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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  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.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 October 14, 2016

These are summaries of cases reported in the October 14, 2016, edition of the Florida Law Weekly concerning real property law.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

APPELLATE

 

Although appellate court did not have jurisdiction to consider appeal of a partial summary judgment dismissing a subcontractor’s lien on basis it was fraudulent as there was a count pending between the parties, it treated the appeal as a petition for writ of certiorari and granted the writ because the subcontractor would be without a remedy if it had to wait to appeal a final judgment and the co-defendant surety company in the interim were released from its obligation under the surety bond.  Gator Boring & Trenching, Inc. v. Westra Construction Corp., 41 Fla. L. Weekly D2269 (Fla. 2d DCA Oct. 5, 2016).

 

 

CIVIL PROCEDURE

 

 

Appellate court affirmed trial court’s referral of action against nursing homes to arbitration, but severed portion containing an attorney’s fee provision requiring parties to equally bear the fees associated with arbitration as being against public policy.  Hochbaum v. Palm Garden of Winter Haven, LLC,  41 Fla. L. Weekly D2265 (Fla. 2d DCA Oct. 5, 2016).

 

 

COMMERCIAL LEASE

 

In commercial lease dispute, trial court erred in requiring tenant to deposit one half of the disputed amount of additional rents into the court registry because the contract was ambiguous and therefore the judge was required to hold an evidentiary hearing to determine the intent of the parties.  Charbonier Food Services, LLC v. 121 Alhambra Tower, LLC, 41 Fla. L. Weekly D2282 (Fla. 3d DCA Oct. 5, 2016).

 

 

CONDOMINIUM LIENS

 

In dispute between bank and condominium association over the safe harbor provision limiting liability for unpaid condominium assessments afforded by section 718.116(1) (b), Florida Statutes, the trial court properly granted summary judgment in favor of the bank even though the owner of the note was Fannie Mae because “ownership of the note and mortgage is not determinative of entitlement to the limited liability of the safe harbor provision in all instances.”  Brittany’s Place Condominium Association, Inc. v. U.S. Bank, N.A., 41 Fla. L. Weekly D2267 (Fla. 2d DCA Oct. 5, 2016).

 

 

CONSTRUCTION LIENS

 

Trial court erred by entering a partial summary judgment dismissing a subcontractor’s lien on basis the lien was fraudulent due to it including amounts for additional work caused by changed conditions not recoverable under contract because defendants failed to prove willful exaggeration of the claim, the amount of which was hotly contested.  Gator Boring & Trenching, Inc. v. Westra Construction Corp., 41 Fla. L. Weekly D2269 (Fla. 2d DCA Oct. 5, 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 October 07, 2016

ADMINISTRATIVE

 

 

APPELLATE

 

Appellate dismissed condominium unit owner’s appeal of decision dismissing counts for injunctive relief because the order was non-final and nonappealable as there remained pending a count seeking damages. Anderson v. Epstein, 41 Fla. L. Weekly D2211 (Fla. 3d DCA Sept. 28, 2016).

 

 

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Judge of Compensation Claims erred by including in award for attorney’s fees time spent by claimant’s previous counsel because there was an order substituting counsel relieving previous counsel of all responsibility and there was no record evidence to support ten hours of work represented “hours of work between two attorneys of record” Cruz-Ramirez v. American Airlines, 41 Fla. L. Weekly D2257 (Fla. 1st DCA Oct. 4, 2016).

 

Trial court erred by finding offer of judgment was invalid because a “passing reference” in the complaint for equitable relief did not alter fact that claim for damages for retaliatory discharge was essentially one for damages. Faith Freight Forwarding Corp. v. Anias, 41 Fla. L. Weekly D2214 (Fla. 3d DCA Sept. 28, 2016) (correcting opinion reported at 41 Fla. L. Weekly D2096).

 

Despite referee’s recommendation of suspension, Florida Supreme Court disbarred two attorneys for settling PIP claims without allocating any money to clients’ bad faith claims.  The Florida Bar v. Kane, 41 Fla. L. Weekly S426 (Fla. Oct. 6, 2016).

