenant’s verified amended complaint against condominium association alleging breach of contract, specific performance, tortious interference with its business and contractual relationship with its landlord, invasion of privacy, and negligent misrepresentation with prejudice because the counts for breach of contract and tortious interference with a business and contractual relationship could be amended to state causes of action. DNA Sports Performance Lab, Inc. v. Club Atlantis Condominium Association, Inc., 42 Fla. L. Weekly D943 (Fla. 3d DCA April 26, 2017).

CONDOMINIUM ASSOCIATION

Trial court properly dismissed property owners association’s declaratory action as to whether short-term vacation rentals violates covenants restricting the properties’ use to residential purposes only because there was no explicit language limiting the length of the use. Santa Monica Beach Property Owners Association, Inc. v. Acord, 42 Fla. L. Weekly D984 (Fla. 1st DCA April 28, 2017).

CONTRACT LAW

“Florida recognizes oral cohabitation agreements between unmarried parties.” Armao v. McKenney, 42 Fla. L. Weekly D1011 (Fla. 4th DCA May 3, 2017).

In commercial foreclosure action, trial court “erred in finding that Borrower committed a technical breach as compliance with the financial covenants was not required at the time of the alleged breach.” Summitbridge Credit Investments III, LLC v. Carlyle Beach, LLC, 42 Fla. L. Weekly D1014 (Fla. 4th DCA May 3, 2017).

EMINENT DOMAIN

In inverse condemnation case, trial court properly granted summary judgment of dismissal because county’s conditioning permit for development of a subdivision on the installation of a reclaimed water use system did not constitute a taking as there was “a clear nexus between the legitimate state interest in conserving water and the permit conditions imposed by the County requiring the use of reclaimed water in the subdivision.” Highlands-In-The-Woods, L.L.C. v. Polk County, 42 Fla. L. Weekly D969 (Fla. 2d DCA April 28, 2017).

GOVERNMENT

Trial court erred by entering a final summary judgment dismissing claims seeking declaratory relief as to whether a road became a county road per section 94.361(2), Florida Statutes, because that section, unlike common-law dedication or dedication per section 94.361(1), Florida Statutes does not require acceptance. Mathers v. Wakulla County, 42 Fla. L. Weekly D995 (Fla. 1st DCA May 2, 2017).

MORTGAGE FORECLOSURE

In mortgage foreclosure action in which parties agreed final judgment should be reversed as trial evidence was legally insufficient to establish the amount awarded, appellate court held that remand for further proceedings instead of ordering a dismissal is the appropriate remedy because the bank had shown some evidence of damages. Evans v. HSBC Bank, USA, N.A., 42 Fla. L. Weekly D1033 (Fla. 2d DCA May 5, 2017).

Trial court erred by entering a final judgment of mortgage foreclosure because it “ended the trial without allowing [borrowers’] due process rights when it ended the trial without allowing them to present evidence in their defense.” Dobson v. U.S. Bank N.A., 42 Fla. L. Weekly D962 (Fla. 5th DCA April 28, 2017).

On motion for rehearing of a mortgage foreclosure action, the Fourth District Court of Appeal reversed the trial court’s dismissal because the Bank’s the pooling and servicing agreement coupled with the note endorsed in blank constituted sufficient evidence that the Bank had standing at the inception of the lawsuit. HSBC Bank USA, N.A. v. Alejandre, 42 Fla. L. Weekly D941 (Fla. 4th DCA April 26, 2017).

Trial court erred by involuntarily dismissing mortgage foreclosure action due to Bank’s lack of standing because the Bank’s mortgage servicer submitted into evidence an original note endorsed in blank which was identical to the copy attached to the complaint and because there was evidence and testimony that the servicer was acting on behalf of the Bank. Bank of New York Mellon v. Heath, 42 Fla. L. Weekly D940 (Fla. 4th DCA April 26, 2017).

On rehearing of a mortgage foreclosure action, the Second District Court of Appeal affirmed the trial court’s order denying the bank’s claim for surplus funds on the basis the motion was untimely filed and certified its decision to be in conflict with Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878 (Fla. 4th DCA 2016). Bank of New York Mellon v. Glenville, 42 Fla. L. Weekly D934 (Fla. 2d DCA April 26, 2017).

PARTITION

In partition of real property action, trial court did not abuse its discretion in declining an award of partition credits because payments of mortgage and living expenses were paid from accounts containing comingled funds. Armao v. McKenney, 42 Fla. L. Weekly D1011 (Fla. 4th DCA May 3, 2017).

