Monday, May 30, 2011

Attorneys' fees, burgers with extra sharp cheddar cheese, and apple pie with rosemary-butter crust and vanilla bean ice cream

Attorney's fees -- Quantum meruit -- Trial court erred in concluding that fees could not be awarded solely because counsel did not keep, or attempt to recreate, accurate time records -- Although time spent on case is one factor to be considered under quantum meruit theory, trial court must consider totality of circumstances in computing reasonable value of services rendered
Reported at 36 Fla. L. Weekly D1028c

Attorney's fees -- Offer of judgment -- Consumer law -- Florida Consumer Collection Practices Act preempts award of attorney's fees and costs pursuant to offer of judgment/proposal for settlement -- Motion to strike and to remove offer of judgment/proposal for settlement from court file is granted
VIEW OPINION

Attorney's fees -- Costs -- Proposal for settlement -- Prevailing party -- Proposal for settlement under section 768.79, Florida Statutes, does not cut off a prevailing party's claim for contractual attorney's fees and costs incurred after the date of the proposal -- Trial court properly awarded defendant attorney's fees and costs incurred after the date of its valid proposal for settlement, and properly awarded plaintiff, which prevailed in its breach of contract action, all of its attorney's fees and costs through trial pursuant to a prevailing party attorney's fees provision in contract
Reported at 36 Fla. L. Weekly D1049b

Attorney's fees -- Prevailing party -- Mutuality of obligation -- Mortgage foreclosure -- A defendant was entitled to recover attorney's fees as a prevailing party under section 57.105(7), where mortgage entitled mortgagee to reasonable attorney's fees for enforcement, after court granted motion to dismiss mortgage foreclosure and dismissed the case without prejudice -- Pleading requirement -- It was proper for defendant to seek attorney's fees in a motion filed after entry of dismissal without prejudice where she had not yet filed a responsive pleading -- Plaintiff's voluntary dismissal makes a defendant a prevailing party even where plaintiff refiles the case and prevails
Reported at 36 Fla. L. Weekly D1065a

Attorney's fees -- Trial court erred in awarding attorney's fees at an hourly rate that exceeded the rate agreed to by party's attorney in noncontingent fee agreement -- Alternative fee recovery clause in fee agreement, which provided for an award of the greater of the contract fee or the amount awarded by the court, is unavailing where fee arrangement was not contingent and party's attorney did not assume any risk of nonpayment for his services.
36 Fla. L. Weekly D1139a

Banks -- Settlement of checks -- Unjust enrichment -- Class action against bank for violation Section 655.85, Florida Statutes, by charging check-cashing service fee on personal check presented in person by non-account-holding payee and for unjust enrichment -- Federal preemption -- Florida statute, which prohibits a bank from settling any check drawn on it other than at par, is preempted by regulations promulgated by Office of Comptroller of Currency pursuant to National Banking Act -- Florida's par value statute, which prohibits charging fees to non-account-holders, is in substantial conflict with OCC regulations which specifically authorize banks to charge fees to non-account-holders presenting checks for payment -- Unjust enrichment claim which relies on identical facts as claim under Florida statute is also preempted -- Unjust enrichment claim also fails as matter of law because plaintiff cannot prove each element of claim
Reported at 22 Fla. L. Weekly Fed. C2036a

Bankruptcy -- Exempt property -- Personal property -- Enhanced statutory exemption -- A debtor who initially did not claim, then claimed, and then disclaimed the benefit of Florida's constitutional homestead exemption is not receiving the benefit of the constitutional homestead exemption and can use Section 222.25(4), Florida Statutes, to claim an additional $4000 exemption for personal property -- Act of not claiming, claiming, and then disclaiming Florida's constitutional homestead exemption does not constitute sufficient prejudice, concealment, or bad faith to disallow debtor's final amendment to schedules disclaiming the homestead exemption and claiming the personal property exemption -- Debtor is not receiving the benefits of homestead exemption by virtue of her relationship with her ex-husband, where they are divorced and do not hold the homestead as tenants by entireties since only married persons can do so under Florida law -- Both statutory and constitutional personal property exemptions may be utilized so long as debtor is not also claiming the constitutional homestead exemption
Reported at 22 Fla. L. Weekly Fed. B674a

Civil rights -- Public accommodations -- Further factfinding is required by Florida Commission on Human Relations regarding whether the presence of a restaurant and tiki hut transformed a marina into a public accommodation for purposes of Florida Civil Rights Act -- If the restaurant and tiki hut are located on the marina's property, and if the marina serves their patrons, the marina would qualify as a public accommodation
Reported at 36 Fla. L. Weekly D1035b

Counties -- Code enforcement -- Appeals -- Circuit court, sitting in appellate capacity, did not depart from essential requirements of law in finding that property owner's motion for rehearing of special master's violation order was untimely where motion was filed more than thirty days after violation order was entered -- Circuit court departed from essential requirements of law in finding that notice of appeal from enforcement orders imposing penalty/lien was untimely -- Although property owner failed to timely appeal violation order, this failure does not bar her from appealing subsequently entered enforcement orders -- Circuit court also departed from essential requirements of law when it affirmed the orders under review after it concluded that it lacked jurisdiction over the appeal
Reported at 36 Fla. L. Weekly D1079b

