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

JUDGES:  DISQUALIFICATION

Robinson v. State, ___ So. 3d ___, 34 Fla. L. Weekly D1261 (Fla. 5^th DCA 6/19/09)

            The petitioner’s motion to disqualify the trial judge was deemed granted under Fla.R.Jud.Admin. 2.3330(j) because the trial court did not rule upon the motion within thirty days after it was served.  As a result, the appellate court granted the petitioner’s writ of mandamus and remanded to the trial court with instructions to reassign the case to a different judge.

MOTOR VEHICLE NEGLIGENCE; INTERVENING CAUSE

Cooke v. Nationwide Mutual Fire Insurance Co., ___ So. 2^nd ___, 34 Fla. L. Weekly D1261 (Fla. 1^st DCA 6/22/09)

            Ramirez swerved to avoid a phantom vehicle and struck a tractor trailer parked in the emergency lane.  The resulting debris caused a large traffic back-up.  As a result, Kindler slowed down and Cooke rear-ended him.  Cooke died of the injuries that he received in the accident, and his widow brought a wrongful death action.  The trial judge concluded that Cooke’s negligence was an intervening superseding cause and entered summary judgment in favor or Ramirez and the uninsured motorist carrier that stood in the shoes of the phantom.  The appellate court reversed. An intervening cause will not insulate the initial tortfeasor unless it is independent and unforeseeable. “The plaintiff’s own negligence does not, of course, serve to abrogate a chain of causation arising from the alleged tortfeasor’s negligence but rather serves as a defensive matter, which may reduce the damages awardable to the plaintiff in an appropriate case.”

NICA

Rodriguez v. Florida Birth-Related Neurological Injury Compensation Association, ___ So. 3d ___, 34 Fla. L. Weekly D1275 (Fla.2d DCA 6/24/09)

            The administrative law judge lacked jurisdiction in 2007 to clarify final orders entered in 1995 and 1999 under the Birth-Related Neurological Injury Compensation Act.  The parents were entitled to attorney’s fees under Section 766.31(1)(c) for defending against the Division of Administrative Hearings’ motion.

EQUITABLE LIEN; VENDOR’S LIEN; PLEADING

Golden v. Woodward, ___ So. 3d ___, 34 Fla. L. Weekly 1281 (Fla. 1^st DCA 6/24/09)

            In 2003, Mr. Woodward sold his home and 7.8 acres of land to his next-door neighbors, the Goldens.  Under the agreement, the Goldens were to make monthly installment payments for a period of seven years to be followed by a balloon payment.  Payments were to continue to Mr. Woodward’s estate after his death.  In 2004, the parties executed a warranty deed and, in 2005, the deed was recorded so that Mr. Woodward would cease receiving tax notices on the property, but the Goldens continued to make payments to Mr. Woodward until he died.  After Mr.Woodward’s death, the Goldens ceased making payments, and Mr. Woodward’s personal representative sued under a variety of theories, including the imposition of an equitable lien.  The trial court imposed a vendor’s lien on the property, and the Goldens appealed on the ground that the trial court granted relief that was not sought in the pleadings.  The appellate court rejected this contention because a vendor’s lien is a type of equitable lien and, thus, the Goldens were on notice that a vendor’s lien was being requested.  The personal representative was not required to show fraud or misconduct on the part of the Goldens because he sought an equitable lien to prevent unjust enrichment, rather than on the basis of estoppel.  The Goldens’ duty to continue making payments did not merge into the deed because the parties clearly contemplated that payment would continue to be made until completed.

INJUNCTION AGAINST REPEAT VIOLENCE; NOTICE

Quarterman v. Pinkney, ___ So. 3d ___, 34 Fla. L. Weekly D1286) (Fla. 1^st DCA 6/24/09)

            The court affirmed an injunction for protection against repeat violence but reversed a provision in the final judgment requiring the enjoined party to pay damages because she “was not given notice that a claim for damages would be heard or an opportunity to present her own case.”

MARITAL HOME; NOVATION; SUPPORT

Yeakle v. Yeakle, ___ So. 3d ___, 34 Fla. L. Weekly 1287 (Fla. 4^th DCA 6/24/09)

            The parties stipulated on the record that the husband would receive the marital residence, be responsible for the mortgage, and use his best effort to remove the wife’s name from the mortgage.  Contrary to this stipulation, the trial judge ordered the lender to permit the husband to assume the mortgage; however, the trial court did not have personal jurisdiction over the lender.  Therefore, the trial court erred because it deprived the wife of the ability to enforce her agreement requiring the husband to use his best efforts to obtain a novation. “The stipulation was not ambiguous or in need of interpretation and the court should have enforced it in the final judgment.”  The trial court also erred in imposing excessive financial obligations on the wife, which in totality left her with only 35% of her net income.