 

 

BUSINESS AND EMPLOYMENT

 

Judge of Compensation Claims erred in granting claimant’s claim for additional housing benefits when he moved from a two-bedroom apartment to a four-bedroom home on basis the Employer/Carrier did not respond to his request for assistance and should on remand to make a determination as to whether any particular housing arrangement is reasonable and necessary.  Kilyn Construction, Inc. v. Pierce, 41 Fla. L. Weekly D2251 (Fla. 1st DCA Oct. 4, 2016).

 

 

Trial court erred by dismissing several counts seeking to recover on promissory notes because the language in the notes that they were not assignable did not effect a power of attorney giving the attorney-in-fact to collects sums due.  Villamizar v. Luna Developments Group, LLC, 41 Fla. L. Weekly D2211 (Fla. 3d DCA Sept. 28, 2016).

 

 

CIVIL PROCEDURE

 

In public records case, trial court abused its discretion by denying relief after en camera inspection of records claimed to be exempt because it did not hold an evidentiary hearing as required by section 119.11(1), Florida Statutes.  Kline v. University of Florida, 41 Fla. L. Weekly D2254 (Fla. 1st DCA Oct. 4, 2016).

 

Trial court properly dismissed petition for declaratory relief concerning whether a city employee was entitled to a refund of both the contributions she made to the retirement fund and those the City made because she had not yet elected which option she was choosing and therefore there was no actual controversy.  Helfrich v. City of Jacksonville, 41 Fla. L. Weekly D2253 (Fla. 1st DCA Oct. 4, 2016) (correcting opinion reported at 41 Fla. L. Weekly D902.)

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

In mortgage foreclosure action, trial court abused its discretion in excluding records of a previous servicer because the “bank’s witness demonstrated sufficient familiarity with boarding process, and his testimony established the trustworthiness of the prior servicer’s records.”  Ocwen Loan Servicing, LLC v. Gunderson, 41 Fla. L. Weekly D2238 (Fla. 4th DCA Sept. 28, 2016).

 

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

 

INSURANCE

 

The circuit court sitting in its appellate capacity did not depart from the essential requirements of law by affirming a county court judgment for a medical provider in a personal injury protection (PIP) case because the Florida Supreme Court has accepted for review a conflict of decisions on the same issue of contractual interpretation.  Allstate Fire and Casualty Ins. Co. v. Hallandale Open MRI, LLC, 41 Fla. L. Weekly D2208 (Fla. 3d DCA Sept. 28, 2016).

 

 

REAL PROPERTY

 

Trial court erred in dismissing a condominium unit owner’s first suit seeking injunctive relief against another unit owner and association because the amended complaint, which included allegations in a second, consolidated complaint seeking damages for negligence, related back. Anderson v. Epstein, 41 Fla. L. Weekly D2211 (Fla. 3d DCA Sept. 28, 2016).

 

Trial court erred by entering a final summary judgment of dismissal of challenge to city’s ordinances concerning the operation, rental and insurance of motorcycles and mopeds “because the “local governments’ ability to legislate in this area has been preempted by Florida law [Chapter 316].”  Classy Cycles, Inc. v. Bay County, 41 Fla. L. Weekly D2201 (Fla. 1st DCA Sept. 28, 2016).

 

TORT

 

 

 

 

COPYRIGHT 2016 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 September 30, 2016

These are summaries of cases reported in the September 30, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

 

ADMINISTRATIVE

 

 

APPELLATE

 

 

 

ATTORNEYS AND ATTORNEYS’ FEES

 

Trial court erred in denying motion for appellate attorney’s for the reason that plaintiff made a joint proposal for settlement to two defendants because prior case law holding such proposals were invalid were superseded by the addition of a provision to Florida Rule of Civil Procedure 1.442(c) in 2010 that specifically authorizes a joint proposal to two defendants where one of them is vicariously liable. Saterbo v. Markuson, 41 Fla. L. Weekly D2169 (Fla. 2d DCA Sept. 21, 2016).

