Torts, trespass, premises liability, dissolution, and Chicken Mole Poblano, nasturtium and heirloom cucumber salad

 Appeals -- Stay -- Automatic bankruptcy stay -- Appellate panel is bound by court's prior decision in Shop in the Grove, Ltd. v. Union Federal Savings and Loan Ass'n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982), which held that bankruptcy automatic stay provision is inapplicable in appellate court where the debtor, who is the defendant below and who has filed for federal bankruptcy protection, is the appellant, but panel suggests that court should revisit and recede from that decision. NATIONAL MEDICAL IMAGING, LLC, et al., Appellants, v. LYON FINANCIAL SERVICES, INC., etc., Appellee. 3rd District.

Child custody -- Appeals -- Order approving report and recommendation of general magistrate regarding time-sharing and parenting plan affirmed -- Appellate review is limited to errors on face of order where no exceptions to report and recommendation were filed. MELISSA LYNN MURPHY, Appellant, v. LACY AUSTIN RAY HUTCHENS, Appellee. 5th District.

Civil procedure -- Setting of action for trial -- Failure to strictly comply with rule 1.440 -- Final judgment reversed where matter was tried prematurely and not properly noticed for trial. BENJAMIN CHANCEY AND ANGELIA CHANCEY, Appellants, v. MICHAEL YOUNG AND MARION COUNTY BOARD OF COMMISSIONERS, Appellees. 5th District.

Contracts -- Employment -- Termination/nonrenewal -- Action brought against employer claiming breach of contract and covenant of good faith, reformation, and negligent misrepresentation stemming from the employer's decision to not renew employee's contract after expiration of the initial term and place employee on administrative leave without following procedures outlined in termination provision of contract -- No error in entering summary judgment in favor of employer on breach of contract claim -- Administrative leave is not the same as termination, and employer's summary judgment evidence established that employee was placed on administrative leave, where he remained with full pay and benefits, until the agreement expired -- Although employee was relieved of his duties, fact remains that employee was not terminated during the term of the agreement and, as such, employer was not required to follow termination provision of contract when it declined to renew -- Additionally, other provisions of contract state that expiration is not dismissal or termination which would trigger contract's termination provision -- Trial court's interpretation of contract was reasonable and gave effect to the entire agreement -- Because there is no breach of contract claim, claim that employer breached the implied covenant of good faith and fair dealing necessarily fails -- No error in entering summary judgment in favor of employer on reformation claim where employee showed no wrongful or inequitable conduct by employer, and employee's evidence conclusively contradicted his claim of mistake -- Trial court's apparent erroneous ruling that the statute of frauds barred reformation claim does not warrant reversal because summary judgment was otherwise appropriate -- No error in entering summary judgment in favor of employer on claim of negligent misrepresentation -- Contract was not ambiguous and alleged misrepresentations made to employee reflected contract's language -- Although trial court adopted employer's proposed order verbatim, including erroneous legal conclusion that statute of frauds prohibited reformation claim, circumstances of the case do not create an appearance that the trial court failed to exercise independent judgment. DARREN WHITE, Appellant, v. FORT MYERS BEACH FIRE CONTROL DISTRICT, Appellee. 2nd District.

Contracts -- Jurisdiction -- Non-residents -- Action by Florida company against Puerto Rican company for breach of contract for plaintiff to install glass tiles in pools being constructed by defendant in Puerto Rico -- Trial court erred in denying motion to dismiss where plaintiff failed to establish that defendant had sufficient minimum contacts with Florida to satisfy due process requirements for personal jurisdiction over defendant -- Specific jurisdiction provision of long-arm statute was satisfied by allegation that defendant breached contract in Florida by failing to make payments in Florida as required by contract -- Substantial services under contract were performed in Puerto Rico, not Florida, and defendant did not purposefully avail itself of privilege of conducting business activities in Florida, and did not establish minimum contacts with Florida. JOHNNY'S POOL SUPER CENTER, INC., Appellant, v. FOREVERPOOLS CARIBBEAN, LLC, Appellee. 3rd District.