TORT

Trial court erred by entering a final summary judgment dismissing a vicarious liability claim against real estate broker on basis wrongful acts were committed by real estate agent because the broker’s “receipt of commissions on the alleged wrongful real estate deals, as well as it possible knowledge that [agent] was wrongfully using Appellant’s funds to purchase real estate, raised issues of fact precluding summary judgment.” Trevarthen v. Wilson, 42 Fla. L. Weekly D1004 (Fla. 4th DCA Feb. 5, 2013).

COPYRIGHT 2017 RANDALL O. REDER. If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

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).

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

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).

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

 

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).

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

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.

 

ADMINISTRATIVE

 

 

APPELLATE

 

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).

 

CIVIL PROCEDURE

 

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).

 

CONSTITUTIONAL LAW

 

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).

 

 

DISCOVERY AND EVIDENCE

 

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).

 

 

REAL PROPERTY

 

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).

 

TORT

 

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).

 

 

 

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

Weekly Reder for December 16, 2016

These are summaries of the Florida District Courts of Appeal and the Florida Supreme Court’s decisions reported in the December 16, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

Administrative Law Judge did not err by entering a final order determining the Agency for Health Care Administration (AHCA) was entitled to the full amount of its Medicaid lien from a settlement recovery in a product liability/negligence action because the Medicaid recipient’s evidence that the settlement agreement prepared by his counsel showing an allocation of $13,881 for past medical expenses was not sufficient to prove by clear and convincing evidence that a lesser portion of the total recovery should be allocated and because AHCA’s lien also extended to future medical expenses.  Giraldo v. Agency for Health Care Administration, 41 Fla. L. Weekly D2743 (Fla. 1st DCA Dec. 12, 2016).

 

Trial court properly denied motions filed for attorney’s fees by a county attorney and a county commissioner who were targets of an unsuccessful ethics complaint because, although the complaint contained numerous false statements, none were “material to a violation” of the Ethics Code as required by section 112.317 (7), Florida Statutes.  Hadeed v. State of Florida, Commission on Ethics, 41 Fla. L. Weekly D2742 (Fla. 1st DCA Dec. 12, 2016).

 

Trial court properly dismissed suit by retired firefighters against City and Union claiming they were duped into selecting three-year Deferred Retirement Option Plan because jurisdiction was with the Public Employees Relations Commission. Amato v. City of Miami Beach, 41 Fla. L. Weekly D2712 (Fla. 3d DCA Dec. 7, 2016).

 

APPELLATE

 

Appellate court did not have jurisdiction to review trial court order determining party was entitled to attorney’s fees as a sanction for opposing party’s egregious conduct during the course of discovery proceedings because an amount had not yet been determined. SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

Appellate court issued writ of certiorari because trial court departed from essential requirements of law in denying tobacco company’s motion to disqualify attorney and law firm from representing personal representative in wrongful death action as they had represented defendant in an Engle progeny case which was “a products liability case involving the identical products.”  Philip Morris USA, Inc. v. Caro, 41 Fla. L. Weekly D2722 (Fla. 4th DCA Dec. 7, 2016).

 

Appellate court issued writ of prohibition because motion for disqualification alleging “trial judge engaged in ex parte communications with Respondent on several occasions before entering a Final Judgment nearly identical to Respondent’s proposed final judgment” was legally sufficient.  Isan v. Isan, 41 Fla. L. Weekly D2705 (Fla. 5th DCA Dec. 6, 2010).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

 

Trial court erred in awarding attorney’s fee incurred in dissolving a temporary injunction because the injunction was unenforceable as trial court failed to require a bond and therefore there was no statutory basis per section 60.07, Florida Statutes, which “presupposes the existence of a bond.”  Vital Pharmaceuticals, Inc. v. Professional Supplements, LLC, 41 Fla. L. Weekly D2721 (Fla. 4th DCA Dec. 7, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Trial judge erred by stating in final judgment that payments due under a promissory note “may not be held to set-off against any potential attorney fee or costs reserved in this Final Judgment” because it clearly contravened the parties’ agreement and promissory note which defined losses as including reasonable attorney’s fees.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

 

 

CIVIL PROCEDURE

 

In action for fraud, slander of title, and abuse of process, trial court erred by granting plaintiff summary judgment because neither the motion nor the sworn declaration filed per section 95.525, Florida Statutes addressed the affirmative defenses raised in the answers to the first two counts and because the court had not ruled on the defendant’s motion to dismiss the third count.  T-Quip of Florida, Inc. v. Tietig, 41 Fla. L. Weekly D2740 (Fla. 5th DCA Dec. 9, 2016).

