The following is an example of the weekly email I send out. These are summaries of cases reported in the July 25, 2003, edition of The Florida Law Weekly.
ADMINISTRATIVE LAW
Department of Health erred in rejecting Administrative Law Judge’s finding there were six defective questions on the December 2000 National Board of Podiatric Medical Examiners (NBPME) licensure examination. Verleni v. Dept. of Health, 28 Fla. L. Weekly D1653 (Fla. 1st DCA July 17, 2003). The Department of Agriculture and Consumer Services erred in issuing cease and desist orders to companies accused of violating the Sellers of Travel Act, as such orders did not on their face demonstrate immediate danger, necessity or procedural fairness. Premier Travel International, Inc. v. State of Florida, Dept. of Agriculture and Consumer Services, 28 Fla. L. Weekly D1651 (Fla. 1st DCA July 17, 2003).
APPELLATE PROCEDURE
ATTORNEYS AND ATTORNEY'S FEES
Trial court erred in awarding attorney’s fees under offer of judgment statute as plaintiff’s offer did not specify specific amount to each defendant even though one of the defendant’s liability was purely vicarious, certifying conflict with Barnes v. The Kellogg Co., 28 Fla. L. Weekly D1031 (Fla. 2d DCA April 25, 2003). Matetschk v. Lamb, 28 Fla. L. Weekly D1647 (Fla. 5th DCA July 18, 2003)(on motion for certification of opinion reported at 28 Fla. L. Weekly D1148). Contingency multiplier should not be applied in rear-end collision case with a financially responsible defendant as any tort lawyer would take such a case. Matetzschk v. Lamb, 28 Fla. L. Weekly D1647 (Fla. 5th DCA July 18, 2003)(on motion for certification of opinion reported at 28 Fla. L. Weekly D1148).
BUSINESS AND EMPLOYMENT LAW
Unemployment Appeals Commission erred in denying benefits on grounds employee was not unemployed as he was in training for a new job because employee was not being paid for being in training. Smith v. Bankers Life & Casualty Co., 28 Fla. L. Weekly D1660 (Fla. 2d DCA July 18, 2003). Judge of Industrial Claims erred in dismissing claim because employee insisted on having a court reporter present at an IME and refused to pay the IME physician’s extra charge imposed physician imposed when a court reporter was present. Thompson v. Awnclean USA, Inc., 28 Fla. L. Weekly D1649 (Fla. 1st DCA July 17, 2003).
Trial court properly entered verdict against physicians who sold their practice to a management company that retained them as employees and who brought claims against another physician and lawyer for breach of fiduciary duty, legal malpractice and securities violations because their allegations that they were not aware of the defending physician’s involvement in management of new company was belied by documents they signed specifically revealing the relationship. Peebles v. Sheridan Healthcare, Inc., 28 Fla. L. Weekly D1630 (Fla. 4th DCA July 16, 2003). Payment that was tendered thirteen days after grace period had expired was a material breach despite fact there was no time of essence clause because settlement agreement provided that stated amount would immediately become due and payable after grace period had elapsed. Sublime, Inc. v. Boardman’s Inc., 28 Fla. L. Weekly D1629 (Fla. 4th DCA July 16, 2003). Trial court improperly dismissed suit brought by an administratively dissolved corporation which had represented it was winding down its affairs, but subsequently reinstated itself. Allied Roofing Industries, Inc. v. Venegas, 28 Fla. L. Weekly D1623 (Fla. 3d DCA July 16, 2003).
CIVIL PROCEDURE AND EVIDENCE
Trial court erred in allowing state trooper to answer question as to what his conclusions were as to how the accident happened and what caused it as the response was pure opinion and state trooper had not been disclosed nor qualified as an expert witness. Galvez v. Merelo, 28 Fla. L. Weekly D1673 (Fla. 1st DCA July 21, 2003). Section 324.021(9)(b)(3), which limits liability of natural person who loans a vehicle to any permissive user is not an affirmative defense that must be pled. Lynn v. Feldmeth, 28 Fla. L. Weekly D1672 (Fla. 2d DCA July 18, 2003).
Trial court cannot consider letters attached to motion for summary judgment that are not sworn or certified. Nichols v. Preiser, 28 Fla. L. Weekly D1671 (Fla. 2d DCA July 18, 2003).
Trial court erred in granting summary judgment in favor of defendant in legal malpractice suit based on statute of limitations as plaintiff’s conflicting answers to two different sets of interrogatories raised genuine issue as to when the statute of limitations began to run. Nichols v. Preiser, 28 Fla. L. Weekly D1671 (Fla. 2d DCA July 18, 2003).
Trial court erred in dismissing amended complaint with prejudice for failing to file within time requirement set by court as judge did not make an explicit finding of willful noncompliance. Matthews v. Chaffee, 28 Fla. L. Weekly D1666 (Fla. 2d DCA July 18, 2003).