Contracts -- Sale of real property -- Option to purchase -- Specific performance -- Trial court did not err in declining to grant specific performance of an option to repurchase certain real property where, although option holder furnished notice of intent to exercise the option as authorized under original purchase contract, trial court found a dearth of proof that option holder stood ready, willing, and able to tender payment, along with a lack of compliance with certain contractually stipulated terms -- An option holder must strictly comply with the applicable provisions of the contract, necessarily accepting the terms of the option unqualifiedly. LUPETTO, INC., Appellant, v. SOUTH BAY DEVELOPERS GROUP, LLC, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Permanent alimony award reversed where, without explanation, the award falls short of former wife's basic monthly expenses while leaving former husband with a substantial surplus. JOY TRACHTMAN TORDINI N/K/A JOY TRACHTMAN, Appellant, v. RAPHAEL JOSEPH TORDINI, Appellee. 5th District.

Estates -- Attorney's fees -- Personal representative's counsel -- Substantial competent evidence supported contractual attorney's fees awarded for administration of the estate, and there were no allegations of bad faith or overcharging. QUANISHA HARRIS, Appellant, v. IN RE: ESTATE OF WILLIE HARRIS, Appellee. 3rd District.

Insurance -- Homeowners -- Bad faith -- Failure to attempt in good faith to settle claim -- Trial court erred in entering summary judgment for insurer in insureds' bad faith action on ground that insurer cured a Civil Remedy Notice of Insurer's Violations by invoking the appraisal process before the CRN was filed and paying the appraisal award more than sixty days after the CRN was filed -- CRN is not required to contain a specific amount sought to cure alleged bad faith. PATTI FORTUNE and JEREMY DOMIN, Appellants, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a FRONTLINE INSURANCE, Appellee. 2nd District.

Insurance -- Third-party beneficiaries -- Language of the policy of insurance clearly reflects that plaintiff was not intended to primarily and directly benefit from the policy where policy expressly stated that it was only between the named insured and the insurer, and that there was no contract of insurance between insurer and plaintiff. PAMELA GOINS, Appellant, v. PRAETORIAN INSURANCE COMPANY, Appellee. 5th District.

Mortgage foreclosure -- Judges -- Disqualification -- Adverse rulings -- Petition for prohibition seeking review of order denying disqualification of judge based on claim that judge discounted petitioner's credibility by ordering sequestration of rents despite petitioner's affidavit that petitioner lacked a tenant -- Petition is denied where record shows that challenged action did not stem from disqualifying personal bias or prejudice toward petitioner. NIDIA N. MAGARINO, Petitioner, v. THE BANK OF NEW YORK MELLON, etc., Respondent. 3rd District. Probate rules -- Amendments -- Petition to determine capacity -- Designation of health care surrogates or other advance directives -- Petition for appointment of guardian of an incapacitated person -- Petitioner required to state whether they have knowledge or belief that there are other possible alternatives to guardianship -- Guardian advocate -- Petitioner required to state whether they have knowledge that person with developmental disability has executed a designation of health care surrogate -- Expedited judicial intervention concerning medical treatment procedures -- Forms -- Adoption of new rules containing standardized forms to reduce costs and create uniformity statewide. IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES -- GUARDIANSHIP. Supreme Court of Florida.

Real property -- Homestead -- Insurance -- Assignment of post-loss benefits -- Question certified: Does Article X, section 4(c) of the Florida Constitution allow the owner of homestead property, joined by the spouse if married, to assign post-loss insurance benefits to a third-party contractor contracted to make repairs to the homestead property?. LANDMARK CONSTRUCTION INC. OF CENTRAL FLORIDA, AS ASSIGNEE OF CARMELO GONZALEZ AND VICTORIA GONZALEZ, Appellant, v. ANCHOR PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 5th District.

