Tuesday, March 9, 2010

Arbitration, automobiles, coverage, mortgages al dente

Attorney's fees -- Contracts -- Prevailing defendant in collection action based on contract that provides for recovery of attorney's fees is entitled to award of fees -- Justiciable issues -- Motion seeking attorney's fees under section 57.105(1) on grounds that plaintiff could not recover because it is unlicensed contractor was not required to state that plaintiff has 21 days to withdraw complaint and avoid sanctions -- It was not necessary for defendant to re-file motion for attorney's fees after plaintiff amended complaint where amendment did not alter claim for breach of contract, which remained meritless -- Defendant is not entitled to award of section 57.105(1) attorney's fees where plaintiff and his attorney knew or should have known that plaintiff did not have general contractor's license, but evidence does not establish that they knew or should have known that general contractor's license was required

Contracts -- Automobile sale -- Arbitration clause -- Validity -- Arbitration clause that waives buyer's right to seek punitive damages or pursue action under consumer protection statutes with fee-shifting provisions and prohibits class relief is substantively unconscionable -- Clause is also procedurally unconscionable where contract is in English but buyer barely speaks English, salesman did not furnish buyer with copy of contract, salesman rushed buyer into signing contract without disclosing that buyer was purchasing older vehicle with substantially more mileage than vehicle buyer had originally selected, and buyer was confronted with “take it or leave it” proposition to take substituted car or forfeit deposit -- Arbitration clause is unenforceable

Contracts -- Shipping -- Action by carrier against shipper for unpaid transportation charges paid by shipper to now-insolvent trucking broker which did not forward payment to carrier -- Where there was no credible evidence that carrier agreed to look solely to now-insolvent trucking broker to be paid, shipper is not relieved of liability to pay carrier

Attorney's fees -- Arbitration -- Trial de novo following court-ordered nonbinding arbitration -- Trial court correctly refused to hold individual who controlled corporate plaintiff liable for fees incurred in trial de novo, which was requested by the corporate plaintiff which had received favorable arbitration award but which did not prevail in trial de novo, where, by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under applicable statute, he was not a “party” subject to a fee award -- Moreover, language of stipulated dismissal stated that parties agreed to bear their own attorney's fees and costs incurred with respect to the claim and the parties that were being dismissed with prejudice and, accordingly, circuit court was without jurisdiction to reconsider attorney's fees claim after trial against the plaintiffs who were dismissed from the lawsuit
Reported at 35 Fla. L. Weekly D250a

Contracts -- Resort Affiliation Agreement between developer of interval ownership resort and company in the business of providing time share exchange services that provided for the inclusion of the resort in an interval network, a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts -- Trial court properly entered summary judgment for defendant in developer's action seeking declaration that contract is not in force or that defendant breached implied covenant of good faith and fair dealing -- Mutuality of obligations -- Agreement is not rendered illusory because of fact that defendant reserved right to modify terms and conditions of interval network in its sole discretion where agreement delineated specific contractual duties owed by defendant to plaintiff which did not comprise the terms and conditions of the interval network itself -- Defendant's modification of the interval network would not relieve it of its obligations to plaintiff -- Even if there were a lack of mutuality of obligation at the inception of the contract, the lack of mutuality was cured by the parties' subsequent performance according to the terms of the agreement -- Where agreement provided that it would automatically renew for a second term at the end of the initial term unless a party provided written notice of its intent not to renew, and plaintiff failed to provide such notice, the agreement did not expire by its own terms -- Defendant is not equitably estopped from asserting that the agreement automatically renewed where there was no representation by defendant that reasonably indicated to plaintiff that it was relieved of its obligation to give defendant timely written notice of its intent not to renew -- Defendant did not breach implied covenant of good faith and fair dealing by revoking plaintiff's Five Star resort rating where there was nothing in agreement which obligated defendant to confer such rating -- Trial court did not abuse discretion in granting defendant leave to amend its answer to assert claim for attorney's fees
Reported at 35 Fla. L. Weekly D252a

Mortgages -- Capacity to sue -- Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue -- Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint -- Case dismissed without prejudice

Mortgages -- Foreclosure -- Standing -- Motion for final judgment of foreclosure denied -- Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action -- Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage -- Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge

Torts -- Arbitration -- Arbitrable issues -- Action by purchasers of home against contractors, alleging that personal injuries suffered by plaintiffs from mold exposure were caused by negligent design and construction of the home -- Trial court properly compelled arbitration where arbitration provision in purchase agreement mandated arbitration of claims of defects in the home and claims for personal injury
Reported at 35 Fla. L. Weekly D245a

