Attorney's fees -- Charging lien -- Unjust enrichment --
Venue -- Transfer -- Principle of priority -- Complaint raising multiple
claims, including breach of contract, quantum meruit, and unjust enrichment,
stemming from defendants' failure to distribute settlement proceeds in
accordance with charging lien plaintiff law firms had filed in a separate case
in a separate county -- Appeal of order dismissing action for improper venue is
not moot based on fact that plaintiffs withdrew charging lien and the underlying
case has since been dismissed -- Even if plaintiffs can no longer pursue
charging lien, nothing precludes them from filing a separate action to recover
any unpaid fees, as a charging lien is not the exclusive vehicle for discharged
counsel to pursue fees and costs to which they claim entitlement -- Trial court
erred in applying the principle of priority and dismissing complaint based on
its determination that the other county had jurisdiction over the matter
because plaintiffs first properly served defendants in the other county --
Plaintiffs were not the parties that initiated the action in the other county,
but rather served as counsel for the party who did -- Furthermore, since the
charging lien had been withdrawn prior to the entry of the dismissal order in
the present case, the matter was no longer pending concurrently in two
circuits. ALEX FINCH d/b/a FINCH LAW FIRM, and FROMANG AND FINCH, P.A.,
Appellants, v. AUTO CLUB INSURANCE COMPANY OF FLORIDA, BRESSLER, AMERY &
ROSS, P.C., LINDA MICHELLE BERNS, MASSEY CONSTRUCTION GROUP, INC., MARK B.
MASSEY, KANNER & PINTALUGA, P.A., LEVI LAWRENCE WILKES, and SUSAN AYERS,
Appellees. 6th District.
Attorney's fees -- Prevailing party -- Significant issues -- Net judgment rule
-- Proposal for settlement -- Joint proposal -- Apportionment --
Subcontractor's action against contractor and its surety and project owner and
its surety seeking damages for breach of contract, seeking to enforce liens
against payment and transfer bonds, and alleging alternative quantum meruit
claims against contractor and project owner -- Successor judge erred in
concluding that subcontractor was prevailing party in litigation because it
recovered a money judgment -- Significant issues in litigation concerned
whether subcontracts were enforceable, and thus whether project owner could
apply cross-default provisions to offset its damages against any amounts
recovered by subcontractor; whether subcontractor was properly defaulted on one
of the subcontracts at issue, and thus whether damages could be assessed
against subcontractor for value of stairs constructed by replacement
subcontractor; the reasonable value of the stairs; and whether subcontractor
properly perfected its claims against transfer and payment bonds -- Successor
judge's conclusion that defendants were unsuccessful in entirely avoiding
payment to subcontractor ignored fact that defendants defeated most of
subcontractor's damages claims -- Successor judge's conclusion that
enforceability of subcontracts was not a significant issue because that issue
did not determine “the overall outcome of this action, nor the amount of
damages the Court awarded” was contrary to predecessor trial judge's finding in
its merits judgment that “the primary dispute is over which contract controls”
-- Moreover, enforceability of subcontracts, and in turn the cross-default
provisions, significantly impacted amounts ultimately recovered by
subcontractor -- Claims against bond -- Section 713.29 governs award of
attorney's fees in action to enforce claim against bond, and significant issues
test applies for purposes of determining prevailing party status -- Sureties
who successfully resisted enforcement of subcontractor's lien against bonds
prevailed on the only claims asserted against them and were not otherwise found
liable to subcontractor for damages -- Accordingly, successor judge erred in
denying sureties attorney's fees -- Proposal for settlement -- All defendants
were entitled to award of attorney's fees and costs pursuant to section 768.79
where amount awarded to subcontractor was at least 25% less than total proposal
amount -- Defendants were not required to apportion their offer under
circumstances where subcontractor sought the same indistinguishable amount of
damages from each defendant. LEMARTEC CORPORATION, et al., Appellants, v. EAST
COAST METAL STRUCTURES CORP., Appellee. 4th District.