 

Replevin -- Unclean hands -- Summary judgment -- Action by lender seeking to obtain mobile home from successor in interest to foreclosed property on which the mobile was located -- Trial court erred in granting summary judgment in favor of property owner based on unclean hands defense alleging that lender had made material misrepresentations to bankruptcy court concerning the value of, and equity in, the mobile home in order to maintain control of the asset -- Property owner failed to establish that it was injured as a result of lender's alleged misconduct where bankruptcy documents did not support property owner's position that misconduct caused its predecessor in interest to file responsive pleadings in bankruptcy case -- Even assuming that predecessor in interest's expenditure of time and resources could be relied upon to show an injury to property owner, it is clear from the record that no such expenditure was shown. 21ST MORTGAGE CORPORATION, Appellant, v. TSE PLANTATION, LLC, MERI L. HARRELL, CURTIS R. HARRELL, et al., Appellees. 1st District.

 

Rules of Supreme Court Relating to Admissions to the Bar and Rules Regulating the Florida Bar -- Amendments -- Court declines to adopt proposed emergency rules to provide for admission to the Florida Bar without examination, followed by a supervised practice requirement, of applicants who otherwise qualify for admission based upon graduation from an ABA-accredited law school and demonstration of good moral character to aid registrants for the July 2020 Florida General Bar Examination who have been severely impacted by the delays in administering the examination. IN RE: PETITION TO AMEND THE RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR AND THE RULES REGULATING THE FLORIDA BAR. Supreme Court of Florida.

 

Rules Regulating Florida Bar -- Amendments -- Conditionally admitted members -- Members admitted to Bar pursuant to consent agreement no longer treated as a separate class of “Conditionally Admitted Members” that are subject to term of probation -- Such members to be treated as any other members of Bar in good standing, except for the added terms of the consent agreement. IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR -- RULE 1-3.2(b). Supreme Court of Florida.

 

Torts -- Civil theft -- Default -- Damages -- Unliquidated damages -- Default entered for failure to answer complaint in an action alleging civil theft based on defendant's failure to compensate plaintiff with funds received from selling plaintiff's personal items -- Trial court erred in entering final judgment awarding plaintiff unliquidated damages without notice and an opportunity to be heard -- Complaint seeking a specified amount of damages, which was based upon plaintiff's attached list of values that she placed on the respective items of personal property stolen, was a claim for unliquidated damages that did not convert or become a liquidated damage claim by virtue of the later default entered against defendant -- Court recedes from precedent which held that unliquidated damages are converted to liquidated damages when a plaintiff alleges in its complaint that it was damaged in a sum certain and defendant is later defaulted for failing to answer the complaint. ANTHONY J. CIOTTI, AS EXECUTOR OF THE ESTATE OF ANTHONY G. CIOTTI, Appellant, v. NANCI HUBSCH, Appellee. 5th District.

 

Torts -- Civil theft -- Remedies -- Attorney's fees -- Trial court erred in denying defendants' motion for attorney's fees pursuant to section 772.11 because record shows that plaintiff's civil theft claims were without substantial fact or legal support -- Plaintiff's claims of civil theft were by definition without any factual evidentiary support where trial court had granted directed verdict in favor of defendants on grounds that there was no showing of criminal intent, which is an essential element of a civil theft claim. ISLAND TRAVEL & TOURS LTD. CO., a Florida Corporation, WILLIAM J. HAUF, an individual, ISMAEL O. SENE, an individual, and DANNY LOONEY, an individual, Appellants, v. MYR INDEPENDENT, INC., etc., Appellee. 3rd District.

 

Torts -- Malicious prosecution -- False arrest -- Absolute immunity -- State attorneys -- Appeals -- Certiorari -- Complaint against assistant state attorney and state attorney stemming from ASA's securing of a material witness warrant for plaintiff's arrest allegedly based on statements ASA knew to be false, and ASA's unsuccessful argument for plaintiff's continued detention -- Discussion of a prosecutor's entitlement to absolute immunity -- Trial court erred in denying ASA and SA's motions to dismiss based on absolute immunity where trial court based its analysis on whether ASA was acting in good faith -- In determining absolute immunity, courts must look to the nature of the function performed, not the identity of the actor who performed it -- Once it is determined that the challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused -- ASA's action in filing the motion for a material witness warrant and advocating for her continued detention were done in the course of an ongoing prosecution and, regardless of ASA's motives, he continued to function as an advocate and his actions were not administrative in nature. SYED MUNAWWAR QADRI, ESQUIRE, AND ARAMIS AYALA, STATE ATTORNEY, NINTH JUDICIAL CIRCUIT, ORANGE COUNTY, FLORIDA, Petitioners, v. SANDRA MARIE RIVERA-MERCADO, Respondent. 5th District.

