Wednesday, August 26, 2009

Cold vanilla ice cream with chocolate espresso beans, arbitration, attorneys fees and dangerous instrumentalities

Waiving arbitration through active participation in litigation -- Neither filing of motion to dismiss nor filing of answer that failed to include a demand for arbitration constituted active participation in litigation that would result in waiver of right to arbitration -- Trial court did not err in directing parties to comply with arbitration agreement
Reported at 34 Fla. L. Weekly D1591b

Dangerous instrumentalities -- Farm tractor is not a dangerous instrumentality
Reported at 34 Fla. L. Weekly D1591a

Workers' compensation and intoxication -- Claimant injured when he slipped and fell on pile of lumber when he continued working despite having been told by his supervisor that he was discharged and should wait at the work site, which was remotely located, for a ride home -- Judge of compensation claims erred in finding that accident did not arise out of or within course and scope of employment because claimant's actions taken after being fired were not in furtherance of his employment or incidental thereto -- Discharged employees have reasonable time in which to leave employer's premises safely, and injuries incurred during that time are compensable -- However, error was harmless where JCC properly concluded that claimant was not entitled to compensation because injury was primarily occasioned by claimant's intoxication
Reported at 34 Fla. L. Weekly D1592a

Attorney's fees -- Agreement between attorney who was suspended from practice of law and law firm, under which law firm assumed responsibility for attorney's cases and agreed to pay attorney at an hourly rate for paralegal work performed after date of agreement and on a quantum meruit basis for work performed before attorney's suspension when cases concluded -- Trial court erred in entering summary judgment for defendant law firm in attorney's action alleging that law firm had failed to pay him any quantum meruit payments after attorney had filed petition for disciplinary resignation, which Florida Supreme Court granted with notation that disciplinary resignation was tantamount to disbarment -- Attorney is seeking to enforce written contract, and nothing in contract provides that attorney's disciplinary resignation or disbarment would result in forfeiture of contract rights -- Florida Supreme Court decision, holding that an attorney who withdraws from representation before contingency has occurred forfeits all right to compensation, is inapplicable to action seeking to enforce contract
Reported at 34 Fla. L. Weekly D1611a

Mutuality of remedy and illusory -- Trial court erred in finding that an absence of mutuality of remedies rendered contracts illusory and unenforceable -- Although contractual remedial limitations favored developer/seller, in that developer/seller could retain buyers' deposits as liquidated damages or bring action for specific performance upon buyers' default, whereas buyers could not seek damages, but could obtain return of their deposits or bring action for specific performance upon developer/seller's default, the absence of mutuality of remedies did not destroy the validity of the agreements
Reported at 34 Fla. L. Weekly D1614a

Sexual harassment -- Retaliation -- Harassment in the form of offensive language can be based on plaintiff's membership in a protected group even though she was not the target of the language -- Offensive language need not be targeted at the plaintiff in order to support a claim of hostile workplace environment -- Trial court erred in granting directed verdict for defendant employer
Reported at 34 Fla. L. Weekly D1604a

Blood sample -- In action against defendant whose car collided with decedent's car when defendant passed out while driving, trial court departed from essential requirements of law in granting plaintiff's request to test, for the presence of a prescription cough medication, the surviving portion of defendant's blood sample which had been given to law enforcement to be analyzed for alcohol content and the presence of controlled substances -- Request to test human bodily fluids in civil action must satisfy requirements of Rule of Civil Procedure 1.360, “Examination of the Person” -- Plaintiff offered no evidence of how the presence of prescription cough medication in defendant's blood at time of accident might relate to defendant's negligence, the matter “in controversy” -- Plaintiff failed to show good cause for test
Reported at 34 Fla. L. Weekly D1612a

Asylum -- Withholding of removal -- Board of Immigration Appeals failed to give reasoned consideration to evidence that alien, an Iranian who had converted from Islam to Christianity, has well-founded fear of persecution based on his religion -- Although there was evidence that law against apostasy is not often enforced in Iran, neither Board nor immigration judge considered alien's testimony that Iranians who convert from Islam to Christianity avoid punishment by instead suffering persecution by practicing underground -- Board and the IJ also failed to consider whether the Iranian regime has a heightened interest in alien that makes it more likely that his conversion will be discovered -- Substantial evidence supports decision of the Board that alien failed to prove a well-founded fear of persecution based on his political opinion
Reported at 22 Fla. L. Weekly Fed. C28b

Adoption -- Biological father -- Unmarried biological father is not required to file a verified response to notice of intended adoption plan under section 63.062(3) in addition to an affidavit under section 63.062(2) -- Section 63.062(3) dictates actions of adoption agencies, not unmarried biological fathers -- Trial court erred in concluding that both affidavit and verified response were required -- Trial court erred in ruling that father's notarized letter did not satisfy affidavit requirement because father did not take oath when he signed the letter -- Substantial compliance with statute, not strict compliance, is required -- Father's timely filing of notarized letter containing the words “sworn and subscribed” within thirty days of receiving the notice of intended adoption plan, and his filing of affidavit curing defect in his original letter on the same day that the defect was brought to the court's attention, were sufficient to substantially comply with affidavit requirement -- Remand for further proceedings to determine whether father has complied with remaining provisions of Chapter 63
Reported at 34 Fla. L. Weekly D1618a