Trial court properly denied physician’s motion to intervene as allegations that defendants’ reckless and untrue allegations could potentially harm his reputation and career would not be direct legal consequences of the judgment entered in the case. Kissoon v. Araujo, 28 Fla. L. Weekly D1656 (Fla. 1st DCA July 14, 2003).
Trial court erred in dismissing complaint against foreign corporation on breach of contract because it was presumed payments were to be made to plaintiff which had an office in Florida and because clause stating venue shall be in Broward County met the constitutional minimum contacts requirements Global Satellite Communications, Co. v. Sudline, 28 Fla. L. Weekly D1628 (Fla. 4th DCA July 16, 2003).
COLLECTIONS
CONSTITUTIONAL LAW
CONSUMER PROTECTION
Trial court properly granted summary judgment against company’s breach of contract claim as contract was void and unenforceable because the company was to secure hotel rooms for a tour group, but was not registered as a “seller of travel” as required by section 559.26, et. seq. (Omega Congress, Inc. v. Baftour Services, Inc., 28 Fla. L. Weekly D1621 (Fla. 3d DCA July 16, 2003)(this opinion is strange because it does not explain why the summary judgment in favor of the company on the other party’s counterclaim for return of monies already paid was allowed to stand. )
ESTATE PLANNING AND PROBATE
Judge of compensation claims erred by denying petition requesting appointment of a guardian or representative to protect interests of minor children of decedent employee. Benton v. ICR Electric, 28 Fla. L. Weekly D1650 (Fla. 1st DCA July 17, 2003).
INSURANCE
Section 627.736(5) does not prohibit an insured’s assignment of PIP benefits to a third party who is not a medical provider. Professional Consulting Services, Inc. v. Hartford Life and Accident Insurance Co., 28 Fla. L. Weekly D1661 (Fla. 2d DCA July 16, 2003).
REAL PROPERTY
Trial court erred in granting motion to cancel foreclosure sale based on some unidentifiable inequitable conduct of the mortgagee as order in effect extinguished mortgagee’s security interest and right to have the property sold and the proceeds applied to its foreclosure judgment. Bankers Trust Co. v. Edwards, 28 Fla. L. Weekly D1674 (Fla. 1st DCA July 21, 2003)(dissent has good discussion on differences between clerk’s foreclosure sale and sheriff’s foreclosure sales). Property owner is not vicariously liable for real estate agent’s alleged negligent act of not opening garage door all the way causing prospective purchaser to hit her head on the door. Smith v. Mayes, 28 Fla. L. Weekly D1651 (Fla. 1st DCA July 17, 2003). Trial court properly dismissed developer’s action challenging constitutionality of ordinance requiring permit for activities conducted seaward of coastal construction line as 1) developer was collaterally estopped due to prior litigation brought by its predecessor, 2) the ordinance was not preempted by Chapter 161, and 3) the ordinance contains ascertainable standards for obtaining a variance. Gla and Associates, Inc. v. City of Boca Raton, 28 Fla. L. Weekly D1636 (Fla. 4th DCA July 16, 2003). Section 70.001(13) of the Bert Harris Act, which provides “This section does not affect the sovereign immunity of government” does not preclude a property owner from suing a city for passing an inordinately burdensome ordinance. Royal World Metropolitan, Inc. v. City of Miami Beach, 28 Fla. L. Weekly D1620 (Fla. 3d DCA July 16, 2003).
TORT
Section 324.021(9)(b)(3), which limits liability of natural person who loans a vehicle to any permissive user is not limited to lessor/lessee relationships. Lynn v. Feldmeth, 28 Fla. L. Weekly D1672 (Fla. 2d DCA July 18, 2003). Trial court erred in granting summary judgment in favor of police officers in section 1983 and state law battery claims for excessive force action by binding, handcuffing and sitting on plaintiff as fact plaintiff had committed no offense raised genuine issue as to whether any force at all was excessive or a wanton and willful disregard for human rights. Thompson v. Douds, 28 Fla. L. Weekly D1667 (Fla. 2d DCA July 18, 2003).
Owner of retail hardware and auto racing supply store was entitled to summary judgment in wrongful death action brought against it because it did not have a duty to take reasonable care that the nitrous oxide it sold would not be used as an inhalant. Spratling v. State of Florida, 28 Fla. L. Weekly D1655 (Fla. 1st DCA July 17, 2003).
In products liability case, trial court properly granted summary judgment for manufacturer as there was undisputed evidence that the sander was materially and substantially altered after it had left the manufacturer. Rodriguez v. National Detroit, Inc., 28 Fla. L Weekly D1619 (Fla. 3d DCA July 16, 2003).
Copyright Randall O. Reder 2003 Anybody else that would like to be added to the list of recipients of these weekly summaries, please email me at reder@redersdigest.com.