 

Torts -- Premises liability -- Business invitee -- Trip and fall -- Depression in parking lot -- Open and obvious danger -- Trial court erred in entering summary judgment in favor of defendants based on conclusion that plaintiff was injured as a result of an open obvious danger -- Based on summary judgment record, a jury could conclude that depression in pavement was not so open and obvious that defendants could reasonably expect that it would be discovered by an invitee where plaintiff stated that the depression blended into the parking lot, and picture of depression depicted a man-made hole that was the same color as the surrounding asphalt and contained dried leaves -- Moreover, even when a dangerous condition is open and obvious, the occupier of the premises is not excused from its duties to protect and warn invitees if it reasonably should anticipate that the condition poses an unreasonable risk of harm to invitee notwithstanding the obvious nature of the condition -- A jury could conclude that defendants reasonably should have anticipated that an invitee negotiating the parking lot to visit defendant's establishment, which resembled an enormous ice cream cone, would be distracted by its striking appearance and by the need to watch for approaching vehicles. TRACY GREENE and JOSHUA GREENE, Appellants, v. TWISTEE TREAT USA, LLC; MISSION BELL, S.C., LLC; and KIMCO REALTY CORPORATION, Appellees. 2nd District.

 

Torts -- Trespass -- Homeowner's action against neighbor that allegedly hired construction company to trespass upon homeowner's property and remove and destroy sedimentary rock foundation beneath homeowner's fence -- Counterclaims and third-party claims seeking injunctive relief and damages -- Competent, substantial evidence supported judgment in favor of homeowner and award of damages -- No error in pretrial orders dismissing portions of neighbor's second amended third-party complaint and second and third amended counterclaims. MARSHALL IVES, Appellant, v. TATE GETTINGER and ANAMARIA GETTINGER, and ALEX FENCES, INC., Appellees. 3rd District.

 

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Contempt, limitation of actions, indemnity, and beef medallions with portobello mushroom-fresh rosemary sauce on a bed of cauliflower mash

Adoption -- Circuit court erred in entering order requiring adoption agency to conduct a diligent search for putative father of child placed with agency for adoption -- Adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date the mother signs her consent for adoption -- Agency is not required to conduct a diligent search for the putative father unless the mother has identified a potential father by the time she signs the consent for adoption -- Court's sua sponte questioning of mother as to identity of potential father five months after she had consented to termination of parental rights and adoption was a violation of mother's privacy rights

CHILDREN'S HOME SOCIETY OF FLORIDA, Appellant, v. V. D., IN RE: THE MATTER OF TERMINATION OF PARENTAL RIGHTS FOR THE PROPOSED ADOPTION OF A MINOR CHILD, Appellee. 1st District.

Appeals -- Belated appeal of order dismissing petition for writ of mandamus -- Court has no authority to grant belated appeal in civil proceeding

MORRIS FAIN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.

Civil procedure -- Relief from judgment -- Motion for relief from judgment on basis of fraud, misrepresentation, or other misconduct was untimely where it was brought more than one year after entry of judgment -- Motion for relief from judgment on basis that judgment was void fails where judgment was not void -- So long as court has jurisdiction over the subject matter and over defendant, a procedural defect occurring before entry of judgment does not render the judgment void

LIDIA E. CONTRERAS, Appellant, vs. NELSON E. MENDEZ, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Notice of summary judgment evidence on which adverse party intends to rely -- Trial court properly interpreted rule 1.510 as requiring adverse party to file notice in response to a motion for summary judgment even if the evidence upon which it seeks to rely is already in the record -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court did not err in finding that insurer did not satisfy rule 1.510(c) by filing, during discovery, a doctor's affidavit stating affiant's conclusion that portions of treatment were not reasonable, related, or medically necessary, which was accompanied by notice stating insurer's intent to rely upon the affidavit “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code” -- Circuit court acting in its appellate capacity did not depart from essential requirements of law by affirming county court ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FIGLER FAMILY CHIROPRACTIC, P.A., A/A/O LINDA MANNERS, Respondent. 4th District.