 

In mortgage foreclosure action, “the trial court erred in entering a judicial default while the borrowers’ motion to dismiss the complaint was pending.”  Sansbury v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D2738 (Fla. 5th DCA Dec. 9, 2016).

 

Trial court erred by not awarding prejudgment interest on claims for breach of warranty and for fraud based on the breach of warranty once the liquidated damages had been determined.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

Trial court erred by not correcting amounts stated in partial final judgment and final judgment that erroneously stated the amount in an escrow that was to be applied as an offset.  SP Healthcare Holdings, LLC v. Surgery Center Holdings, Inc., 41 Fla. L. Weekly D2733 (Fla. 2d DCA Dec. 9, 2016).

 

 

GOVERNMENT

 

In Florida Public Records Act case requesting production of official ballots, trial court properly ruled Supervisor of Elections charge of $189.21 per hour was reasonable because section 119.07(4), Florida Statutes, provides state agency may charge labor costs “actually incurred” and should not be interpreted as requiring the charge to be based on the labor cost of the lowest paid employee.  Trout v. Bucher, 41 Fla. L. Weekly D2724 (Fla. 4th DCA Dec. 7, 2016).

 

INSURANCE

 

Trial court erred by enter a final summary judgment dismissing a first-party bad faith claim against homeowners’ insurance carrier on basis insureds had accepted insurer’s proposal for settlement for less than policy limits in prior suit for breach of contract because section 624.155, Florida Statutes does not require an insured to obtain the full amount of his or her damages in settling a case.  Barton v. Capitol Preferred Ins. Co., Inc., 41 Fla. L. Weekly D2736 (Fla. 5th DCA Dec. 9, 2017).

 

In uninsured motorist case, trial court abused its discretion by denying insurer’s motion for remittitur as to award for future medical expenses because plaintiff failed to submit any evidence as to life expectancy.  General Employees Ins. Co. v. Isaacs, 41 Fla. L. Weekly D2715 (Fla. 4th DCA, Dec. 7, 2016).

 

 

REAL PROPERTY

 

Appellate court reversed trial court’s dismissal of one-count complaint seeking a deficiency judgment because section 702.06, Florida Statutes specifically authorizes an independent deficiency action, certifying conflict with Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376(Fla. 1st DCA June 9, 2016).  Dyck-O’Neal, Inc. v. Konstantinos, 41 Fla. L. Weekly D2728 (Fla. 2d DCA Dec. 9, 2016).

 

In commercial lease dispute, trial court properly entered a final judgment holding landlord liable for wrongful eviction because landlord was not entitled to use the self-help provisions in the lease agreement, but rather was limited to the provisions of section 83.05(2), Florida Statutes in gaining possession.  Palm Beach Florida Hotel and Office Building Limited Partnership v. Nantucket Enterprises, Inc., 41 Fla. L. Weekly D2719 (Fla. 4th DCA Dec. 7, 2016).

 

In commercial lease dispute, trial court erred by entering a judgment against landlord after jury verdict for conversion because (1) landlord did not convert tenant’s catering contracts, (2) “Landlord did not convert the newly remodeled space because real property cannot be converted,” and (3) claim for food and beverages rights would be one for breach of contract.  Palm Beach Florida Hotel and Office Building Limited Partnership v. Nantucket Enterprises, Inc., 41 Fla. L. Weekly D2719 (Fla. 4th DCA Dec. 7, 2016).

 

Trial court erred by entering a final judgment of involuntary dismissal of a mortgage foreclosure action because plaintiff mortgage servicing company submitted a form letter from HUD showing request to proceed with foreclosure was approved and because mortgagee’s failure to pay property taxes and hazard insurance was a material breach justifying mortgage foreclosure.  Liberty Home Equity Solutions, Inc. v. Raulston, 41 Fla. L. Weekly D2715 (Fla. 4th DCA Dec. 7, 2016).

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

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).