PRIEST-PENITENT PRIVILEGE

Monroe v. State, ___ So. 3d ___, 34 L. Weekly D1288 (Fla. 4^th DCA 6/24/09)

            A murder confession to a clergyman was not privileged because the clergyman warned the declarant before the confession was made that the clergyman would have to divulge illegal activity to the police.  As a result, the declarant did not have a reasonable expectation of privacy.

PEREMPTORY CHALLENGES

Julmice v. State, ___ So. 3d ___, 34 Fla. L. Weekly D1298 (Fla. 3d DCA 6/24/09)

            The trial court erred in denying a criminal defendant’s preemptory challenge of a naval officer because the victims of the crime were police officers.  The fact that the judge believed the prospective juror’s statement that he could be fair did not make the attempted challenge pretextual.

SANCTIONS

Cinquegrana v. Rowley, ___ So. 3d ___, 34 Fla. L. Weekly D1290 (Fla. 4^th DCA) 6/24/09)

            The trial court erred in dismissing the plaintiff’s complaint based upon the litigation misconduct of his lawyer because (1) the defendant requested the imposition of lesser sanctions, and (2) one discovery dereliction was corrected prior to dismissal.  On remand, the trial court would be required to consider the imposition of sanctions against plaintiff’s counsel and, if the trial court were to consider dismissal as a sanction for the discovery violations of plaintiff’s counsel, the court would be required to make the findings required by Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).

REAL ESTATE COMMISSIONS; PROPOSAL FOR SETTLEMENT

Eastern Atlantic Realty and Investment, Inc. v. GSOMR, LLC, ___ So. 3d ___34 Fla. L. Weekly D1294(Fla. 3d DCA 6/24/09)

            A real estate broker for the prospective purchaser was not entitled to a commission after the tenant exercised its right of first refusal and then assigned its rights to another entity that ultimately purchased the property. 

            The trial court erred in refusing to enforce the owner’s proposal for settlement to the broker.  The proposal was not ambiguous.  In exchange for the broker’s dismissal of its claims against the owner, the owner offered to pay $20,000.00 to the broker.  In addition, the owner and the tenant’s assignee would dismiss their claims against the broker, and the owner, assignee, and broker would exchange mutual releases of all claims arising out of the pending action in which the owner and assignee sued the broker for tortious interference and declaratory relief, and the broker counterclaimed for breach of agreement and quantum meruit.  The trial court erred in concluding that the proposal for settlement was a joint offer from the owner and assignee that required apportionment.  Although both the owner and assignee were identified in the proposal, the proposal explicitly stated that the owner was the party making the offer. Furthermore, since the broker did not seek affirmative relief against the assignee, the assignee had no reason to make any payment to the broker.

STATUTE OF LIMITATIONS:  ACCRUAL AND TOLLING

Arvelo v. Park Finance of Broward, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1297 (Fla. 3d DCA 6/24/09)

            The statute of limitations on a car loan began to run when the purchaser defaulted rather than when the lender demanded a deficiency after repossessing and selling the vehicle.  The statute of imitations was not tolled by the partial payment resulting from the sale of the vehicle because this payment was not the product of a voluntary act on the part of the obligor.

MALICIOUS PROSECUTION

Hickman v. Barclay’s International Realty, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1301 (Fla. 4^th DCA 6/24/09)

            The court affirmed a summary judgment for the defendant in an action for malicious prosecution arising from a criminal complaint for misdemeanor trespass, battery, and petit theft.  The complaining witness was not the legal cause of the criminal prosecution because the police conducted a through investigation of the complaint and consulted with the state attorney’s office.  In addition, even the suspect’s account of events would have justified the victim in believing that the suspect was trespassing.  Florida law does not recognize a separate tort for negligently swearing out an arrest warrant.  An action for malicious prosecution is the sole remedy for this conduct.

VENUE

Tomac of Florida, Inc. v. Gunn’s Quality Glass and Mirror, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1302 (Fla. 4^th DCA 6/24/09)

            When a contract does not specify a place for payment, payment is presumed to be due where the creditor is located.  This presumption may be overcome only by sufficient evidence of a clear, lengthy, and uninterrupted course of conduct.  In the present case, the debtor failed to overcome the presumption because its affidavit stated that payments were made at three locations in two different counties but failed to indicate the frequency of payments at each of the locations. 

STATUTE OF LIMITATIONS

Pines Properties, Inc. v. Tralins, ___ So. 3d ___, 34 Fla. L. Weekly D1303 (Fla. 3^rd DCA 6/24/09)

            The court reversed the dismissal of a complaint based upon expiration of the statute of limitations because this defense did not appear affirmatively on the face of the complaint.

VACATION OF DEFAULT

Infante v. Vantage Plus Corp., ___ So. 3d ___, 34 Fla. L. Weekly D1303 (Fla. 3d DCA 6/24/09)

            The trial court improperly vacated a default judgment on the ground that the complaint failed to state a cause of action.  Even if the complaint was technically deficient, it was sufficient to place the defendants on due process notice of the nature of the claims against them.