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Case Summaries
Estate Planning and Probate Law
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These are summaries of cases published in
the January 4 through August 30, 2002, editions of The Florida
Law Weekly. For summaries of cases decided from 1997
- 2001, click on the following categories:
Administrative Law
This file was last updated September 14, 2002. State Retirement
Commission's final order was not unenforceable even though rendered more
than 600 days after hearing in violation of section 120.569(2)(l), which
requires final orders be entered within 90 days. Renick v. State
Retirement Commission, 27 Fla. L. Weekly D1970 (Fla. 5th DCA August
30, 2002). Whether adjacent landowners received notice of neighbors application to build a dock and ramp was a disputed factual issue that needs to be resolved at the administrative hearing. Accardi v. Dept. of Environmental Protection, 27 Fla. L. Weekly D1943 (Fla. 4th DCA August 28, 2002). A petition objecting to the granting of a permit does not have to cite the statutory or rule section numbers that are being violated. Accardi v. Dept. of Environmental Protection, 27 Fla. L. Weekly D1943 (Fla. 4th DCA August 28, 2002).A party's
motion to disqualify the Secretary of Environmental Protection from issuing
a final order because Secretary had made public comments in favor of the
Administrative Law Judge's recommended findings on the day they were made
should was facially sufficient and should have been granted. Charlotte
County v. IMC-Phosphates Co., 27 Fla. L. Weekly D1917 (Fla. 1st DCA August
22, 2002). An association which is an adjacent landowner has standing to challenge a resolution amending a DRI project. Edgewater Beachowners Ass'n., Inc. v. Walton County, 27 Fla. L. Weekly D1880 (Fla. 1st DCA August 22, 2002). State employee is not entitled to credit for time working for The Florida Bar toward his retirement as The Florida Bar does not participate in, nor pay contributions to, the Florida Retirement System. Boggs v. Dept. of Management Services, Division of Retirement, 27 Fla. L. Weekly D1848 (Fla. 1st DCA August 14, 2002). A taxpayer seeking a refund pursuant to section 215.26 must complete the administrative process before proceeding to court challenging the constitutionality of a statute as applied, approving State Dept. of Highway Safety & Motor Vehicles v. Sarnoff, 776 So. 2d 976 (Fla. 1st DCA 2000). Sarnoff v. State Dept. of Highway Safety & Motor Vehicles, 27 Fla. L. Weekly S693 (Fla. August 22, 2002).Department of Health erred by rejecting Administrative Law Judge's findings that physician did not violate rules prohibiting delegation of professional responsibilities by having nurse sign written prescriptions. Prusi v. Department of Health, 27 Fla. L. Weekly D1832 (Fla. 1st DCA August 12, 2002). An optometrist's allowing a receptionist at a J.C. Penney Optical Center adjacent to his leased premises to make occasional appointments for him violated the rule prohibiting optometrists from suggesting they are affiliated with a non-licensed entity. Fowler v. Department of Health, Board of Optometry, 27 Fla. L. Weekly D1735 (Fla. 1st DCA July 31, 2002). Board erred
by rejecting administrative law judge's recommendation that no fine
be imposed as it did not state with particularity its reasons as required
by section 120.57(1)(j).
Fowler v. Department of Health, Board of Optometry, 27
Fla. L. Weekly D1735 (Fla. 1st DCA July 31, 2002). Department of
Business and Professional Regulation was entitled to suspend license
of applicant who failed to disclose prior criminal convictions even
though administrative law judge found there was no intent to deceive.