 

The Florida Supreme Court found that the Fifth District Court of Appeal’s decision in Omega Ins. Co. v. Johnson, 39 Fla. L. Weekly D1911 (Fla. 5th DCA Sept. 5, 2014) conflicted with its decision in Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla. 2000), and held “that a recovery for attorney’s fees under section 627.428 requires an incorrect denial of benefits by the insurance company, not a bad faith denial.”  Johnson v. Omega Ins. Co., 41 Fla. L. Weekly S415 (Fla. Sept. 29, 2016) (emphasis in original).

 

 

BUSINESS AND EMPLOYMENT

 

 

CIVIL PROCEDURE

 

In tobacco litigation case, trial court erred by refusing to instruct the jury on the detrimental reliance element of the fraud-based claim.  R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

In a suit for writ of mandamus, trial court erred by proceeding to hold a hearing on the merits without first following the procedures outline in Florida Rule of Civil Procedure 1.630 requiring the court to issue a show cause order if the complaint sets forth a prima facie case.  Miami-Dade County Board of County Commissioners v. An Accountable Miami-Dade, 41 Fla. L. Weekly D2171 (Fla. 3d DCA Sept. 20, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

 

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

 

INSURANCE

 

The Florida Supreme Court found that the Fifth District Court of Appeal’s decision in Omega Ins. Co. v. Johnson, 39 Fla. L. Weekly D1911 (Fla. 5th DCA Sept. 5, 2014) conflicted with its decision in Universal Ins. Co. of North America v, Warfield, 82 So.3d 47 (Fla. 2012), and held “that the presumption of correctness granted to the insurer’s investigative report in section 627.7073(1)(c) of the sinkhole statutes is only applicable to the sinkhole initial claims process, and does not continue to apply during the trial stage.” Johnson v. Omega Ins. Co., 41 Fla. L. Weekly S415 (Fla. Sept. 29, 2016) (emphasis in original).

 

 

REAL PROPERTY

 

Trial court erred by entering a final judgment of mortgage foreclosure because the court lacked jurisdiction to enter a judgment after the filing of a notice of removal to federal court and before the federal court remanded the case back to the trial court.  Perkins v. Wells Fargo Bank N.A., 41 Fla. L. Weekly D2186 (Fla. 5th DCA Sept. 23, 2016).

 

In an action to foreclose on a reverse mortgage, trial court erred by entering a final judgment of foreclosure where the plaintiff proceeded to foreclose on the sole basis the signor of the promissory note did not establish or plead that his wife had died or no longer used the property as her primary residence and who was considered to be a “Borrower” as she signed the mortgage and who also may have had homestead rights.  Smith v. Reverse Mortgage Solutions, Inc., 41 Fla. L. Weekly D2179 (Fla. 3d DCA Sept. 21, 2016).

 

Trial court erred in dismissing a mortgage foreclosure complaint on basis of failure to comply with condition precedent of paragraph 21 of the mortgage as the pre-suit notice substantially complied by adequately informing the borrower there would be a judicial foreclosure proceeding and of his right to assert defenses.  Federal National Mortgage Association v. Linares, 41 Fla. L Weekly D2179 (Fla. 3d DCA Sept. 21, 2016).

 

In mortgage foreclosure case, trial court erred by entering a dismissal for lack of proof of standing because it had previously struck defendant’s affirmative defense and the final hearing was on damages only.  LNV Corporation v. Gonzalez, 41 Fla. L. Weekly D2178 (Fla. 3d DCA Sept. 21, 2016).

 

Trial court erred in dismissing a claim that a development order was inconsistent with the town’s land use plan because “(1) the comprehensive plan is clear and unambiguous, (2) the comprehensive plan requires that the project include residential uses; (3) the project does not contain any residential uses; and thus, (4) the development order approving the project’s site plan is inconsistent with the comprehensive plan.”  Realty Associates Fund IX, LP v. Town of Cutler Bay, 41 Fla. L. Weekly D2176 (Fla. 3d DCA Sept. 21, 2016).