Contracts -- Asset purchase agreement -- Sale of insurance agency -- Unjust enrichment -- Conversion -- Trial court should have directed verdict on seller's claim for unjust enrichment against buyers where there was express agreement between seller and buyers -- Individual defendant could not be held personally liable for breach of agreement by buyers' agency where evidence did not establish that she personally benefitted beyond the amount awarded for buyers' agency's breach of contract or that she benefitted separate and apart from the agency -- Trial court should have granted defendants' motion for judgment notwithstanding verdict on conversion claim where jury awarded finite amount of damages for defendants' breach of contract, and there was no evidence that seller sustained any additional damages as result of conversion of other assets

VALERIE FULTON, FULTON INSURANCE AGENCY, INC., and DEAN C. FULTON, Appellants, v. JUDITH BRANCATO, Appellee. 4th District.

Contracts -- Settlement agreement -- Where, in plaintiff's action against bank for breach of employment agreement, fraud, negligent misrepresentation, and declaratory and injunctive relief, parties reached settlement agreement for certain payments to be made to plaintiff, with proposed payments to be submitted to federal regulatory entities for approval of payment terms within six months, the payment terms of the agreement were not enforceable when regulatory approval was not received within six months -- Trial court erred in granting defendants' motion to enforce settlement agreement upon finding that the six-month period in the agreement referred to a period of non-litigation rather than an expiration date of the agreement

DANIEL T. HESTER, an individual, Appellant, v. FLORIDA CAPITAL GROUP, INC., a Florida corporation; CHARLES E. HUGHES, an individual; and J. MALCOLM JONES, JR., an individual, Appellees. 2nd District.

Creditors' rights -- Fraudulent transfers -- Limitation of actions -- For purpose of Florida Uniform Fraudulent Transfer Act's provision that a claim of fraudulent transfer is extinguished unless brought within 4 years after the transfer was made or, if later, within 1 year after the transfer was or could reasonably have been discovered, the one-year savings clause is triggered by a creditor's discovery of the transfer rather than by the creditor's discovery of the facts showing the transfer to have been fraudulent -- Statute is a statute of repose which is not subject to an assertion of equitable estoppel

NATIONAL AUTO SERVICE CENTERS, INC., a Florida corporation; NATIONAL AUTO PROPERTIES, INC., a Florida corporation; LEONARD D. LEVIN, individually; CAROL LEVIN, individually; DURANT HOLDINGS, LLC; and BEDFORD INVESTMENTS, LLC, Appellants, v. F/R 550, LLC, a Florida limited liability company; and F/R 3329, LLC, a Florida limited liability company, Appellees. 2nd District.

Criminal law -- Contempt -- Jurors -- Competent substantial evidence supports convictions for contempt by juror who, during voir dire, concealed and failed to disclose his ex-wife's DUI arrest and, against the instructions of the trial court that jurors not conduct their own investigations, conducted a drinking experiment on himself to test the impairment effects of alcohol

DENNIS DeMARTIN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Discovery -- Appeals -- Certiorari -- Where defense had issued subpoenas duces tecum to various third parties without permission of trial court and without notifying state of its intent to issue the subpoenas, and state, upon discovering that the subpoenas had been issued, filed a motion to compel production of all evidence produced pursuant to the illegal subpoenas, state is not entitled to writ of certiorari to have appellate court quash trial court order finding that state was not entitled to copies of all documents provided pursuant to the subpoenas, but only to those documents which were intended to be used at any hearing or trial -- State is not entitled to issuance of writ of certiorari because state has failed to demonstrate irreparable harm

THE STATE OF FLORIDA, Petitioner, vs. WESLEY FOLEY, Respondent. 3rd District.