Threnhauser v. Dept. of Business and Professional Regulation
, 27 Fla. L. Weekly D1699 (Fla. 5th DCA July 26, 2002). A lay person's letter stating she could prove where she was stating in response to notice seeking recoupment of AFDC benefits because of her failure to report her change of address was sufficient to put the Department of Children and Family Services that she was requesting a hearing even though the letter did not contain the words "request" or "hearing." Kelly v. Florida Dept. of Children and Family Services, 27 Fla. L. Weekly D1619 (Fla. 3d DCA July 17, 2002). Mortgage broker's license was properly revoked where she deposited a customer's check in her personal account and told the customer the funds were with the title company. Comas v. Dept. of Banking and Finance , 27 Fla. L. Weekly D1623 (Fla. 3d DCA July 17, 2002).Board of Medicine erred where it adopted the administrative law judge's findings but imposed a different penalty without citing to the record the specific reasons for its action. Lusskin v. Dept. of Health, Board of Medicine , 27 Fla. L. Weekly D1546 (Fla. 4th DCA July 3, 2002). Board of Medicine erred by substituting its own expert opinion for that of the administrative law judge whose finding that a physician was not required to watch the loading of dye or the expulsion of air from the syringe during a ventriculogram as there was expert testimony that the physician met the standard of care. Gross v. Dept. of Health, 27 Fla. L. Weekly D1492 (Fla. 5th DCA June 28, 2002). Although the Department of Environmental Protection was requred to grant a permit as it had failed to take any action within thirty days of when it received an application, it may impose conditions to protect the environment. Tuten v. State of Florida, Dept. Environmental Protection , 27 Fla. L. Weekly D1150 (Fla. 4th DCA May 15, 2002). The Public Service Commission does not have rate structure jurisdiction over a rural electric cooperative's wholesale rate schedule established pursuant to contract. Lee County Electric Cooperative, Inc. v. Jacobs, 27 Fla. L. Weekly S379 (Fla. May 2, 2002). The NAACP and a couple of its representative members failed to produce competent substantial evidence would suffer a "real and sufficiently immediate injury in fact" to establish standing to challenge the Board of Regent's proposed rules prohibiting use of racial or gender set-asides, preference or quotas in the admissions process. NAACP, Inc. v. Florida Board of Regents, 27 Fla. L. Weekly D462 (Fla. 1st DCA Feb. 26, 2002). Florida's
public policy of requring reciprocal fee awards in contract actions is not
sufficiently strong enough to overcome choice of law provision in brokerage
agreement. Walls v. Quick & Reilly, Inc., 27 Fla. L. Weekly
D1971 (Fla. 5th DCA August 30, 2002). Notice of
appeal filed within thirty days of entry of corrective final judgment was
dismissed as it was not timely with respect to original judgment that was
final notwithstanding the fact it did not contain the words "for which let
execution issue." Friedman v. Friedman, 27 Fla. L. Weekly D1946
(Fla. 4th DCA August 28, 2002). Party who
waived statutory requirement that civil forfeiture be filed within forty-five
days of seizure was not entitled to a writ of prohibition. Ramos
v. State, 27 Fla. L. Weekly D1935 (Fla. 3d DCA August 7, 2002). Appellate
division of circuit court erred by not following mandate in that it failed
to determine whether there was competent substantial evidence county commission's
decision and addressed matters that were not within the mandate.
Metropolitan Dade County v. Dusseau, 27 Fla. L. Weekly D1932 (Fla. 3d
DCA August 28, 2002). Rule 9.130(a)(3)(C)(vii)
authorizing review of nonfinal orders concerning absolute or qualified
immunity does not apply to claims of immunity under the Eleventh Amendment.
State Board of Education v. Azer, 27 Fla. L. Weekly D1932
(Fla. 1st DCA August 28, 2002). The Florida
Supreme Court amended the Rules of Appellate Procedure governing withdrawal
of counsel in criminal cases, requiring appendices on briefs in cases invoking
the Supreme Court's discretionary jurisdiction, and governing motions for
rehearing in cases where no opinion was written. Amendments to
Florida Rules of Appellate Procedure, 27 Fla. L. Weekly S730 (Fla. August
29, 2002). Petition for writ of prohibition was granted where Secretary of Environmental Protection refused to recuse himself from issuing a final administrative order in a case he publicly commented upon on the day the recommended order was rendered. Charlotte County v. IMC-Phosphates Co., 27 Fla. L. Weekly D1917 (Fla. 1st DCA August 22, 2002). As defense counsel did not object to "aggravation" instruction on ground aggravation of pre-existing injury was not specifically pled, the issue was not preserved for appellate review. Goss v. Permenter, 27 Fla. L. Weekly D1911 (Fla. 5th DCA August 23, 2002). District Court of Appeal denied petition for writ of mandamus seeking to compel clerk of circuit court and sheriff to act promptly on effectuating service of a civil complaint as it had been less than three weeks since petitioner had sent a letter to clerk seeking to resolve the matter and petitioner had not attempted to resolve the matter with the trial court. Allen v. Young, 27 Fla. L. Weekly D1887 (Fla. 1st DCA August 20, 2002). Hospitals
are required to report every instance of brain damage to the Agency for Health
Care Administration, even though it may not be permanent. Florida
Hospital v. State of Florida Agency for Health Care Administration,
27 Fla. L. Weekly D1885 (Fla. 1st DCA August 20, 2002). Whether a
party has standing is a pure question of law to be reviewed by de novo.
Edgewater Beachowners Ass'n., Inc. v. Walton County, 27 Fla. L.
Weekly D1880 (Fla. 1st DCA August 22, 2002). A discharge
of a writ of certiorari as being improvidently granted does not constitute
binding precedent. Shaps v. Provident Life & Accident Ins.
Co. , 27 Fla. L. Weekly S710 (Fla. August 29, 2002). District Court
of Appeal denied petition for writ of mandamus requesting court to reverse
trial court's granting of untimely motion for recusal as motion was barely
late and explanation was reasonable. Ingram v. Coca Cola Enterprises,
Inc., 27 Fla. L. Weekly D1870 (Fla. 5th DCA August 16, 2002). Pursuant to
Rule 9.315, District Court of Appeal summarily reversed final judgment
which reserved jurisdiction to decide other counts and remanded to trial
court to enter interlocutory order.
