Civil law decisions with a healthy mix and classy class actions

Complete Angler, LLC v. City of Clearwater, Fla. ,(M.D.Fla.)
Real Property - Marine themed mural on outside wall of bait shop was protected non-commercial speech.
A marine themed mural on the outside wall of a bait shop and a banner placed over the mural reciting the First Amendment were protected non-commercial speech. Therefore, a city's ordinance defining paintings displayed in conjunction with a commercial enterprise as commercial speech rather than art work was an impermissible restriction on non-commercial speech as applied to the mural and banner. Although the mural could occasionally inspire the purchase of bait, it reflected a local artist's impression of the natural habitat and waterways surrounding the bait shop. It also alerted viewers to the threats posed to certain fish species it depicted.

Josendis v. Wall to Wall Residence Repairs, Inc. ,(S.D.Fla.)
Labor and Employment - Laborer employed by Florida company did not fall under FLSA's wage and hour protections under theory of enterprise coverage.
A laborer employed by a family-owned Florida residential remodeling company did not fall under the wage and hour protections of the Fair Labor Standards Act (FLSA) under a theory of enterprise coverage. The company asserted in its statement of undisputed facts on its motion for summary judgment that it never grossed $500,000 annually during the limitations period, and the employee's opposition statement of facts did not properly controvert that assertion. The laborer also failed to establish that his employer was "engaged in the operation of a hospital or an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution" through the assertion that a "Jewish Home and Hospital" itself would be covered by that language and that the maintenance and repair work he performed there during the relevant period was "closely or intimately related" to enterprise engaged in interstate commerce.

AXA Equitable Life Ins. Co. v. Infinity Financial Group, LLC ,(S.D.Fla.)
Insurance - Nonresident trustees and trusts holding life policies were subject to personal jurisdiction based on civil conspiracy claim.
Trustees, as residents of Delaware, holding life insurance policies in trusts organized in Delaware, purposely directed their activities at Florida residents, in an alleged civil conspiracy to fraudulently recruit elderly Florida applicants for policies that were paid for and held by outside investors in trusts to disguise true ownership of the policies. Thus, the Delaware trustees and trusts had sufficient contacts with Florida to have fair warning that they could be subject to the insurer's suit in Florida, as required to satisfy due process requirements for exercise of jurisdiction consistent with fair play and substantial justice.

Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Factors relied upon by trial court did not weigh in favor of unequal distribution of property in favor of wife -- Desirability of retaining marital home as residence for parties' dependent children did not justify permanent transfer of marital home to former wife -- To extent trial court relied upon this factor to award marital residence to former wife, it should have granted her an exclusive interest only until parties' youngest child reached majority -- Fact that parties had used funds principally originating in former wife's trust account to purchase property in foreign state and marital home was found in prior appeal to be irrelevant to distribution of marital property in this case -- Unequal distribution cannot be based on spouse's disproportionate financial contributions to marriage unless there is showing of “extraordinary services over and above the normal marital duties,” and evidence does not demonstrate the former wife provided such extraordinary services on former husband's behalf -- Remand with instructions that marital assets be equally divided between the parties -- Alimony -- Error to impute income to husband from “sedentary employment” where trial court made finding following first trial that former husband's physical disability left him “unemployable,” appellate court concurred with this finding on appeal, no evidence was offered regarding amount or source of imputed income, and trial court made no findings concerning either factor -- Remand for reevaluation of alimony award without any consideration of imputed income
Reported at 34 Fla. L. Weekly D845b

Contracts -- Civil procedure -- Vacation of judgment -- Order vacating judgment for defendant in action for breach of contract to build and sell residence to plaintiff, and setting case for new trial, on ground that court committed judicial error by depriving plaintiff of opportunity to seek return of earnest money deposit -- Any error in trial court's failure to order return of earnest money deposit is not type of error cognizable under rule 1.540 -- Judicial errors must be corrected within ten days pursuant to rule 1.530 -- Even if trial court acted on its own initiative pursuant to rule 1.530(d), court was without jurisdiction to order new trial on its own motion because court did not initiate action within time limit set out in rule -- Order vacating final judgment reversed
Reported at 34 Fla. L. Weekly D795a

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Administrative law judge erred in awarding attorney's fees under section 57.105, Florida Statutes, to party who did not comply with mandatory notice provisions of statute -- Counsel's letter to opposing counsel threatening to seek attorney's fees under section 57.105 was not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with court
Reported at 34 Fla. L. Weekly D826a

