Parsley, rosemary, sage, thyme sprinkled over some new decisions

Counties -- School boards -- Termination of teacher's employment -- Teacher had right to counsel at investigatory interview conducted by investigator for school board's office of professional standards -- By its adopted policy, school board elected not to conduct investigations into allegations of teacher misconduct, but instead delegated its investigatory authority over these types of complaints to office of professional standards, and office of professional standards investigator's investigation constitutes an “agency in investigation” as that phrase is used in section 120.62(2), Florida Statutes
Reported at 34 Fla. L. Weekly D2488b

Condominiums -- Where condominium association filed petition for temporary injunction against unit owner, and court denied petition and returned matter to arbitration, award of attorney's fees to unit owner as prevailing party was premature -- Award of fees was error because the non-final order denying the petition for injunction did not end the litigation between the parties, and no final determination on the merits had been made
Reported at 34 Fla. L. Weekly D2501a

Non-named parties -- Defendant was entitled to award of attorney's fees against parties who were not named as plaintiffs, but who financed and had control over litigation -- Non-named parties' involvement in litigation was such that their status rose to level of a “party” -- Defendant was entitled to award of attorney's fees under civil theft statute where plaintiff's civil theft claim was without substantial legal support -- Defendant was not entitled to award of attorney's fees against non-named parties under offer of judgment statute where offer was not served on non-named parties
Reported at 34 Fla. L. Weekly D2496a

Contracts -- Action alleging that defendant breached contract for sale and purchase of LP gas by charging plaintiff for tank rental where contract only allowed defendant to change its charges for gas or gas service, and that tank is neither gas nor a service -- Error to enter summary judgment for defendant -- Breach of contract claim was not barred on ground that contract was terminable at will, where plaintiff alleged that defendant breached contract while it was in effect -- Summary judgment was improper where there was factual issue as to whether tank rental was a “service”
Reported at 34 Fla. L. Weekly D2485a

Contracts -- Specific performance -- Limitation of actions -- Equitable estoppel -- Doctrine of equitable estoppel acts as bar to statute of limitations defense, and its application is wholly independent of statute of limitations and its tolling provisions -- Trial court erred in relying on tolling statute to determine whether plaintiff's claims for specific performance were barred by statute of limitations where plaintiff asserted that defendant was equitably estopped from asserting statute of limitations defense -- Record will not permit appellate court to affirm on alternate basis that plaintiff did not allege sufficient facts to raise defense of equitable estoppel where adequacy of allegations was not at issue in trial court and, accordingly, plaintiff had no opportunity to address issue or proffer additional facts -- Trial court correctly dismissed count seeking to plead equitable estoppel as a separate cause of action -- Plaintiff entitled to new trial on breach of contract claim where jury found defendant had breached contract, but awarded zero damages despite uncontradicted evidence establishing more than nominal damages
Reported at 34 Fla. L. Weekly D2490a

Creditors' rights -- Garnishment -- Priorities -- Trial court properly determined that judgment lien controlled distribution of cash bond that had been deposited with clerk of court in an unrelated case and returned to debtor's attorney upon close of case -- Intervenor which claimed security interest in cash bond based on Uniform Commercial Code financing statement failed to establish that cash bond fell under any of the categories of collateral described in security agreement -- Cash bond was not an account, general intangible, deposit account, or financial asset within the meaning of UCC -- Assuming cash bond could be categorized as “money,” a security interest in money may be perfected only by secured party's taking possession under section 679.3131, a circumstance which did not occur in this case -- Jury trial -- Intervenor waived its right to jury trial by participating in non-jury trial
Reported at 34 Fla. L. Weekly D2495a

Employment discrimination -- Handicapped employees -- Plaintiff alleging employer discriminated against her when it terminated her from her cashier position because she had HIV, in violation of Florida Omnibus AIDS Act and Florida Civil Rights Act -- Evidence -- Trial court abused its discretion in admitting into evidence the “no reasonable cause” determination letter issued by county agency authorized to conduct investigations for Equal Employment Opportunity Commission because the conclusory nature of the agency's determination letter left it with little probative value compared to the substantial prejudicial effect it may have had on jury's ultimate assessment of plaintiff's credibility and the pivotal determination as to whether plaintiff had provided a doctor's note to her employer following her HIV-related absence -- Appellate court cannot say that erroneous admission of this evidence was harmless -- Discussion of admissibility of administrative findings and conclusions of EEOC or similar enforcement agency in a subsequent jury trial de novo under Florida Civil Rights Act or similar statutes
Reported at 34 Fla. L. Weekly D2477a

Commercial property damage -- Insolvent insurers -- Where insolvent insurance company which was Florida Insurance Guaranty Association's predecessor failed to comply with notice requirements of statute, insured was not required to submit to loss appraisal process -- FIGA is not exempt from notice requirement -- Line of cases refusing to hold FIGA liable for misdeeds of defunct insurer, beyond those arising out of an insurance policy, does not provide basis for avoiding application of statute -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed
Reported at 34 Fla. L. Weekly D2481a