Criminal law -- First degree murder -- Evidence -- Hearsay -- Trial court erred when it admitted into evidence an audio recording of statement made to police by person who implicated defendant in crime -- Admission of testimony violated right to confrontation of witnesses where statement was testimonial in nature and witness was not available or subject to prior cross-examination -- Trial court was within its discretion in finding that witness's refusal to testify rendered him an unavailable witness -- Fact that defendant had opportunity to cross-examine witness during pretrial discovery deposition does not satisfy cross-examination requirement of Crawford v. Washington -- Error not harmless

HECTOR JOSUE VAZQUEZ PADILLA, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Meritless pro se filings -- Clerk of Court directed to reject any future pleadings or other requests for relief submitted by defendant unless such filings are signed by a member in good standing of The Florida Bar -- Clerk of Court directed to forward certified copy of opinion to Department of Corrections institution or facility where defendant is incarcerated

OTIS D. BLAXTON, Petitioner, vs. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Dissolution of marriage -- Child custody -- Although trial court's factual findings supported provision that husband would have sole parental responsibility for decisions relating to children's education and medical care, final judgment failed to include specific finding that shared parental responsibility would be detrimental to children

DENISE COLLINS, Appellant, v. DWAYNE COLLINS, SR., Appellee. 5th District.

Dissolution of marriage -- Child support -- Trial court erred in ordering that parties be equally responsible for payment of all non-covered medical expenses for children where this allocation conflicts with allocation of parties' relative financial responsibility for child support -- As general rule, if non-covered medical expenses are ordered to be separately paid, absent some logically established rationale in the final judgment to the contrary, they must be allocated in the same percentage as the child support allocation

KELLY M. DEMMI, Former Wife, Appellant, v. MARK S. DEMMI, Former Husband, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Prenuptial agreement -- Error to include as marital asset in equitable distribution scheme the portion of value of former husband's premarital home attributable to appreciation and contribution of marital funds to pay down home equity line of credit and mortgage where prenuptial agreement provided that husband would be entitled to any and all equity in premarital home and that wife would not be entitled to any interest in home unless granted such interest in a formal written instrument -- Child custody -- Parenting plan -- Error to fail to incorporate into amended final judgment the amended parenting plan that trial court ordered on rehearing from original final judgment -- Interrelated issue of attorney's fees may be revisited on remand

ANTHONY FELICE, Appellant, v. MELISSA FELICE, Appellee. 2nd District.

Dissolution of marriage -- Modification of parenting plan -- Service of process -- Error to deny motion to quash service of process and to set aside order granting former wife's motion to modify timesharing and child support on the basis that former husband's counsel's general appearance constituted a waiver of service -- Attorney's filing of general notice of appearance in order to conduct a review of trial court files in case did not constitute a waiver of service of process -- An after-the-fact general appearance does not waive a defect in the service of process related to a supplemental modification petition

MANUEL E. SALINAS, Appellant, vs. KRISTIN N. PASCARIELLO, Appellee. 3rd District.

Employer-employee relations -- Civil rights -- Claims alleging wrongful retaliatory termination of employment under Florida Whistleblower Act and Florida Civil Rights Act -- Trial court properly entered summary judgment for defendant upon determining that plaintiff cannot establish that the grounds for his termination were causally linked to protected activity, and that employer evidenced a pretextual reason for his termination

ELADIO GONZALEZ, Appellant, vs. NORTHWINGS ACCESSORIES CORP., etc., Appellee. 3rd District.

Injunctions -- Dating violence -- Error to enter injunction against dating violence where there was insufficient evidence of reasonable cause to believe that petitioner was in imminent danger of another act of dating violence

VICTOR NUILA, Appellant, v. CRYSTAL STOLP, Appellee. 5th District.

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous notice to insured of insurer's intent to determine reasonableness by reference to Medicare fee schedules -- Language of policy endorsement stating that amounts payable “shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise contained in the law, including but not limited to, all fee schedules” gave insureds and their respective medical care providers legally sufficient notice of insured's election to use Medicare fee schedules

ALLSTATE INDEMNITY COMPANY, Appellant, v. MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC, as assignee of Ilene Chavez, Appellee. 2nd District.