 

In a mortgage foreclosure case, the appellate court found there was insufficient evidence to support the total amount of damages reflected in the final judgment and remanded for further proceedings.  Ottawa Properties 2, LLC v. Central Mortgage Co., 41 Fla. L. Weekly D2166 (Fla. 4th DCA Sept. 21, 2016).

 

The trial court properly granted summary judgment finding that alluvium (newly formed) land becomes a part of the original property as a matter of law from the moment of its creation and is therefore subject to a mortgage on the original property.  Accardi v. Regions Bank, 41 Fla. L. Weekly D2164 (Fla. 4th DCA Sept. 21, 2016).

 

TORT

 

In tobacco litigation case, trial court erred by failing to reduce the compensatory damage based on the jury’s finding that the plaintiff was 20.55 comparatively negligent even though the complaint included counts for intentional fraud because all the claims were based on products liability theory.  R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

In tobacco litigation case, trial court abused its discretion in denying defendant’s motion for new trial because “plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize” and because the “closing argument included inflammatory remarks, statement evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial.” R.J. Reynolds Tobacco Co. v. Calloway, 41 Fla. L. Weekly D2188 (Fla. 4th DCA Sept. 23, 2016).

 

Trial court erred by entering a summary judgment dismissing a complaint for conversion because it adequately pled all the essential elements and the defendant allegedly refused plaintiff’s demand to return the property used as collateral and because plaintiff was not limited to seeking recourse through replevin.  Beach Community Bank v. Disposal Services, LLC, 41 Fla. L. Weekly D2185 (Fla. 1st DCA Sept. 21, 2016).

 

 

COPYRIGHT 2016 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 September 23, 2016

These are summaries of cases reported in the September 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

 

In a case involving the termination of a teacher, the circuit court sitting in its appellate capacity erred by reviewing the case de novo instead of applying the competent and substantial evidence standard.  School Board of Hillsborough County v. Tenney, 41 Fla. L. Weekly D2149 (Fla. 2d DCA Sept. 16 2016).

 

The trial court’s denial of a motion to substitute parties after one of the parties has died is a non-final, non-appealable order.  Gomez v. Fradin, 41 Fla. L. Weekly D2132 (Fla. 4th DCA Sept. 14, 2016).

 

ATTORNEYS AND ATTORNEYS’ FEES

 

 

BUSINESS AND EMPLOYMENT

 

 

CIVIL PROCEDURE

 

Trial court abused its discretion by entering a final summary judgment dismissing buyers’ post-closing suit against seller’s agents because the buyers should have been allowed to finish deposing the agents and because their claims for statutory violations did not contradict the contract’s provision that the buyers were not to rely on representations by sale agents.  Kjellander v. Abbott, 41 Fla. L. Weekly 2155 (Fla. 1st DCA Sept. 19, 2016).

 

In an asbestos exposure case, trial court abused its discretion in denying defendant’s motion for remittitur because plaintiff’s lawyer’s comments to the jurors that they should base their verdict upon the rates the parties compensated their experts improperly focused on the defendant’s ability to pay.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016).

 

Trial court erred in dismissing a complaint by stating that plaintiff’s multiple violations of a pre-trial order were willful or contumacious was not a proper analysis nor a written determination required by the decision in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).  Gordon v. Gatlin Commons Property Owners Association, Inc., 41 Fla. L. Weekly D2126 (Fla. 4th DCA Sept. 14, 2016).

 

Trial court erred in denying a motion to dismiss for failure to arbitrate because it did not make a decision as to whether a valid written agreement to arbitrate exists as required by section 682.03(7), Florida Statutes.  Cirrus Holdings USA, LLC v. Welch, 41 Fla. L. Weekly D2125 (Fla. 4th DCA Sept. 4, 2016).

A resident is not bound by the arbitration clause in a nursing home contract which he did not sign because the third-party beneficiary doctrine applies to cases where a third-party is seeking to bind one of the contracting parties and does not enable two contracting parties to bind a third, non-signatory party. Mendez v. Hampton Court Nursing Center, LLC, 41 Fla. L. Weekly S394 (Fla. Sept. 22, 2016).

