| Case Summary
Acquisition, Merger, Sale and Transfer of Business and Assets Commercial Paper, Negotiable Instruments and Promissory Notes Tortuous Interference with Business Relationships
|
| These are summaries of cases concerning
business and employment law published in 1997-2001. For summaries
of cases in other areas of the law decided from 1997 - 2001, click on the
following categories: The citations to Sourthern Reporter were last updated April 16, 2002.
Administrative law
Acquisition, Merger, Sale and Transfer of Business and Assets A successor corporation is not liable for the leasehold obligations of a predecessor corporation where there is not a common identity of the officers tractors and stockholders. The District Court of Appeal reversed a jury finding of de facto merger on the grounds that he successor corporation was half owned by an attorney who did not directly or indirectly participate in be initial leasing. The court overturned the jury's findings even though there was evidence that an attorney was a shareholder of both corporations, the successor corporation leased the same space and use the same equipment, and the successor corporation employed some of the same predecessors employees. Serchay v. NTS Fort Lauderdale Office Joint Venture, 707 So.2d 958 (Fla. 4th DCA 1998). A shareholder who places stock into escrow until the total purchase price is paid remains a beneficial owner of the stock and retains the statutory right to inspect the corporate records. World Time Corporation of America v. Mizrachi, 702 So.2d 284 (Fla. 4th DCA 1997). De facto merger did not occur where corporation that purchased assets of another corporation did not assume the liabilities, had different officers, directors and shareholders, and continued business under new name. Viking Acoustical Corp. v. Monco Sales Corp., 767 So.2d 632 (Fla. 5th DCA 2000). The disclosure requirements of the Florida Sale of Business Opportunity Act, sections 559.80-559.815, Florida Statutes, may be waived. S.J. Business Enterprises, Inc. v. Colorall Technologies, Inc., 755 So.2d 769 (Fla. 4th DCA 2000). In suit brought against broker for unauthorized sale of yacht, measure of damages is difference between price sold and fair market value, not amount owner was requesting. Sarasota Yacht & Ship Services, Inc.v Harris, 812 So. 2d 588, 27 Fla. L. Weekly D782 (Fla. 2d DCA April 5, 2002). Jury verdict for $6 million vacated for breach of oral agreement to raise funds from public and private offering of securities as there was no demonstration that the "substantially risky venture capital required would have been forthcoming" and the uncontroverted evidence established an unliklihood of any profits at all. Stensby v. Effjohn Oy Ab, 26 Fla. L. Weekly D2935 (Fla. 3d DCA Dec. 12, 2001). Trial court erred in its award of damages as it did not include damages for new architectural plans where evidence plaintiff adduced was unrebutted and there was no record evidence to support trial court's fifty percent reduction. Garcia v. Carter Construction Co., 794 So.2d 723 (Fla. 3d DCA 2001). Property appraiser should explaint to court why it did or did not value property according to each of the three well-recognized methods: market approach, cost approach and income approach. Wal-Mart Stores, Inc. v. Mazourek, 778 So.2d 346 (Fla. 5th DCA 2000).
Court expressly refrained from addressing question of whether
there was a general cause of action for "overpayment," and
affirmed client's judgment in amount paid to expert witness
who presented bill in April and threatened not to testify at August
trial if not paid on basis of undue duress. Kapila, P.A.
v. Giuseppe America, Inc., 817 So. 2d 866, 27 Fla. L. Weekly
D898 (Fla. 4th DCA April 17, 2002). Employment agreement requiring parties to split costs and fees associated with arbitration is unenforceable as it contravenes Title VII and the Florida Civil Rights Act. Flyer Printing Co., Inc. v. Hill, 805 So. 2d 829, 26 Fla. L. Weekly D1780 (Fla. 2d DCA July 18, 2001). Even though employer originally accepted injury as compensable, it was liable for attorney's fees where it later alleged that claimant's injury was the result of a subsequent accident. Florida Hospital v. Taylor, 784 So.2d 601 (Fla. 1st DCA 2001). Successful plaintiffs in shareholders' derivative action were entitled to prejudgment interest and attorney's fees. Mumma v. Mumma, 780 So.2d 1001 (Fla. 4th DCA 2001). Joint venture formed for the purpose of performing a contract with the County to oversee and manage a massive expansion of the Miami International Airport is subject to the public records act. Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001). An employer's duty under section 440.39(1) to cooperate with an employee in maintaining a suit against a third party includes the duty to preserve critical evidence even in the absence of a specific request to do so. As the damages in a spoilation of evidence claim are derivative of the damages in a products liability claim, it was improper for the trial court to allow the employer to disclose to the jury the amount of the settlement its employee received for his products liability claim. Builder's Square, Inc. v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). A member of not-for-profit corporation has the right to inspect the corporate records if he has a proper purpose. A proper purpose includes the desire to ensure the corporation's action is consistent with the purposes stated in its corporate charter. The District Court of Appeal reversed the trial court's denial of the request even though the record reflected the member expressed his concerns in a "vituperative manner." Delaney v. Santa Fe Health Care, Inc., 741 So.2d 595 (Fla. 1st DCA 1999). A shareholder who places stock into escrow until the total purchase price is paid remains a beneficial owner of the stock and retains the statutory right to inspect the corporate records. World Time Corporation of America v. Mizrachi, 702 So.2d 284 (Fla. 4th DCA 1997). Despite provision in agreement between physician and health insurance provider stating medical records were property of health insurance provider, physician was prohibited from releasing records without first receiving patients' written consent per section 455.667. Humana Medical Plan, Inc. v. Fischman , 750 So.2d 677 (Fla. 4th DCA 1999). Commercial Paper, Negotiable Instruments, and Promissory Notes
Bank is not liable for making payment of check based on
amount stated in numerical form that varied significantly from
amount stated in letter form. Coutant v. Sunbank South
Florida, N.A., 813 So. 2d 1037, 27 Fla. L. Weekly D882 (Fla.