Insurance -- Sinkhole claims -- Multi-building condominium property -- Insured prevailing in action against insurer -- Costs -- Trial court abused its discretion in including reimbursement for public adjuster and property management fees in taxable costs, as property management fees and public adjuster fees were not litigation costs -- Trial court erred in awarding as taxable cost various expenses and fees incurred in appraisal process where policy required insured to pay its own appraiser and bear equal share of umpire and other appraisal expenses -- Attorney's fees -- Multiplier -- Error to apply contingency risk multiplier where fee agreement guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and evidence showed that attorney had been paid under the contract -- Trial court erred by limiting recovery of attorney's fees and prejudgment interest to only one building where suit encompassed other buildings in condominium complex

CITIZENS PROPERTY INSURANCE CORP., Appellant/Cross-Appellee, v. RIVER OAKS CONDOMINIUM II ASSOCIATION, INC., a/k/a RIVER OAKS II CONDO ASSOCIATION, INC., Appellee/Cross-Appellant. 2nd District.

Torts -- Indemnity -- Indemnity provision in agreement between automobile distributor and carrier of automobiles, which included the words “in whole or in part,” did not contain clear and unequivocal terms providing that carrier would indemnify distributor for distributor's own acts of negligence where parties were held jointly liable for the underlying personal injury -- Trial court erred in granting summary judgment finding that language in agreement was sufficiently unequivocal to require carrier to indemnify distributor for distributor's own negligence

ATC LOGISTICS CORPORATION, A/K/A ATC LOGISTICS, INC., Appellant, v. SOUTHEAST TOYOTA DISTRIBUTORS, LLC, et al. Appellees. 1st District.

Wrongful death -- Medical malpractice -- Limitation of actions -- No error in dismissing complaint as time-barred where plaintiff alleged in her presuit notice of intent to initiate litigation that the family and estate of decedent discovered defendants' negligence on the date of decedent's death, a date which was more than two years prior to date complaint was filed -- Plaintiff was bound by statement in notice of intent -- No merit to plaintiff's contention that complaint was timely filed because she not only served her first notice of intent one day prior to expiration of limitations period, but also petitioned for extensions of the limitations period -- Ninety-day period during which statute of limitations is tolled following service of notice of intent commences on date notice is received, rather than date notice is mailed -- Because none of defendants received notice of intent until after statute of limitations expired, plaintiff could not revive it by filing petition for extension of limitations period

GINA MARIE BOVE, as Personal Representative of the Estate of Anthony Bove, deceased, Appellant, v. NAPLES HMA, LLC, d/b/a PHYSICIANS REGIONAL MEDICAL CENTER-PINE RI

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The general rules on contract enforceability in Florida and recent contract decisions

To determine a contract’s enforceability, the Florida Supreme Court has long-established that Florida uses the objective (as opposed to the subjective) test (first expressed by the late Supreme Court Justice Oliver Wendell Holmes):

The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing, but on their having said the same thing.

Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (quoting Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974)); see also, Oliver Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (quoted in Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957)).

The Florida Supreme Court also holds in Blackhawk Heating and Plumbing Co. Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974), that nonessential terms left for future negotiations do not render a contract unenforceable.   Where an Agreement consists of “two sets of external signs”, “says the same thing”, and on the same day, it is generally enforceable. 

Below are some recent decisions of interest on CONTRACTS:

Contracts -- Error to enter summary judgment for plaintiff in breach of contract action where there was a lack of evidence to establish that plaintiff had standing at time action was filed, and an incorrect cardmember agreement was attached to complaint

DETELINA Y.A. MITEVA, Appellant, vs. AMERICAN EXPRESS BANK, FSB, Appellee. 3rd District.

Contracts -- Real property sale -- Specific performance -- Trial court erred in dismissing purchaser's complaint for specific performance, concluding an action for specific performance could not be asserted, where contract does not limit the remedies available to the purchaser in the event of default by the seller

REGENTS PARK INVESTMENTS, LLC., A FLORIDA LIMITED LIABILITY COMPANY, Appellant, vs. KAI PROPERTIES, LTD, A FLORIDA LIMITED PARTNERSHIP, Appellee. 3rd District.

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