Tuesday, July 23, 2013

Arbitration, breach of fiduciary duty, negotiable instruments, and fresh rosemary pasta with wilted arugula and Thai basil pesto

Arbitration & Mediation, Class Action, Consumer Law
This case involved arbitration proceedings stemming from plaintiff's class action suit alleging, among other things, that SouthernLINC's termination fees were unlawful penalties under Georgia law. SouthernLINC, a wireless provider, appealed the district court's denial of its motion to vacate two arbitration awards. Under the standard set forth by the Supreme Court in Oxford Health Plans LLC v. Sutter, the court concluded that the arbitrator did not exceed his powers under section 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., either in construing the arbitration clause as he did or in certifying a class. Accordingly, the court affirmed the judgment of the district court.
Southern Communications Serv. v. Thomas, U.S. 11th Circuit Court of Appeals, Docket: 11-15587, July 12, 2013, Judge: Tjoflat

Contempt -- Indirect criminal -- Where party appeared at show cause hearing without counsel, court neither advised party that he was entitled to be represented by attorney, as provided by rule 3.840(d), nor informed him that attorney could be appointed for him if he could not afford one, and party did not knowingly waive right to counsel, it was fundamental error to adjudicate party guilty of indirect criminal contempt and sentence him to six months in jail
CHRISTOPHER PODOLSKY, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to distribute entire value of husband's 401(k) account to wife in part as sanction for husband's acts of domestic violence against wife in front of minor children -- Although trial court also cited private school tuition arrearage as basis for award, judgment provided neither valuation for the 401(k) account nor amount of any arrearage in tuition -- Remand for further proceedings -- Value of 401(k) above tuition arrearage should be equitably distributed
MAHMOUD NASSIROU, Appellant, v. NELLIE BORBA NASSIROU, Appellee. 1st District.

Insurance -- Liability -- Trial court should have dismissed third-party complaint for declaratory judgment brought against liability insurer where there had been no settlement or verdict against insured -- Party who was allegedly injured as result of insured's negligence, but who has not obtained a settlement of verdict against insured, has no beneficial interest in insured's policy with insurer and no cause of action against insurer has accrued -- When an insurer demonstrates that the pre-suit requirements of section 627.4136, Florida Statutes, have not been met, certiorari review of an order denying a motion to dismiss is appropriate

Inverse condemnation -- Limitation of actions -- Trial court properly ruled that stabilization doctrine did not hold statute of limitations on inverse condemnation claim in abeyance until county abandoned its efforts to remediate flooding on property which property owner claimed was result of county road improvement activity that altered existing drainage pattern -- Limitations period commenced running at time county completed the road improvements which allegedly caused the flooding that rendered property unusable, regardless of county's promise to repair the problem -- Although owner may have been able to avoid statute of limitations by pleading and proving equitable estoppel, property owner did not raise estoppel and, therefore, the issue was waived
SHARI K. JUDKINS, Appellant, v. WALTON COUNTY, a political Subdivision of the State of Florida, Appellee. 1st District.

Municipal corporations -- Public employees -- Termination of chief of police -- Administrative proceedings -- Discovery -- Public records -- Exemptions -- Criminal investigative information -- Appeal from circuit court's ruling on amended petition in which state, in connection with pending administrative proceedings in which police chief contested termination, sought to quash subpoena of investigator with state attorney's office who had conducted an investigation into allegations raised by the police chief against some members of the city council and allegations against police chief that he had improperly deleted information from his work computer and also sought protective order preventing another subpoena from being issued to the investigator -- Circuit court, sitting in its appellate capacity, improperly held that portion of written investigative report containing mental impressions of investigator was not admissible in administrative hearing -- Where investigator's investigation and any related criminal proceedings had concluded, and no charges were filed against any of the parties mentioned in the report, the statutory exemption no longer applied and the investigator's report was a public record -- Circuit court order, which granted in part and denied in part state's amended petition, is otherwise affirmed
CITY OF AVON PARK, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee, and MICHAEL ROWAN, Appellee/Cross-Appellant. 2nd District.

Torts -- Abuse of process -- Malicious prosecution -- Litigation privilege applies to claims for abuse of process and malicious prosecution against attorneys who filed complaint and briefly prosecuted case against plaintiff -- Trial court properly granted defendants' motion for judgment on the pleadings
HAROLD E. WOLFE, JR., et al., Appellants, v. JEFFREY T. FOREMAN, et al., Appellees. 3rd District.