 

 

COLLECTIONS

 

 

 

CONSTITUTIONAL LAW

 

 

CONSUMER PROTECTION

 

DISCOVERY AND EVIDENCE

 

In asbestos exposure case, trial court abused its discretion in allowing three of plaintiff’s expert witnesses to testify because their testimony did not satisfy the standard in Daubert that their opinion had to be based upon reliable studies and data and establish a causal link.  Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016).

 

“[T]he trial court departed from the essential requirements of law in allowing the party to call the reporter as a witness without prior notice and without any showing that the reporter had any relevant testimony.”  Palm Beach Newspapers, LLC v. Colin, 41 Fla. L. Weekly D2125 (Fla. 4th DCA Sept. 14, 2016).

 

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

 

 

 

INSURANCE

 

The circuit court sitting in its appellate capacity departed from the essential requirements of law in holding that an insurance company waive its right to litigate the reasonableness of medical bills by not specifically electing to use Medicare’s fee schedules in its policy.  Progressive Select Ins. Co. v. Emergency Physicians of Central Florida, LLP, 41 Fla. L. Weekly D2145 (Fla. 5th DCA Sept. 16, 2016).

 

In a response to a question certified by the Eleventh Judicial Circuit, The Florida Supreme Court held that a party cannot “challenge the validity of a life insurance policy after the two-year contestability period established by section 627.455 because of its creation through a [stranger-originated life insurance] STOLI scheme.”  Wells Fargo Bank, N.A. v. Pruco Life Ins. Co., 41 Fla. L. Weekly S403 (Fla. Sept. 22, 2016).

 

 

REAL PROPERTY

 

In mortgage foreclosure action, trial court abused its discretion in denying property owner’s motion for leave to amend her answer to raise affirmative defenses because it was the first time she filed such a motion and the affirmative defenses were properly pled.  Morgan v. Bank of New York Mellon, 41 Fla. L. Weekly D2157 (Fla. 1st DCA Sept. 19, 2016).

 

TORT

 

 

 

 

COPYRIGHT 2016 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 August 19, 2016

These are summaries of cases reported in the August 19, 2016, edition of the Florida Law Weekly.  The links take you directly to the appellate courts’ websites for the original, unpublished opinions.

ADMINISTRATIVE

Trial court erred by enjoining a student government election because it lacked jurisdiction per section 1004.26(5), Florida Statutes.  Florida A & M University Board of Trustees v. Bruno, 41 Fla. L. Weekly D1886 (Fla. 1st DCA Aug. 15, 2016).

APPELLATE

Appellate court dismissed appeal by Department of Business and Professional Regulation of a trial court’s order of summary judgment finding plaintiffs were entitled to a declaratory judgment in their favor because such order was neither a temporary injunction nor a partial summary judgment.  Dept. of Business and Professional Regulation v. Florida Association of Wholesale Distributors, Inc., 41 Fla. L. Weekly D1851 (Fla. 2d DCA Aug. 10, 2016).

ATTORNEYS AND ATTORNEYS’ FEES

In a forfeiture proceeding, appellate court affirmed trial court’s denial of motion for damages, costs, and attorney’s fees because the case was voluntarily dismissed when the sheriff’s office returned the plaintiff’s vehicle and therefore no forfeiture order had been entered, but criticized the language in section 932.704, Florida Statutes and certified conflict with Cox v. Dept. of Highway Safety & Motor Vehicles, 881 So.2d 641 (Fla. 5th DCA 2004). Underwood v. State of Florida, 41 Fla. L. Weekly D1848 (Fla. 2d DCA Aug. 10, 2016).

BUSINESS AND EMPLOYMENT

CIVIL PROCEDURE

Trial court erred by entering a final order dismissing complaint on basis for forum selection clauses in two contracts with respect to two tort-base counts alleging “converted, or fraudulently misappropriated, escrowed monies.”  Turnkey Projects Resources Limited v. Gawad, 41 Fla. L. Weekly D1873 (Fla. 5th DCA Aug. 12, 2016).