Molina v. Silver Pines Partners, Ltd., 27 Fla. L. Weekly D1835
(Fla. 3d DCA August 14, 2002). First District
Court of Appeal denied petition to review non-final agency order requiring
commission to pay cost of transcript where administrative law judge
had entered a final order which was appealed to sister District Court
of Appeal as commission could file a belated cross-appeal in that action.
Florida Fish & Wildlife Conservation Commission v. McGill,
27 Fla. L. Weekly D1800 (Fla. 1st DCA August 6, 2002). Appointment
of a co-personal representative is not an appealable order.
Garces v. Montano, 27 Fla. L. Weekly D1791 (Fla. 3d DCA August
7, 2002). District Court of Appeal lacked jurisdiction to review an untimely appeal of an order denying rehearing of a rehearing. DeArdila v. Chase Manhattan Mortgage Corp., 27 Fla. L. Weekly D1789 (Fla. 3d DCA August 7, 2002). Party waived right to object that case was not at issue as no answer had been filed to counterclaim by not raising issue before trial. Tower Group, Inc. v. Thyssen Elevator Co., 27 Fla. L. Weekly D1786 (Fla. 3d DCA August 7, 2002). Trial court
departed from essential requirements of law by deferring ruling on issue
of whether a party was entitled to qualified immunity. O'Brien
v. Exposito , 27 Fla. L. Weekly D1787 (Fla. 3d DCA August 2, 2002). Standard of
review for summary judgments is de novo. Scheibe v. Bank of
America, N.A., 27 Fla. L. Weekly D1769 (Fla. 5th DCA August 2,
2002). District Court
of Appeal, pursuant to Rule 9.125, certified directly to the Florida
Supreme Court the question of whether Chapter 2002-390, which requires
proposed constitutional initiatives to have "an analysis and fiscal
impact statement" is constitutional. Harris v. Coalition to
Reduce Class Size and Pre-K Committee , 27 Fla. L. Weekly D1685
(Fla. 1st DCA July 26, 2002). Circuit court
failed to observe essential requirements of by deferring to county
court's determination that it had en personam jurisdiction instead
of performing an independent analysis. Ganiko v. Ganiko
, 27 Fla. L. Weekly D1677 (Fla. 1st DCA July 23, 2002). District Court of Appeal transferred to Florida Supreme Court appeal of trial court's "temporay" injunction enjoining enforcement of rule allowing eradication of canker infected trees, as it was final with respect to constitutionality of search and seizure issues and required immediate resolution by the Florida Supreme Court. Florida Dept. of Agriculture and Consumer Services v. Haire, 27 Fla. L. Weekly D1583 (Fla. 4th DCA July 9, 2002). As qualified and sovereign immunity protect government bodies and public officers from suit, a writ of certiorari should be granted where trial court denies motions for summary judgment. Board of Regents v. Snyder, 27 Fla. L. Weekly D1634 (Fla. 2d DCA July 19, 2002). Florida Supreme Court declined to accept jurisdiction of the citrus canker case, noting it could be appropriately handled by the District Court of Appeal. Florida Dept. of Agriculture and Consumer Services v. Haire, 27 Fla. L. Weekly S683 (Fla. July 11, 2002). Petition for mandamus
in circuit court is appropriate method for reviewing clerk's
refusal to respond to request for access to judicial records.
Itturaldes v. Gardner , 27 Fla. L. Weekly D1568 (Fla.
5th DCA uly 5, 2002). Motion to amend
order granting new trial on basis judge did not specify grounds
fro granting motion did not toll the time for appealing the original
order for new trial. Tedder v. Visually Impaired Persons
of Southwest Florida, Inc., 27 Fla. L. Weekly D1518 (Fla. 2d
DCA June 28, 2002). Motion for new trial
filed on December 26 although ten days was on December 24,
as Christmas Eve had been declared to be a legal holiday by a
local administrative order issued by the Chief Judge of the Circuit.
R.J. Reynolds Tobacco Co. v. Kenyon, 27 Fla. L.
Weekly D1513 (Fla. 2d DCA June 28, 2002). Order stating "Plaintiff's
Second Amended Complaint shall be dismissed with prejudice
and judgment in favor of defendant shall be entered" is a nonfinal,
nonappealable order as it establishes entitlement to a judgment
and does not actually enter or render a judgment. Hoffman
v. Hall, 27 Fla. L. Weekly D1468 (Fla. 1st DCA June 6, 2002)(Interestingly,
the Court refused to relinquish jurisdiction to permit entry of
a final order). Lessee is not entitled to writ of mandamus against Sheriff who exercised his discretion in recovering furniture purportedly belonging to lessor. Miller v. Bieluch, 27 Fla. L. Weekly D1450 (Fla. 4th DCA June 19,(2002).