4th DCA April 17, 2002). Check drawn on insurance company's bank was not a draft drawn on the insurance company itself as it did not reflect "payable through" or "payable at." Lamb v. Allstate Ins. Co., 808 So. 2d 1254, 27 Fla. L. Weekly D535 (Fla. 3d DCA March 6, 2002). Company which provided notice of its canceling contract to other party is entitled to an injunction against the other party's attempt to collect on letters of credit. Intrinsic Values Corp. v. Superintendencia de Administracion Tributaria, 806 So. 2d 616, 27 Fla. L. Weekly D340 (Fla. 3d DCA Feb. 6, 2002). Bank's argument that it did not receive consideration was not a valid defense against claim for wrongful dishonor of cashier's check, withdrawing and substituting opinion at 26 Fla. L. Weekly D2086. Behavioral Health and Wellness, Inc. v. FDIC, 802 So. 2d 374 (Fla. 3d DCA 2001). Wire transfer agreement providing Bank is not liable for special, indirect or consequential damages precluded it from being liable for customer's loss of $75,000 deposit as result of transfer not arriving in time for real estate closing. Nakhal v. Nations Bank, 796 So. 2d 1281 (Fla. 4th DCA 2001)( Another example of the Golden Rule). Plaintiff, whose line of credit was revoked because its bank did not honor cashier's check it had purchased, did not have standing to sue bank for wrongful dishonor as it was not the holder. JTM, Inc. v. Totalbank, 795 So.2d 161 (Fla. 3d DCA Sept. 5, 2001). A bank may not dishonor a cashier's check issued after closing an account. Behavioral Health and Wellness, Inc. v. FDIC, 802 So. 2d 374 (Fla. 3d DCA 2001). An instrument that is a promise to pay one third of the net proceeds of the sale of a house or one third of the equity of the house does not provide a fixed principal amount and is therefore not a negotiable instrument payable on demand pursuant to section 673.1081(3) despite having a fixed date. Nagel v. Cronebaugh, 782 So.2d 436 (Fla. 5th DCA 2001). It is very important to produce the original bill or note into evidence. Failure to do so can mean reversal on appeal even if no objection had been made at trial. Abbott v. Penrith, 693 So. 2d 67 (Fla. 5th DCA 1997). Plaintiffs sued defendant for collection of a promissory note for $100,000, which was executed about the same time plaintiffs sold an apartment complex to defendant. Plaintiffs claimed the true sales price was $750,000, yet the contract, closing statement, title insurance policy and documentary stamps reflect the sales price was $650,000. The District Court of Appeal affirmed the trial judge's finding there was no consideration. Kenwall v. Salic, 743 So.2d 1210 (Fla. 4th DCA 1999). Sheriff was not an intended third-party beneficiary of a contract between the County and a construction company to build a detention center even though 1) federal court ordered Sheriff to develop reorganization and jail population management plans, 2) construction proposals provided it was the County and Sheriff's intent that the plans and specifications comply with applicable laws, 3) the proposal submitted by the contractor acknowledged it needed the Sheriff's approval, and 4) the Sheriff purchased furniture for the jail, appointed his own personnel to the selection committee and made decisions on site location and manaagement. Jenne v. Church & Tower, Inc., 814 So. 2d 522, 27 Fla. L. Weekly D936 (Fla. 4th DCA April 24, 2002). Trial court erred in relieving subcontractor from complying with terms of mediated settlement agreement on grounds that owner had not disclosed settlement with non-party subcontractor as the mediated settlement agreement was made at arms-length and did not require any such disclosure. Corwin v. Cristal Mizner's Preserve Limited Partnership, 812 So. 2d 534, 27 Fla. L. Weeklyy D703 (Fla. 4th DCA March 27, 2002). As lease agreement and maintenance agreement were entered into about the same time, they constituted one transaction, and therefore customer was entitled to break lease agreement which had been assigned to a third party and obtain a judgment for damages for breach of maintenance agreement. Mnemonics, Inc. v. Max Davis Associates, Inc. , 808 So. 2d 1278, 27 Fla. L. Weekly D559 (Fla. 5th DCA March 8, 2002). Provision in Special Incentive Agreement prevailed over conflicting provision in Employment Agreement as the former was later in time. Brink v. Bank of America, N.A. , 811 So. 2d 751, 27 Fla. L. Weekly D501 (Fla. 1st DCA March 1, 2002). Trial court erred in granting motion for judgment on pleadings as term "cost" was not defined in agreement and therefore required a factual determination. Tanglewood Mobile Sales, Inc. v. Hachem, 805 So. 2d 54 (Fla. 2d DCA 2001). Contract with company to provide a well water treatment system was ambiguous as to whether it was for goods or services, thereby precluding summary judgment on grounds of Uniform Commercial Code and economic loss rule. Birwel-Montenay, Inc. v. Infilco Degremont, Inc., 26 Fla. L. Weekly D2508 (Fla.3rd DCA Oct. 17, 2001). Broward County's bidding procedure which limited competitive sealed bidding to a "short list" of contractors approved by a selection committee is contrary to state law requiring contracts to be let to the lowest responsible bidder. Day v. State of Florida, 789 So.2d 460 (Fla. 4th DCA 2001). Letter agreeing to a later retirement date did not constitute a contract as chief of police's employment was governed by city charter. City of Hollywood v. Witt, 789 So.2d 1130 (Fla. 4th DCA 2001). Language in trust agreement establishing an escrow account for a "sum sufficient to pay off any mortgage on the property and to provide funds necessary to pay annual property taxes" was ambiguous as to whether account had to be funded by a single deposit or could be funded as bills became due and should therefore be resolved after considering extrinsic evidence. Miller v. Kase, 789 So.2d 1095 (Fla. 4th DCA 2001). A physician's contract entered in New York promising to refer his patients exclsuively to a company to obtain supplements violates section 455.237, prohibiting kickbacks, and was therefore not enforceable in Florida courts. Harris v. Gonzalez, 789 So.2d 405 (Fla. 4th DCA 2001). A sales and purchase agreement signed by the buyer and price list signed four days later by the builder's sales representative did not meet the statute of fraud requirements of section 725.01 that contracts for the purchase of real property be in writing, as the price list did not reference the sales and purchase agreement. Cavallaro v. Stratford Homes, Inc., 784 So.2d 619 (Fla. 5th DCA 2001). Trial court properly dismissed broker's claim for commissions based on allegation that insurer breached its implied covenant of good faith and fair dealing by not properly servicing its customers or honoring its committments which resulted in a loss of business as there was no allegation that an express term of the contract had been breached. Insurance Concepts and Design, Inc. v. Healthplan Services, Inc., 785 So.2d 1232 (Fla. 4th DCA 2001). A merchant seller's proposal to sell specially ordered milling machine and lathe, which specifically provided it was not liable for incidental or consequential damages, lost profits, lost sales or injury, was a binding contractual provision as purchaser's separate purchase order containing additional or different terms did not address this limitations of remedy provision. General Tool Industries, Inc. v. Premier Machinery, Inc., 790 So.2d 449 (Fla. 3d DCA 2001). Settlement agreement was not enforceable as there was no meeting of the minds on the essential terms concerning indemnification language and production of policy limits. Cheverie v. Geisser , 783 So. 2d 1115 (Fla. 4th DCA 2001). A form release containg a blank where the released parties' names are to be inserted creates a latent ambiguity precluding a trial judge from entering a summary judgment in favor of a party not specifically named in the release. Amerada Hess Corp. v. Federated Department Stores, Inc., 782 So.2d 445(Fla. 4th DCA 2001). Although the parties disagreed as to the meaning of the word "repair," there was a meeting of the minds to form an agreement and they were bound by the Court's interpretation. Bowen v. Larry Gross Construction, Inc., 781 So.2d 464 (Fla. 5th DCA 2001). The value of a "free day" provision in a life care agreement must be based upon the cost of a day of nursing center care, rather than the cost of a day of assisted living. Clearwater Land Co. v. Koepp, 778 So.2d 1022 (Fla. 2d DCA 2001). A contract implied in fact is based upon a finding of an implied promise to pay, not on whether the defendant has received something of value. Gem Broadcasting, Inc. v. Minker , 763 So.2d 1149 (Fla. 2000). The Fourth District Court of Appeal has rendered an extensive opinion about implied contracts, quasi contracts and quantum meruit. "The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it." Commerce Partnership 8098 Limited Parnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997). The Court explained the distinction between implied contracts in fact and implied contracts in law. It expressely receded from its earlier holding that a subcontractor may not recover under an equitable remedy where his legal remedies, such as a statutory mechanic's lien, has failed. This is definitely a case that should be studied. A contractor was not entitled to recovery for quantum meruit as there was an express contract. He was not entitled to recovery on the unpled action of express contract. This unpled theory was not tried by implied consent as the evidence presented was relevant to the issues that were properly being tried. Nichols v. Michael D. Eicholtz Enterprise, 750 So.2d 719 (Fla. 5th DCA 1999). A construction lien cannot be based on a contract implied in law. The District Court of Appeal affirmed the trial court's refusal to enforce a lien as the plaintiff's recovery was in quantum meruit and there was no express or implied contract created by the parties' words or conduct. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, Inc., 743 So.2d 1223 (Fla. 4th DCA 1999). Section 489.128 provides that contracts with unlicensed contractors are unenforceable. A general contractor who had a contract with Hillsborough County raised this statute as a defense to a claim filed by a subcontractor corporation which did not have a qualifying agent at the time it signed the subcontract. The District Court of Appeal affirmed the arbitration award in favor of the subcontractor, finding that the contractor had the responsibility of determining whether the subcontractor was properly licensed. The Poole and Kent Co. v. Gusi Erickson Construction Co., 759 So.2d 2 (Fla. 2d DCA 1999). "An oral agreement between two or more persons to go into the business of buying and selling real estate as partners or as joint venturers and sharing profits and losses from it, is not within the purview of the Statute of Frauds, section 725.01, Florida Statutes (1997), unless there is a provision for transfer of title to specific real property from one of the parties to another." McCloud v. Davison , 719 So.2d 995 (Fla. 5th DCA 1999). A letter containing terms to be incorporated into a sublease is not a binding contract where it specifically provides that the proposal was conditioned upon the parties executing a mutually acceptable sublease. Capital Asset Research Corp. v. Michael Swerdlow Companies, Inc., 743 So.2d 43 (Fla. 4th DCA 1999). An owner who defaulted on a commercial
project entered into an agreement with the Lender to market and sell the
property to a third party and purchase the Lender's 70% interest in the
property for $3.1 million. The owner contended there was an oral agreement
to reduce the purchase price and extend the closing date and filed suit seeking
damages and specific performance. The Lender filed a motion for summary
judgment raising the statute of frauds as an affirmative Contract which did not contain "time is of the essence" clause remained in force until the closing which was held three days after the closing date. Heilman v. Repp, 768 So.2d 1144 (Fla. 4th DCA 2000). Arguing that a provision stating the right to rescind expires on "042491" was ambiguous does not support a claim for rescission under the Truth in Lending Act as it was clear the deadline was April 24, 1991. Kasket v. Chase Manhattan Mortgage Corp. , 759 So.2d 726 (Fla. 4th DCA 2000). Prior property owner who retained excavation rights in a 1984 agreement was entitled to file suit in 1996 against transferee who breached the agreement in 1986 by dedicating the property for a public road as the owner did not suffer damages, the last element in a cause of action for breach of contract, until he sought to enjoin the County from interfering with his right to excavate. Elmore v. Florida Power & Light Co., 760 So.2d 968 (Fla. 4th DCA 2000). Individual was not entitled to bring claim under the Automotive Dealer's Day in Court Act as franchise was in name of corporation. Brooks v. St. John's Motor Sales, Inc., 814 So. 2d 1237, 27 Fla. L. Weekly D1002 (Fla. 5th DCA May 3, 2002).Dissenting shareholders are entitled to compound interest on award in action to determine value of their shares under section 607.247. Computer Task Group, Inc. v. Peierls , 810 So. 2d 977, 27 Fla. L. Weekly D363 (Fla. Feb. 8, 2002). Sole shareholder of franchisee corporation does not have standing to bring action for violating Florida Franchise Act. Checkers Drive-In Restaurants, Inc. v. Tampa Checkmate Food Serivces, Inc., 805 So. 2d 941, 26 Fla. L. Weekly D2678 (Fla. 2d DCA Nov. 14, 2001). Provision in accounting shareholder agreement providing that party leaving the firm shall pay the firm a percentage of the business he takes with him is one concerning damages, and is not a commission agreement in violation of section 473.3295, Florida Statutes. Saltmarsh, Cleveland & Gund, P.A. v. Pappas, 799 So. 2d 348 (Fla. 1st DCA 2001). Individual signing corporate check is not individually liable simply because his or her corporate capacity was not indicated on the check. Medina v. Wyche, 796 So. 2d 622 (Fla. 3d DCA 2001). Shareholder of nonprofit corporation was not entitled to specific performance seeking to compel corporation to buy her non-proprietary shares where she resigned after filing the lawsuit and such resignation according to the articles or reincorporation deprived her of any interest in the corporation. Lee v. Harbour Preservation, LLC., 795 So.2d 181 (Fla. 3d DCA 2001). Allegations that individual was sole shareholder and used and controlled corporation to conceal profits and income does not state a cause of action against such individual under alter ego theory. Exit 242 Tourist Information v. Florida's Room Service, Inc., 792 So.2d 1283 (Fla. 5th DCA 2001). Shareholders cannot claim punitive damages in shareholders' derivative action where they do not allege injuries separate and distinct from those sustained by other shareholders. Chemplex Florida v. Norelli, 790 So.2d 547 (Fla. 4th DCA 2001). Directors of condominium association breached their fiduciary duty and usurped corporate opportunity by purchasing common area property and associated recreational lease thereby allowing association right to purchase the property for same amount directors had paid for it. Florida Discount Properties, Inc. v. Windmere Condominium, Inc., 786 So.2d 1271 (Fla. 4th DCA 2001). Trial court erred in entering final judgment against individual as last director of dissolved corporation as there was no personal service on him. Jesson, Inc. v. Sutton Hill Associates, Inc., 789 So.2d 1064 (Fla. 4th DCA 2001). Investor was not required to make second installment of $50,000 of $150,000 loan where agreement provided he would immediately become one third owner upon delivery of the first installment of $100,000 and nothing was done to make him owner. Sosa v. Shearform Manufacturing, 784 So.2d 609 (Fla. 5th DCA 2001). Although nursing home and management company were separate corporations, they may be treated as joint employers under Florida's Workers Compensation Law and Whistle Blower Act as they were owned by the same individual and had the same president. Martinolich v. Golden Leaf Management, Inc., 786 So.2d 613 (Fla. 3d DCA 26 Fla. L. Weekly D10682001). Nonprofit corporation was entitled to sales tax exemption even though most of its expenditures was for the purchase of land and construction of a building as such expenditures were related to the primary purpose of providing activities for minors. Philippine Cultural Foundation, Inc. v. State of Florida, Dept. of Revenue, 787 So.2d 125 (Fla. 2d DCA 2001). Successful plaintiffs in shareholders' derivative action were entitled to prejudgment interest and attorney's fees. Mumma v. Mumma, 780 So.2d 1001 (Fla. 4th DCA 2001). Department of Community Affairs was not entitled to assess late fee on a corporation's payment of registration fees as notices of assessment were sent to corporation's principal address, not its registered agent. Bay Village of Sarasota, Inc. v. Dept. of Community Affairs, 788 So.2d 1018 (Fla. 2d DCA 2001). Florida court has en personam jurisdiction over off-shore corporations that were the alter ego of an individual who used them to fraudulently obtain money for the ostensible purpose of purchasing and managing hotels in Florida. Ashemimry v. Ba Nafa , 778 So.2d 495 (Fla. 5th DCA 2001). An indiviudal shareholder may sue for breach of a shareholder agreement even though his injury is not separate and distinct from those suffered by the other shareholders. Harrington v. Batchelor, 781 So.2d 1133 (Fla. 3d DCA 2001). A member of not-for-profit corporation has the right to inspect the corporate records if he has a proper purpose. A proper purpose includes the desire to ensure the corporation's action is consistent with the purposes stated in its corporate charter. The District Court of Appeal reversed the trial court's denial of the request even though the record reflected the member expressed his concerns in a "vituperative manner." Delaney v. Santa Fe Health Care, Inc. , 741 So.2d 595 (Fla. 1st DCA 1999). A majority of the Board of Directors can remove another director by written action and are not required to hold a meeting. An administratively dissolved corporation can file an action in the corporate name except where the corporation was dissolved for failing to file an annual report and the cause of action accrued after the dissolution. However, in such cases, the corporation should be granted leave to seek reinstatement. Levine v. Levine, 734 So.2d 1191 (Fla. 2d DCA 1999). Appelllant issued a promissory note for stock. When sued on the note, he raised as an affirmative defense the failure to disclose a confidential agreement between the majority shareholder and a co-purchasing attorney who was "intimately involved in the stock transaction as the attorney for the purchasers." The District Court of Appeal affirmed the final judgment against him, holding there is no duty to disclose the existence of a commission agreement in a commercial transaction and that such private agreement was not material to the transaction governing the purchase of shares. Casey v. Cohan , 740 So.2d 59 (Fla. 4th DCA 1999). A spouse who acquired shares in a company through a settlement agreement acquired them by operation of law and therefore had standing to file a shareholders' derivative action pursuant to section 607.07401(7) based on events that occurred prior to the spouse's legal ownership of the shares. Kaplus v. First Continental Corp., 740 So.2d 59 (Fla. 3d DCA 1998). A successor corporation
is not liable for the leasehold obligations of a predecessor corporation
where there is not a common identity of the officers tractors and stockholders.