Contracts -- Stock purchase agreement -- Arbitration -- Action against guarantors of promissory notes given in connection with stock purchase agreement was not subject to arbitration provision in stock purchase agreement -- Arbitration provision in agreement applies only to indemnification claims, and suit to enforce unconditional guarantee was not a claim for indemnity -- Arbitration clause applies to claims for indemnification caused by purchaser's failure to fulfill an obligation of an agreement related to stock purchase agreement, but plaintiffs are not seeking indemnification from purchaser, but instead are seeking payment on unconditional guarantees executed by defendants
Reported at 34 Fla. L. Weekly D814c

Prohibition -- Judges -- Disqualification -- Real property -- Action challenging amendments to development's declaration of covenants and restrictions which imposed mandatory country club membership on all new owners taking title to certain property in defendant's subdivisions -- Where defendant discovered that judge was involved in similar dispute with his own homeowners association and had expressed critical opinions on the matter, a circumstance which aligned judge with plaintiff's position on the primary issue to be determined in suit, defendant had well-founded fear of bias, and disqualification was required
Reported at 34 Fla. L. Weekly D807b

Hoving v. Lawyers Title Ins. Co.,(E.D.Mich.)
Class Actions - Named plaintiff was not appropriate class representative in action against title insurer to recover overcharges on mortgage rates.
A federal district court in Michigan has denied certification of a refinancing homeowner's putative class action against a title insurer which allegedly overcharged on premiums on policies issued to mortgage lenders. The named plaintiff had not established that he could fairly and adequately protect the interests of the class. His effort at setting up a do-it-yourself trust established some doubt about whether he had the authority to grant the refinancing mortgage on the property and close the loan at the time. Furthermore, his testimony that in attempting to set up the trust he filled out the papers himself, was unfamiliar with the process, sought no legal advice despite the fact his sister was an attorney who served in the Judge Advocate General Corps, conveyed his property to complete strangers with whom he had never spoken and whom he had never met, paid a fee but kept no copies of documents or a record of payment, and was defrauded cast grave doubt over his ability to perform the functions of a lead plaintiff in major class action litigation.

Rodriguez v. West Publishing Corp.,(C.A.9 (Cal.))
Class Actions - Incentive agreements signed by some class representatives did not require rejection of antitrust settlement.
Although incentive agreements between the named plaintiffs and class counsel created conflicts among the named plaintiffs, their counsel, and the rest of the class in an antitrust action against two bar review course providers, a district court was not required to reject a $49 million settlement of the action on that account, since there were two other class representatives who had no incentive agreements and whose separate counsel were not conflicted. The agreements required class counsel to apply to a court for an incentive award for the named plaintiffs, and tied the named plaintiffs' compensation to a sliding scale based on the amount recovered.

State, Dept. of Transp. v. Douglas Asphalt Co.,(Ga.App.)
Appeals - Dismissal of defendant's cross-appeal was required following dismissal of plaintiff's direct appeal.
The Court of Appeals of Georgia has held that a defendant's cross-appeal from the trial court's partial grant of a plaintiff's motions in limine to exclude certain evidence and partial denial of the defendant's initial motion for summary judgment had to be dismissed, upon the dismissal of the plaintiff's direct appeal from the court's partial grant of defendant's second motion for summary judgment. This was the case because the grant of the plaintiff's motions in limine and the trial court's partial denial of the defendant's motion for summary judgment were not final appealable judgments, but were subject to the certification requirement and application procedures for interlocutory appeal. Since the plaintiff's appeal had been dismissed, and the defendant filed no application for interlocutory review of the grant of the plaintiff's motions in limine or the court's partial denial of the defendant's motion for summary judgment, the Court of Appeals had no independent jurisdiction over the cross-appeal. In so holding, the Court overruled a prior decision.

U.S. v. Nicholas,(C.D.Cal.)
Privileges - Attorney-client privilege applied to client's interview with his attorneys.
The attorney-client privilege applied to a client's interview with his attorneys regarding his employer's stock option granting practices. The substance of interview was disclosed by his attorneys to the employer's outside auditors, to the Securities and Exchange Commission (SEC), to the United States Attorney's Office, and was summarized in a FBI form memoranda. The client reasonably believed an attorney-client relationship existed with his attorneys in both the direct and derivative actions brought against him and his employer. He also reasonably believed that he was communicating with his attorneys in the context of the attorney-client relationship for the purpose of obtaining legal advice. Finally, he reasonably believed that any information he provided to his attorneys would remain confidential.

