Wednesday, May 22, 2024

Charging liens, principles of priority, net judgment rule, modification, and fresh linguini with sausage, porcini musthrooms, and sage

 Attorney's fees -- Charging lien -- Unjust enrichment -- Venue -- Transfer -- Principle of priority -- Complaint raising multiple claims, including breach of contract, quantum meruit, and unjust enrichment, stemming from defendants' failure to distribute settlement proceeds in accordance with charging lien plaintiff law firms had filed in a separate case in a separate county -- Appeal of order dismissing action for improper venue is not moot based on fact that plaintiffs withdrew charging lien and the underlying case has since been dismissed -- Even if plaintiffs can no longer pursue charging lien, nothing precludes them from filing a separate action to recover any unpaid fees, as a charging lien is not the exclusive vehicle for discharged counsel to pursue fees and costs to which they claim entitlement -- Trial court erred in applying the principle of priority and dismissing complaint based on its determination that the other county had jurisdiction over the matter because plaintiffs first properly served defendants in the other county -- Plaintiffs were not the parties that initiated the action in the other county, but rather served as counsel for the party who did -- Furthermore, since the charging lien had been withdrawn prior to the entry of the dismissal order in the present case, the matter was no longer pending concurrently in two circuits. ALEX FINCH d/b/a FINCH LAW FIRM, and FROMANG AND FINCH, P.A., Appellants, v. AUTO CLUB INSURANCE COMPANY OF FLORIDA, BRESSLER, AMERY & ROSS, P.C., LINDA MICHELLE BERNS, MASSEY CONSTRUCTION GROUP, INC., MARK B. MASSEY, KANNER & PINTALUGA, P.A., LEVI LAWRENCE WILKES, and SUSAN AYERS, Appellees. 6th District.

Attorney's fees -- Prevailing party -- Significant issues -- Net judgment rule -- Proposal for settlement -- Joint proposal -- Apportionment -- Subcontractor's action against contractor and its surety and project owner and its surety seeking damages for breach of contract, seeking to enforce liens against payment and transfer bonds, and alleging alternative quantum meruit claims against contractor and project owner -- Successor judge erred in concluding that subcontractor was prevailing party in litigation because it recovered a money judgment -- Significant issues in litigation concerned whether subcontracts were enforceable, and thus whether project owner could apply cross-default provisions to offset its damages against any amounts recovered by subcontractor; whether subcontractor was properly defaulted on one of the subcontracts at issue, and thus whether damages could be assessed against subcontractor for value of stairs constructed by replacement subcontractor; the reasonable value of the stairs; and whether subcontractor properly perfected its claims against transfer and payment bonds -- Successor judge's conclusion that defendants were unsuccessful in entirely avoiding payment to subcontractor ignored fact that defendants defeated most of subcontractor's damages claims -- Successor judge's conclusion that enforceability of subcontracts was not a significant issue because that issue did not determine “the overall outcome of this action, nor the amount of damages the Court awarded” was contrary to predecessor trial judge's finding in its merits judgment that “the primary dispute is over which contract controls” -- Moreover, enforceability of subcontracts, and in turn the cross-default provisions, significantly impacted amounts ultimately recovered by subcontractor -- Claims against bond -- Section 713.29 governs award of attorney's fees in action to enforce claim against bond, and significant issues test applies for purposes of determining prevailing party status -- Sureties who successfully resisted enforcement of subcontractor's lien against bonds prevailed on the only claims asserted against them and were not otherwise found liable to subcontractor for damages -- Accordingly, successor judge erred in denying sureties attorney's fees -- Proposal for settlement -- All defendants were entitled to award of attorney's fees and costs pursuant to section 768.79 where amount awarded to subcontractor was at least 25% less than total proposal amount -- Defendants were not required to apportion their offer under circumstances where subcontractor sought the same indistinguishable amount of damages from each defendant. LEMARTEC CORPORATION, et al., Appellants, v. EAST COAST METAL STRUCTURES CORP., Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Alimony -- Trial court erred in failing to make specific written findings of fact as to identification of marital assets and liabilities, valuation of significant marital assets, and designation of which marital assets and liabilities would be distributed to each spouse -- Error was preserved for review through wife's motion for rehearing -- Marital liabilities -- Federal income tax deficiency -- Trial court did not err in designating as a marital liability the back taxes parties owed to Internal Revenue Services notwithstanding wife's assertion that husband signed wife's name on tax returns without her consent -- Tax deficiency was not a “liability incurred by forgery or unauthorized signature” -- Vehicle -- Husband's sale of van for thousands of dollars below fair market value should have been treated as waste of marital asset under circumstances -- Alimony award to wife was unsupported by specific findings as to wife's reasonable monthly expenses and amount of income wife might expect from her own financial assets, including those she received in equitable distribution. KATHY DEASY, Appellant, v. KEVIN DEASY, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Cut-off date -- Trial court erred in requiring former wife to return a necklace to former husband where there was no evidence in record to establish the existence of the necklace -- Trial court erred when it classified and distributed as a marital liability a loan from former husband's parents which was taken out during the parties' marriage and which was fully satisfied prior to the date that former husband filed petition for dissolution -- Because the loan was not a liability that existed as of the applicable cut-off date, the trial court erred by classifying the loan as a marital liability and distributing it -- While a trial court has discretion as to the date it uses to value marital assets and liabilities, it does not have discretion as to the date used to determine the existence of marital assets and liabilities and whether they are subject to equitable distribution. VICKI MACPHERSON, Appellant, v. JOSEPH MACPHERSON, Appellee. 6th District.


