Monday, July 27, 2015

Attorney fees under 57.105, sham pleadings, commercial leases, and sauteed day lillies with fresh sage and organic goat cheese



Attorney's fees -- Appellate fees -- Claim or defense not supported by material facts or applicable law -- Attorney's fees assessed against appellant and its counsel because of frivolous claim in initial brief that appellee's counsel made misleading statements to trial court at hearing on motion to dismiss
ASPEN AIR CONDITIONING, INC., Appellant, vs. SAFECO INSURANCE COMPANY OF AMERICA, et al., Appellees. 3rd District.


Civil procedure -- Default -- Abuse of discretion to enter judicial default against defendants as sanction for failure by defendants and their counsel to respond to discovery, failure to appear at court-ordered mediation, and failure to appear for calendar call without considering factors enumerated in Kozel v. Ostendorf and making explicit findings on each factor -- Where counsel is involved in conduct to be sanctioned Kozel analysis is required before entering judicial default, and failure to do so is, by itself, basis for remand
DOROTHY CHAPPELLE, CALVIN JOHNSON and EVELYN WILLIAMS, Appellants, v. SOUTH FLORIDA GUARDIANSHIP PROGRAM, INC., Appellee. 4th District.


Civil procedure -- Sham pleadings -- Action by individual plaintiff against law firm claiming that law firm failed to give credit to plaintiff for $50,000 retainer against fee awarded to law firm as required by fee agreement -- Trial court erred in striking plaintiff's pleadings as a sham on the ground that because plaintiff had treated the $50,000 as a capital contribution to his company only the company had the right to bring the action -- Record does not show that pleadings were “undoubtedly false” or that pleadings were a “mere pretense set up in bad faith without color of fact” -- Torts -- Trial court also erred in dismissing tort claims of breach of fiduciary duty, conversion, and civil theft on basis of economic loss rule -- Economic loss rule is limited to product liability context
STUART N. BORNSTEIN, Appellant, v. IRA MARCUS, individually, IRA MARCUS, P.A., a Florida corporation, and GRANADA, LLC, a Florida limited liability company, Appellees. 4th District.


Contracts -- Commercial lease -- Eviction -- Error to grant summary judgment in favor of plaintiff on claim for eviction where there were genuine issues of material fact about occurrence of alleged defaults and lessor's correction of any defaults within terms of lease and whether alleged violations of lease were material; and where plaintiff failed to refute affirmative defenses, that plaintiff had failed to give requisite notice of breach and opportunity to cure and that eviction would cause inequitable forfeiture, or to establish that these defenses were legally insufficient
ATRIA GROUP, LLC, Appellant, v. ONE PROGRESS PLAZA, II, LLC, Appellee. 2nd District.


Dissolution of marriage -- Equitable distribution -- Stock shares -- Valuation -- Trial court erred in setting value for shares of stock to be transferred from husband to wife without hearing parties' full evidence regarding value and, instead, setting the value at the average between value placed on stock by husband and value placed on stock by wife -- Remand for further proceedings
MICHELLE TUCKER, Appellant, v. LEONARD TUCKER, Appellee. 4th District.


Insurance -- Business owners's policy -- Breach by insured of policy condition requiring insured to maintain burglary alarm system monitored by a security company and to notify insurer if it became aware of any suspension or impairment of the system -- In entering summary judgment finding that insured was entitled to recover for loss resulting from burglary even though insured had not maintained burglary alarm system monitored by security company because insurer was not prejudiced by the breach, trial court improperly focused solely on the fact that the burglary would not have been detected even if the alarm monitoring system had been maintained -- Because insured breached condition subsequent of notifying insurer of any suspension or impairment of monitored alarm system, issue to be determined by court is whether insurer was prejudiced by the lack of an opportunity to decide whether it would cancel the policy, keep the policy in place with an increase in premium, or waive the obligation to maintain the alarm monitoring contract
DEPOSITORS INSURANCE COMPANY, Appellant, v. CC&C OF LAKE MARY, LLC D/B/A THE BEACH SCENE, Appellee. 5th District.


