Tuesday, September 22, 2009

Appeals, covenants not to compete, indemnity, loan agreements and mesclun salad with balsamic-grape seed oil mustard vinaigrette

Contracts -- Employment -- Noncompetition covenant -- Enforcement -- Attorney's fees -- Employer who had restrictive covenant with employees cannot recover its attorney's fees from a third party who knowingly aided and abetted the employees' violation of the restrictive covenant -- Conflict certified -- Attorney's fees could not be awarded as matter of equity -- To extent plaintiff sought to recover attorney's fees under section 542.335(1)(k), no such statutory authority exists against a third party who did not sign restrictive covenant -- Third party's defense of suit brought against her by employer is not an “action” challenging the enforceability of a restrictive covenant -- Section 542.16, in which the legislature declared it to be the purpose of the Florida Antitrust Act to complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition and declared its intent that the act be liberally construed to accomplish this purpose, does not provide authority for allowing employer to recover fees from third party pursuant to section 542.335(1)(k) -- Application of statute to allow recovery of fees from third party is not dictated by public policy
Reported at 34 Fla. L. Weekly D1892b


Corporations -- Indemnity -- Contracts -- Trial court properly entered summary judgment for former vice-president and general manager of defendant corporation's agency on her claim for indemnification for attorney's fees and costs incurred in her successful defense of criminal charges of money laundering and conspiracy to launder money while acting in her capacity as vice-president -- Summary judgment for plaintiff on indemnification claim was proper because plaintiff was prosecuted “by reason of the fact” that she was an officer of the corporation and was acquitted because she was “successful on the merits or otherwise” -- Trial court properly entered summary judgment for plaintiff on breach of contract claim seeking payment for past wages when she was suspended without pay -- Where corporation's personnel manual provided for suspension of employee only until charges are clarified, once charges against plaintiff were clarified, defendant had option of paying plaintiff compensation required under employment contract or terminating her under one of justified reasons for termination under contract, and defendant did neither
Reported at 34 Fla. L. Weekly D1900a


Dependent children -- Appeals -- Non-final orders -- Post-dependency order denying father's motion for reunification -- Father's notice of appeal and amended initial brief treated, together, as petition for writ of certiorari -- Father made no showing that trial court's decision to deny immediate reunification was an abuse of discretion -- In absence of transcript, appellate court unable to determine whether father adduced evidence that could support any additional findings that would militate in favor of reunification -- Accordingly, father has not shown that trial court's findings of fact were materially inadequate or incomplete, much less that they were departure from essential requirements of law -- Petition for writ of certiorari denied
Reported at 34 Fla. L. Weekly D1881a

Interest -- Prejudgment -- Waiver -- Appeal of judgment providing that prejudgment interest would be awarded by separate order -- Questions certified: Where there has been an agreement on, or no objection to, a reservation of jurisdiction to award prejudgment interest, should the reservation be upheld in order to prevent an injustice notwithstanding the rule in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992)? -- Where a judgment contains a reservation of jurisdiction to award prejudgment interest, should the appeal of such judgment be treated as a premature appeal under Florida Rule of Appellate Procedure 9.100(l), or must the appeal be treated as accomplishing a waiver of prejudgment interest pursuant to McGurn v. Scott? -- Whether a trial court should be allowed to reserve jurisdiction to award prejudgment interest post-appeal as it can with attorneys' fees and costs?
Reported at 34 Fla. L. Weekly D1902a

Contracts -- Loan agreement -- Guaranty -- Lender's action for nonpayment of promissory note and breach of guaranty -- Discovery -- Order requiring guarantor's wife, a nonparty, to disclose personal financial information that was neither relevant to lender's claims nor reasonably calculated to lead to the discovery of admissible evidence departed from essential requirements of law -- To extent order requires wife to disclose personal financial information, it undeniably violates her right to privacy, and such disclosure may cause irreparable harm that cannot be remedied on appeal -- Lender's argument based on case law involving claim asserted under Uniform Fraudulent Transfer Act is unavailing where lender has neither alleged claim under UFTA nor added putative fraudulent transferee as defendant in pending action -- Lender's claim that inquiry into wife's finances was justified because it had relied on wife's personal assets in reaching decision to make loan is not only unsupported by sufficient record evidence and lacking in credibility, such reliance would not give lender rights it would otherwise lack to obtain discovery from nonparty concerning her personal financial information
Reported at 34 Fla. L. Weekly D1910b