On remand from The Florida Supreme Court, the District Court of Appeals, Fifth District found that “the trial court abused its discretion in denying [Appellant’s] motion for remittitur” because plaintiff’s testimony that he was self-employed and could make $100,00 to $200,000 in a “good year” was unsubstantiated, speculative testimony.  Safeco Ins. Co. of Illinois v. Fridman, 41 Fla. L. Weekly D1870 (Fla. 5th DCA Aug. 12, 2016).

“A party can seek relief under rule 1.540(b) when he or she does not receive a copy of an order entered by the court until after the time for filing an appeal has expired.”  Waters v. Childers, 41 Fla. L. Weekly D1864 (Fla. 1st DCA Aug. 11, 2016).

Trial court erred in dismissing complaint for legal malpractice for failure to serve the law firm within the time parameters of Florida Rule of Civil Procedure 1.070(j) because the involuntary bankruptcy of the prime plaintiff established excusable neglect. Banyon Income Fund, LLC v. Hutchison & Steffen, LLC, 41 Fla. L. Weekly D1829 (Fla. 4th DCA Aug. 18, 2016).

Trial court erred in dismissing homeowner’s association third amended complaint alleging negligence against a paint manufacturer as being time barred because time began to run when the plaintiff began suffering damages when the paint began to fail, not when the defendant inspected the premises. Riverwalk at Sunrise Homeowners Ass’n.,  Inc. v. Biscayne Painting Corp., 41 Fla. L. Weekly D1828 (Fla. 4th DCA Aug. 10, 2016).

COLLECTIONS

Trial court erred in granting summary judgment declaring a judgment lien valid because the address listed in the judgment was the judgment creditor’s attorney instead of the judgment creditor as required by section 55.10, Florida Statutes.  Gomez v. Timberoof Roofing Co., Inc., 41 Fla. L. Weekly D1827 (Fla. 4th DCA Aug. 10, 2016).

CONSTITUTIONAL LAW

Trial court properly dismissed suit brought by the Florida Education Association, the Florida Congress of Teachers, Inc., the League of Women Voters of Florida, Inc. the Florida State Conference of Branches of the NAACP, a group of parents of children in public schools, teachers employed by public schools, and religious and community leaders challenging the constitutionality that the Florida Tax Credit Scholarship Program (FTSCP)violated the Florida Constitution by diverting public funds from Florida’s public schools to religiously affiliated schools because the Appellants lacked standing as they had failed to allege they suffered a harm distinct from that suffered by the general public.  McCall v. Scott, 41 Fla. L. Weekly D1889 (Fla. 1st DCA Aug. 16, 2016).

CONSUMER PROTECTION

Trial court erred in dismissing action claiming violation of Florida’s Unfair and Deceptive Trade Practices act on basis assented to arbitration provision by responding to a mailer sent in 2012 because the lawsuit was premised on a 2010 invoice that did not mention arbitration.  All-South Subcontractors, Inc v. Amerigas Propane, Inc., 41 Fla. L. Weekly D1859 (Fla. 1st DCA Aug. 11, 2016).

DISCOVERY AND EVIDENCE

ESTATE PLANNING, GUARDIANSHIP AND PROBATE

“[W]here there is no ultimate determination of incapacity and no ultimate appointment of a plenary or limited guardian, counsel to an emergency temporary guardian and to the ward of such a guardianship are entitled to an award of fees and costs under section 744.108(1).”  Kemp v. Berschback, 41 Fla. L. Weekly D1840 (Fla. 2d DCA Aug. 10, 2016).

INSURANCE

The “trial court abused its discretion in not admitting evidence of the amount the [insureds] received to repair the home from a prior insurance company after the previous sinkhole claim on the same property.” Tower Hill Signature Ins. Co. v. Speck, 41 Fla. L. Weekly D1869 (Fla. 5th DCA Aug. 12, 2016).

