Joseph S. Kashi Appellate Practice Law Blog on Lawyers.com

PERSONAL JURISDICTION

Labry v. Whitney National Bank, AB9G,LLC, ___ So. 2d ___, 34 Fla. L. Weekly D885 (Fla. 1^st DCA 5/4/09)

            Guaranteeing a mortgage on property located in Florida did not create sufficient minimum contacts under the due process clause of the United States Constitution to support the exercise of personal jurisdiction over non-resident guarantors regardless whether they submitted financial statements to the Florida banks that made the loan.

LIFE INSURANCE

Jackson National Life Insurance Co. v. Lovallo, ___ So. 2d ___, 34 Fla. L. Weekly D886 (Fla. 1^st  DCA 5/4/09)

Jackson issued a ten year renewable term life insurance policy to the husband.  During the initial term, the husband’s marriage was dissolved.  The dissolution decree arguably imbued the former wife with equitable ownership of the policy, and she notified Jackson of this development. Nevertheless, when the former husband told Jackson not to renew the policy, Jackson followed his instruction.  The former husband died after the policy lapsed, but the former wife claimed entitlement to the death benefit under the theory that, as the end of the original term approached, she was entitled to notice of the right to renew the policy.  The trial court entered summary judgment for the former wife, but the First District Court of Appeal reversed because notice was not required by statute or the terms of the policy.  The court distinguished policy renewals from cancellations for non-payment of premiums and noted that Section 627.4555, Florida Statutes (2008), which requires notice of nonpayment of life insurance premiums, took effect on October 1, 1997, but the policy involved in this case was issued in 1994.  The court declined to decide whether the communications between the parties constituted a request for renewal or imposed upon Jackson a duty to seek clarification. 

CHILD SUPPORT; MODIFICATION; NOTICE

McGrath Taylor v. Caron, ___ So. 2d ___, 34 Fla. L. Weekly D896 (Fla. 4^th DCA 5/6/09)

            The trial court erred by reducing the father’s child support obligation during a hearing on the mother’s motion to hold the father in contempt for failing to pay support because the father did not request a departure from his existing obligations and the mother was entitled to notice.  The trial court also erred by failing to rule on the mother’s motion for contempt because it presented the only issue raised by the pleadings and by prohibiting the mother from making further motions for contempt.

PERSONAL JURISDICTION

Reiss v. Oceanworld, S.A., ___ So. 2d ___, 34 Fla. L. Weekly D897 (Fla. 4^th DCA 5/6/09)

            The defendant’s efforts in Florida to organize opposition to the importation of dolphins into the Dominican Republic from Japan did not constitute the commission of a tortuous act in Florida or establish sufficient minimum contacts with the State of Florida to support the exercise of personal jurisdiction.  Although the defendant engaged in telephonic and in excess of 100 electronic communications with people in Florida, any tortious interference with the plaintiff’s business relationships occurred in the Dominican Republic or Japan, the countries in which the plaintiff’s contracts were to be performed.

57.105

Ferdie v. Isaacson, ___ So. 2d ___, 34 Fla. L. Weekly D898 (Fla. 4^th DCA 5/6/09)

            The trial court erred in imposing sanctions under Section 57.105, Florida Statutes, against the plaintiff’s lawyer because the judge (1) failed to make an express finding that the lawyer was not acting in good faith based upon the representations of his client, and (2) failed to provide the lawyer with a meaningful opportunity to be heard on the issue of good faith.

ARBITRATION

Sitarik v. JFK Medical Center Limited Partnerships, ____ So. 2d ____, 34 Fla. L. Weekly D900 (Fla. 4^th DCA 5/6/09)

            A defendant waived its right to arbitration by actively participating in the merits of the litigation by filing an answer, affirmative defenses, and two motions to dismiss, issuing a subpoena, and propounding discovery, all while failing to make a demand for arbitration.