Insurance -- Commercial general liability -- Coverage -- Insurance dispute arising out of state court slip-and-fall suit against underlying defendants that culminated in Coblentz agreement, which was subsequently reduced to consent judgment -- Duty to defend -- Insurer was relieved of its duty to defend, given the omission in underlying complaint of plaintiff's uncontroverted receipt of workers' compensation benefits and her employment status and the impairment of insurer's right to assess plaintiff's claims and exercise control over litigation before parties entered into Coblentz agreement -- Insurer is therefore entitled to judgment as matter of law that it has no obligation to reimburse plaintiff or insured for any defense costs or attorney's fees incurred in underlying litigation -- Duty to indemnify -- Even assuming, arguendo, that insurer had duty to defend, workers' compensation and employer's liability exclusions in CGL policy issued to underlying defendants preclude coverage for plaintiff's state law claims where plaintiff's injuries comprised “an obligation of the insured under a workers' compensation law” and “arose out of and in the course of her employment” by insured -- Insurer is entitled to judgment as matter of law that it has no duty to indemnify plaintiff or its insureds for plaintiff's injuries or for consent judgment entered in underlying tort action
Reported at 22 Fla. L. Weekly Fed. D137a

Contracts -- Motion for relief from default judgment entered in action by company providing sitework and fill material against contractor and owner of construction site -- Contract attached to complaint for foreclosure of mechanic's lien, breach of contract and quantum meruit is inadequate for failure to attach change orders that materially affect amount owed on contract, but not for failure to attach plan drawings -- Mechanic's lien -- Where exhibit attached to complaint contradicts statement in complaint that notice was provided within one year of date plaintiff first provided labor, services or material to defendant, exhibit controls and nullifies allegation that plaintiff complied with statutory prerequisites to impose and foreclose mechanic's lien -- Failure to state cause of action for foreclosure of mechanic's lien and breach of contract is fatal deficiency in complaint warranting setting aside judgment -- Where contract is not for fixed amount, and amount defendant owes plaintiff can only be determined by reference to evidence outside contract, plaintiff's damages were unliquidated when judgment was entered, and defendants were entitled to notice and opportunity to be heard on amount owed -- Judgment and all events that flowed from it are declared void ab initio

Civil rights -- Sexual discrimination -- Employment -- Hostile work environment -- District court erred in granting summary judgment in favor of employer where, in addition to evidence of general, indiscriminate vulgarity, plaintiff presented ample evidence of gender-specific, derogatory comments made about women on account of their sex to permit reasonable jury to find that workplace exposed plaintiff to disadvantageous terms or conditions of employment to which members of the other sex were not exposed -- Remand for further proceedings
Reported at 22 Fla. L. Weekly Fed. C477a

Racketeering -- City's action against company which sells cigarettes online to residents of city, alleging business failed to comply with federal law requiring out-of-state vendors to submit customer information to states into which they ship cigarettes, which information was forwarded by state to city for use in tracking down cigarette purchasers who do not pay their taxes, and thereby committed mail and wire fraud which ultimately caused city to lose revenue in form of unrecovered cigarette taxes -- Because city cannot show that it lost tax revenue “by reason of” defendant's alleged RICO violation, city cannot state claim under RICO -- City was required to show that predicate offense “not only was a ‘but for' cause of his injury, but that it was the proximate cause as well,” and proximate cause for RICO purposes requires some direct relation between injury asserted and injurious conduct alleged -- City's causal theory cannot satisfy RICO's direct relationship requirement
Reported at 22 Fla. L. Weekly Fed. S113a

Torts -- Death resulting from traffic collision in Iraq with truck operated by defendant, which was incorporated under Kuwaiti law and had its principal place of business in Kuwait -- Civil procedure -- Default -- Vacation -- No error in vacating default judgment, which was entered against foreign defendant for failure to appear or otherwise answer after service, after district court conducted evidentiary hearing on personal jurisdiction and concluded that the defendant lacked minimum contacts with Georgia sufficient to support jurisdiction under Georgia's long-arm statute -- Defendant did not waive challenge to personal jurisdiction by ignoring service, retaining counsel in the United States, monitoring court proceedings, and then filing motion to vacate judgment after default judgment was rendered against it -- Defendant did not waive personal jurisdiction defense by entering into contracts with U.S. government that contained section of Federal Acquisition Regulation requiring contractors to maintain liability insurance to indemnify and hold harmless the government against third-party injury and property loss claims
Reported at 22 Fla. L. Weekly Fed. C473a

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