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

ARBITRATION

 Blue Cross and Blue Shield of Florida, Inc. v. University of Florida Board of Trustees, ___ So. 3d ___, 34 Fla. L. Weekly D1365 (Fla. 1^st DCA 7/6/09)

            The trial court erred in finding that an arbitrable issue existed because (1) there was no nexus between the appellee’s claim and the four agreements between the parties containing arbitration clauses, and (2) the resolution of the appellee’s claim did not require reference to or construction of any portion of the four agreements containing arbitration clauses.

CHILD CUSTODY:  MODIFICATION

Doherty v. Brown, ___ So. 3d ___, 34 Fla. L. Weekly D1375 (Fla. 1^st DCA 7/8/09)

            The joint custody agreement entered into by the parents provided for review every six months.  During a modification hearing, the trial court speculated that no showing of a substantial change of circumstances would be required in future modification proceedings.  Although the trial court declined to modify the primary residence of the child, it stated that in the future, residence might be rotated on an annual basis.  The appellate court held that the trial court’s statements about matters that might arise in the future but were unnecessary to resolve the issues before it were dictum, had no binding legal effect, confounded the trial court’s ruling, and did not constitute grounds for reversal. 

            The appellate court upheld the denial of the mother’s petition for modification.  “The trial court’s rejection of portions of the custody evaluation report was a valid exercise of the court’s discretion, and the denial of modification of the child’s primary physical residence was supported by competent substantial evidence other than the custody evaluation report.  It is unnecessary to determine whether competent substantial evidence supports a denial of relief to the party carrying the burden of proof.”

SANCTIONS:  SECTION 57.105, FLORIDA STATUTES

 Long v. AvMed, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1377 (Fla. 1^st DCA 7/8/09)

            Long filed an action for injunctive relief although AvMed agreed to pay for her contested medical treatment before Long’s complaint was filed.  The trial court dismissed with prejudice Long’s claims for injunctive relief and attorney’s fees on the ground that the lawsuit constituted a mere pretext to collect fees.  Long appealed, and the appellate court awarded Section 57.105 attorney’s fees against her as a sanction because (1) her appeal lacked merit, and (2) Long failed to disclose that AvMed agreed to pay for her treatment before her lawsuit was filed.

 TORTIOUS INTERFERENCE; DEFAMATION:  IMMUNITY; CIVIL CONSPIRACY

 Palm Beach County Health Care District v. Professional Medical Education, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1379 (Fla. 4th DCA 7/8/09)

            The appellate court reversed a judgment for tortious interference, defamation, and conspiracy in favor of a vendor against the Palm Beach County Health Care District.  The District established a program to enhance the skills of emergency medical services (EMS) personnel by paying for continuing education courses.  PME was a vendor of continuing education courses for EMS personnel.  The District’s Trauma Agency Director wrote a letter about PME to the sanctioning body for medical training courses that resulted in the temporary suspension of PME pending further investigation.  In addition, after Palm Beach County Fire Rescue and the City of Greenacres contracted with PME to put on seminars, the Director informed Fire Rescue and the City that the District would not pay for the courses.

            The appellate court held that the District was not liable for tortious interference because it was not a stranger to the business relationship between PME and Palm Beach Fire Rescue or the City of Greenacres inasmuch as the District was the source of the funds to pay for the services PME was to provide.  “To allow the tort of interference to apply in this case would be to discourage the District from being an aggressive caretaker of public funds.”  The fact that the Director may have harbored ill will towards PME was inconsequential. 

            The Director was immune from liability for defamation because (1) he was an executive official of government, and (2) his publication was made in connection with the performance of the duties of his office.  Because the Director could not be held liable, the District could not be held vicariously liable for his actions. 

            Finally, because the District did not commit an actionable tort, it could not be held liable for civil conspiracy to commit a tortious act.

 PROPOSAL FOR SETTLEMENT

 Alioto-Alexander v. Toll Brothers, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1383 (Fla. 4th DCA 7/8/09)

            Alioto-Alexander sought to hold Toll Brothers vicariously liable for the conduct of its employee, Barr.  Toll Brothers filed a proposal for settlement in the amount of $5,000.00 conditioned upon the dismissal of both Toll Brothers and Barr.   The appellate court held that the proposal was not invalid for failure to apportion the $5,000.00 between Toll Brothers and Barr because Toll Brothers was the sole offeror.  “By its own terms, the proposal for settlement was made by Toll Brothers and Toll Brothers alone was offering to pay the sum of $5,000.00.  The dismissal of the entire suit, including the claims against Barr, was simply a condition of the proposal and did not serve to transform the proposal for settlement into one made by multiple offerors.”

 UNJUST ENRICHMENT

 Delant Construction Co. v. Doral Enterprises Joint Venture, ___ So. 3d ___, 34 Fla. L. Weekly D1384 (Fla. 3d DCA 7/8/09)

            When the developer failed to proceed with a construction project, it settled the general contractor’s claim for damages for money owed to the engineer.  The developer subsequently sued the general contractor for failing to pay the engineer.  The appellate court reversed a judgment for the developer to prevent unjust enrichment because the general contractor settled the engineer’s claim while the developer’s lawsuit against the contractor was pending.