Insurance -- Commercial general liability -- Coverage -- Declaratory judgment -- Appeals -- Partial final judgment in declaratory judgment action which determined insurer's duty to defend insured, but did not determine its duty of indemnification, is not a final appealable order or an appealable nonfinal order
FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, Appellant, v. PEACOCK'S EXCAVATING SERVICE, INC., ROYAL CORINTHIAN HOMES, INC., J.L. WALLACE, INC., and MATRIX CONCRETE SYSTEMS, INC., Appellees. 2nd District.


Torts -- Equitable subrogation -- Action by tortfeasor and its liability insurer against whom judgment has been entered finding tortfeasor liable in personal injury action, seeking equitable subrogation from medical providers who are allegedly responsible for a substantial portion of the damages in the underlying personal injury action -- Trial court erred in dismissing equitable subrogation action on the basis that tortfeasor and tortfeasor's insurer have not paid the entirety of injured party's damages -- Right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim's entire damages -- Question certified to Florida Supreme Court: Is a party that has had judgment entered against it entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied?
ALLSTATE INSURANCE COMPANY, ET AL., Appellants, v. BASIL THEODOTOU, M.D., ET AL., Appellees. 5th District.


Torts -- Jurisdiction -- Service of process -- Substitute service at private mailbox was not effective where plaintiff failed to demonstrate that the private mailbox was the only address for defendant discoverable through public records -- Although plaintiff unsuccessfully attempted to serve defendant at other addresses, that is insufficient to invoke service under section 48.031(6), Florida Statutes -- Trial court erred in denying defendant's motion to quash service of process and vacate default judgment
TAMAS TIBOR KRISZTIAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., as Subrogee of RENEE M. FIORE, Appellee. 4th District.


Torts -- Nursing homes -- Arbitration -- Validity of arbitration agreement -- Where nursing home admissions director told patient, who was alert and lying in bed with her husband standing nearby, that she was there with admission documents, including arbitration agreement, that needed to be signed, and patient responded that she wanted her husband to review and sign the documents, it was error to find that husband was not authorized to sign the arbitration agreement and that his signature did not bind the patient -- Husband had apparent authority to sign agreement on behalf of the patient -- Error to deny nursing home's motion to compel arbitration
FI-EVERGREEN WOODS, LLC, ET AL., Appellants, v. THE ESTATE OF MAY L. ROBINSON, ETC., Appellee. 5th District.


Wrongful death -- Medical malpractice -- Presuit requirements -- Statutory amendments which allow for presuit ex parte interviews between potential defendants and potential claimants' treating health care providers, and require potential claimants to sign a written waiver of federal privacy protection concerning relevant medical information prior to instigating a medical malpractice lawsuit, are constitutional and are not preempted by Health Insurance Portability Accountability Act -- Amendments do not violate separation of powers doctrine by intruding upon Florida Supreme Court's procedural rule-making power -- Amendments do not constitute a special law -- Amendments do not burden right of access to courts -- Amendments do not violate right to privacy
EMMA GAYLE WEAVER, individually, and as Personal Representative of the Estate of THOMAS E. WEAVER, deceased, Appellant, v. STEPHEN C. MYERS, M.D., WEST FLORIDA SPECIALTY PHYSICIANS, LLC d/b/a WEST FLORIDA CARDIOVASCULAR AND THORACIC SURGERY and d/b/a and a/k/a WEST FLORIDA MEDICAL GROUP, and WEST FLORIDA REGIONAL MEDICAL CENTER, INC. d/b/a WEST FLORIDA HOSPITAL, Appellees. 1st District.


Wrongful death -- Nursing homes -- Jury trial -- Denial -- Appeals -- Certiorari -- Order striking request for jury trial based on express waiver in nursing facility residency agreement is not reviewable by certiorari
TRICIA ANN WALTER, as Personal Representative of the Estate of Norine C. Walter, Petitioner, v. SUNRISE SENIOR LIVING SERVICES, INC., d/b/a BRIGHTON GARDENS OF TAMPA; JAI LARMAN; and CARLA RUSSO, Respondents. 2nd District.




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