The District Court of Appeal reversed a jury finding of de facto merger
on the grounds that he successor corporation was half owned by an attorney
who did not directly or indirectly participate in be initial leasing. The
court overturned the jury's findings even though there was evidence that
an A shareholder who places stock into escrow until the total purchase price is paid remains a beneficial owner of the stock and retains the statutory right to inspect the corporate records. World Time Corporation of America v. Mizrachi, 702 So.2d 284 (Fla. 4th DCA 1997). A pleading signed by a corporate officer who is not a licensed attorney is a nullity and therefore did not preclude the entry of a default. The belief by the officer that a pleading submitted by him precluded the plaintiff from obtaining a default does not constitute excusable neglect. Joe-Lin, Inc. v. LRG Restaurant Group, Inc., 696 So.2d 539 (Fla. 5th DCA 1997). A corporation was set up with a married couple owning 201 shares, and two individual shareholders owning 99.5 shares each. All the parties entered into a Stock Restriction and Noncompete Agreement. At a shareholders meeting the couple owning the majority of the shares took action detrimental to the two minority shareholders. The minority shareholders filed suit to have the action nullified, and the majority shareholders counterclaimed seeking a declaratory judgment validating the resolutions. The trial judge granted summary judgment in favor of the minority shareholders, finding that the agreement required the board of directors to vote on a per capita basis rather than a per share basis. The District Court of Appeal Reversed, finding the agreement did not create a board of directors and the judge's ruling went beyond the four corners of the document. The Court remanded the case for further proceedings. Medico Environmental Services Corp. v. Vaillancourt, 744 So.2d 1191 (Fla. 2d DCA 1999). A shareholder who was traveling out of the country and acquiesced to allowing the other shareholders run the company was nonetheless entitled to enforce a provision of the shareholders' agreement requiring certain actions be taken only with unanimous approval and therefore entitled to attorney's fees as provided by the agreement. Heina v. La Chucua Paso Fino Horse Farm, Inc., 752 So.2d 630 (Fla. 5th DCA 1999). Amendments to sections 768.72 and 768.73 did not change the common law rule that punitive damages are unavailable in shareholder derivative actions. McGuire, Woods, Battle & Boothe, L.L.P. v. Hollfelder, 771 So.2d 585 (Fla. 1st DCA 2000). Members of not-for-profit corporation have a common law right to bring a derivative action. Larsen v. Island Developers, Ltd., 769 So.2d 1071 (Fla. 3d DCA 2000). Trial court erred in granting summary judgment against personal guarantor because settlement agreement between corporation and creditor stating that note was "canceled and/or merged" raised genuine issue of material fact as to whether it canceled the personal guarantee and because trial court did not directly address guarantor's affirmative defenses. Smith v. Frontier Communications International, Inc., 805 So. 2d 975, 26 Fla. L. Weekly D2801 (Fla. 2d DCA Nov. 28, 2001). Although Plaintiff obtained property pursuant to a pre-judgment writ of replevin, Defendant is the prevailing party where Plaintiff fails to continue prosecuting case and it is dismissed for failure to prosecute. Eastman Kodak Co. v. Thomas Gordon & Associates, Inc., 789 So.2d 360 (Fla. 3d DCA 2001). A guarantor is a debtor under Article 9 of the Uniform Commercial Code and is therefore entitled to insist that the disposition of collateral after a default be made in a commercially reasonable manner notwithstanding language contained in the guarantee waiving such right. Tropical Jewelers, Inc. v. NationsBank, N.A. , 781 So.2d 392 (Fla. 3d DCA 2000). Two judgment creditors served writs of garnishment on the garnishee which timely filed responses. One of the creditors obtained a judgment, which the garnishee paid. The garnishee then amended its answer to the second judgment creditor. The trial court entered a judgment against the garnishee in favor of the second judgment creditor. The District Court of Appeal reversed, finding that the writ of garnishment did not constitute a lien and that garnishee could not be liable for not retaining funds taken through the previous garnishment proceeding. Farm Credit of North Florida, ACA v. Double H. Dairy, Inc. , 742 So.2d 436 (Fla. 1st DCA 1999). A judgment creditor must first perfect its lien by recording a certified copy containing the creditor's address before proceeding with final process under section 56.061. Diaz v. Plumhoff, 742 So.2d 846 (Fla. 2d DCA 1999). A guarantor may be released from his person guaranty where the creditor has failed to protect the collateral. In this case a subcontractor obtained a promissory note from the general contractor corporation, which was personally guaranteed by its president. Three months later the subcontractor filed a claim of lien. However, the subcontractor entered into an agreement with the successor general contractor and did not refile its lien. The District Court affirmed the trial court's ruling that the personal guarantor was released once the subcontractor entered into a new agreement. The opinion does not explain how the subcontractor's claim of lien was collateral for the promissory note. Boneh, Inc. v. Daly, 743 So.2d 542 (Fla. 3d DCA 1999). Evidence of active concealment of assets after potential liability arose is admissible to support a claim of piercing the corporate veil. McCormick v. Ribbeck, 702 So.2d 271 (Fla. 1st DCA 1997). A debtor may file a malicious
prosecution and intentional infliction of Dispute Resolution and Remedies Arbitration clause
in noncompete agreement did not apply to tortious interference
suit brought against former employee's new employer as it
was not a party to the agreement. Technical Aid Corp.
v. Tomaso, 814 So. 2d 1259, 27 Fla. L. Weekly D1025 (Fla. 5th
DCA May 3, 2002).
Grievance procedure in collective bargaining agreement
precluded employee from seeking arbitration on his own.
City of Boynton Beach v. Taylor, 813 So. 2d 1039, 27 Fla.
L. Weekly D890 (Fla. 4th DCA April 17, 2002). Arbitrator's contacting attorney in response to letter requesting arbitrator to reconsider the award on basis arbitrator admitted inadamissible evidence was insufficient to establish bad faith or bias. Deen v. Oster, 814 So. 2d 1065, 27 Fla. L. Weekly D589 (Fla. 4th DCA March 13, 2002). Trial court should hold expedited evidentiary hearing before entering order compelling arbitration. Travellers Ins. Co. v. Irby Construction Co., Inc., 816 So. 2d 829, 27 Fla. L. Weekly D1198 (Fla. 3d DCA May 22, 2002). Issue of timeliness of demand for arbitration should be decided by arbitrators, not court. CED Construction, Inc. v. Kaiser-Taulbee Associates, Inc. , 816 So. 2d 813, 27 Fla. L. Weekly D1167 (Fla. 5th DCA May 17, 2002).
A provision in an international health insurance contract
requiring arbitration to be done in Jackson, Mississippi
was not null and void. Benefit Association International,
Inc. v. Mount Sinai Comprehensive Cancer Center, 816 So. 2d
164, 27 Fla. L. Weekly D973 (Fla. 3d DCA May 1, 2002). Arbitration clause in contract providing that any "controversy or claim arising out of or relating" to the agreement was broad enough to include claim for fraudulent inducement which sought to avoid or invalidate the entire contract. Simpson v. Cohen , 812 So. 2d 588, 27 Fla. L. Weekly D770 (Fla. 4th DCA April 3, 2002).
Personal guarantor is subject to arbitration clause of agreement he was guaranteeing. Berti v. Cedars Healthcare Group, Ltd. , 812 So. 2d 580, 27 Fla. L. Weekly D744 (Fla. 3d DCA 2002). Arbitration provision providing for arbitration in a foreign jurisdiction of employment agreement between head coach and Miami Tropics was enforceable under Federal Arbitration Act even though it was not enforecable under section 682.02, Florida Statutes. Jensen v. Rice, 809 So. 2d 895, 27 Fla. L. Weekly D582 (Fal. 3d DCA March 13, 2002). A defendant's furnishing a plaintiff
with a draft answer and counterclaim during course of
settlement negotiations did not waive right to compel arbitration.
Heidun Eckes-Chantre-Tabet Und Kinder Vermogensanlage
Gesellschaftburgerlichen Rechts III v. Largo Development Corp.