Insurance -- Condominiums -- Subrogation rights -- Negligence action brought against condominium association by individual unit owners' insurer pursuant to right-of-subrogation provision in the unit owners' policy -- No error in granting condominium association's motion for judgment on the pleadings where association's policy did not provide for rights of subrogation against unit owners as required by recent amendment to section 627.714(4) -- Trial court did not improperly apply amendment retroactively where, although subject policy was issued prior to statutory amendment's effective date, insurer's subrogation rights did not vest until loss occurred after the effective date of the amendment -- Body of law holding that the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract only applies to contractual claims between contracting parties -- Conflict certified. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY a/s/o VIRGILIO PEREZ Y. PEREZ and SIRKKA PEREZ, Appellant, v. LAGUNA RIVIERA CONDOMINIUM ASSOCIATION, INC., Appellee. 2nd District.

Torts -- Civil conspiracy -- Tortious interference -- Dismissal -- Attorney's fees -- Error to enter partial summary judgment in favor of defendants dismissing plaintiff's claims for tortious interference and civil conspiracy for failure to state a cause of action -- Taking pleaded facts as true, operative amended complaint stated sufficient causes of action to withstand a motion to dismiss -- Because award of attorney's fees was predicated upon judgment being reversed, fee order must be vacated as premature. BERKLEY INSURANCE COMPANY, Appellant, v. BANC OF AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, a wholly owned subsidiary of Bank of America, N.A.; BANK OF AMERICA, N.A., a national banking association; THE TEMPO AT ENCORE, LP, a Florida limited partnership; HOUSING FINANCE AUTHORITY OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida; CPDG2, LLC, a Florida limited liability company; THA TEMPO, LLC, a Florida limited liability company; TAMPA HOUSING AUTHORITY DEVELOPMENT CORPORATION, a Florida not-for-profit corporation; TAMPA HOUSING AUTHORITY, a political subdivision of the State of Florida; U.S. BANK, N.A., a national banking association; and FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation, Appellees. BANK OF AMERICA, N.A., and BANC OF AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, Appellants, v. BERKLEY INSURANCE COMPANY; THE TEMPO AT ENCORE, LP, a Florida limited partnership; RBC TAX CREDIT EQUITY, LLC, a foreign limited liability company; RBC TAX CREDIT MANAGER II, INC., a foreign corporation; and HOUSING FINANCE AUTHORITY OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellees. 2nd District.

Torts -- Defamation per se -- Trial court's verbatim adoption of defendant's proposed final judgment does not require reversal where it was evident that final judgment reflected trial court's independent decision on issues in the case -- Both parties were allowed to submit proposed orders, eight days passed from time parties submitted their proposals until trial court entered final judgment, and plaintiff made no objections to defendant's proposed judgment until after final judgment was entered -- Further, in order denying plaintiff's motion for rehearing, trial court stated that it had reviewed both parties' submissions in light of court's trial notes, record, and briefs and determined that defendant's proposed order accurately reflected court's ruling -- Remand for correction of typographical error identified by plaintiff in one of its objections. RICHARD L. SHURE, M.D., Appellant, v. AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, and BRIAN S. ZIEGLER, M.D., Appellees. 6th District.

Torts -- Medical malpractice -- Denial of motion to dismiss for failure of plaintiff to comply with presuit requirements -- Certiorari -- Trial court did not depart from essential requirements of law by adopting verbatim plaintiff's proposed order denying motion to dismiss where record reflects that trial judge did not adopt proposed order without thought or analysis or in finding that plaintiff's notice was sufficient given limited information available to her and in concluding that plaintiff complied with statutory presuit notice requirements. UNIVERSITY OF MIAMI, etc., Petitioner, v. SHANAY HALL JONES, etc., Respondent. 3rd District.