Asylum -- Withholding of removal -- United Nations Convention Against Torture -- Chinese citizen claiming she suffered persecution by Chinese government on account of her religious beliefs based on her participation in unauthorized Christian house church and that she feared persecution should she return to China -- Due process -- Immigration judge's decision to exclude evidence offered for submission after court-ordered filing deadline is discretionary -- Because alien did not have constitutionally protected liberty interest in admission of evidence after court-ordered deadline, she cannot establish a due process violation based on the IJ's decision to exclude several statements from family and friends which alien sought to have admitted after filing date set by IJ -- Credibility findings -- Remand is appropriate to enable Board of Immigration Appeals or IJ to reevaluate its decision to deny aliens' applications in this case and its credibility determinations in light of court's opinion and in light of medical records which corroborated the majority of her testimony regarding brutal beatings she received in China
Reported at 22 Fla. L. Weekly Fed. C45a

Discovery -- Subpoenas duces tecum -- Motion to compel compliance with subpoenas and for sanctions granted -- Condominium association shall allow process server access to condominium complex so service can be attempted on all unit owners not already served with subject subpoenas -- Association is prohibited from interference with service of subject subpoenas by posting notices or otherwise -- Failure to comply with order may result in imposition of sanctions
Reported at 22 Fla. L. Weekly Fed. D7a

Employment discrimination -- Speech -- Public employees -- Retaliation -- Assistant state attorney who was responsible for prosecuting homicide cases within Office of State Attorney filed single-count action under 42 U.S.C. section 1983 against defendants, who had supervisory authority and responsibility for discipline of personnel within SAO, alleging his suspension without pay was in retaliation for exercise of his First Amendment rights to free expression in posting on his blog a memo he had written about handling of ongoing police shooting investigation -- Qualified immunity -- Defendants are entitled to qualified immunity because plaintiff cannot establish as a matter of law that he suffered a violation of his clearly established First Amendment rights when he was suspended by his employer where there were legitimate grounds for the adverse employment action -- Matter of public concern -- Content, form, and context of plaintiff's speech, as informed by whole record, demonstrates that plaintiff's speech touches on matter of public concern -- Balance of plaintiff's interest and employer's respective interests weigh in favor of plaintiff, without a more particularized showing of harm to SAO's ability to administer its duties efficiently -- Plaintiff raised genuine issue of material fact to preclude summary judgment on issue of whether defendants suspended plaintiff in substantial part because of plaintiff's publication of memo on a public blog, where reasons for plaintiff's suspension as set forth in Notice of Disciplinary Action specifically included the publication of memo -- Defendants are entitled to summary judgment on retaliation claim because they demonstrated an absence of a genuine issues of material fact as to whether plaintiff would have been suspended without pay but for public posting of memo and that there were other legitimate reasons for adverse employment decision, including disclosure of other internal emails related to police shooting investigation after plaintiff was informed that the investigation was open and that those materials are confidential, display of a lack of candor to plaintiff's superiors regarding approval of expenses for retention of an expert witness, and inappropriate conduct before state court judge -- Because defendants had legitimate grounds for adverse employment action, plaintiff could not establish that he suffered violation of his First Amendment rights when he was suspended without pay
Reported at 22 Fla. L. Weekly Fed. D1a

Contracts -- Discount e-commerce company that sells dietary supplements and personal health care items brought breach of contract action against product manufacturer after manufacturer terminated dealer agreement with plaintiff, apparently on premise that products were being sold, though not advertised, at a discount greater than allowed under parties' minimum retail price agreement -- Breach of contract -- Claim alleging contract was breached when defendant terminated dealer agreement fails to state a claim, because contract was based on a series of purchase orders, each purchase order was a separate and completed contract that created no continuing obligation, and as a result defendant could terminate the relationship at any time -- Even if parties had single contract that provided for successive performances, plaintiff did not state a claim for breach of contract because a contract for successive performances that is indefinite in duration may be terminated at any time by either party -- Promissory estoppel -- Dismissal of claim for promissory estoppel is warranted where plaintiff has asserted a contract based on the series of purchase orders and has not provided any argument as to why an equitable remedy should be available when it has pointed to an express contract -- Promissory estoppel is not available as a remedy when the parties have a written contract addressing the relevant issues -- To extent plaintiff alleges oral representations that contemplated additional terms, it has not explained why they would not be barred by statute of frauds, since terms were for over one year -- Good faith and fair dealing -- Claim for breach of covenant of good faith and fair dealing must be dismissed because plaintiff failed to identify the express term of contract breached by defendant -- Allegations that plaintiff reasonably relied on representations that defendant would always supply its products and that it expended resources as a result are insufficient to state a claim for breach of covenant of good faith and fair dealing -- Equitable estoppel -- Claim that defendant should be equitably estopped from cutting off plaintiff's sales and benefitting from plaintiff's marketing and promotional efforts fails and should be dismissed because equitable estoppel is a defense, not a cause of action -- Antitrust -- Claims for violations of federal and state anti-trust laws based on Section 1 of Sherman Act fail to state a claim because plaintiff failed to make any allegations as to an agreement between manufacturer and another party to set resale prices -- A product manufacturer may unilaterally announce its resale prices without committing an antitrust violation -- Even if an agreement had been alleged, any allegations that MRP program is unreasonable in that it goes too far in restraining trade and is tantamount to price fixing are merely conclusory and thus not sufficient to survive motion to dismiss -- Further, mere allegation that plaintiff was forced under duress to comply with manufacturer's demand in order to avoid termination is insufficient to raise claim from mere acquiescence to duress -- Plaintiff may be allowed leave to amend
Reported at 22 Fla. L. Weekly Fed. D9a