, 807 So. 2d 723, 27 Fla. L. Weekly D339 (Fla. 3d DCA Feb. 6,
2002). Employee's Whistle Blower action is subject to employment contract's arbitration clause. Prudential Securities, Inc. v. Katz , 807 So. 2d 173, 27 Fla. L. Weekly D389 (Fla. 3d DCA Feb. 13, 2002). An arbitrator's ex parte communications after rendering an award do not constitute legally cognizable grounds of bias sufficient to vacate the award. Deen v. Oster, 814 So. 2d 1065, 26 Fla. L. Weekly D2937 (Fla. 4th DCA Dec. 12, 2001). The trial court erred in calculating interest from the date of the original decree instead of the date payment was due under the terms of the stock purchase agreement. Friedman v. Olsen, 805 So. 2d 978, 26 Fla. L. Weekly D2798 (Fla. 2d DCA Nov. 28, 2001). Arbitration provision granting one party right to compel arbitration is not void for lack of mutual obligation. Avid Engineering, Inc. v. Orlando Marketplace Limited, 26 Fla. L. Weekly D2818 (Fla. 5th DCA Nov. 30, 2001). Party did not waive right to compel arbitration by filing counterclaim. Avid Engineering, Inc. v. Orlando Marketplace Limited, 26 Fla. L. Weekly D2818 (Fla. 5th DCA Nov. 30, 2001). Trial court erred in denying adult entertainment licensee's motion for temporary injunction as licensee was not allowed to challenge testimony given to city council by cross-examination and Mayor's evidentiary rulings reflected a bias so pervasive as to have rendered the proceedings violative of the basic fairness components of due process. Seminole Entertainment, Inc. v. City of Casselberry, 26 Fla. L. Weekly D2822 (Fla. 5th DCA Nov. 30, 2001). Arbitration agreement between investor and broker providing that "any and all controversies arising out of or relating to this agreement" was broad enough to include claims for fraud, negligence, negligent misrepresentation, breach of fiduciary duty, and violations of Chapter 517 as all the allegations related either to the suitability of the investment or the broker's wrongful conduct. Hirshenson v. Spaccio, 800 So. 2d 670 (Fla. 5th DCA 2001). An incentive fee arrangement was not a commission agreement that violated section 475.42, as the nature of the services being rendered were providing oversight of marketing budget and were not directly or indirectly procuring customers. Schickendanz Bros.-Riviera, Ltd. v. Harris, 800 So. 2d 608 (Fla. 2001). Settlement agreement calling for monthly payments that did not mention whether a lump sum payment could be applied to future payments was ambiguous and therefore party was entitled to introduce into evidence the testimony of the attorney who drafted the agreement. Raimi v. Dept. of Business and Professional Regulation, 798 So. 2d 913 (Fla. 1st DCA 2001). Provision in accounting shareholder agreement providing that party leaving the firm shall pay the firm a percentage of the business he takes with him is one concerning damages, and is not a commission agreement in violation of section 473.3295, Florida Statutes. Saltmarsh, Cleveland & Gund, P.A. v. Pappas, 799 So. 2d 348 (Fla. 1st DCA 2001). The Agency for Health Care Administration, not a judge of compensation claims, has authority to resolve disputes involving the validity and enforcement of provisions of a managed care arrangement. Wal-Mart Stores, Inc. #1436 v. Capuano, 800 So. 2d 652 (Fla. 1st DCA 2001). Trial court erred in its award of damages as it did not include damages for new architectural plans where evidence plaintiff adduced was unrebutted and there was no record evidence to support trial court's fifty percent reduction. Garcia v. Carter Construction Co., 794 So.2d 723 (Fla. 3d DCA 2001). Trial court's order compelling arbitration reversed as trial court should have held evidentiary hearing on whether the contract was authentic, whether corporation being sued is essentially the same entity referenced in the contract and whether the contract was procedurally and substantively unconscionable. Estate of Blanchard v. Central Park Lodges (Tarpon Springs), Inc., 805 So. 2d 6, 26 Fla. L. Weekly D2288 (Fla. 2d DCA Sept. 22, 2001). An agreement consenting to a judgment that would never be recorded, would create no liens and could not be executed and providing that it would not impair a party's right to proceed against a third party did not constitute a release precluding the party from suing the third party. Rosen v. Florida Ins. Guaranty Ass'n., 802 So. 2d 291 (Fla. 2001). Provision in physician participation agreement that "any dispute about their business relationship" applied to physicians' suit alleging violations of Florida's Deceptive and Unfair Trade Practices Act. Aztec Medical Services, Inc. v. Burger, 792 So.2d 617 (Fla. 4th DCA 2001). The contractual duty to arbitrate cannot be avoided by asserting claims against additional parties. Kinder Mobile Home Sales, Inc. v. Clemens, 794 So.2d 677 (Fla. 5th DCA 2001). Employment agreement requiring parties to split costs and fees associated with arbitration is unenforceable as it contravenes Title VII and the Florida Civil Rights Act. Flyer Printing Co., Inc. v. Hill, 805 So. 2d 829, 26 Fla. L. Weekly D1780 (Fla. 2d DCA July 18, 2001). A contractor may have possibly waived its contractual right to arbitrate a dispute with a subcontractor where it has actively participated in defending against the subcontractor's suit against the surety. Weiss & Woolrich Southern Enterprises, Inc. v. Aagaard-Harbin Construction, Inc., 786 So.2d 647 (Fla. 4th DCA 2001). Arbitration agreement that provides "any disciplinary action is subject to the grievance process" granted the arbitrator the authority to determine the selection of the severity of the sanction and should not be construed to limit the arbitrator's authority to address only whether "just cause" existed for the demotion. Simmons v. City of Avon Park, 788 So.2d 1076 (Fla. 2d DCA 2001). Trial court properly denied motion to compel arbitration as it was undisputed that the condition precedent of a written demand had not been satisfied and although that decision should be made by the arbitrator it would be an exercise in futility to require arbitrator to acknowledge this undisputed fact. Fluor Enterprises, Inc. v. Tri-City Electrical Contractors, Inc., 784 So.2d 1260 (Fla. 5th DCA 2001). Arbitration provision in partnership agreement that provided all disputes arising under the agreement be resolved through binding arbitration applied to physician's injunctive claim against hospital for tortious interference with a business relationship even though hospital was not a signatory to the partnership agreement and the partnership agreement contained a provision that a party may petition a court for equitable relief if he is suffering irreparable harm for which monetary damages are inadequate. Tenet Healthcare Corp. v. Maharaj, 787 So.2d 241 (Fla. 4th DCA 2001). An agent may be bound to arbitrate a commission dispute by virtue of the fact the broker has agreed to submit commission disputes to arbitration in applying for membership with a local board of realtors. Matha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d1089 (Fla. 4th DCA March 7, 2001). An order dismissing a case pursuant to rule 10305(b) of the NASD Code of Arbitration Procedure would likely be reversed on appeal if there had been no previous lesser sanctions imposed. Bradley v. Davis, 777 So.2d 1189 (Fla. 4th DCA 2001). A party is not bound by the arbitration provision of a contract with an unlicensed contractor. Riverwalk Apartments, L.P. v RTM General Contractors, Inc., 779 So.2d 537 (Fla. 2d DCA 2000). This case was discussed
on one of the national TV programs. During a sweepstakes contest
at a Florida Panther ice hockey game, Randy Giunto shot a puck into a small
goal. A videotape showed the puck hit the corner of the small slot
in a piece of plywood and bounced side to side. The contest judge
declared the shot unsuccessful. Mr. Giunto convinced the jury that
the puck passed "into and through" the opening. The trial judge ordered
a new trial for reasons the An assignee to a security agreement is subject to the arbitration provision contained in the agreement. However, a court must first determine the issues concerning whether proper notice of the assignment was given pursuant to section 679.318, Florida Statutes. Cone Constructors, Inc. v. Drummond Community Bank, 754 So.2d 779 (Fla. 1st DCA 1999). A claim of lien for reimbursement of medicaid expenditures filed with the circuit court pursuant to section 409.910 satisfies the requirements of section 703.702, even though it was filed before the decedent's death and there was no proof of personal service. Agency for Health Care Administration v. Estate of Johnson , 743 So.2d 83 (Fla. 3d DCA 1999). The seller of the inventory
and assets of an ice cream shop took possession when the buyer defaulted
on making payments. The Seller sold the assets to a third party in exchange
for a promissory note for $30,000. The third party defaulted after making
a payment of $1,700. The Seller sued the buyer and obtained a judgment
for breach of the promissory note and security agreement. The judge gave
a credit for $1,700 for the amount the Seller received from the sale to
the third party. The District Court of Appeal reversed this portion of