Torts -- Medical malpractice -- Presuit requirements -- Corroborating expert -- Trial court erred by dismissing complaint with prejudice based on conclusion that plaintiff's corroborating expert, a board certified OB-GYN, did not specialize in same specialty as defendant, a gynecological oncologist who is also a board certified OB-GYN, because gynecological oncology and gynecology required different education, different training, and different certifications -- Discussion of “same specialty” requirement -- Expert witnesses offering testimony are not required to have an identical educational background and work history as a prospective defendant -- Both defendant and plaintiff's expert specialize in same branch of medicine, as illustrated by their identical board certifications. PHENGSANITH PRADAXAY, Appellant, v. JAMES ERASMUS KENDRICK, IV, M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a ADVENTHEALTH MEDICAL GROUP GYN ONCOLOGY AT ORLANDO, and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a ADVENT HEALTH ORLANDO, Appellees. 6th District.

Wrongful death -- Landlord-tenant -- Premises liability -- Duty of care -- Action brought against owner and manager of apartment complex stemming from drowning of a tenant's child in river adjacent to defendant's property -- Trial court did not err in granting summary judgment in favor of defendants based on determination that defendants had no duty to create a barrier between property and the river -- Pursuant to body-of-water rule, absent an unusual, dangerous condition, an owner of a natural or artificial body of water has no duty to fence it -- Exception to the body-of-water rule was inapplicable because the record does not demonstrate any evidence of a trap or unusual element of danger associated with the riverbank adjacent to the apartment complex that does not exist in similar rivers or on similar riverbanks -- The slope leading down to the river, the river current, and the uneven ground along the river did not constitute traps or dangerous conditions that do not occur in similar bodies of water throughout the state -- While section 83.51(2)(a)3 requires a landlord of a dwelling unit to make “reasonable provisions” for the clean and safe condition of common areas, “reasonable provisions” need only include fencing off a body of water if the particular circumstances create an unusual element of danger not presented by similar bodies of water. BARBARA FELICIANO, as personal representative of the Estate of Sthella Lopez Feliciano, a deceased minor, Appellant, v. RIVERTREE LANDINGS APARTMENTS, LLC, a Florida Limited Liability Company, and FIRST COMMUNITIES MANAGEMENT, INC., a Florida Corporation, Appellees. 2nd District.


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Sunday, May 12, 2024

Discovery, certiorari, mandamus, foreign subpoena, and buckwheat crepes with prosciutto, arugula, and asiago


Civil procedure -- Discovery -- Cellphone data -- Forensic review -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring a forensic expert to make a complete copy of the entire contents of petitioner's cellphone to be reviewed by petitioner's attorney where respondent failed to establish that there was any actual or threatened alteration, deletion, or destruction of data on petitioner's cellphone, and no less intrusive means to obtain the information sought -- Petitioner has a reasonable expectation of privacy in contents of her cellphone and, as such, there needed to be an appropriate showing by respondent and a proper balancing of competing interests by trial court -- Requiring the imaging and production of the entire contents of one's cellphone cannot be justified merely because it is the quickest and most efficient method to obtain the discovery sought -- Fact that order required disclosure to petitioner's own attorney was insufficient, without more, to protect petitioner's privacy rights. ELIZABETH ROQUE, Petitioner, v. LEWIS SWEZY, et al., Respondents. 3rd District.

Civil procedure -- Discovery -- Foreign subpoena -- Enforcement -- Jurisdiction -- Louisiana subpoena commanding a non-party Florida resident to produce documents -- Trial court erred by denying plaintiff's motion to compel production of items listed in a domesticated Louisiana subpoena duces tecum and deferring to Louisiana court on issue of whether information requested in subpoena was discoverable -- Under the Uniform Interstate Depositions and Discovery Act, the decision of whether to enforce a domesticated subpoena or a protective order based upon a Florida witness's objections is to be made by the discovery state's court -- Remand for trial court to rehear plaintiff's motion to compel and the witness's motion for protective order, and conduct an independent determination of whether the information requested in the plaintiff's subpoena is discoverable. LUV N CARE, LTD., Appellant, v. LISA HAKIM, et al., Appellees. 4th District.