 DISQUALIFICATION OF COUNSEL

 Schulte  v. Angus, ___ So. 3d ___, 34 Fla. L. Weekly D1385 (Fla. 3d DCA 7/8/09)

            Schulte moved to disqualify Murphy, who represented his legal adversary, because Murphy had represented Schulte in prior cases.  The trial court ultimately denied the motion, and Schulte filed a petition for certiorari.  The appellate court denied the petition because Schulte’s motion was predicated upon Rule 4-1.7(a) of the Rules Regulating the Florida Bar, but this rule governs conflicts between a lawyer and an existing client.  Apparently, Murphy should have moved under Rule 4-1.9, which governs conflicts between lawyers and former clients.

 DISCRIMINATORY PEREMPTORY CHALLENGES

 Sparks  v. Allstate Construction, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1388 (Fla. 3d DCA 7/8/09)

            The trial court abused its discretion by allowing defense counsel to use peremptory challenges in a systematic fashion to exclude African-Americans from the jury in a slip and fall case.  Defense counsel struck two jurors because they were bus drivers and, consequently, would be exposed to constant complaints from people.  Defense counsel also struck the sister of a police officer and a former police officer because the accident occurred at the Department of Juvenile Justice.  Not a single African-American juror was seated until defense counsel exhausted his challenges.  The appellate court viewed the challenges as pretextual and reversed and remanded for a new trial.

NOTICE OF TRIAL

 Teelucksingh v. Telucksingh, ___ So. 3d ___, 34 Fla. L. Weekly D1390 (Fla. 2d DCA 7/8/09)

            A final judgment of dissolution of marriage was reversed because the final hearing was conducted based upon a notice sent to the husband by the wife’s attorney.  Florida Family Law Rule of Procedure 12.440(a) provides, “If the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial . . . .”  “[T]he court itself was required to enter an order setting the action for trial; the Wife’s having sent the Husband notice did not satisfy rule 12.440(1).  Accordingly, we reverse the final judgment of dissolution and remand for a new hearing held in accordance with the requirements of rule 12.440(a).”

 WAIVER OF ISSUE ON APPEAL

  George v. George, ___ So. 3d ___, 34 Fla. L. Weekly D1392 (Fla. 2d DCA 7/8/09)

            The husband moved to continue the hearing on the wife’s motion for temporary support.  The trial court ruled that the husband’s motion for continuance “would be granted if the husband paid to the wife the sum of [$1500] per month support, without prejudice and to be revisited after hearing the Wife’s Motion for Temporary Support.”  The husband agreed to the trial court’s terms and then appealed based upon the absence of an evidentiary basis for the award.  The appellate court held that “the Husband agreed to the temporary payments in order to obtain his continuance.  We therefore conclude that he has waived the right to raise the issue on appeal.”

 ATTORNEY’S FEES:  PREVAILING PARTY

 Vose v. Gulfside Construction Services, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1393 (Fla. 2d DCA 7/8/09)

            Gulfside prevailed against the Voses on Gulfside’s claim for breach of contract, but the Voses prevailed against Gulfside on Gulfside’s claim for a construction lien. Both sides moved for attorney’s fees. The trial court determined that Gulfside prevailed on the significant issues in the case and awarded fees in its favor.  The appellate court reversed because the trial court denied the Voses’s request for an evidentirary hearing to determine the prevailing party.  Because of the competing claims of the parties, the trial court was required to conduct an evidentiary hearing.

 UNINSURED MOTORIST BENEFITS:  EXAMINATION UNDER OATH

Hungerman v. Nationwide Mutual Fire Insurance Co., ___ So. 3d ___, 34 Fla. L. Weekly D1398 (Fla. 2d DCA 7/10/09)

            After Nationwide paid Hungerman’s PIP claim, Nationwide sought to take Hungerman’s examination under oath and to obtain a release for his medical records in anticipation of a possible claim for uninsured motorist benefits.  The court held that Nationwide could do so even though Hungerman had not sought uninsured motorist benefits.

REFORMATION

Enterprise Leasing Company v.. Demartino, ___ So. 3d ___, 34 Fla. L. Weekly D1400 (Fla. 2d DCA 7/10/09)

            Gary injured John and Judy in a motor vehicle accident.  When the accident occurred, Gary was driving a vehicle that his wife, Lisa, rented from Enterprise.  Gary and Lisa were insured by the Windsor Group.  The parties agreed to settle Judy’s bodily injury claim.  Although John and Judy claimed they intended to release only the Windsor Group, they signed a release discharging Gary, Lisa, American Deposit Insurance Company, the Windsor Group, and all other persons, firms, and corporations.  After signing the release, John and Judy sued Gary and Enterprise for their personal injuries, but the trial court entered summary judgment against Judy based upon the release.  John and Judy amended their complaint to reform the release, and the trial court entered summary judgment in their favor.  The appellate court reversed because John and Judy failed to establish mutual mistake.  Although John, Judy, and their lawyer filed affidavits, which established that the release did not conform to John and Judy’s intent, they failed to produce competent evidence of the insurance company’s intent.  The only evidence proffered in this regard was the deposition of the insurance company’s claims adjuster, but she was not the claim handler when the release was signed and lacked personal knowledge of the insurer’s intent.  The court also held that the insurance company would not be entitled to summary judgment on remand because the release contained both written and preprinted terms.  As a result, a question of fact existed whether both John and Judy and the Windsor Group intended to release anyone other than the Windsor Group.

 CONTINUANCE

 Riley v. Riley,  ___ So. 3d ___, 34 Fla. L. Weekly D1404 (Fla. 2d DCA 7/10/09)

            A magistrate abused her discretion by denying the husband’s motion to continue the final hearing to enable him to secure new counsel after his prior counsel withdrew.

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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/.