the A broker is entitled to a commission if he is the procuring cause of an agreement regardless of whether he had an "exclusive right to sell" or an "exclusive agency" agreement and regardless of the fact the purchase was actually made by a different entity. In this case the broker had an agreement with a company to locate and purchase a radio station. The company could not obtain the financing. The purchase was made in the name of a separate company which was owned and managed by the same people as the first company. As there was evidence the broker had suggested the purchase of this particular radio station, the District Court of Appeal upheld the trial judge's decision the broker was entitled to a commission. Dawson v. Hadden, 24 Fla. L. Weekly D2603 (Fla. 5th DCA Nov. 19, 1999). Trial court erred in not granting temporary injunction, as there was no dispute former employee solicited customers of former employer in violation of noncompete agreement, thereby establishing presumption of irreparable harm. Globe Data Systems v. Johnson, 745 So.2d 1101 (Fla. 5th DCA 1999). A contractor was not entitled to damages for extra work as it did not provide five day written notice of additional work as required by the contract. The contractor's argument that it was excused of this requirement because of the county's misrepresentations was rejected as the contractor had failed to plead misrepresentation and the issue was not tried by consent. The contractor was not entitled to lost profits as a result of an inability to obtain a bond as such damages were not foreseeable. Frenz Enterprises, Inc. v. Port Everglades , 746 So.2d 498 (Fla. 4th DCA 1999). A dispute resolution provision
requiring arbitration with respect to Prejudgment interest is an element of compensatory damages. Gallo v. Department of Banking and Finance, 749 So.2d 582 (Fla. 5th DCA 2000). Neither debtors nor guarantors can waive the right that repossessed property be sold in a commercially reasonable manner. Tropical Jewelers, Inc. v. NationsBank, N.A., 781 So.2d 381 (Fla. 3d DCA 2000). Broker was entitled to a commission where Buyer had breached the original contract, but subsequently negotiated and completed a second contract with the seller through a different broker, even though the first broker received a portion of the deposit paid as liquidated damages. Gilman Yacht Sales, Inc. v. FMB Investments, Inc., 766 So.2d 294 (Fla. 4th DCA 2000). Employee who was terminated during fourth year of a one year employment agreement that provided for automatic one-year renewals could maintain action as agreement was not invalid on the grounds that it was for an indefinite term or for lack of mutual consideration. Murry v. Zynyx Marketing Communications, Inc. , 774 So.2d 714 (Fla. 3d DCA 2000). The Courts should apply the law of the forum in determining the validity of a forum selection clause. Fendi S.r.l. v. Condotti Shops, Inc., 754 So.2d 755 (Fla. 3d DCA 2000). It is an abuse of discretion to grant leave to defendant to file counterclaim for money damages after all the evidence had been submitted where issue was not tried by express or implied consent. Buday v. Ayer, 754 So.2d 771 (Fla. 2d DCA 2000). A road contractor's claim against County for damages because of County's failure to timely acquire drainage easements is not barred by the doctrine of sovereign immunity. Ajax Paving Industries, Inc. v. Charlotte County, 752 So.2d 143 (Fla. 2d DCA 2000). The statute of limitations on an oral loan payable on demand begins when the loan was made, not when payment was demanded. Anderson v. Mosher, 758 So.2d 1177 (Fla. 4th DCA 2000). A party that obtains a judgment for breach of contract is entitled to an award for costs even though the jury found there was no damages. Sunshine Bottling Co. v. Tropicana Products, Inc., 757 So.2d 1231 (Fla. 3d DCA 2000). Warsaw Convention does not apply to loss of shipped goods where loss occurred outside the airport. Carrier can raise provision of unsigned airbill as an affirmative defense as it was the shipper's responsibility to prepare and deliver the airbill. Aerofloral, Inc. v. Rodricargo Express Corp. , 756 So.2d 234 (Fla. 3d DCA 2000). Trial Court erred in finding seller did not breach warranty and buyer had right to revoke acceptance as the findings were inconsistent. Gulfwind South, Inc. v. Jones, 775 So.2d 311 (Fla. 2d DCA 2000). Road contractor was entitled to maintain claim for delay damages against County as contract prohibiting such claims contained an exceptions for fraud, bad faith and active interference and there was evidence that the design company hired by the County knew of a design flaw. Triple R. Paving, Inc. v. Broward County , 774 So.2d 50 (Fla. 4th DCA 2000). Although agreement
provided that all disputes would be resolved by arbitration except pleading-related
and pre-answer motions, the District Court of Appeal affirmed the trial
judge's granting of a summary judgment reasoning that the motion related
to the pleadings. Judge Cope dissented, noting the difference between
motions for summary judgment and pleading-related motions. Soler
v. Aribtration clause in employment agreement was not applicable to employee's suit for invasion of privacy, battery, negligence and sex discrimination. Boone v. Etkin , 771 So.2d 559 (Fla. 4th DCA 2000). Food service company was not entitled to damages on claim against Department of Corrections for breach of duty to negotiate renewal in good faith as an "agreement to negotiate the terms of a renewal does not create a contractual right to renew" and section 287.058 authorizes parties to renew a state procurement contract, but does not create a right to renew. State of Florida, Department of Corrections v. C & W Food Service, Inc., 765 So.2d 728 (Fla. 1st DCA 2000). Arbitration clause of purchase order did not apply to breach of contract action on disability insurance policy procured in same transaction. Coggin Automotive Corp. v. Reed, 750 So.2d 744 (Fla. 5th DCA 2000). An arbitration provision of an employment agreement that terminated as of a specific date but provided it could be extended by the parties by mutual agreement for another three years applied to a dispute where the employee continued to be employed after the termination date without any further written agreement. The Court noted that whether there was an agreement to extend the contract was one arising out of and relating directly to the contract. Mirson v. The Corradino Group, Inc., 751 So.2d 6992 (Fla. 3d DCA 2000). Mortgagor's affirmative defenses that mortgagee/seller misrepresentend termite acitivity and treatment were allegations of fraud in the inducement as opposed to fraud in the performance and were therefore not barred by the economic loss doctrine. Hinton v. Brooks, 26 Fla. L Weekly D2724 (Fla. 5th DCA Nov. 16, 2001). Contract with company to provide a well water treatment system was ambiguous as to whether it was for goods or services, thereby precluding summary judgment on grounds of Uniform Commercial Code and economic loss rule. Birwel-Montenay, Inc. v. Infilco Degremont, Inc., 26 Fla. L. Weekly D2508 (Fla.3rd DCA Oct. 17, 2001). A factoring company's complaint that it was fraudulently induced into entering joint check agreements was not barred by the economic loss rule. Bankers Mutual Capital Corp. v. United States Fidelity and Guaranty Co., 784 So.2d 485 (Fla. 4th DCA 2001). Buyers' claim that Sellers of business misrepresented tax liabilities was not barred by economic loss rule. Allen v. Stephan Co., 784 So.2d 456 (Fla. 4th DCA 2000). Plaintiff's complaint for fraud
in the inducement was barred by the economic loss rule as the alleged
fraudulent misrepresentations were The Florida Supreme
Court reversed the Third District Court of Appeal's decision in Comptech
International, Inc. v. Milam Commerce Park, Ltd., 711 So. 2d 1255
(Fla. 3d DCA 1998). The Court held the economic loss rule does not preclude
a statutory cause of action under the Southern Building Code, section 553.84,
Florida Statutes (1995). This suit involved damage to computer equipment
as a result of renovations being performed on a warehouse. The trial
The economic loss rule does not bar an action for breach of fiduciary duty, even if there is an underlying contract, nor does it bar a statutory cause of action. Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000). In Moransais v. Heathman, 744 So.2d 973 (Fla. July 1, 1999), the Florida Supremen Court held that the economic loss rule does not bar a cause of action by a homeowner against a professional engineer where the homeowner's contract was with the engineer's employer and there was no allegation of bodily injury or property damage other than the undisclosed and undetected defects in the home. The Court first found that professional engineers had a common lawand statutory duty to perform services in a non-negligent manner. The Court then reasoned that the economic loss rule had its foundation in product liability cases and was not intended to extinguish established causes of action. The Court questioned the use of the doctrine in its decision in AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So. 2d 180 (Fla. 1987) concerning a contract for non-professional services. The economic loss rule does not bar an action against a security broker for breach of fiduciary duty. First Equity Corporation of Florida, Inc. v. Watkins, 24 Fla. L. Weekly D1758 (Fla. 3d DCA July 28, 1999). Economic loss rule bars third party beneficiary claims even though the third party beneficiary was not in a position to protect himself by contract. Ocean Ritz of Daytona Condominium, Inc. v. GGV Associates, Ltd., 710 So.2d 702 (Fla. 5th DCA 1998). Certifying conflict with
Comptech International, Inc. v. Milam Commerce Park, Ltd.,
711 So. 2d 1255 (Fla. 3d DCA 1998), the Fifth District Court of Appeal
held that the economic loss rule does not preclude statutory causes of action.