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

Florida Appellate Court Decisions – December 2, 2017

These are summaries of Florida Appellate court decisions reported in the December 2, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

Appellate court affirmed trial court’s award of post-judgment interest at the rate of 1.49% despite appellee’s argument was not entitled to any post-judgment interest because appellee agreed to the amount at trial and therefore could not cross-appeal this issue.  Futernick v. Trushina, 41 Fla. L. Weekly D2642 (Fla. 3d DCA Nov. 23, 2016).

 

Appellate court affirmed final judgment, but remanded for a new trial on the interest rate the bank was entitled to because there was no testimony about the relevant LIBOR index and any of the change dates so the interest amount was not a simple ministerial function.  Gonzalez v. OneWest Bank, FSB, 41 Fla. L. Weekly D2635 (Fla. 4th DCA Nov. 23, 2016).

 

Appellant failed to preserve issue of the trial court’s failure to retain jurisdiction to award attorney’s fees by not presenting the argument in her initial brief. Gooden v. City of Riviera Beach, 41 Fla. L. Weekly D2630 (Fla. 4th DCA 2016).

 

Appellate court issued a writ of mandamus ordering trial court to hold an immediate hearing on a challenge to a candidate’s eligibility to run for office.  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2623 (Fla. 1st DCA Nov. 22, 2016).

 

Appellate court denied petition for writ of prohibition because petitioner “failed to take appropriate and timely steps to seek our review of the order denying disqualification.”  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2645 (Fla. 1st DCA Nov. 23, 2016).

 

Because of the unusual facts in the case, the appellate court exercised its authority under article V, section 4(b)(3) of the Florida Constitution to issue “other writs necessary to the complete exercise of [our] jurisdiction” to prevent an elected candidate for mayor from taking office pending a final judgment from the trial court on whether the candidate met the residency requirements for qualification.  Jackson v. Leon County Elections Canvassing Board, 41 Fla. L. Weekly D2645 (Fla. 1st DCA Nov. 23, 2016).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court erred in awarding law firm attorney’s fees against a former client because 1) the court erred by denying the former client his right to depose the corporate officers who were specifically identified in the notice of taking deposition and 2) the law firm failed to present any expert witness testimony with regard to the reasonableness of its fees.  Ghannam v. Mark D. Shelnutt, P.A., 41 Fla. L. Weekly D2626 (Fla. 5th DCA June 17, 2016).

 

BUSINESS AND EMPLOYMENT

 

Trial court properly entered a final summary judgment in a breach of contract action brought by Florida Power and Light against Verizon for amounts owed for placing equipment on its poles because an Order issued by the Federal Communications Commission in 2011 stating rates had to “just and reasonable” was not applicable since Verizon unilaterally paid a reduced rate instead of filing a complaint with FCC.  Frontier Florida, LLC v. Florida Power & Light Co., 41 Fla. L. Weekly D2640 (Fla. 3d DCA Nov. 23, 1016).

 

CIVIL PROCEDURE

 

In a dispute involving the extent of a tenant’s rights under a long-term lease, the trial court erred by entering a temporary injunction in order to maintain the status quo because it failed to make specific factual findings or require the posting of bond as required by Florida Rule of Civil Procedure 1.610.  Aligned Bayshore Marina, LLC, v. American Watersports Coconut Grove, LLC, 41 Fla. L. Weekly D2644 (Fla. 3d DCA Nov. 23, 2016).

 

Trial court erred by reversing itself on motion for rehearing because it considered an accountant’s excluded report in calculating damages thereby preventing the defense from submitting any contrary evidence.  Willson v. Big Lake Partners, LLC, 41 Fla. L. Weekly D2631 (Fla. 4th DCA Nov. 23, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

Trial court erred in awarding law firm attorney’s fees against a former client because 1) the court erred by denying the former client his right to depose the corporate officers who were specifically identified in the notice of taking deposition and 2) the law firm failed to present any expert witness testimony with regard to the reasonableness of its fees.  Ghannam v. Mark D. Shelnutt, P.A., 41 Fla. L. Weekly D2626 (Fla. 5th DCA June 17, 2016).

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

INSURANCE

 

In a case involving the interpretation of an all-risks policy, The Florida Supreme Court explained that when two or more perils to cause  a loss and one is excluded the “courts have developed competing theories on how to determine coverage: the efficient proximate cause and concurring cause doctrines.”  The Court explained these doctrines and adopted the concurrent cause doctrine which “provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause.”  Sebo v. American Home Assurance Co., Inc., 41 Fla. L. Weekly S582 (Fla. Dec. 1, 2016).