REAL PROPERTY

Trial court erred by dismissing a suit to recover a deficiency judgment because the court that entered a judgment of foreclosure had not granted or denied a claim for a deficiency judgment.  Dyck-O’Neal, Inc. v. McKenna, 41 Fla. L Weekly D1885 (Fla. 4th DCA Aug. 12, 2016. Clarifying conflict with Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

Trial court improperly entered a summary judgment against a contractor brought by a condominium association because there were disputed genuine issues of material fact as to whether the dispute had been resolved in prior litigation between the contractor and developer.  Ventana Condominium Association, Inc. v. Chancey Design Partnership, Inc., 41 Fla. L. Weekly D1880 (Fla. 2d DCA Aug. 12, 2016).

Although trial court properly ruled plaintiff was not entitled to file six quiet title actions in one lawsuit as there were different trusts involved, the trial court erred by dismissing the entire action instead of severing five of the counts and proceeding to quiet title to one of the properties.  Crescenzo v. Marshall, 41 Fla. L. Weekly D1874 (Fla. 2d DCA Aug. 12, 2016).

An assignee of a promissory note is entitled to recover the original note from a court file even though the action had been dismissed because of the assignor’s failure to establish standing.  Kajaine Estates, LLC v. US Bank National Association, 41 Fla. L. Weekly D1872 (Fla. 5th DCA Aug. 12, 2016).

In mortgage foreclosure action, trial court erred by denying an inmate’s motion for transport to the foreclosure hearing without holding a hearing.  Hicks v. Sarping, LLC, 41 Fla. L. Weekly D1871 (Fla. 5th DCA Aug. 12, 2016).

Trial court improperly entered final judgment of mortgage foreclosure because plaintiff failed to respond to borrowers’ requests for admissions that Nationstar was not in possession, was not the owner, had not sent a pre-suit letter per paragraph 22 at the inception of the lawsuit.  Poag v. Nationstar Mortgage, LLC, 41 Fla. L. Weekly D1863 (Fla. 1st DCA Aug. 11, 2016).

Trial court properly entered a final judgment of foreclosure because the mortgage did not require any pre-notice where the mortgage was accelerated due to the borrower’s death.  LaFaille v. Nationstar Mortgage LLC, 41 Fla. L. Weekly D1887 (Fla. 3d DCA Aug. 10, 2016).

In an independent deficiency action, appellate court ruled trial court properly denied motion for relief from judgment which argued original foreclosure court had subject matter jurisdiction because that court did not grant or deny the foreclosure claim, certifying conflict with. Higgins v. Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

Trial court erred by entering a final judgment of mortgage foreclosure because “the bank failed to prove the allonge was specially endorsed in its favor and affixed to the original note prior to filing its complaint.”  Elman v. U.S. Bank, N.A., 41 Fla. L. Weekly D1833 (Fla. 4th DCA Aug. 10, 2016) (clarifying standard of review used in opinion reported at 41 Fla. L. Weekly D872).

Trial court erred by dismissing a mortgage a foreclosure after determining there was insufficient evidence of standing and damages because plaintiff presented evidence that World Savings Bank FSB changed its name to Wachovia Mortgage, FSB and because the payment history clearly set forth the principal balance due even though it was erroneously admitted evidence, the court remanded with instructions to take additional testimony on evidence.  Wachovia Mortgage, F.S.B. v. Goodwill, 41 Fla. L. Weekly D1832 (Fla. 4th DCA Aug. 10, 2016).

TORT

In tortuous interference with a business relationship action, trial court properly determined that defendant’s subsequent distribution payments did not make the “continuing tort” doctrine applicable and therefore the action was barred by the statute of limitations.  Effs v. Sony Pictures Home Entertainment, Inc., 41 Fla. L. Weekly D1858 (Fla. 3d DCA Aug. 10, 2016).

Appellate court trial court’s final judgment in favor of deceased’s estate in tobacco litigation case “because the implied preemption argument is not only barred by res judicata but is also without merit.”  Philip Morris USA, Inc. v. Lourie, 41 Fla. L. Weekly D1855 (Fla. 2d DCA Aug. 10, 2016).

COPYRIGHT 2016 RANDALL O. REDER.  If you have any comments or suggestions, please contact Randall Reder at (813) 960-1952 or at reder@redersdigest.com.