Stallings v. Kennedy Electric, Inc., 710 So.2d 195
(Fla. 5th DCA 1998) Grievance procedure in collective bargaining agreement precluded employee from seeking arbitration on his own. City of Boynton Beach v. Taylor, 813 So. 2d 1039, 27 Fla. L. Weekly D890 (Fla. 4th DCA April 17, 2002). Trial court erred in determining employee's retaliation suit was barred by the one-year statute of limitations contained in section 760.11(5) as the notice given to the employee by the EEOC did not determine if reasonable cause existed, certifying conflict with Woodham v. Blue Cross and Blue Shield of Florida, Inc., 793 So. 2d 41 (Fla. 3d DCA 2001). White v. City of Pompano Beach , 813 So. 2d 1003, 27 Fla. L. Weekly D671 (Fla. 4th DCA March 20, 2002). Non-union employee is bound by collective bargaining agreement which fixed maintenance rate. Bouchard Transportation Co., Inc. v. Connors, 811 So. 2d 787, 27 Fla. L. Weekly D587 (Fla. March 13, 2002). Provision in Special Incentive Agreement prevailed over conflicting provision in Employment Agreement as the former was later in time. Brink v. Bank of America, N.A. , 811 So. 2d 751, 27 Fla. L. Weekly D501 (Fla. 1st DCA March 1, 2002). Employee's Whistle Blower action
is subject to employment contract's arbitration clause.
Prudential Securities, Inc. v. Katz
, 807 So. 2d 173, 27 Fla. L. Weekly D389 (Fla. 3d DCA Feb. 13,
2002). Trial court properly granted summary judgment on employee's claims for negligent retention, negligent supervision, and negligent training as they were barred by workers' compensation settlement, but improperly granted summary judgment on claim of sexual harassment. Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 27 Fla. L. Weekly D573 (Fla. 1st DCA March 12, 2002). "Florida does not recognize a common law cause of action for negligent failure to maintain a workplace free of sexual harassment." Castleberry v. Edward M. Chadbourne, Inc. , 810 So. 2d 1028, 27 Fla. L. Weekly D573 (Fla. 1st DCA March 12, 2002). Summary judgment entered against employee on claims of sexual harassment and violation of Florida's Civil Rights Act reversed as there were disputed issues as to whether employee timely complained of harassment and whether employer acted reasonably. Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 27 Fla. L. Weekly D229 (Fla. 1st DCA Jan. 23, 2002). City was not entitled to patent of employee's invention of new water treatment process as employee was hired to design a better water treatment plant, not to come up with a new invention. City of Cocoa v. Leffler , 803 So. 2d 869, 27 Fla. L. Weekly D132 (Fla. 5th DCA Jan. 4, 2002). A company's refusal to accept settlement proposals cannot be a basis for intentional infliction of emotional distress or fraud as a party is privileged to act in its own finanical interests. Horizons Rehabilitation, Inc. v. Health Care and Retirement Corp., 810 So. 2d 958, 27 Fla. L. Weekly D122 (Fla. 5th DCA Jan. 4, 2002). An employee's refusal to carry twelve containers of scrap metal on small flat-bed truck because he felt doing so was dangerous was not misconduct justifying the denial of unemployment compensation benefits. Rodriguez v. Svinga Brothers Corp., 802 So. 2d 455, 27 Fla. L. Weekly D1 (Fla. 3d DCA Dec. 19, 2001). Employee who resigned after failing
to obtain a state class "D" security license was not entitled
to unemployment compensation benefits as he could have continued
working under his temporary license. Critical Intervention
Services, Inc. v. Florida Unemployment Appeals Commission,
802 So. 2d 463, 27 Fla. L. Weekly D7 (Fla. 2d
DCA Dec. 19, 2001). Employee's failure to return to work after maternity leave precluded her from proving a constructive discharge case. Webb v. Florida Health Care Management Corp., 804 So. 2d 422 (Fla. 4th DCA 2001). An adverse decision by the Equal Employment Opportunity Commission does not constitute an adverse determination by the Florida Commission on Human Relations. Jones v. Lakeland Regional Medical Center, 26 Fla. L. Weekly D2660 (Fla. 2d DCA Nov. 9, 2001). Employee who was terminated for being lazy, incompetent, moody and messy was entitled to unemployment compensation benefits as such conduct did not establish a willful or wanton disregard of the employer's interests. Spink v. Unemployment Appeals Commission, 798 So. 2d 899 (Fla. 5th DCA 2001). Employer/Carrier waived right to deny compensability of workers' compensation claim for chronic sinusitis and asthma as they failed to conduct reasonable investigation within 120 days as to whether claimant had asthma prior to becoming exposed to toxic chemicals at work. Garner v. Clay County District School Board, 798 So. 2d 821 (Fla. 1st DCA 2001). Employee was entitled to unemployment compensation benefits although fired for disobeying a direct order as he had doctor's recommendation that he be allowed to wear wide-brim hat while working in sun for health reasons. Copple v. U.S. Postal Service , 26 Fla. L. Weekly D2587 (Fla. 2d DCA Oct. 31, 2001). Employee who filed claim under Florida's Whistle Blowers' Act was not entitled to temporary reinstatement as judge could have concluded voluntarily refused to accept another position and was not discharged. Luster v. West Palm Beach Housing Authority, 801 So. 2d 122 (Fla. 4th DCA 2001). "[T]here is no action in Florida for the common law tort of wrongful termination." Bass v. Metro Dade County Dept. of Corrections and REhabilitation, 798 So. 2d 835 (Fla. 3d DCA 2001). County employee who resigned on day he was arrested and charged with accepting unlawful compensation was not entitled to accrued sick leave as County manual provided such benefit for those in "good standing," however he was entitled to accrued annual leave as there was no such restriction in manual and "there is no common law of Florida requiring good standing as a pre-condition to receiving accrued benefits." Nabors v. Miami-Dade County, 26 Fla. L. Weekly D2329 (Fla. Oct. 10, 2001). Employer was entitled to summary judgment in suit by pregnant employee alleging actual discharge, constructive discharge and adverse action under Title VII of the Civil Rights Act, the Family Medical Leave Act and Chapter 760, Florida Statutes, as employee, by not returning to work, made it impossible to establish that working conditions were intolerable and employee did not give employer an opportunity to remedy complaint. Fischer v. Florida Health Care Management Corp. , 804 So. 2d 422 (Fla. 4th DCA 2001). There is no requirement to exhaust administrative remedies before filing a claim under the Rehabilitation Act of 1973. Kintz v. Escambia County Utilities Authority, 795 So.2d 269 (Fla. 1st DCA 2001). In holding that an employee fired from a full time job for no reason who temporarily found part time work but quit because it was incompatible with her search for full time employment was not entitled to unemployment compensation benefits, the First District Court of Appeal strongly urged the Legislature to reconsider its 1999 amendment resulting in this "harsh result." Rochussen v. Unemployment Appeals Commission, 795 So.2d 1075 (Fla. 2d DCA 2001). An employee who receives a "no cause" determination by the Florida Commission on Human Relations after 180 days must exhaust his or her administrative remedies prior to filing a lawsuit. Bach v. United Parcel Service, Inc., 26 Fla. L. Weekly D2095 (Fla. 4th DCA August 29, 2001). On motion for rehearing en banc, the court substantially changed the opinion issued at 25 Fla. L. Weekly D2307, and held "that when a charge is dually filed with the EECO and the FCHR, the date of filing with the EEOC shall also be considered the date of filing with FCHR." Wells Fargo Guard Services, Inc.of