Payne v. Wyeth Pharmaceuticals, Inc.,(E.D.Va.)
Estoppel - Discharged debtor was judicially estopped from seeking damages exceeding $1 million in personal injury action.
A discharged Chapter 7 debtor, who sought $25 million in damages in personal injury action, was judicially estopped from seeking damages exceeding $1 million from defendant where the debtor declared the value of his claim as $1 million in the bankruptcy court and never amended his schedules to reflect his belief that his claim was worth more. The debtor advanced a position in which was inconsistent with the position he took in bankruptcy court, the value of debtor's claim was a question of fact, bankruptcy court relied upon debtor's representations made on the bankruptcy schedules, including his representation of his $1 million valuation, before agreeing to discharge his debt, and the debtor had a motive for concealment when valuing his claim and/or failing to amend after he had filed the lawsuit since the secured creditors would have been able to collect on any award or settlement recovered by the debtor.

Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater,(Tex.)
Judgment - Striking of affidavit of plaintiff's expert witness submitted in response to defendants' summary judgment motion was justified.
The Supreme Court of Texas has held that the rule providing for the exclusion of evidence due to an untimely response to a discovery request applies in a no-evidence summary judgment proceeding. In so holding, the Court abrogated Court of Appeals' decisions holding to the contrary. In the case at bar, the Court concluded that the trial court's striking of an affidavit of the plaintiff's expert witness submitted in response to the defendants' no-evidence summary judgment motion was justified, because the plaintiff failed to timely disclose his expert pursuant to the deadline provided in the agreed scheduling order and the subsequent extension agreements. Also, the plaintiff failed to satisfy his burden of establishing good cause or lack of unfair surprise or prejudice against the defendants.

This decision may not yet be released for publication.

Budisukma Permai SDN BHD v. N.M.K. Products & Agencies Lanka (Private) Ltd.,(S.D.N.Y.)
Attachment and Garnishment - Plaintiff need only make prima facie showing of alter ego liability to avoid vacatur of maritime attachment.
A plaintiff need only make a prima facie showing of alter ego liability to avoid the vacatur of a maritime attachment, a New York district court has ruled, noting a split of authority on the issue within its district and following the majority view. A vessel owner satisfied this prima facie burden in pleading that related entities were the alter egos of a charterer in support of a maritime attachment against the related entities. The owner alleged that a website identified the charterer and the related entities as a "group of companies," and that the related entities sold the same products. The owner also alleged that the charterer and the related entities had common office addresses and telephone numbers and a common, three-person core of directors and shareholders, that the related entities were closely owned and directed by what appeared to be the same group of people, and that the related entities were the successors in interest of the charterer.

Wickline v. Dutch Run-Mays Draft, LLC,(S.D.W.Va.)
Removal - Court could not consider evidence of $100,000 settlement offer made after removal in determining motion to remand.
The District Court could not consider evidence of a $100,000 offer of settlement made by the defendant after the case was removed on the basis of diversity jurisdiction, or expert testimony that the amount-in-controversy for diversity jurisdiction was satisfied, in determining the plaintiff's motion to remand, based on a failure to establish the jurisdictional amount-in- controversy for diversity jurisdiction. The Court noted that neither the settlement offer nor the expert testimony was on the record at the time the notice of removal was filed.

Shumaker, Loop & Kendrick, LLP v. Zaremba,(N.D.Ohio)
Privileges - Burden-shifting approach was to be used for purposes of determining validity of written waiver of attorney-client privilege.
As a matter of first impression, the district court held that a burden- shifting approach should be used for purposes of determining the validity of a written waiver of the attorney client privilege. The proponent of the privilege had the burden of demonstrating, by a preponderance of the evidence, that the elements of the privilege were established. The opponent of the privilege was required to present sufficient evidence upon which a reasonable person could find that the privilege had been waived, and, if the opponent met its burden, the proponent of the privilege was required to disprove each demonstrated claim of waiver by a preponderance of the evidence.

Vargas v. Shepherd,(Ind.App.)
Privileges - Former patient waived the physician-patient privilege as to surgeon's treatment of former patient's prior back injury.
A former patient waived the physician-patient privilege as to a surgeon's treatment of the former patient's prior back injury. The former patient reinjured his back while working at an apartment complex and filed a lawsuit against the apartment complex to recover damages. By filing the lawsuit, the former patient placed at issue the condition of his back and any injury or treatment relating to it.

Ford Motor Co. v. Castillo,(Tex.)
Discovery - Manufacturer was entitled to discovery in breach of settlement action to determine juror misconduct in underlying tort action.
A plaintiff motorist in a products liability action, by seeking enforcement of a settlement agreement, necessarily asserted a separate claim for breach of contract against the defendant automobile manufacturer. Therefore, the manufacturer was entitled to conduct discovery to determine whether a juror's pre-settlement note to the trial court concerning the maximum allowable award in the products liability action, which note prompted the settlement, was attributable to any outside jury influence. The juror's note, which was submitted following a recess, raised a legitimate question about the integrity of the trial process.

This decision may not yet be released for publication.

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