Insurance -- Personal injury protection -- Defendant insurer's claim that it was not required to pay medical provider's bills because provider did not provide insurer with proper written notice of a covered loss where initial set of bills did not include a disclosure and acknowledgment form, and box 31 of CMS-1500 form did not contain physician's license number -- Where bills furnished to insurer contained physician's name, bills were substantially complete, and provided proper notice to insurer -- Even if physician's license number were deemed a material provision of statements or bills, absence of license number was cured by later submission of number to insurer -- Failure of medical provider to provide disclosure and acknowledgment form with initial set of bills was cured by submitting form prior to litigation -- Circuit court appellate division did not depart from essential requirements of law in affirming county court's entry of summary judgment for medical provider in action seeking unpaid benefits
Reported at 34 Fla. L. Weekly D2500a

Mortgage foreclosure -- Condominium unit -- Trial court erred in entering order requiring mortgagee to diligently proceed with pending foreclosure action within thirty days, or pay monthly maintenance fees on condominium unit in foreclosure
Reported at 34 Fla. L. Weekly D2505b

Torts -- Action by employee of window subcontractor and his wife against another subcontractor who installed safety railings at construction site, alleging that safety railings were negligently installed -- No error in entering summary judgment in favor of defendant on negligence issues where uncontested evidence established that defendant did not negligently install guardrail system -- Affidavit of plaintiff's human factors and industrial safety expert that “Safety Boot guardrail system was not properly installed” was based upon expert's reference to manufacturer's installation instructions depicting required railings, not upon expert's personal knowledge
Reported at 34 Fla. L. Weekly D2484a

Torts -- Automobile accident -- New trial -- Action by driver of motorcycle which collided with SUV driven by defendant when defendant's vehicle exited a parking lot and made a left-hand turn across lane in which plaintiff was traveling -- Plaintiff's motion for new trial on ground that jury verdict for defendant was against manifest weight of evidence -- Trial court did not abuse discretion in denying motion for new trial where there was conflicting evidence as to whether plaintiff ran red light before colliding with defendant's vehicle -- In denying motion for new trial, court was not required to articulate specifically that jury's finding was not contrary to manifest weight of evidence
Reported at 34 Fla. L. Weekly D2498a

Venue -- State agencies -- Home venue privilege -- Action filed in Pinellas County against state agencies and former employees of reform school, alleging causes of action against state agencies and individual defendants for violations of Declaration of Rights of Florida Constitution, and against individual defendants for assault and battery and intentional infliction of emotional distress -- Error to deny motion to transfer venue to Leon County, where state agencies have their headquarters -- State agencies did not waive home venue privilege by agreeing that venue was proper in either Leon County or Jackson County -- Joint tortfeasor exception to home venue privilege was not applicable where plaintiffs did not establish a statutory basis for venue against any defendants in Pinellas County -- Where state agencies and individual defendants are willing to submit to venue in either Leon County or Jackson County, and plaintiffs have indicated that they would prefer to try the case in Leon County, transfer of venue to Leon County is proper -- Appeals -- Order denying defendants' motion to transfer venue without prejudice is an appealable non-final order that concerns venue
Reported at 34 Fla. L. Weekly D2486b

Bankruptcy -- Adversary proceedings -- Contracts -- Chapter 11 trustee brought adversary proceeding against customer to recover amounts owed under fulfillment warehouse contract, and customer filed counterclaim seeking to recoup or setoff costs incurred to remove its property from debtor's warehouse -- Summary judgment affidavits of customer's employee were based on personal knowledge, and thus were admissible, where employee based statements in affidavits on her review of customer's business records -- Amendment of trustee's answer to counterclaim by changing two admissions to denials is in interest of justice, good cause exists for amendments, neither substantial nor undue prejudice will be incurred by allowance, and underlying motivation is neither rooted in bad faith nor generally dilatory in nature -- Recoupment -- Debtor's claim against customer for compensation due under fulfillment warehouse contract and customer's claim against debtor for damages arising from debtor's post-petition non-performance under contract did not arise from same transaction, and thus customer could not assert recoupment claim -- Setoff -- Damages sustained by customer as result of trustee's rejection of fulfillment warehouse contract are deemed to have arisen prepetition, and thus customer could setoff damages arising from removal of property from debtor's warehouse against funds owed debtor in form of outstanding invoices arising under contract
Reported at 22 Fla. L. Weekly Fed. B144a

