Friday, July 15, 2011

Attorneys' fees, FDUTPA and lamb roasted on rosemary and plum tomatoes

Attachment and garnishment -- Cook v. NC Two, L.P.,(Ga.)
Attachment and Garnishment - Substantial compliance did not excuse noncompliance with notice requirement in garnishment action.
Substantial compliance did not excuse noncompliance with the statutory three-business-day requirement for providing notice to judgment debtor in garnishment action.

Civil rights -- Racial discrimination -- Reverse discrimination -- White male brought reverse discrimination claim against former employer alleging he was terminated on account of his race -- Plaintiff presented sufficient evidence to withstand motion for summary judgment where record contains sufficient circumstantial evidence from which a jury could infer that employer displayed racially discriminatory animus toward plaintiff when it terminated his employment after plaintiff transmitted racially insensitive “joke” email in violation of zero tolerance policy -- Circumstantial evidence yields inference that employer only fired plaintiff because he is white because record evidence permits a jury to infer reasonably that employer's justification for firing plaintiff is pretext for racial animus, shows that employer had substantial incentive to discipline white employees who distributed racist emails more harshly than black employers who were guilty of same or similar conduct during subject period, and indicates clearly that employer consciously injected race considerations into its discipline decision making without an adequate explanation for doing so -- Employer's injection of race into its decision-making process yields an unavoidable inference that employee's race impacted discipline determination, and it is a jury's province to decide whether race actually bore on decision to terminate plaintiff
Reported at 23 Fla. L. Weekly Fed. C64a

Civil procedure -- Dismissal -- Failure to prosecute -- Trial court erred in applying rule 1.420(e) to a non-mortgage foreclosure civil case in which a final judgment had been entered -- Exceptions created by Florida Supreme Court for mortgage foreclosure cases does not apply to instant case
Reported at 36 Fla. L. Weekly D1505d

Civil rights -- Search and seizure -- Detention -- Occupant of premises to be searched -- Plaintiff, who was seized by law enforcement and detained for up to two hours while officers searched residence of her son failed to establish a Fourth Amendment violation, even if alleged facts were proven to be true at trial -- Initial seizure and detention in front yard of house known by law enforcement to be involved in distribution of controlled substances at time it was searched was constitutional where defendants possessed anticipatory search warrant to search the premises and reasonably prudent man in defendants' positions would have been warranted in belief that he was validly authorized to execute warrant and search the premises -- Implicit in that authority is categorical right to temporarily detain occupants of premises to be searched -- Scope and duration of search were constitutional -- Continued detention for up to two hours during length of search was permissible, although defendants had ceased harboring suspicions that plaintiff was involved in criminal activity -- Force, consisting of officer pushing plaintiff to ground from her squatting position and holding her there with a foot or knee in the back for up to ten minutes while premises were secured, was de minimus, and plaintiff's Fourth Amendment right to be free from excessive force at hands of law enforcement was not violated -- For safety of persons involved, officers were authorized to exercise unquestioned command of situation by placing all occupants of premises on the ground for several minutes while securing home and ensuring there was no danger to officers or public
Reported at 23 Fla. L. Weekly Fed. C73a

Consumer law -- Deceptive and unfair trade practices -- Attorney's fees -- Offer of judgment -- Claim for attorney's fees under Florida Deceptive and Unfair Trade Practices Act and Florida's offer of judgment statute, arising from civil action seeking both damages and non-monetary relief -- Choice of law -- Florida's offer of judgment statute, Florida Rule of Civil Procedure 1.442(c)(2)(F), and FDUTPA and its fee-shifting provision are substantive for Erie purposes and, therefore, are applicable in this federal case -- Questions certified to Florida Supreme Court: Under Fla. Stat. § 768.79 and Rule 1.442, is a defendant's offer of judgment valid if, in a case in which the plaintiff demands attorney's fees, the offer purports to satisfy all claims but fails to specify whether attorney's fees are included and fails to specify whether attorney's fees are part of the legal claim? Does Fla. Stat. § 768.79 apply to cases that seek equitable relief in the alternative to money damages; and, even if it does not generally apply to such cases, is there any exception for circumstances in which the claim for equitable relief is seriously lacking in merit? Does Fla. Stat. § 501.2105 entitle a prevailing defendant to an attorney's fee award in a case in which a plaintiff brings an unfair trade practices claim under the FDUTPA, but the district court decides that the substantive law of a different state governs the unfair trade practices claim, and the defendant ultimately prevails on that claim? If Fla. Stat. § 501.2105 applies under the circumstances described in the previous question, does it apply only to the period of litigation up to the point that the district court held that the plaintiff could not pursue the FDUTPA claim because Florida law did not apply to his unfair trade practices claim, or does it apply to the entirety of the litigation?
Reported at 23 Fla. L. Weekly Fed. C59a