Florida v. Lehman, 799 So.2d 252 (Fla. 3d DCA 2001). The EEOC's finding that it is "unable to conclude that the information obtained establishes violations of hte statutes" is not a finding there was no reasonable cause to believe that a violation of the Florida Civil Rights Act had occurred and therefore did not trigger the thirty-five day period in which to request an administrative hearing. Cisko v. Phoenix Medical Products, Inc., 797 So.2d 11 (Fla. 2d DCA 2001). Employee who quit because of begin given reduced hours is entitled to unemployment compensation benefits. Manning v. State of Florida Unemployment Compensation Appeals, 787 So.2d 954 (Fla. 4th DCA 2001). Arbitration agreement that provides "any disciplinary action is subject to the grievance process" granted the arbitrator the authority to determine the selection of the severity of the sanction and should not be construed to limit the arbitrator's authority to address only whether "just cause" existed for the demotion. Simmons v. City of Avon Park, 788 So.2d 1076 (Fla. 2d DCA 2001). An iosolated incident of unexpected absence does not constitute willful and deliberate misconduct warranting the denial of unemployment compensation benefits. Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935 (Fla. 2d DCA 2001). Before bringing a racial discrimination suit, a person must first request an administrative hearing if he or she receives a "no cause" determination more than 180 after filing a complaint with the Equal Employment Opportunity Commission. Woodham v. Blue Cross and Blue Shield of Florida, Inc., 793 So.2d 41 (Fla. 3d DCA 2001). An employee who quits because employer failed to address her complaints of feeling sexually harassed at work is entitled to unemployment compensation benefits. Yaeger v. Florida Unemployment Appeals Commission, 786 So.2d 48 (Fla. 3d DCA 2001). Trial court erred in dismissing complaint for common law fraud as plaintiff alleged employer had no intention of retaining plaintiff when it promised plaintiff would be made a manager and receive permanent employment. Gandy v. Trans World Computer Technology Group, 787 So.2d 116 (Fla. 2d DCA 2001). Florida's Whistle Blower's Act, which is remedial and should be broadly construed, protects an employee from reprisal for questioning the propriety of a legally appropriate and court approved transfer of venue of a child dependency action. Irven v. Dept. of Health and Rehabilitative Services, 790 So.2d 403 (Fla. 2001). Employer was not entitled to summary judgment on its statute of limitations defense where it failed to properly establish date the EEOC actually sent employee its letter of determination. First Union National Bank of Florida v. Ruiz, 785 So.2d 589 (Fla. 5th DCA 2001). People who obtain work through and paid directly by temporary leasing firm are independent contractors and not employees of firm and therefore are not entitled to unemployment compensation. Freedom Labor Contractors of Florida, Inc. v. State of Florida, 779 So.2d 663 (Fla. 3d DCA 2001). A newspaper carrier is an independent contractor, not an employee. Marcoux v. Circle K Stores, Inc., 773 So.2d 1270 (Fla. 4th DCA 2000). Employee was not entitled to unemployment benefits where he quit because he did not receive a promised raise. Astengo v. Miami Behavioral Health Center, 774 So.2d 803 (Fla. 3d DCA 2000). A financing practice that causes only monetary injury is not a "public hazard" within the meaning of section 69.081(2), hence agreement whereby person agreed not to testify as expert witness against former employer was not void contrary to public policy. Stivers v. Ford Motor Credit Co., 777 So.2d 1023 (Fla. 4th DCA 2000). Filing of age discrimination suit in federal court tolls state statute of limitations. Blinn v. Fla. Dept. of Transportation, 781 So.2d 1103 (Fla. 1st DCA 2000). An employer's duty under section 440.39(1) to cooperate with an employee in maintaining a suit against a third party includes the duty to preserve critical evidence even in the absence of a specific request to do so. As the damages in a spoilation of evidence claim are derivative of the damages in a products liability claim, it was improper for the trial court to allow the employer to disclose to the jury the amount of the settlement its employee received for his products liability claim. Builder's Square, Inc. v. Shaw , 755 So.2d 721 (Fla. 4th DCA 1999). An employer was not liable for defamation for stating that an ex-employee was terminated for a "conduct violation" as the comment was true. However, the employer could still be liable for tortious intereference with a business relationship. The employee should be allowed to use evidence related to the unemployment compensation hearing to establish whether the employer's statements were made to deliberately mislead or with a malicious purpose. Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386 (Fla. 1st DCA 1999). An employment agreement for an indefinite period of time is not rendered unenforceable by the Statute of Frauds. Elliot v. Carl H. Winslow, Jr., P.A., 737 So.2d 609 (Fla. 2d DCA 1999). Obesity can be a phsyical
impairment under the ADA and Florida's Civil Rights Act. Allegations
that an employee was subject to jokes and derisions, that he was
threatened with demotion if he did not lose weight, that he was ridiculed
for his weight by supervisors in the presenece of fellow employees, and
that a supervisor pressured him into purchasing diet cookies were sufficient
to state a cause of action for hostile work environment. Greene
v. Seminole Electric A claim for damages under section 440.205 can be based upon intimidation and coercion and does not require the termination of an employee. Chase v. Walgreen Company, 750 So.2d 93 (Fla. 5th DCA 1999). Florida's Whistle-Blower's Act, sections 448.101-.105, requires written notice only of employees who disclosed or threatened to disclose illegal activity to an appropriate government agency that was not conducting an investigation and the employee did not object nor refuse to participate in the illegal activity. Golf Channel v. Jenkins , 752 So.2d 561 (Fla. 2000). Deputy clerks may be public employees and therefore enjoy the protections of the Public Employees Relations Act depending upon their managerial responsibilities. Service Employees International Union, Local 16, AFL-CIO v. Public Employess Relations Commission, 752 So.2d 569 (Fla. 2000). Florida's Civil Rights Law does not apply "where the employee allegedly was discharged in retaliation for actions of his spouse." Donato v. American Telephone and Telegraph Co., 767 So.2d 1146 (Fla. 2000). An arbitration provision of an employment agreement that terminated as of a specific date but provided it could be extended by the parties by mutual agreement for another three years applied to a dispute where the employee continued to be employed after the termination date without any further written agreement. The Court noted that whether there was an agreement to extend the contract was one arising out of and relating directly to the contract. Mirson v. Corradino Group, Inc., 751 So.2d 699 (Fla. 3d DCA 2000). Employee who was terminated during fourth year of a one year employment agreement that provided for automatic one-year renewals could maintain action as agreement was not invalid on the grounds that it was for an indefinite term or for lack of mutual consideration. Murry v. Zynyx Marketing Communications, Inc., 774 So.2d 714 (Fla. 3d DCA 2000). A claim for breach of an oral agreement to renew a written employment agreement is not necessarily barred by the statute of frauds. Rubenstein v. Primedica Health Care, Inc., 755 So.2d 746 (Fla. 4th DCA 2000). |