Joseph S. Kashi Appellate Practice Law Blog on Lawyers.com

EQUITABLE DISTRIBUTION; ATTORNEY’S FEES

Rogers v. Rogers, ___ So. 2d ___, 34 Fla. L. Weekly D1201 (Fla. 2d DCA 6/17/09)

            The trial court abused its discretion by assigning to the wife the entire amount of her student loan debt.  Although the trial court did not explain the basis for this distribution, the only argument made to support it was the husband’s assertion that it would be inequitable for him to be responsible for half of the student loan debt because the wife would receive all of the benefit.  This was not a valid justification for the unequal distribution. 

            The trial court also erred by awarding to the wife only a portion of her attorney’s fees and making the reduced amount payable in two installments over a one year period because of the absence of findings to support either decision.

DEFAULT

Makes & Models Magazine, Inc. v. Web Offset Printing Co., ___ So. 2d ___, 34 Fla. L. Weekly D1203 (Fla. 2d DCA 6/17/09)

            A sued B in Hillsboro County.  Two months later, B sued A in Pinellas County.  Both cases arose from the same set of operative facts.  A did not answer B’s lawsuit because A did not receive the suit papers from its registered agent.  B moved for a clerk’s default but mailed a copy of the motion to the wrong address. After the clerk entered a default, B moved for final judgment and sent a copy of its motion to A’s correct address. A moved to vacate the default and dismiss the lawsuit, but the trial court denied A’s motion and entered final judgment for B.  The appellate court reversed because B was aware that A was represented by counsel and intended to defend the litigation on the merits.  As a result, B was required to serve A with B’s application for default and to present its application for default to the trial court.

MEDICAL MALPRACTICE; CAUSATION

St. Joseph’s Hospital v. Cox, ___ So. 2d ___, 34 Fla. L. Weekly D1204 (Fla. 2d DCA 6/17/09)

            Cox claimed that he was the victim of malpractice because a clot-busting drug was not administered when he presented to the emergency room with an ischemic stroke.  Because Cox was treated in the emergency room, he was required by Section 768.13(2)(b)(1), Florida Statutes, to show that his health care providers acted with reckless disregard for his welfare.  The appellate court reversed a judgment for the plaintiff because the leading medical study reflected less than a 50% success rate for clot busting therapy.  As a result, the plaintiff failed to prove causation.

JOINT ENTERPRISE

Erickson v. Irving, ___ So. 2d ___, 34 Fla. L. Weekly D1207 (Fla. 3^rd DCA 6/17/09)

            The trial court erred in allowing the defense of joint enterprise to be submitted to the jury in a case involving a drunk driver and his passenger because of the absence of evidence of a joint undertaking, a community of interests, and equal control.  The decision to travel together did not establish a joint undertaking.  The passenger’s purchase of drinks for the driver and payment of travel expenses did not establish a community of interests. Equal authority to control the vehicle or undertaking did not exist because the passenger was passive and even refused to drive the car.

EQUITABLE DISTRIBUTION; ALIMONY

Vigo vs. Vigo, ___ So. 2d ___, 34 Fla. L. Weekly D1211 (Fla. 3d DCA 6/17/09)

            The trial court did not abuse its discretion by finding that the husband intended to make a gift to the wife of one half the husband’s interest in his condominium unit.  The unit was purchased during the marriage and maintained with the husband’s non-marital funds.  The husband purchased the unit because the wife wanted to be close to her grandchild.  The wife attended the closing and signed the mortgage; the husband told the wife he purchased the unit for both of them; both were named on the homeowner’s insurance policy; both names appeared on sales receipts for furniture and accessories; the condominium became the martial residence, and the wife assisted in maintaining it. 

            The trial court abused its discretion by awarding permanent periodic alimony to the wife because the marriage was short term (7.5years); the wife received a lump sum alimony award in the amount of $250,000.00 for her half interest in the marital condominium; no children were born of the marriage; the parties maintained a modest lifestyle; even though the wife had health problems and limited skills, she was immediately employable and could be retrained over a three to four year period; and the wife maintained a relatively active lifestyle.