Dissolution of marriage -- Equitable distribution -- Alimony -- Trial court
erred in failing to make specific written findings of fact as to identification
of marital assets and liabilities, valuation of significant marital assets, and
designation of which marital assets and liabilities would be distributed to
each spouse -- Error was preserved for review through wife's motion for
rehearing -- Marital liabilities -- Federal income tax deficiency -- Trial
court did not err in designating as a marital liability the back taxes parties
owed to Internal Revenue Services notwithstanding wife's assertion that husband
signed wife's name on tax returns without her consent -- Tax deficiency was not
a “liability incurred by forgery or unauthorized signature” -- Vehicle --
Husband's sale of van for thousands of dollars below fair market value should
have been treated as waste of marital asset under circumstances -- Alimony award
to wife was unsupported by specific findings as to wife's reasonable monthly
expenses and amount of income wife might expect from her own financial assets,
including those she received in equitable distribution. KATHY DEASY, Appellant,
v. KEVIN DEASY, Appellee. 4th District.
Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets
-- Cut-off date -- Trial court erred in requiring former wife to return a
necklace to former husband where there was no evidence in record to establish the
existence of the necklace -- Trial court erred when it classified and
distributed as a marital liability a loan from former husband's parents which
was taken out during the parties' marriage and which was fully satisfied prior
to the date that former husband filed petition for dissolution -- Because the
loan was not a liability that existed as of the applicable cut-off date, the
trial court erred by classifying the loan as a marital liability and
distributing it -- While a trial court has discretion as to the date it uses to
value marital assets and liabilities, it does not have discretion as to the
date used to determine the existence of marital assets and liabilities and
whether they are subject to equitable distribution. VICKI MACPHERSON,
Appellant, v. JOSEPH MACPHERSON, Appellee. 6th District.
Insurance -- Condominiums -- Subrogation rights --
Negligence action brought against condominium association by individual unit
owners' insurer pursuant to right-of-subrogation provision in the unit owners' policy
-- No error in granting condominium association's motion for judgment on the
pleadings where association's policy did not provide for rights of subrogation
against unit owners as required by recent amendment to
section 627.714(4) -- Trial court did not improperly apply amendment
retroactively where, although subject policy was issued prior to statutory
amendment's effective date, insurer's subrogation rights did not vest until
loss occurred after the effective date of the amendment -- Body of law holding
that the statute in effect at the time an insurance contract is executed
governs substantive issues arising in connection with that contract only
applies to contractual claims between contracting parties -- Conflict
certified. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY a/s/o VIRGILIO
PEREZ Y. PEREZ and SIRKKA PEREZ, Appellant, v. LAGUNA RIVIERA CONDOMINIUM
ASSOCIATION, INC., Appellee. 2nd District.
Torts -- Civil conspiracy -- Tortious interference -- Dismissal -- Attorney's
fees -- Error to enter partial summary judgment in favor of defendants
dismissing plaintiff's claims for tortious interference and civil conspiracy
for failure to state a cause of action -- Taking pleaded facts as true, operative
amended complaint stated sufficient causes of action to withstand a motion to
dismiss -- Because award of attorney's fees was predicated upon judgment being
reversed, fee order must be vacated as premature. BERKLEY INSURANCE COMPANY,
Appellant, v. BANC OF AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, a wholly
owned subsidiary of Bank of America, N.A.; BANK OF AMERICA, N.A., a national
banking association; THE TEMPO AT ENCORE, LP, a Florida limited partnership;
HOUSING FINANCE AUTHORITY OF HILLSBOROUGH COUNTY, a political subdivision of
the State of Florida; CPDG2, LLC, a Florida limited liability company; THA
TEMPO, LLC, a Florida limited liability company; TAMPA HOUSING AUTHORITY
DEVELOPMENT CORPORATION, a Florida not-for-profit corporation; TAMPA HOUSING
AUTHORITY, a political subdivision of the State of Florida; U.S. BANK, N.A., a
national banking association; and FEDERAL HOME LOAN MORTGAGE CORPORATION, a
federally chartered corporation, Appellees. BANK OF AMERICA, N.A., and BANC OF
AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, Appellants, v. BERKLEY INSURANCE
COMPANY; THE TEMPO AT ENCORE, LP, a Florida limited partnership; RBC TAX CREDIT
EQUITY, LLC, a foreign limited liability company; RBC TAX CREDIT MANAGER II,
INC., a foreign corporation; and HOUSING FINANCE AUTHORITY OF HILLSBOROUGH
COUNTY, a political subdivision of the State of Florida, Appellees. 2nd
District.