Contracts -- Real property sale -- Pre-construction condominium -- Description of property -- Recording data for declaration -- Trial court erred in entering summary judgment for buyer and revoking contract for the sale of a pre-construction condominium unit based on the conclusion that, because the sales contract failed to provide a legal description of the property as defined by section 718.109, the contract ran afoul of section 1703(d)(1) of the Interstate Land Sales Full Disclosure Act, which requires the description of the lot be “in a form acceptable for recording” -- Section 718.109, which defines the legal description for condominium parcels as including “recording data” for the declaration, does not apply until a declaration has been recorded -- Where declaration was not recorded, a failure to reference the declaration's “recording data” in the contract cannot be used as a basis for revoking the contract for violating ILSFDA -- The purpose of ILSFDA is preventing fraud through disclosure of pertinent information, not ensuring technical compliance with state recording statutes -- Information provided by seller was sufficient to clearly identify the unit and was “in a form acceptable for recording” in accordance with ILSFDA where seller gave buyer actual proposed declaration, unit number, address, development name, site map, and floor plans and these documents were incorporated into the contract -- Reversed for entry of summary judgment for seller
Reported at 36 Fla. L. Weekly D1519a

Dissolution of marriage -- Alimony -- No abuse of discretion in awarding bridge-the-gap alimony and only nominal permanent alimony given parties' uncertain, evolving financial circumstances -- Competent, substantial evidence supported trial court's conclusion that husband did not dissipate marital funds during pendency of dissolution proceedings -- Equitable distribution -- Trial court erred in treating as a marital asset subject to equitable distribution a future non-compete/non-solicitation payment, which husband was to receive from former employer long after dissolution petition was filed and the marriage was dissolved -- This payment was not comparable to deferred income or stock option in which a spouse's rights vested during the marriage and could not properly be considered a form of retirement -- Trial court erred in characterizing as “unexplained” husband's use of certain bonus received for his labors during marriage and first non-compete payment received from former employer, and in effectively replacing these monies with the future installment payment under non-compete/non-solicit agreement -- Remand for adjustment of equitable distribution
Reported at 36 Fla. L. Weekly D1497a

Injunctions -- Anti-Injunction Act -- District court's order, pursuant to All Writs Act, permanently enjoining a Florida state court from sanctioning counsel for his continued representation of a client in violation of state court order prohibiting that representation was not “necessary in aid of district court's jurisdiction” and, therefore, was issued in violation of Anti-Injunction Act -- Under Anti-injunction Act case law, a district court conviction that a state proceeding has reached or is reaching an erroneous result does not alone warrant an injunction against those proceedings
Reported at 23 Fla. L. Weekly Fed. C77a

Securities -- Fraud -- Maritime torts -- Cruise ship operator brought claims for securities fraud, maritime torts, and common law torts alleging defendants fraudulently misrepresented deteriorating and defective condition of vessel better known as Love Boat from its television days, to induce plaintiff to purchase stock shares of corporation, the principal asset of which was the vessel -- Jurisdiction -- District court erred by dismissing securities fraud claim brought pursuant to section 10(b) and Rule 10b-5 based on conclusion that it lacked federal question jurisdiction over claim because plaintiff failed to allege that purchase or sale of stock took place within United States -- Where Supreme Court precedent establishes that Section 10(b) applies only where security at issue is listed on domestic stock exchange or, if not so listed, where its purchase or sale is made in United States, there is no dispute that stock at issue was not listed on domestic stock exchange, but complaint alleges that transaction for acquisition of stock closed in United States, it cannot be said that alleged transfer of title to shares in United States lies beyond Section 10(b)'s territorial reach -- District court has, at least, supplemental jurisdiction over maritime tort claims because those claims form part of same case or controversy as the securities fraud claim
Reported at 23 Fla. L. Weekly Fed. C92a