Dismissal of counts without prejudice is a nonfinal nonappealable order. Figueredo v. Jenne, 27 Fla. L. Weekly D1383 (Fla. 4th DCA June 12, 2002). Mandamus is appropriate remedy to compel trial court to hold hearing on plaintiff's request to examine public records at the defendant's offices. James v. Loxahatchee Groves Water Control District, 27 Fla. L. Weekly D1326 (Fla. 4th DCA June 5, 2002). An advisory council formed pursuant to section 228.58 is not a legal entity and therefore cannot pursue an appeal. Berkley Elementary School Advisory Council v. School Board of Polk County , 27 Fla. L. Weekly D 1147 (Fla. 2d DCA May 17, 2002). Appellate court did not have appellate
jurisdiction to review non-final order denying Sheriff's 11th
Amendment immunity claim, but granted certiorari as such denial
would cause irreparable injury. Jenne v. Maranto
, 27 Fla. L. Weekly D1094 (Fla. 4th DCA May 8, 2002). Bank's filing petition to seek Supreme Court's discretionary review does not entitle it to a stay without posting bond under 12 U.S.C. section 91. First Union National Bank v. Turney, 27 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 13, 2002). The Supreme Court published its
Manual of Internal Operating Procedures at 27 Fla.
L. Weekly S150 (Fla. Jan. 31, 2002). It is also
posted it at its website
Chiropractic physician was not entitled to appeal Board's decision to fine him as he had not filed exceptions to the Administrative Law Judge's recommended order. Rubinstein v. Agency for Health Care Administration, 27 Fla. L. Weekly D339 (Fla. 3d DCA Feb. 6, 2002). Administrative
order capping court appointed attorney's fees in capital cases at $50 an
hour is not confiscatory nor an infringement on defendant's right to competent
counsel, approving Sheppard & White, P.A. v. City of Jacksonville, 751
So. 2d 731 (Fla. 1st DCA 2000) and quashing Charlotte County v. Shirley,
750 So. 2d 706 (Fla. 2d DCA 2000).
Sheppard & White, P.A. v. City of Jacksonville, 27 Fla. L. Weekly
S739 (Fla. Sept. 12, 2002)., Attorney for personal representative cannot assert attorney-client privilege as an objection to being deposed where jury had found personal representative had breached her fiduciary duty and interfered with an inheritance. Niles v. Mallardi, 27 Fla. L. Weekly D1997 (Fla. 4th DCA Sept. 4, 2002). Defendant
was entitled to attorney's fees under the reciprocity provision of section
57.105(5) where plaintiff voluntarily dismissed its case. Ajax Paving
Industries, Inc. v. Hardaway Co., 27 Fla. L. Weekly D1949 (Fla. 2d DCA
In a dissenting
opinion, Judge Cope explains that section 255.20(4), which authorizes
attorney's fees, applies where the government has failed to use a competitive
bidding procedure and does not apply to bid contests. City of
Sweetwater v. Solo Construction Corp., 27 Fla. L. Weekly D1879 (Fla.
3d DCA August 21, 2002). Trial court
abused its discretion in denying request for attorney's fees under 57.105
as defendants' objection to personal jurisdiction and submission of
affidavits that they did not maintain business office in Florida, own
real property in Florida, reside in Florida, pay taxes in Florida were
bascially unresponsive to complaint's factual allegations concerning
defendants using Florida professionals in procuring and developing Florida
property. Gahn v. Holiday Property Bond, Ltd., 27 Fla. L.
Weekly D1822 (Fla. 2d DCA August 9, 2002).
Where PIP complaint
requested attorney's fees, final judgment reserved jurisdicition
on attorney's fees, and insurer waited until two years before objecting
that request for fees did not specify statute, insurer was on notice
of plaintiff's claim for attorney's fees and acquiesced to that claim.
Betancourt v. U.S. Security Ins. Co., Inc., 27 Fla. L. Weekly
D1672 (Fla. 3d DCA July 24. 2002). A plaintiff's
communicating with two secretaries of a law firm in an attempt
to retain counsel did not establish an attorney-client relationship
and therefore is not a basis for seeking disqualfication of that firm.
Billings v. Martinez , 27 Fla. L. Weekly D1661 (Fla.
4th DCA July 17, 2002). Section 768.28(5),
which imposes a cap on attorney's fees to 25% judgment, applies
to net judgment including costs and attorney's fees and is not limited
only to damages awarded by jury. City of Jacksonville v. Brooks
, 27 Fla. L. Weekly D1650 (Fla. 1st DCA July 16, 2002). Motion for attorney's
fees was untimely under new Rule 1.525 as it was filed more than
thirty days after judgment was filed. Ulico Casualty Co.
v. Roger Kennedy Construction, Inc., 27 Fla. L. Weekly D1644 (Fla.