Dependent children -- Violation of “Stipulation for Plan of Treatment” -- General master did not have authority to conduct adjudicatory hearing under section 39.507, which requires that such hearings be conducted by judge -- Moreover, rule 8.257(h) prohibits general magistrate from presiding over adjudicatory hearing under section 39.507 -- Rule further provides that no matter shall be heard by general magistrate without appropriate order of referral -- Finally, agency presented no evidence to show that mother materially violated stipulation or that child was otherwise dependent within meaning of statute
Reported at 36 Fla. L. Weekly D1045b

Dissolution of marriage -- Support -- Trial court abused discretion by requiring husband to provide health insurance for wife without setting any limitation as to amount he would have to pay to comply with requirement -- Court erred in requiring husband to maintain life insurance to secure alimony and child support in an amount in excess of life insurance currently maintained by husband where there was insufficient evidence that insurance in excess of insurance currently maintained was available or reasonably affordable -- Court erred in failing to allocate amount of insurance designated to secure alimony award and amount designated to secure child support award -- Court did not err in requiring husband to contribute to children's private school tuition and related expenses -- Trial court's requirement that husband contribute to the costs of children's extracurricular activities construed to apply only to those extracurricular activities that are agreed to by the parties pursuant to shared parental responsibility
Reported at 36 Fla. L. Weekly D1021a

Employee benefit plans -- Pension -- Challenge to new plan which, in some respects, was less generous than prior plan -- District court, having determined that plan fiduciary's failure to give plan beneficiaries proper notice of changes to their benefits caused its employees sufficient injury to warrant legal relief, lacked authority to reform the plan under section 502(a)(1)(B) of Employee Retirement Income Security Act, which authorizes plan participant or beneficiary to bring civil action to recover benefits due under terms of plan -- However, relief is authorized by section 502(a)(3), which allows a participant, beneficiary, or fiduciary to obtain “other appropriate equitable relief” to redress violations of ERISA or a plan's terms -- Relevant standard of harm will depend upon the equitable theory by which the district court provides relief -- Discussion of equitable principles that may apply on remand
Reported at 22 Fla. L. Weekly Fed. S985a

Estates -- Creditors' rights -- Where bank was secured creditor of deceased physician's professional association under a note and mortgage which provided bank with right of setoff in all professional association's accounts with bank, with decedent being a personal guarantor of the note, it was error to enter order directing transfer of funds in professional association's account at bank to the depository account established for the administration of decedent's estate at another bank -- Order impaired bank's right of setoff -- The affairs of a corporation, even though substantially owned by a decedent, cannot be administered by decedent's executor as assets of the decedent's estate -- Trial court order is reviewable non-final order
Reported at 36 Fla. L. Weekly D1079a


False Claims Act -- Public disclosure bar -- A federal agency's written response to a request for records under Freedom of Information Act constitutes a “report” within meaning of FCA's public disclosure bar
Reported at 22 Fla. L. Weekly Fed. S975a

Insurance -- Life insurance -- Insurable interest -- Where insurance agent procured life insurance policy on the life of his client, with a trust named as owner and beneficiary of the policy, trial court properly found that the trust did not have an insurable interest in the insured's life, and that the policy was void ab initio -- Trial court properly determined that the trust was not entitled to a refund of any premiums paid -- Where a party wrongfully procures a life insurance policy on an individual in whom it has no insurable interest, the party is not entitled to a return of premiums paid for the void policy
Reported at 36 Fla. L. Weekly D1022a

Insurance -- Windstorm -- Action by insured, a not-for-profit corporation operating as condominium association, against insurer, seeking declaratory judgment establishing that glass windows and sliding glass doors that provide access to a single condominium unit are covered under policies issued by insurer and that insurer improperly failed to consider these items when it determined that the amount of plaintiff's covered loss from hurricane was less than applicable hurricane deductible; seeking declaratory judgment establishing that plaintiff is entitled to have dispute concerning amount of its hurricane loss resolved through appraisal process described in the policies; and further seeking declaratory judgment establishing that hurricane deductible in the policies is void under state law which requires specific disclosures to be made with certain font requirements -- Count seeking declaration that glass windows and sliding glass doors are covered dismissed based on absence of justiciable controversy between parties, as complaint contains no allegation that before filing the case plaintiff expressed disagreement with insurer's adjustment of claim or that insurer ever took position that windows and sliding glass doors were not covered under the policy -- Count demanding appraisal is premature where complaint does not allege that plaintiff informed insurer of any disagreement concerning insurer's position before filing suit or that insurer disagreed with plaintiff's position -- Because resolution of third count will be directly impacted by Florida Supreme Court's decision in case pending before it, stay of that count is warranted
Reported at 22 Fla. L. Weekly Fed. D595a

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Amount of fee -- Where contingent fee contract between insured and her attorney provided for an hourly rate of $300, it was error for court to award fees on the basis of an hourly rate of $350
Reported at 36 Fla. L. Weekly D1082a