Insurance -- Rescission of life insurance policies -- Complaint by life insurance company alleging that defendants collaborated in scheme to recruit elderly applicants for life insurance policies which were never meant to be retained by insureds or their family members, but were paid for and held by outside investors, including defendant trusts organized in Illinois -- Jurisdiction -- District court has jurisdiction over out-of-state defendants because they are alleged to have engaged in a civil conspiracy, at least one act in furtherance of which was done in Florida -- Further, amended complaint properly states claims against trust and trustee defendants for rescission of insurance policies pursuant to state law and for lack of insurable interest, and for fraud, civil conspiracy, and aiding and abetting civil conspiracy -- Motion to dismiss denied
Reported at 22 Fla. L. Weekly Fed. D8a

Contracts -- Condominium purchase -- Rescission -- Error to enter summary judgment granting rescission on ground that contract lacked mutuality of obligations and mutuality of remedies -- Although paragraph reserving to seller the right to unilaterally rescind contract for sale of condominium if the decision was made not to submit the entire project to declaration of condominium created a contract that lacked mutual obligation, this deficiency was cured when seller submitted the entire condominium project for declaration of condominium by recording the necessary legal documents and closing on other units, after which seller no longer had unilateral right to rescind contract -- Further, seller constructed unit as called for by contract, obtained certificate of occupancy, and provided closing documents indicating that seller was ready, willing, and able to perform and, thus, any lack of mutuality of obligation at inception was cured -- Contract did not lack mutuality of remedy where the only condition that limited buyer's remedy to return of his deposit plus interest was if seller breached the contract for other than a “willful” breach, and contract otherwise provided reasonable remedy for purchaser upon seller's willful breach
Reported at 34 Fla. L. Weekly D1623a

Creditors' rights -- Post-judgment discovery -- Where judgment debtor had posted $50 million supersedeas bond to stay execution, the maximum bond permitted by section 45.045, Florida Statutes, but the bond amount was less than the principal amount of the judgment, judgment creditor was entitled to engage in discovery for the limited purpose of determining whether judgment debtor has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so -- Trial court erred in issuing blanket denial of judgment creditor's request to compel judgment debtor to comply with post-judgment discovery
Reported at 34 Fla. L. Weekly D1648a

Mortgage foreclosure -- Usury -- Rehearing -- Trial court abused discretion in denying mortgagor's motion for rehearing where (1) mortgagee moved for summary judgment seven days after mortgagor, who was unrepresented by counsel, was granted extension of time to obtain counsel and answer complaint, (2) attorney who received pro bono referral package appeared at hearing and requested continuance, explaining that he had not yet spoken to mortgagor and therefore could not file notice of appearance, (3) trial court denied request to continue hearing, (4) pro bono counsel subsequently filed notice of appearance and timely motion for rehearing, raising several issues, (5) trial court did not address issues articulated by mortgagor in motion for rehearing, (6) final summary judgment of foreclosure indicates that mortgagor was charged interest at an annual rate of 18% plus a 7% prepayment penalty, and (7) trial court failed to resolve legal issue of whether the 7% prepayment penalty qualifies as additional interest upon default, and if it does, when added to the 18% interest charged by mortgagee, is the total interest charged upon default usurious and unlawful
Reported at 34 Fla. L. Weekly D1650a

Negligent misrepresentation -- Deceptive and unfair trade practices -- Dispute arising from sale and purchase of land zoned as Planned Unit Development in which seller provided buyer's broker with site survey and site plan which demonstrated that 218 units could be built on the property, but which failed to disclose recorded drainage easement which would preclude building the 218 units -- Where buyer's counsel asked for a bifurcation of contract or extension of due diligence period because of several concerns, including whether fewer than 218 units could be built on the property and stated that if request was not granted, the contract would be terminated; seller did not respond and treated letter as termination of contract; buyer claimed that counsel lacked authority to terminate contract and stated its intention to move forward with purchase; and parties entered into a reinstated contract which provided that seller made no representations regarding governmental approvals and expressly removed any references to the “Intended Use” of 218 units on the property, buyer could not justifiably rely on any representations from seller concerning government approvals and the number of units that could be built on the property -- Error to deny seller's motion for directed verdict
Reported at 34 Fla. L. Weekly D1633a

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