 

 

REAL PROPERTY

 

Trial court erred by entering a final deficiency summary judgment because there were factual issues raised by the borrowers’ affirmative defenses and counterclaim alleging wrongful withholding of insurance proceeds which were not waived by the borrowers in a loan modification agreement.  Rodriguez v. Ocean Bank, 41 Fla. L. Weekly D2637 (Fla. 3d DCA Nov. 23, 2016).

 

Trial court properly ruled that Federal National Mortgage Association when it obtained title to a piece of real property through a foreclosure action was liable for the full amount of the unpaid homeowner association assessments and was not entitled to the one-year limitation per the “safe harbor” statute, section 720.3085(2)(c), Florida Statutes, which unambiguously states it applies when the homeowners association is “initially joined” in the foreclosure action.  Federal National Mortgage Association v. Mirabella at Mirasol Homeowners’ Association, Inc., 41 Fla. L. Weekly D2633 (Fla. 4th DCA Nov. 23, 2016).

 

 

TORT

 

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

 

Case Summaries for week of Nov 18, 2016

These are summaries of cases reported in the November 18, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

The administrative law judge erred by denying appellants’ motion for attorney’s fees, even though the judge ruled in favor of appellee as to amount of benefits that should be awarded, because section 766.31, Florida Statutes is not dependent upon prevailing party determination but compels payment of fees and costs incurred in connection with claim.  Lampert v. Florida Birth-Related Neurological Injury Compensation Association, 41 Fla. L. Weekly D2549 (Fla. 1st DCA Nov. 14, 2016).

 

The Department of Environmental Protection properly dismissed a petition challenging the issuance of a five-year environmental resource permit because the petitioner, which was an island community occupying the central portion Key Biscayne, did not have third-party standing to challenge the permit approving installation of 830 temporary water slips to facilitate a week-end long boat show as it failed to allege actual injury in fact or an immediate threat of direct injury.  Village of Key Biscayne v. Dept. of Environmental Protection, 41 Fla. L. Weekly D2503 (Fla. 3d DCA Nov. 9, 2016).

 

APPELLATE

 

Appellate court dismissed appeal of the portion of an order that denied motion to sever or bifurcate as it was not an appealable non-final order recognized in Florida Rule of Appellate Procedure 9.130 and denied certiorari because of lack of irreparable harm.  Hartford Fire Ins. Co. v. Smith, 41 Fla. L. Weekly D2539 (Fla. 4th DCA Nov. 9, 2016).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

In a fifth appeal from an order awarding attorney’s fees as a sanction in civil litigation, the appellate affirmed, finding that the successor judge had authority to take additional testimony as there were no instructions in the previous opinion as to the remand, but remanded with instructions to include interest.  Cox v. Great American Ins. Co., 41 Fla. L. Weekly D2525 (Fla. 4th DCA Nov. 9, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Trial court erred by entering a final order dismissing an amended complaint for breach of contract against successor entities by concluding “successor liability and continuation of business are post judgment theories appropriate only if the Plaintiff is first able to obtain a judgment” because of “longstanding case law permitting claims to be made against successor corporations and alter egos.”  Oceanside Plaza Condominium Association, Inc. v. Foam King Industries, Inc., 41 Fla. L. Weekly D2505 (Fla. 3d DCA Nov. 9, 2016).

 

Judge of Compensation Claims correctly denied claim for permanent total disability benefits was premature, not because claimant remained totally disabled at the end of the 104-week eligibility for temporary total benefits per section 440.15(2) (a), Florida Statutes, but because that section had been declared unconstitutional, thereby reviving “the pre-1994 statute that provided for a limitation of 260 weeks of temporary total disability benefits.”  Jones v. Food Lion, Inc., 41 Fla. L. Weekly D2490 (Fla. 1st DCA Nov. 9, 2016).

 

 

CIVIL PROCEDURE

 

Trial court did not abuse its discretion in denying motion to transfer venue for convenience because, although several witnesses were not located in Palm Beach County, defendant failed to demonstrate he actually intended to call them or indicate the significance of their testimony.  Hartford Fire Ins. Co. v. Smith, 41 Fla. L. Weekly D2539 (Fla. 4th DCA Nov. 9, 2016).