FORUM SELECTION CLAUSE

Travel Express Investment, Inc. v. AT&T Corp., ___ So. 3d ___, 34 Fla. L. Weekly D1304 (Fla. 5^th DCA 6/26/09)

            A forum selection clause which provided that “[t]he parties consent to the exclusive jurisdiction of the courts located in New York City, USA,” was mandatory because of the unambiguous exclusivity provision in the clause.

FEDERAL INTERSTATE LAND SALE FULL DISCLOSURE ACT

Plaza Court, L.P. v. Baker-Chaput, ___ So. 3d ___, 34 Fla. L. Weekly D1305 (Fla. 5^th DCA 6/26/09)

            Under the Federal Interstate Land Sales Full Disclosure Act, a preconstruction purchaser of a condominium unit may rescind the contract unless (1) the developer provides the purchaser with an unconditional commitment to construct the condominium unit within two years, or (2) before the purchase agreement is signed, the developer provides the purchaser with a property report, and (3) the developer clearly informs the purchaser, in the purchase agreement, of the purchaser’s right to revoke within two years if the property report is not provided.  In the present case, the developer agreed to construct the condominium within two years, but the agreement did not constitute an unconditional commitment because it excused delays occasioned by wind, rain, lightning, and storms.  Because these excuses were broader than the defense of impossibility under Florida law, the developer’s agreement to complete construction within two years could not be considered an unconditional commitment.  Under the Act, the purchaser is required to exercise its right of rescission within two years, and to file suit within three years, of the date of purchase.  In the present case, the purchaser failed to provide notice of rescission within two years but filed suit within the three year statute of limitations.  The court excused the purchaser’s failure to satisfy the two year notice requirement because of the developer’s failure to notify the purchaser of the requirement.

MAGISTRATES

Simmons v. Simmons, ____ So. 3d ___, 34 Fla. L. Weekly D1309 (Fla. 5^th DCA 6/26/09)

            The appellate court reversed an order adopting the magistrate’s recommendations because  “the trial court failed to hold a hearing on the Husband’s timely filed exceptions to the magistrate’s report before entering the final judgment.”

ARBITRATION:  WAIVER

Green Tree Servicing, LLC v. McLeod, ___ So. 3d ___, 34 Fla. L. Weekly D1311 (Fla. 2d DCA 6/26/09)

            The court receded from its earlier decision in Merill Lynch Pierce Fenner and Smith, Inc. v. Adams, 791 So. 2d 25 (Fla. 2d DCA 2001), and held that “a party’s participation in discovery related to the merits of pending litigation is activity that is generally inconsistent with arbitration.  Such activity – considered under the totality of the circumstances – will generally be sufficient to support a finding of a waiver of a party’s right to arbitration.”  In the present case, the defendant waived its right to arbitrate by propounding a request to produce and three sets of interrogatories dealing with the merits of the plaintiff’s claims and filing a motion to compel and setting it for hearing.  Seven months after propounding its discovery, the defendant withdrew its discovery requests, withdrew its motion to compel, and cancelled the hearing on its motion to compel, but these acts were too little, too late, to mitigate against a waiver.

EQUITABLE DISTRIBUTION; ALIMONY

Austin v. Austin, ___ So. 3d ___, 34 Fla. L. Weekly D1316 (Fla. 2d DCA 6/26/09)

            The trial court in action for dissolution of marriage erred by (1) ordering that all marital liabilities be distributed equally without identifying each liability and allocating the responsible party, (2) awarding to the wife marital assets that she had depleted for living and litigation expenses, although she did not engage in misconduct, (3) making an equalization payment to the husband in the entire amount of the overage received by the wife rather than one half the amount of the overage, and (4) awarding permanent alimony to the wife without making specific findings regarding the parties’ income or expenses.

MOTOR VEHICLE NEGLIGENCE

Hirst v. Segrest Farms, Inc., ___  So. 3d ___, 34 Fla. L. Weekly D1318 (Fla. 2d DCA 6/26/09)

            The plaintiff was riding his bicycle on the sidewalk when he ran into the side of a 22 foot box truck that was exiting from a service station and turning onto the highway.  The plaintiff had a blood alcohol level of 0.13% and was under the influence of cocaine and marijuana at the time of the accident.  A directed verdict for the truck driver was reversed because of conflicting evidence where and how long the truck had been stopped before the collision and undisputed evidence that the driver had an unobstructed view in broad daylight but failed to see the plaintiff approaching.  “Because the evidence was not universally in favor of the defendants and presented potentially varying inferences, it was for the jury to decide who was at fault as well as the percentage of fault to attribute to either [the plaintiff or the defendant].

TEMPORARY SUPPORT:  EXCESSIVENESS

Perez v. Perez, ___ So. 3d ___, 34 Fla. L. Weekly D1318 (Fla. 2d DCA 6/26/09)

            The trial court abused its discretion by making an award of temporary alimony and child support that would have consumed 86% of the husband’s net monthly income.

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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/.