Insurance -- Homeowners -- Overhead and profit -- Under terms of replacement cost policy, insured was not entitled to payment from insurer for overhead and profit where insured had not hired a contractor to repair fire damage to insured home
Reported at 36 Fla. L. Weekly D1081a

Insurance -- Personal injury protection -- A PIP insurer may not elect to use Medicare Part B fee schedules set forth in section 627.736(5)(a)(2) when the subject policy specifies that the PIP insurer will pay 80% of medically necessary expenses -- Incorporation of PIP statute into policy did not give insurer the unilateral right to ignore the only payment methodology referenced in the policy
Reported at 36 Fla. L. Weekly D1062a

Jurisdiction -- Non-residents -- Minimum contacts -- Securities fraud -- Plaintiff, who alleged defendants were guilty of securities fraud based on individual defendants having made false statements in press releases and on internet message boards that corporate defendant had received offers to sell its stock to another company, failed to establish that defendants had sufficient minimum contacts with state to satisfy due process requirements -- There was no evidence that false statements were purposefully directed toward residents of Florida, and plaintiff failed to state any direct knowledge of significant business transactions in Florida by the defendants -- Fact that defendants have been sued in federal court in Florida by Securities and Exchange Commission for alleged securities violations does not satisfy requirement of establishing minimum contacts
Reported at 36 Fla. L. Weekly D1063a

Paternity -- Child born to intact marriage between legal father and mother cannot be subject of paternity proceeding brought by a biological father -- Trial court fundamentally erred in granting paternity petition and awarding legal rights and physical custody to biological father pursuant to nonexistent cause of action
Reported at 36 Fla. L. Weekly D1045a

Torts -- Medical malpractice -- Limitation of actions -- Where plaintiff purchased an automatic 90-day extension of statute of limitations on March 21, 2006, prior to the time limitations period would have otherwise expired on June 10, 2006, and defendant received plaintiff's notice of intent to initiate litigation on August 2, 2006, statute of limitations period began to run again ninety days later on November 1, 2006 -- Because immediately after tolling period thirty-seven days of the 90-day extension plaintiff had purchased remained, and remainder of period of statute of limitations was less than sixty days, plaintiff had sixty days from November 1, 2006, in which to file her complaint -- Complaint filed on January 17, 2007, seventy-eight days after November 1, 2006, was untimely
Reported at 36 Fla. L. Weekly D1046a

Torts -- Negligence -- Action against insurer, insurance broker, and insurance agent for lessee of vehicle which was owned by plaintiff-insurer's subrogee, seeking to recover amounts plaintiff paid in settlement of accident involving leased vehicle, alleging defendants breached duty owed to vehicle lessors and to general public to abide by standard insurance practices to issue automobile liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes and that, by breaching this duty, defendants assisted the lessee-driver in breaching his lease, which required that lessee maintain certain levels of insurance -- Although preemptive effect of federal Graves Amendment did not preclude plaintiff from using equitable subrogation to assert a claim against defendants, negligence cause of action plaintiff sought to pursue against defendants failed as matter of law because, in providing insurance to the lessee, defendants owed no legal duty to lessor
Reported at 36 Fla. L. Weekly D1067a

Torts -- Workers' compensation -- Exclusive remedy -- Employer-employee relationship -- Help supply services employee -- Where contract between help supply services company and defendant plainly stated that the services to be performed by company's employees would be performed under the direction, supervision, and control of defendant, trial court did not err in entering summary judgment against plaintiff on ground that defendant had immunity from suit under section 440.11(2) -- Although plaintiff testified in deposition that she was paid by help supply services company, that she never received instruction from defendant on how to do her job, and that her personal supervisor was another employee of the help services company, the legal right of control the contract conferred on defendant is dispositive
Reported at 36 Fla. L. Weekly D1055a

Torts -- Interference with business relationship -- Evidence was insufficient to establish that defendant interfered with plaintiff's business relationships by accepting payments on automobile financing agreements made by plaintiff's customers where there was no showing that defendant had knowledge of the business relationship at the time he took the money
Reported at 36 Fla. L. Weekly D1027b


Torts -- Automobile accident -- Permanent injury -- Although determinations about the permanency of an injury are generally made by juries, where evidence of injury and causation is such that no reasonable inference could support a jury verdict for defendant, it is not improper to direct a verdict on the permanency issue for plaintiff -- Plaintiff can establish prima facie case of permanency by presenting expert testimony of permanency, and burden then shifts to defendant to present countervailing expert testimony, impeach plaintiff's expert, or present other evidence which creates direct conflict with plaintiff's evidence -- Where medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on other evidence at trial, jury is not free to ignore or arbitrarily reject that medical evidence and render a verdict in conflict with it -- Where medical experts agreed on permanency of plaintiff's thigh injury, trial court properly granted directed verdict on permanency of thigh injury -- As long as part of bodily injury arising out of motor vehicle accident involves a permanent injury within a reasonable degree of medical probability, plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident -- Appeals -- Defendant did not preserve for appellate review issues related to adequacy of jury instructions or verdict form regarding permanency where defense counsel voiced no objection when asked by trial court if instructions and verdict form were acceptable
Reported at 36 Fla. L. Weekly S211b

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