 

Trial court erred in dismissing a bank’s declaratory action against a condominium association seeking entitlement to the safe harbor protection for unpaid assessment contained in section 718.116, Florida Statutes because the dismissal of the association in a previous mortgage foreclosure action by the bank’s predecessor precluded the imposition of the doctrine of collateral estoppels and because the issue of lien priority was never actually litigated.  PNC Bank, National Association v. Inlet Village Condominium Association, Inc., 41 Fla. L. Weekly D2523 (Fla. 4th DCA Nov. 9, 2016).

 

Trial court erred by entering an amended final judgment because plaintiff had filed a notice of voluntary dismissal, thereby divesting the trial court of jurisdiction.  Bank of New York Mellon v. Poker Run Acquisitions, Inc., 41 Fla. L. Weekly D2518 (Fla. 3d DCA Nov. 9, 2016).

 

Trial court did not abuse its discretion in denying motion for new trial and imposing sanctions on a partner primarily responsible for the trial because he “repeatedly violated the court’s directions, and exposed the jury to inadmissible evidence,” but did abuse its discretion by imposing sanctions on the associate attorney who assisted her partner who had on one occasion mistakenly stated she had spoken with a witness when in fact it was a summer intern who had done so.  Robinson v. Ward, 41 Fla. L. Weekly D2497 (Fla. 2d DCA Nov. 9, 2016).

 

Trial court properly dismissed a declaratory action seeking a tax refund on basis of res judicata because the complaint referenced a case decided in a different circuit which addressed the same issue and involved the same parties.  Seminole Tribe of Florida v. Dept. of Revenue, 41 Fla. L. Weekly D2477 (Fla. 1st DCA Nov. 9, 2016).

 

 

COLLECTIONS

 

Trial court erred by entering a final judgment of garnishment because the court failed to consider the merits of the city’s motion to dissolve and erred in holding that the second motion to dissolve was untimely as it was filed within 20 days of receipt of the bank’s amended answer.  City of Delray Beach v. Desisto, 41 Fla. L. Weekly D2529 (Fla. 4th DCA Nov. 9, 2016).

 

CONSTITUTIONAL LAW

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

The United States Supreme Court’s decision in Crawford v, Washington, 541 U,S. 36 (2004)and the Sixth Amendment confrontation clause of the United State Constitution do not abrogate Florida’s dying declaration exception to the hearsay rule, section 90.804(2)(b), Florida Statutes. Davis v. State of Florida, 41 Fla. L. Weekly S528 (Fla. Nov. 10, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

GIVERNMENT

 

Trial court erred by entering a final summary judgment dismissing a claim of individual negligence against a school bus driver because an earlier appeal holding the school board had not duty was not the law of the case and because there were disputed issues of fact as to whether the school bus driver required the students to cross the street in violation of school board policy and whether such actions placed him beyond the protection of sovereign immunity per section 768,28(9)(a), Florida Statues.  Davis v. Baez, 41 Fla. L. Weekly D2510 (Fla. 3d DCA Nov. 9, 2016).

 

INSURANCE

 

Trial court erred by entering a summary judgment holding a UM carrier liable because the plaintiff had exited the insured vehicle thirty minutes previous to being struck by an underinsured motorist while standing ten feet away and the policy unambiguously provided coverage to non-owners who were occupying the insured vehicle.  State Farm Mutual Automobile Ins. Co. v. Bailey, 41 Fla. L. Weekly D2493 (Fla. 2d DCA Nov. 9, 2016).

 

 

REAL PROPERTY

 

In mortgage foreclosure action, trial court erred by dismissing action on basis of improper verification because “certification executed by appellant’s counsel complied with” section 702.015(4), Florida Statutes.  Bank of America, N.A. v. Leonard, 41 Fla. L. Weekly D2549 (Fla. 1st DCA Nov. 14, 2016).

 

In mortgage foreclosure action, trial court properly denied mortgagor’s Rule 1.540(b) (4) motion alleging judgment was void for lack of standing because the entity that brought the action and obtained a final judgment was U.S. Bank the “fact that the caption of the final judgment identified Bank of America, N.A. was no more than a scrivener’s error.”  Rincon v. Bank of America, N.A., 41 Fla. L. Weekly D2509 (Fla. 3d DCA Nov. 9 2016).

 

Trial court erred by entering a final order dismissing on basis of statute of limitations an amended complaint for breach of contract and damages allegedly resulting from faulty roofing materials because it relied upon allegations made in the original complaint which was abandoned and no longer a pleading when the amended complaint was filed.  Oceanside Plaza Condominium Association, Inc. v. Foam King Industries, Inc., 41 Fla. L. Weekly D2505 (Fla. 3d DCA Nov. 9, 2016).