WARRANTY

Detroit Diesel Corporation v. Atlantic Mutual Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1217 (Fla. 4^th DCA 6/17/09)

            The trial court correctly interpreted a warranty on diesel engines to cover repairs to correct any malfunction resulting from defects in material or workmanship.  The mere fact that the warranty listed the major components covered by the warranty did not limit the scope of coverage to defects resulting from a major component or require a major component to be the primary cause of the engine malfunction.

 AMENDMENT 7; PRIVILEGE LOG

 Columbia Hospital Corporation of South Broward vs. Fain, ___ So. 2d ___, 34 Fla. L. Weekly D1223 (Fla. 4^th DCA 6/17/09)

            A hospital was not entitled to certiorari review of an Amendment Seven request for adverse medical incident reports because the trial judge merely ruled that the documents were otherwise discoverable by overruling objections based upon overbreadth, irrelevance and undue burden.  The appellate court instructed the hospital to file a privilege log to give the trial court an opportunity to rule on the hospital’s work product objection.  A privilege log is not required until the trial court rules that the materials sought are otherwise discoverable. 

            Irrelevance, overbreadth, and undue burden are not valid objections to the discovery of Amendment Seven materials. 

            Amendment Seven is not impliedly preempted by the Health Care Quality Improvement Act of 1986 because the Act does not require the states to provide confidentiality for peer review materials. 

            Amendment Seven does not impair the hospital’s contract with its doctors even though the contract has confidentiality provisions because the impairment is not severe, and it serves the public interest.

 ATTORNEY’S FEES

 Frazier v. Dreyfuss, ___ So. 2d ___, 34 Fla. L. Weekly D1226 (Fla. 4^th DCA 6/17/09)

            The defendant was entitled to recover prevailing party attorney’s fees under a statute because the action was dismissed as a result of the plaintiff’s failure to comply with court orders requiring arbitration.

 CONDOMINIUMS; INDEMNITY; ATTORNEY’S FEES

 Wendt v. La Costa Beach Resort Condominium Association, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1227 (Fla. 4^th DCA 6/17/09)

            The members of the board of directors of a condominium association that were sued successfully by the association for breach of fiduciary duty were not entitled to indemnity for their attorney’s fees.  The court certified conflict with a decision of the First District Court of Appeal. 

 CONDOMINIUMS

 Curci Village Condominium Association, Inc. v. Santa Maria, ___ So. 2d ___, 34 Fla. L. Weekly D1228 (Fla. 4^th DCA 6/17/09)

            A condominium unit owner was not entitled to make improvements in her backyard based upon oral permission from the president of the association because the declaration required written permission of the association and the president was only one of three directors.  The unit owner’s estoppel defense was ineffective: the unit owner could not reasonably have relied on verbal statements because the declaration explicitly required the prior written consent of the board of directors.  The unit owner was entitled to a trial on her defense that the association acted arbitrarily and capriciously.

 ATTORNEY’S FEES

 Fareri v. Farmer, ___ So. 2d ___, 34 Fla. L. Weekly D1241 (Fla. 4^th DCA 6/17/09)

            The trial court erred by awarding attorney’s fees without conducting an evidentiary hearing.

 INSURANCE BAD FAITH; DISCOVERY; CERTIORARI

 Zurich American Insurance Co. v. Trafalgar at Greenacres, Ltd., ___ So. 2d ___, 34 Fla. L. Weekly D1241 (Fla. 4^th DCA 6/17/09)

            The court denied the insurer’s petition for certiorari to review an order allowing discovery in an insurance bad faith action because the insurer failed to establish that it would suffer irreparable harm in the absence of immediate review.

 MAGISTRATES

 Riley v. Lien, ___ So. 2d ___, 34 Fla. L. Weekly, D1258 (Fla. 5^th DCA 6/19/09)

            “As the fact-finder, a magistrate can reject testimony that he or she disbelieves.”

 APPEALS

 F.S. v. Department of Children & Families, ___ So. 2d ___, 34 Fla. L. Weekly D1261 (Fla. 1^st DCA 6/19/09)

            The appellate court lacked jurisdiction to review the denial of a motion for reconsideration and rehearing.  Fla.R.App.P. 9.130(a)(4) provides, “Non-final orders entered after final order on motions that suspend rendition are not reviewable.”

________________________________________________________________________________

This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.