1st DCA July 19, 2002). Party was entitled
to attorney's fees under section 57.105 where opposing counsel
filed post judgment motion based on allegations counsel was aware
of months before trial. Freedom Commerce Centre Venture
v. Ranson , 27 Fla. L. Weekly D1640 (Fla. 1st DCA July 19, 2002). Trial court erred
in granting summary judgment in favor of attorney in malpractice
and breach of fiduciary duty action where client accused attorney
of failure to protect her interest in marital asset during the pendency
of a dissolution proceeding even though client had stated in Florida
Bar complaint that the losses sustained in a brokerage account were
due to a rogue broker's actions. Behr v. Foreman, 27
Fla. L. Weekly D1638 (Fla. 2d DCA July 19, 2002). Attorney's fees
incurred in dissolving a lis pendens are not an element of damages where
a surety bond is not involved. Tampa Association was entitled to award of attorney's fees under declaration's provision that party enforcing restrictive covenant shall have right to recover attorney's fees and reciprocity provision of sectrion 57.105(5), where property owners voluntarily dismissed complaint. Holiday Square Owners Association, Inc. v. Tsetsenis, 27 Fla. L. Weekly D1600 (Fla. 5th DCA July 12, 2002). Trustee who filed interpleader in land sales commission dispute was not individually liable for attorney's fees to the prevailing party. Jonathan D. Commander, P.A. v. 3 Bridges Realty, Inc., 27 Fla. L.Weekly D1588 (Fla. 4th DCA July 10, 2002). Trial court erred in determining it was required to find there was a prevailing party in a breach of contract case. Miller v. Jacobs & Goodman, P.A., 27 Fla. L. Weekly D1567 (Fla. 5th DCA July 5, 2002). A proposal for settlement
stating defendant would pay plaintiff "TWO HUNDRED AND 00/100
DOLLARS ($1,000.00)," and that there were no non-monetary terms
when there were conditions that the parties sign releases was
ambiguous and therefore did not provide a basis for an attorney's
fees award. Jamieson v. Kurland, 27 Fla. L. Weekly
D1511 (Fla. 2d DCA June 28, 2002). Trial court properly dismissed a National Assocication of Securities Dealers, Inc.'s member's complaint seeking to enjoin arbitration of a dispute with a customer even thought there was no agreement to arbitrate such dispute as the NASD's Code of Arbitration Procedure provides arbitration will apply to its member's disputes with customers "arising in connection" with their business. K.W. Brown Co. v. McCutchen , 27 Fla. L. Weekly D1476 (Fla. 4th DCA June 26, 2002). Joint proposal for
settlement from two plaintiffs to one defendant did not support
award for attorney's fees as it failed to apportion the damages
between the plainitffs. Hilyer Sod, Inc. v. Willis Shaw
Express, Inc., 27 Fla. L. Weekly D1469 (Fla. 1st DCA June 6, 2002). Unlike slander of
title, neither a declaratory judgment nor a quieting title
action can be a basis for recovering attorney's fees as an element
of damages. Tyler v. Price, 27 Fla. L. Weekly D1461 (Fla.
4th DCA June 19, 2002). Trial court properly
denied request fees sought under section 57.111 as Department
of Health, Board of Dentristy was substantially justified in
bringing complaint and later dismissed it because two of its witnesses
had died. Fish v. Dept. of Health, Board of Dentistry, 27
Fla. L. Weekly D1451 (Fla. 4th DCA June 19, 2002). Department of Health was entitled to attorney's fees as trial court found that assessment of fees was appropriate, but was not entitled to coningency risk multiplier. Discovery Experimental and Development, Inc. v. Dept. of Health , 27 Fla. L. Weekly D1395 (Fla. 2d DCA June 14, 2002). Defendant who offered
judgment for $16,501 was entitled to attorney's fees and
costs where plaintiff obtained verdict for $54,000, but judgment
was for zero dollars after being offset by comparative negligence
and receipt of proceeds from sale of boat. Anderson v.
King , 27 Fla. L. Weekly D1394 (Fla 2d DCA June 14, 2002).
Trial court's award
of attorney's fees, expert witness fees and costs
in eminent domain action reversed as 1) attorney's fees
award included time spent on matters unrelated to condemnation
proceeding, 2) time spent by expert witnesses at post-trial
depositions should be allocated between time spent on entitlement
and time spent on amount, and 3) general overhead expenses such
as photocopying, postage, long-distance telephone calls, fax transmissions
and delivery services should not be taxed as costs.
Seminole County v. Chandrinos , 27 Fla. L. Weekly D1278
(Fla. 5th DCA May 31, 2002). Trial court's awarding
attorney's fees under its inherent authority reversed
as it had not made a specific finding of bad faith or follow
the procedures recently implemented by the Supreme Court
in Moakley v. Smallwood , 27 Fla. L.