Torts -- Defamation per se -- Trial court's verbatim adoption of defendant's
proposed final judgment does not require reversal where it was evident that
final judgment reflected trial court's independent decision
on issues in the case -- Both parties were allowed to submit proposed orders,
eight days passed from time parties submitted their proposals until trial court
entered final judgment, and plaintiff made no objections to defendant's
proposed judgment until after final judgment was entered -- Further, in order
denying plaintiff's motion for rehearing, trial court stated that it had
reviewed both parties' submissions in light of court's trial notes, record, and
briefs and determined that defendant's proposed order accurately reflected
court's ruling -- Remand for correction of typographical error identified by
plaintiff in one of its objections. RICHARD L. SHURE, M.D., Appellant, v.
AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, AMERICAN ACADEMY OF ORTHOPAEDIC
SURGEONS, and BRIAN S. ZIEGLER, M.D., Appellees. 6th District.
Torts -- Medical malpractice -- Denial of motion to dismiss for failure of
plaintiff to comply with presuit requirements -- Certiorari -- Trial court did
not depart from essential requirements of law by adopting verbatim plaintiff's
proposed order denying motion to dismiss where record reflects that trial judge
did not adopt proposed order without thought or analysis or in finding that
plaintiff's notice was sufficient given limited information available to her
and in concluding that plaintiff complied with statutory presuit notice
requirements. UNIVERSITY OF MIAMI, etc., Petitioner, v. SHANAY HALL JONES,
etc., Respondent. 3rd District.
Torts -- Medical malpractice -- Presuit requirements -- Corroborating expert --
Trial court erred by dismissing complaint with prejudice based on conclusion
that plaintiff's corroborating expert, a board certified OB-GYN, did not
specialize in same specialty as defendant, a gynecological oncologist who is
also a board certified OB-GYN, because gynecological oncology and gynecology
required different education, different training, and different certifications
-- Discussion of “same specialty” requirement -- Expert witnesses offering
testimony are not required to have an identical educational background and work
history as a prospective defendant -- Both defendant and plaintiff's expert
specialize in same branch of medicine, as illustrated by their identical board
certifications. PHENGSANITH PRADAXAY, Appellant, v. JAMES ERASMUS KENDRICK, IV,
M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a ADVENTHEALTH MEDICAL GROUP
GYN ONCOLOGY AT ORLANDO, and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a ADVENT
HEALTH ORLANDO, Appellees. 6th District.
Wrongful death -- Landlord-tenant -- Premises liability -- Duty of care --
Action brought against owner and manager of apartment complex stemming from
drowning of a tenant's child in river adjacent to defendant's property -- Trial
court did not err in granting summary judgment in favor of defendants based on
determination that defendants had no duty to create a barrier between property
and the river -- Pursuant to body-of-water rule, absent an unusual, dangerous
condition, an owner of a natural or artificial body of water has no duty to
fence it -- Exception to the body-of-water rule was inapplicable because the
record does not demonstrate any evidence of a trap or unusual element of danger
associated with the riverbank adjacent to the apartment complex that does not
exist in similar rivers or on similar riverbanks -- The slope leading down to
the river, the river current, and the uneven ground along
the river did not constitute traps or dangerous conditions that do not occur in
similar bodies of water throughout the state -- While section 83.51(2)(a)3
requires a landlord of a dwelling unit to make “reasonable provisions” for the
clean and safe condition of common areas, “reasonable provisions” need only
include fencing off a body of water if the particular circumstances create an
unusual element of danger not presented by similar bodies of water. BARBARA
FELICIANO, as personal representative of the Estate of Sthella Lopez Feliciano,
a deceased minor, Appellant, v. RIVERTREE LANDINGS APARTMENTS, LLC, a Florida
Limited Liability Company, and FIRST COMMUNITIES MANAGEMENT, INC., a Florida
Corporation, Appellees. 2nd District.
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