 

Trial court properly denied motion to vacate foreclosure sale claiming section 702.035, Florida Statutes was an unconstitutional special law because the property owner failed to comply with the requirements of Florida Rule of Civil Procedure 1.071, which requires service of any motion raising a constitutional issue to be served on the Attorney General or the state attorney.  Shelton v. Bank of New York Mellon, 41 Fla. L. Weekly D2495 (Fla. 2d DCA Nov. 9, 2016).

 

TORT

 

Trial court properly granted summary judgment dismissing wrongful death action for negligent supervision brought by parents of a sixteen year old son who died from falling off an all-terrain vehicle driven by defendants’ minor son because the uncontroverted evidence was defendants’ son drove the vehicle for the first time without his parents’ permission or knowledge.  Perez v. Rodriguez, 41 Fla. L. Weekly D2540 (Fla. 4th DCA Nov. 9, 2016).

 

In a tobacco litigation case, the appellate court held the court abused its discretion in admitting expert testimony because the expert did not explain the Bradford Hill criteria nor provide any data or studies of the association between mesothelioma and chrysotile asbestos as required by the Daubert standard.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2532 (Fla. 4th DCA Nov. 9, 2016) (denying motion for rehearing but substituting opinion reported at 41 Fla. L. Weekly D2133).

 

In defamation action, trial court properly entered final summary judgment of dismissal because appellant failed to present any evidence to refute affidavits and deposition testimony from defendant that he did not write the alleged defamatory statement on a postcard sent through the mail and had no knowledge that it was done by his son.  Navellier v. Shortz, 41 Fla. L. Weekly D2530 (Fla. 4th DCA Nov. 9, 2016).

 

In a suit brought by a senior in high school against a security guard company for negligent hiring, retaining, and supervising a guard who videotaped her undressed, trial court erred by entering a final judgment after jury verdict, because “Florida’s impact rule precludes recovery of damages in tort cases for emotional distress absent any physical injury.”  G4S Secure Solutions, USA, Inc. v. Golzar, 41 Fla. L. Weekly D2514 (Fla. 3d DCA Nov. 9, 2016).

 

In defamation case, trial court erred by instructing jury that malice could be inferred “where the false publication was made with such gross and reckless negligence as to amount to actual malice” and the error was not harmless because “the jury’s verdict found that the wrongful conduct arose ‘solely’ from an economic motivation, not malevolence.”  Crestview Hospital Corp. v. Coastal Anesthesia, P.A., 41 Fla. L. Weekly D2479 (Fla. 1st DCA Nov. 9, 2016).

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.

 

 

Weekly Reder for November 11, 2016

These are summaries of cases reported in the November 11, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

Appellant’s challenge of a non-final order granting temporary injunctive relief was rendered “moot due to Appellant’s decision to move to dissolve the injunction before the trial court.”  Saidin v Korecki, 41 Fla. L. Weekly D2473 (Fla. 1st DCA Nov. 4, 2016) and AAOEP USA, Inc. v. Pex German OE Parts, LLC, 41 Fla. L. Weekly D2473 (Fla. 1st DCA Nov. 4, 2016).

 

Appellate court issued a writ of mandamus ordering Department of Education to conduct a hearing on a parent’s petition seeking “a permanent exemption from statewide standardized testing for her daughter who has a number of serious medical conditions.”  Drew v. Florida Dept. of Education, 41 Fla. L. Weekly D2459 (Fla. 1st DCA Nov. 2, 2016).

 

On appellant mortgagor’s motion for rehearing, appellate court explained that the order denying appellant’s motion to quash was a nonfinal, nonappeable order, but explained in a footnote the appellant could challenge the order at the conclusion of the case.  Vujin v. U.S. Bank National Association, 41 Fla. L. Weekly D2456 (Fla. 3d DCA Nov. 2, 2016).

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court abused its discretion in denying a 57.105, Florida Statute motion for attorney’s fees on basis that defendant had raised an affirmative defense that was not “entirely basis” because the trial court’s analysis was based on the pre 1999 version of section 57.105, because in this case the plaintiff was able to get the defendant to admit in deposition it had no evidence to support its affirmative defense of setoff.  Infiniti Employment Solutions, Inc. v. MS Liquidators of Arizona, LLC, 41 Fla. L. Weekly D2469 (Fla. 5th DCA Nov. 4, 2016).