Weekly S357 (Fla. Feb. 28, 2002), granting rehearing of opinion
reported at 27 Fla. L. Weekly D441. North County
Company, Inc. v. Bologna, 27 Fla. L. Weekly D1275 (Fla.
4th DCA May 29, 2002). Attorney did no
violate Disciplinary Rule 4-4.2, prohibiting communications with managerial
employees of opposing party, and therefore should not be disqualified where
he took statement of managerial employee of subsidiary company wholly owned
by opposing party. Allstate Ins. Co. v. Bowne, 27 Fla. L. Weekly
D1267 (Fla. 4th DCA May 29, 2002). Trial court
did not abuse its discretion in relying upon an expert
witness's opinion on attorney's fees even though expert
witness admitted he spent a scant three hours of preparation
in forming his opinion and did not review the attorney's entire
file. Island Hoppers, Ltd. v. Keith , 27 Fla.
L. Weekly D1257 (Fla. 4th DCA May 29, 2002). (There is interesting
dicta concerning the need to even have an expert witness testify
at attorney's fees hearings.) Trial court may
apply a contingency factor to a claim for attorney's fees under the offer
of judgment statute, section 768.79, certifying conflict with Allstate
Ins. Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th DCA 2001). Island
Hoppers, Ltd. v. Keith, 27 Fla. L. Weekly D1257 (Fla. 4th DCA May 29,
2002). Trial court improperly ordered a fine and incarceration for an attorney for :stonewalling and stalling tactics" as the attorney had previously been fined for prior activities and could not be found in contempt because of his clients' failure to provide affidavits and tax documents. Levey v. D'angelo , 27 Fla. L. Weekly D1255 (Fla. 4th DCA May 29, 2002). Attorney for company
that repossessed yacht was not liable to yacht brokers
for commission as a result of his client's dealing directly
with the yacht brokers' client as he was simply acting
as an agent for a disclosed principal. Richard
Bertram, Inc. v. Sterling Bank & Trust , 27 Fla.
L. Weekly D1202 (Fla. 4th DCA May 22, 2002). Insurer was liable for attorney's fees as it did not preauthorize surgery for an injury within medical payments coverage. State Farm Mutual Automobile Ins. co. v. Gueimunde , 27 Fla. L. Weekly D1188 (Fla. 3d DCA May 22, 2002).
In a wrongful death case, a defendant may make a proposal for settlement to the personal representative and is not required to apportion the offer among the various survivors. Thompson v. Hodson, 27 Fla. L. Weekly D1042 (Fla. 1st DCA May 9, 2002).
Proposal to settle for "TWO HUNDRED AND 00/100 DOLLARS ($1,000.00)" did not properly state the total amount as required by Rule 1.442 and therefore did not justify award for attorney's fees. Jamieson v. Kurland , 27 Fla. L. Weekly D955 (Fla. 2d DCA April 26, 2002). Trial judge erred in awarding pre-judgment interest on attorney's fees award from date of summary judgment, where motion for fees was filed three years later and did not specify the amount being requested. Aries Insurance Co. v. Aleman , 27 Fla. L. Weekly D920 (Fla. 3d DCA April 24, 2002).
BUSINESS AND EMPLOYMENT LAW Statute authorizing
denial of workers' compensation benefits because of employee's committing
a fraudulent act is not a violation of the employee's constitutional rights
to due process, jury trial and access to courts. Medinal v. Gulf Coast
Linen Services, 27 Fla. L. Weekly D2021 (Fla. 1st DCA Sept. 6, 2002). A party's
belief that it was contracting with a different company was not sufficient
support of judge's finding there was no meeting of the minds and therefore
no contract. Governing Board of the St. Johns Water Management District
v. Continental Aerial Surveys, Inc., 27 Fla. L. Weekly D2017 (Fla. 5th DCA
Sept. 6, 2002). Employee's
testimony that at time of accident he was hauling construction and demolition
materials was insufficient evidence to support judge's finding that employee
was actively engaged in the construction industry. Allied Trucking
of Florida, Inc. v. Lanza, 27 Fla. L. Weekly D2003 (Fla. 1st DCA Sept. 3,
2002). Judge of compensation
claims erred in finding that employer was not required to have knowledge
of employee's preexisting permanent impairment in order to make claim for
reimbursement from the Special Disability Trust Fund. Special Disability
Trust Fund v. Brevard County Board of County Commissioners, 27 Fla. L. Weekly
D1999 (Fla. 1st DCA Sept. 3, 2002). Party suing on lost or destroyed promissory note need only aver promissory note was lost or destroyed and does not have to explain how. Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002). Party suing on lost or destroyed promissory note was not required to be in possession when loss occurred. Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002). Trial court erred in finding lack of consideration where guarantor executed promissory note to replace earlier note that had been discharged by the primary obligor's bankruptcy. Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002). Assignment
of promissory note was effective regardless of whether it was made before
or after promissory note was lost or destroyed.
Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002). |