Civil rights -- Torts -- Pretrial detainees -- Correction officers -- Deliberate indifference to serious medical needs -- Cruel and unusual punishment -- Negligent or wanton breach of duties -- Action arising out of pretrial detainee's death, alleging jailer was negligent in fastening detainee to D-ring in jail cell when detainee became increasingly agitated, in failing to ensure that detainee received Librium doses prescribed by medical personnel, and in failing to check on detainee for several hours although detainee was on fifteen-minute observation status; and that jailer falsified close-observation documents to indicate that fifteen-minute checks had been done -- Sovereign immunity -- Alabama law is unclear on whether jailers are entitled to absolute immunity against state law claims -- Question certified to Alabama Supreme court: Are jailers, like sheriffs and their deputies, absolutely immune from state claims for money damages based on actions taken within the scope of their employment?

Reported at 22 Fla. L. Weekly Fed. C136a
Banks -- Torts -- Breach of fiduciary duty -- Negligent misrepresentation -- Injunctions -- Plaintiffs seeking to restrain bank from paying an irrevocable standby letter of credit, which was issued for purpose of paying for the purchase of a luxury motor yacht to be built in China and which named codefendant/contractor's Chinese bank as beneficiary, based on alleged oral misstatements and omissions by bank's employee -- Claim for breach of fiduciary duty by issuing bank must fail where relationship between plaintiffs and this bank was nothing more than lender-borrower -- Plaintiff produced no evidence to support testimony that issuing bank told plaintiff that he would be protected in letter of credit transaction with a stipulation that the letter of credit would only be paid upon completion of the yacht construction -- Where letter of credit contained language requested by and provided entirely by the plaintiff to bank's employee and plaintiff read, approved, and signed the document, reliance on alleged oral representations is unjustified, and claims for negligent misrepresentation and equitable estoppel must fail -- Fraud -- Although letter of credit is normally independent from underlying contract, letter of credit must be rescinded if underlying contract was procured through fraud -- Plaintiffs' claim that Chinese bank engaged in fraud by making loans to contractor without securing those loans with collateral, loaning money to contractor to build a yacht when it knew that contractor did not have the capability of doing so, and lying when it demanded payment on letter of credit by stating that it was indebted to contractor for building the yacht, although yacht was never built, was unsupported by evidence in the record -- Unjust enrichment claim against Chinese bank must fail where plaintiffs presented no evidence that Chinese bank engaged in any wrongdoing -- Moreover, it was equitable for Chinese bank to demand payment on letter of credit where it had loaned money to contractor to finance construction of yacht and money had not been repaid -- Civil conspiracy -- Evidence did not support claim that issuing bank and Chinese bank entered into agreement to defraud plaintiffs of the money they put up to purchase yacht -- Court finds in favor of defendants -- Injunction previously issued by court enjoining payment of letter of credit is vacated and dissolved
Reported at 22 Fla. L. Weekly Fed. D43a

Fair Labor Standards Act -- Overtime -- Settlement -- Extent to which court should inject itself into process of approving FLSA settlements -- Objection to magistrate's report and recommendation, which included recalculation of and reduction of attorney's fees amount using lodestar method -- FLSA settlement which involves a compromise of plaintiff's claims requires court approval -- If parties submit proposed FLSA settlement that constitutes a compromise of plaintiff's claims, makes full and adequate disclosure of the terms of the settlement, including the factors and reasons considered in reaching the same and justifying compromise of plaintiff's claims, and represents that attorney's fees were agreed upon separately and without regard to the amount paid to the plaintiff, then, unless the settlement does not appear reasonable on its face or there is reason to believe that plaintiff's recovery was adversely affected by the amount of fees paid to his attorney, court will approve the settlement without separately considering the reasonableness of the fee to be paid to plaintiff's counsel -- However, if parties can only agree as to the amount to be paid to the plaintiff, the court will continue past practice of determining a reasonable fee using the lodestar approach -- Parties in this case are given leave to amend their renewed joint motion to approve settlement agreement to address whether plaintiff's attorney's fee was agreed upon separately and without regard to amount paid to plaintiff
Reported at 22 Fla. L. Weekly Fed. D51a

Torts -- Defamation -- Counties -- School boards -- Privilege -- Action against school board and elected member/vice-chair of board based on allegedly defamatory statements made at school board meetings and to the media regarding plaintiff, who was terminated from her position as “school board attorney” for alleged misconduct in accepting moving expense allowance, although she never moved -- School board member enjoys absolute privilege with respect to all of the alleged statements where the alleged defamatory statements were made in connection with the performance of her official duties and responsibilities
Reported at 22 Fla. L. Weekly Fed. D54a


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