Civil procedure -- Dismissal -- Sanction -- Failure to obtain counsel -- Notice and opportunity to be heard -- Trial court violated plaintiff's due process rights when it granted defendant's motion to dismiss action for failure to obtain successor counsel within time period ordered by trial court where trial court's order contained no express language placing plaintiff on notice that its failure to obtain counsel within designated time could result in dismissal -- Furthermore, plaintiff had no reasonable notice or meaningful opportunity to be heard in response to defendant's motion to dismiss where motion was not noticed for hearing and order on the motion was entered twenty-five hours after motion was filed. BABCOCK NEW HAVEN, LLC, Appellant, v. VAHEED TEIMOURI and TEIMOURI & ASSOCIATES, INC., Appellees. 5th District.

Condominiums -- Dispute between unit owners -- Attorney's fees -- Prevailing party -- Voluntary dismissal -- Trial court abused its discretion in denying defendants' motion to tax attorney's fees as prevailing parties under section 718.303 after plaintiff voluntarily dismissed action based on determination that there was minimal litigation -- General rule that a defendant is a prevailing party when a plaintiff voluntarily dismisses an action applies even where there is limited pre-trial activity prior to dismissal -- No exceptions to general rule were applicable where defendants did not pay any of the damages sought and their actions did not render the lawsuit moot. LEENA MARGIT VILER f/k/a LEENA MARGIT SILVAST and GIORDANO G. VILER, Appellants, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY a/s/o JAMES P. LAMANNA, Appellee. 4th District.

Contracts -- Insurance -- Settlement agreement -- Enforcement -- Trial court erred by granting defendants' motion to enforce settlement agreement where plaintiff's offer to settle expressly stated that it was contingent on defendant's insurer's verification that there were no other policies which may have provided coverage for underlying automobile accident, and an additional policy held by a codefendant was disclosed after acceptance of the settlement offer -- Request to insurer for information on any known policies was an essential term of plaintiff's offer to settle with which defendant's insurer failed to comply. PEDRO FUNDORA, etc., Appellant, v. ROBERTO DANGOND, et al., Appellees. 3rd District. 

Counties -- Contracts -- Dismissal -- Limitation of actions -- Continuing breach doctrine -- Contract requiring defendant to redevelop property pursuant to a master plan that had to be submitted and approved by the county -- Trial court erred in granting motion to dismiss with prejudice based on conclusion that, because more than five years had passed since date master plan was required to be submitted to county, the statute of limitations for bringing action on written contract had expired -- Complaint does not conclusively show that the statute of limitations bars action where complaint alleged various breaches of contract regarding defendant's failure to complete the redevelopment of real property that related not only to defendant's single act of failing to submit master plan by the designated date, but also in failing to comply with numerous other intertwined, ongoing, and continuing contractual duties and obligations that postdated the date that the master plan was due. HERNANDO COUNTY, FLORIDA, Appellant, v. HERNANDO COUNTY FAIR ASSOCIATION, INC., Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Trial court erred in failing to credit wife with marital funds used to pay down mortgage on husband's nonmarital property on the ground that the property actually depreciated in value during marriage -- Any increase in property's equity resulting from payments made with marital funds is a marital asset subject to equitable distribution. NADJA MARCELA BAZAN VASSALLO, Appellant, v. EDELMO ESCALONA SOCARRAS, Appellee. 3rd District.

Estates -- Assets -- Limited liability companies -- Dissolution -- Real property held by LLC wholly owned by decedent -- Trial court erred in denying motion seeking determination that real property was not an estate asset based on trial court's determination that the LLC's assets were assets of the estate because the single-member LLC immediately dissolved upon decedent's death -- Death of sole member does not immediately dissolve a single-member LLC -- Not until ninety days after decedent's death, which was well after denial of motion to determine assets, did the death become an event causing dissolution under relevant statutes -- Furthermore, LLC must be dissolved by filing articles of dissolution, after which LLC still continues for certain purposes such as winding up. PRECIOUS EZEAMAMA, Appellant, v. IN RE: THE ESTATE OF CATHERINE EZEAMAMA CHIBUGO, Appellee. 3rd District.

Liens -- Construction lien -- Discharge -- Mandamus -- Petition seeking to compel trial court to discharge a subcontractor's construction lien pursuant to section 713.21(4) is denied -- Section 713.21 only applies to a lien that is properly perfected -- Because complaint specifically alleged subcontractor had failed to perfect its lien by serving a notice to property owner and therefore had no lien rights, petitioners could not avail themselves of the special statutory procedure authorized by section 713.21(4). ABRAHAM A. CALIXTE and DOROTHY DROUILLARD a/k/a DOROTHY CALIXTE, Petitioners, v. COASTAL BUILDING CONTRACTORS, LLC, Respondent. 4th District.

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