 

Trial court erred in denying motion for attorney’s fees on the basis no claim was made in the wherefore clause of the complaint because plaintiff was aware of plaintiff’s claim. Zurro v. Wells Fargo Bank, N.A., 41 Fla. L. Weekly D2454 (Fla. 2d DCA Nov. 2, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Judge of Compensation Claims properly denied claimant’s attorney’s request for attorney’s fees because the employer/carrier accepted responsibility for medical expenses within the thirty-day grace period even though it did not pay the medical bills until after the thirty days.  Sansone v. Frank Crum/Frank Winston Crum Ins., Inc., 41 Fla. L. Weekly D2463 (Fla. 1st DCA Nov. 2, 2016).

 

 

 

CIVIL PROCEDURE

 

Trial court erred by entering a final summary judgment in a replevin action because there were “diametrically opposed versions of the facts in their respective sworn affidavits” . . . “regarding removal of Appellant’s property from the house.”  Skelton v. Real Estate Solutions Home Sellers, LLC, 41 Fla. L. Weekly D2466 (Fla. 5th DCA Nov. 4, 2016).

 

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

Trial court did not depart from essential requirements of law in denying motion for protective order claiming that the notice of depositions of the president and chief executive officer was for purposes of harassment and neither had anything to do with the day-to-day operations of the corporation because the affidavits also admitted to meeting with plaintiff’s president and discussing the management of the hotel with lower-level employees.  Remington Lodging & Hospitality, LLC v. Southernmost House, Ltd., 41 Fla. L. Weekly D2457 (Fla. 3d DCA Nov. 2, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

Trial court erred in denying an aide’s motion requesting court to enforce an “earlier order appointing the ward’s son to pay a $25,000 gift to the aide upon the ward’s death” because the motion required an evidentiary hearing to determine the timing of the ward’s gifts and the conditions by which the ward was to make the gifts.  Cajuste v. Herlitschek, 41 Fla. L. Weekly D2445 (Fla. 4th DCA Nov. 2, 2016).

 

INSURANCE

 

 

 

 

REAL PROPERTY

 

Trial court did not error in temporarily enjoining a condominium association for collecting assessments for anticipated non-recurring legal and engineering fees because “the assessments were ‘special assessments’ that required a different approval process versus the amended budget process that the Association used.”  Shores of Panama Resort Community Association, Inc. v. Shores of Panama City, LLC, 41 Fla. L. Weekly D2458 (Fla. 1st DCA Nov. 2, 2016).

 

Trial court abused its discretion in denying motion to vacate a final judgment of dismissal premised upon the entry of a clerk’s default because plaintiff “had actual knowledge both that [defendant] intended to defend the foreclosure lawsuit and that [defendant] was represented by counsel.”  Jacaranda, LLC v. Green Tree Servicing, LLC, 41 Fla. L. Weekly D2454 (Fla. 2d DCA Nov. 2, 2016).

 

Trial court properly entered a final judgment of mortgage foreclosure because “bank’s pre-complaint pooling and servicing agreement and corresponding mortgage loan schedule expressly indicated that the agreement included the borrower’s loan.”  Bolous v. U.S. Bank National Association, 41 Fla. L. weekly D2448 (Fla. 4th DCA Nov. 2, 2016).

 

 

 

TORT

 

Trial court did not error in dismissing with prejudice a third amended complaint that alleged negligence of a 911 operator in responding to a call for medical assistance because there were no allegations of a “special relationship and there was no increased risk of harm to make the undertaker’s doctrine applicable.  Jordan v. Nienhuis, 41 Fla. L. Weekly D2464 (Fla. 5th DCA Nov. 4, 2016).

 

Appellate court affirmed trial court’s dismissal of complaint by former wife against her former husband’s employer for conspiring with her former husband to fraudulently conceal his true income because the complaint was seeking to establish a new cause of action, but certified the following as a question of great public importance:

“May a former spouse pursue an independent tort claim against the employer of the other former spouse for fraudulent conduct that (1) occurs after the final judgment and (2) falsely depresses that spouse’s income so as to limit the obligation for child support?”

Chanin v. Feigenheimer, 41 Fla. L. Weekly D2446 (Fla. 4th DCA Nov. 2, 2016).

 

 

 

 

COPYRIGHT 2017 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.