Torts -- Attorney's fees -- Proposal for settlement -- Law of the case -- Exceptions -- Manifest injustice -- Under circumstances, trial court did not abuse its discretion in denying plaintiff's request for trial level attorney's fees based on proposal for settlement although appellate court, in prior appeal, had awarded appellate attorney's fees based on the same proposal for settlement -- When appellate court issued order granting the motion for appellate fees and remanding to fix amount, instant appeal of trial court's order denying plaintiff entitlement to attorney's fees was pending before appellate court and, accordingly, the order granting appellate fees should have been conditioned upon plaintiff's ultimately prevailing in this appeal -- Because trial court did not abuse discretion by determining that plaintiff was not entitled to attorney's fees based on its proposal for settlement, reversal of that order based on law of the case doctrine would result in manifest injustice -- Trial court did not abuse its discretion in denying motion for attorney's fees where plaintiff initially sought damages for business income losses due to defendant's negligence, but by the time plaintiff served its proposal for settlement, it knew that it would be closing its business and also knew that it would be seeking damages for destruction of its business, not merely for its business losses, but failed to inform or notify defendant as to the change in the nature of its claimed damages

Torts -- Banks -- Conversion -- Negligence -- Negotiable instruments -- Action by automobile dealer against depository bank and financing banks alleging mishandling of financing checks issued in connection with dealer's provision of vehicles to rental car company which ultimately went out of business without repaying money owed to dealer -- Single-payee checks -- Dealer's claim for statutory conversion of single-payee checks, which was based on allegations that, without dealer's knowledge, financing banks delivered to rental company, for the use and benefit of dealer, checks which were payable only to dealer fails for lack of delivery where there was no allegation or evidence that rental company was acting as dealer's agent -- Portion of final judgment awarding dealer damages for the face amount of single-payee checks reversed -- Two-payee checks -- Dealer failed to establish that it suffered damages with respect to several of the two-payee checks on which rental company had forged dealer's endorsement, as record showed that dealer had received payment in full for the amount of these checks -- Record supported award of damages with respect to one two-payee check for which dealer had not received payment -- Prejudgment interest -- No error in awarding prejudgment interest from date money was due until date of judgment, although interest should be recalculated on remand, consistent with appellate court's opinion
REGIONS BANK, etc., et al., Appellants, v. MAROONE CHEVROLET, L.L.C., Appellee. 3rd District.

Torts -- Contracts -- Civil theft -- Fraud -- Breach of fiduciary duty -- Trial court grossly abused discretion in vacating default final judgment against financial services company, its owner, and employee, as void for plaintiff's failure to state a cause of action -- Although civil theft complaint does not use the words “criminal intent,” allegations in the complaint sufficiently support a claim for civil theft and sufficiently allege company owner's personal involvement with failure to return funds he admitted to being escrow funds -- Final judgment as to civil theft claim to be reinstated -- Trial court did not err in holding fraud claim failed to state cause of action where fraud allegation lacked specificity -- Trial court did not err in holding breach of fiduciary duty claim failed to state cause of action where the complaint's allegations were conclusory and no ultimate facts were alleged to support that defendant owner personally misled plaintiff
LOIS RHODES, Appellant, v. O. TURNER & COMPANY, LLC, OTHEL TURNER and BYRON RAINER, Appellees. 4th District.

Torts -- Medical malpractice -- Action against defendant that provided Medicare health insurance benefits to plaintiff -- Claim that defendant's administrative personnel failed to provide authorization for plaintiff to be transported promptly to hospital for an urgent procedure to prevent a second major stroke was not a claim for medical negligence -- Medical malpractice presuit notice requirements were not applicable -- Even if claims were claims for medical malpractice, claims related back to first amended complaint, which was filed within the statute of limitations, rather than second amended complaint, which was filed after the statute of limitations had passed -- Defendant waived presuit notice requirement by failure to raise the issue in its response to first amended complaint -- Trial court erred in entering summary judgment for defendant
ANGEL ACOSTA, et al., Appellants, vs. HEALTHSPRING OF FLORIDA, INC., etc., et al., Appellees. 3rd District.

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