Torts -- Product liability -- Tobacco -- Appeals -- Stay pending appeal -- Bond -- Section 569.23(3), Florida Statutes (2010), which limits the amount of bond necessary to obtain an automatic stay of a judgment by a member of a decertified class action against a signatory of the tobacco settlement agreement with the state, is not unconstitutional -- Statute is not a special law granting a privilege to a corporation, and statute does not impermissibly intrude on Florida Supreme Court's authority to regulate practice and procedure in the courts in violation of separation of powers mandate -- Question certified: Does section 569.23(3), Florida Statutes (2010), violate article III, section 11(a)(12) or article II, section 3 of the Florida Constitution by limiting the amount of the bond necessary to obtain an automatic stay of a judgment against a signatory to the tobacco settlement agreement with the State of Florida?
Reported at 36 Fla. L. Weekly D1493a

Torts -- Product liability -- Medical device -- Manufacturing defect -- Patient brought strict products liability action against medical device manufacturer, alleging that manufacturer's SurgiWrap, a bioresorbable barrier used to prevent post-surgical adhesions, had a manufacturing defect that caused it to perform in a manner other than as intended -- Evidence -- Physician testimony -- District court did not abuse discretion in limiting testimony of plaintiff's treating physicians about identity of foreign body surgically removed from plaintiff's abdomen -- Treating physicians' statements that foreign substance removed from patient's abdominal cavity was SurgiWrap was not admissible as lay opinion, but rather, required application of Daubert analysis to determine admissibility -- District court correctly applied Daubert analysis to testimony of patient's gynecologist that SurgiWrap had failed to perform as intended and thus was defective, as such conclusion required some knowledge of how the device should have performed, which was a question outside the ken of a lay witness because it required scientific or other specialized knowledge -- Medical device manufacturer was entitled to summary judgment on strict products liability claim because patient failed to produce evidence, expert or otherwise, from which a reasonable jury could conclude that manufacturer's SurgiWrap, which had been implanted in patient's abdomen to prevent post-surgical adhesions but which allegedly caused an abscess that led to other injuries, contained a manufacturing defect
Reported at 23 Fla. L. Weekly Fed. C56a

Public Employee: FLORIDA PUBLIC EMPLOYEES SUE STATE OVER CHANGES IN RETIREMENT BENEFITS, Williams v. Scott, 25 No. 25 Westlaw Journal Employment 3, Westlaw Journal Employment July 12, 2011
A group of 11 public employees has sued the state of Florida, claiming that the government cannot legally make changes to its retirement system with respect to salary deductions and cost-of-living adjustments. The plaintiffs claim that the plan in Senate Bill 2100, which was signed by Republican Gov. Rick Scott June 22 and took effect July 1, violates the Florida Constitution. They say the plan interferes with the deal they and others had with the state and impairs their right to collectively bargain

State Farm Mut. Auto. Ins. Co. v. Bowling ,(Fla.App. 2 Dist.)
Insurance - Exclusion of testimony of insurer's expert witness, a licensed registered medical coder, was improper in UM action.
The witness's knowledge, skill, experience, training, and education qualified her as an expert witness for the automobile insurer in an action for uninsured motorist (UM) coverage, as required to support the admission of her proffered testimony regarding whether the insured's medical bills were properly coded, whether they corresponded to the medical records documenting his purported treatment, and whether they were reasonable. The witness was a licensed registered medical coder, which allowed for auditing of documentation, billing, and coding of physician offices and hospitals. She attained the status of a diplomate of a national board of forensic examiners. She gained professional experience analyzing and reviewing medical coding for various clients, both plaintiff and defense.

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