Bankruptcy -- Confirmation -- Chapter 11 plan -- Liquidating plan pursuant to which debtor proposes to transfer substantially all of its assets free and clear of junior liens and encumbrances to mortgagee, who held perfected first mortgage lien and security interest in all of debtor's assets as of petition date, should be confirmed -- Debtor's revised joint plan of reorganization satisfies requirements for confirmation set forth in Section 1129 of Bankruptcy Code where debtor has been and will continue to be affected by decline in property values and unfavorable real estate market that has been experienced nationwide and plan will result in benefits to creditors that may not be available if case were dismissed or converted -- Objections to confirmation by claimants who had entered into prepetition agreements to purchase condominium units or related property from debtor on ground that plan impermissibly strips purchase contract claimants' equitable vendees' liens from debtor's real properties and improperly permits debtor to assign their deposits to mortgagee should be overruled, because claimants' claims, to extent they assert an interest in real property, have been disallowed, and because claimant's rights to deposits are preserved in plan
Reported at 22 Fla. L. Weekly Fed. B139a

Bankruptcy -- Discharge -- Denial -- Transfer or concealment of assets with intent to hinder, delay, or defraud creditor -- Bankruptcy court did not err in denying discharge based on finding that debtor had, with intent to shield assets from his creditors, diverted the fruits of his labor to increase the value of his wife's business and then used business assets to support his personal lifestyle -- Continuing concealment doctrine precludes debtor's contention that he could not have “concealed” assets from creditor within the one-year look-back period of section 727(a)(2)(A) because creditor had learned about debtor's alleged equitable interests more than a year before bankruptcy petition was filed
Reported at 22 Fla. L. Weekly Fed. C292a

Bankruptcy -- Discharge -- Complaint -- Amendment of pleadings to add various factual allegations is not required where evidence outside pleadings that was admitted and considered by trial court does not present a basis for relief -- False oath or account -- Omissions from Statement of Financial Affairs of transfers of debtor's interests outside ordinary course of business constitute false oaths and are cause for denial of discharge under section 727(a)(4)(A) because failure to disclose these transfers in debtor's schedules and statements was material and willful -- With fraudulent intent, debtor made deliberate omissions from his schedules and statements, and cannot shield this intent behind plea that he was merely following advice of counsel -- Prepetition fraudulent transfers -- Denial of discharge under Section 727(a)(2)(A) for fraudulent transfer of property within year prior to filing of petition is not warranted because evidence was insufficient to establish fraudulent transfer -- Under section 727(a)(2), transfer of funds from debtor's home equity line to IRA was not fraudulent where result of transaction was to make more assets available to creditors -- Conversion of exempt assets into non-exempt assets by inadvertence, with negative consequences to debtor, cannot be a fraudulent transfer -- Prepetition transfer or concealment of estate property of insider -- Denial of discharge based on allegations that debtor concealed or destroyed property of estate of insider of debtor is not warranted where plaintiff presented evidence regarding concealment or destruction of cabinet doors in facilities used by insider, but failed to establish that cabinet doors were, at that time, property of insider's bankruptcy estate -- Failure to satisfactorily explain loss of assets -- Issues of whether debtor satisfactorily explained whereabouts of his Rolex watch or alleged disposition of that watch and whether debtor satisfactorily explained disposition of $7,000 in cash obtained within six months of filing of bankruptcy are questions of fact -- Failure to maintain adequate books and records -- Denial of discharge pursuant to section 727(a)(3) for failure to keep or preserve recorded information is not warranted where failure to keep and maintain records documenting sale of debtor's Rolex watch is justified given that sale of 20 year old watch was cash transaction between acquaintances while on vacation
Reported at 22 Fla. L. Weekly Fed. B131a

Bankruptcy -- Liens -- Validity, extent, and priority -- Chapter 7 trustee holds superior right, claim, title, lien and interest in property referenced in lien claimed by defendants pursuant to financing statement filed in Pennsylvania, including, but not limited to, account receivable allegedly owed to debtor -- Because defendants' security interest was never perfected, trustee can avoid the lien under Section 544(a), and preserve it under Section 551 for benefit of estate and thus for benefit of all creditors -- Defendants' lien is unperfected, rendering it unsecured, where financing statement with respect to Florida debtor should have been filed in Florida, not Pennsylvania -- Trustee is free to administer such assets of bankruptcy estate, free and clear of any claim of right , title, lien, or interest by defendants -- Defendants permanently enjoined from collecting, in any manner whatsoever, on any receivables of debtor, including, but not limited to account receivable owed to debtor under contract; such property detailed in financing statement; or any other assets of estate -- Issuance of injunction is necessary and appropriate where immediate and irreparable injury will result to trustee if defendants are free to collect on receivables of debtor, property detailed in financing statement, and any other assets of estate, issuance of injunction does not substantially affect public interest and will benefit public interest by maintaining status quo, and trustee has no adequate remedy at law, as best legal remedy would relegate trustee to filing separate claim for damages each time it is injured anew -- Damages -- Defendants committed willful violations of automatic stay by manifesting the intent to violate stay in demand letter -- As sanctions, trustee is entitled to award of attorney's fees and costs associated with defendants' conduct in attempting to collect on assets which are property of bankruptcy estate -- Trustee is not entitled to additional sanctions because no showing of actual damages other than attorney's fees and costs has been made -- Punitive damages may not be awarded
Reported at 22 Fla. L. Weekly Fed. B148a

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