RELOCATION; SUPPORT; IMPUTED INCOME

Scariti v. Sabillon, ___ So. 2d ___, 34 Fla. L. Weekly D901 (Fla. 4^th DCA 5/6/09)

            Although a geographic relocation restriction was not sought in the pleadings, the father could not complain because he tried the issue by implied consent by presenting evidence and arguments in favor of a restriction; however, the trial court erred in concluding that the relocation statute was inapplicable because a primary residential parent had not been designated.

            Although a trial court may award support even if support is not sought in the pleadings, this rule did not apply in the present case because a default was entered against the mother for failing to serve any paper in the action.  Nevertheless, this issue was tried by implied consent because the father did not object.  Contrary to the father’s contention, the trial court’s imputation of $2,031.00 in net monthly income to the mother was not insufficient because she never earned more than $22,000.00 a year before expenses.

PERSONAL JURISDICTION

The Trustees of Columbia University v. Oceanworld, S.A., ___ So. 2d ___, 34 Fla. L. Weekly D902 (Fla. 4^th DCA 5/6/09)

            Oceanworld sought to hold liable for tortious interference Columbia University based upon the conduct of its Director of Marine Mammal Research Science Laboratory in Brooklyn, New York.  The court held that personal jurisdiction could not be based upon the commission of a tortious act in Florida because another panel of the court in a separate appeal determined that the Director had not engaged in tortious conduct within the State of Florida and that the Director did not have sufficient minimum contacts with the State of Florida to support the exercise of personal jurisdiction.  The court reasoned that if jurisdiction did not exist over the agent, jurisdiction could not exist over the principal based upon the acts of the agent.  The court also determined that Columbia was not subject to the general jurisdiction of the court because (1)“the activities of a school’s alumni association are not the type of systematic, continuous business activity that results in jurisdiction over the school;” (2) the maintenance of a long distance learning program over the Internet did not result in substantial contacts with State of Florida because only two of Columbia’s students with Florida addresses were enrolled in online courses; (3) contingent remainder interests in property and a mortgage that was satisfied in 1971 did not demonstrate a pervasive, commercial property ownership that would amount to a continuous and systematic business activity in Florida.  The court noted that “giving a remainder interest is contingent on the election of the donor and does not depend on the acquiescence or even knowledge of the receiving party;” and (4) filing other lawsuits in Florida, many of which were actions to enforce foreign judgments, did not indicate that Columbia engaged in a pervasive litigation business.

INJUNCTIONS

MI Industries USA, Inc. v. Attorney’s Title Insurance Fund, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D905 (Fla. 4^th DCA 5/6/09)

            The court certified the following question as one of great public importance:

“INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATATED:  (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST?

APPEALS

United Automobile Insurance Co. v. Countyline Chiropractic Center, ___ So. 2d ___, 34 Fla. L. Weekly D205 (Fla. 4^th DCA 5/6/09)

            The circuit court, sitting in its appellate capacity, departed from the essential requirements of law by dismissing an appeal because of the appellant’s failure to serve its initial brief within the time ordered by the court.  The appellant obtained five extensions of time to serve its initial brief.  The circuit denied a sixth motion for extension and directed the appellant to file its initial brief within ten days.  Because the order was mailed, the ten day period expired before the appellant received the order.  Two days after the deadline expired, the appellant filed a motion for relief from the order and its initial brief, but the circuit court denied the motion and dismissed the appeal.  The circuit court violated Fla.R.App.P. 9.410, which entitles a party to ten day’s notice before the imposition of sanctions.  By mailing the order requiring the appellant to file its brief within ten days, the circuit court insured that the appellant would not receive adequate, much less ten day’s, notice.  The appellant did not engage in the kind of willful misconduct or intentional disregard of a court order that would justify the harsh sanction of dismissal.

MARITAL SETTLEMENT AGREEMENTS; CHILD SUPPORT

Rose v. Rose, ___ So. 2d ___, 34 Fla. L. Weekly D906 (Fla. 4^th DCA 5/6/09)

            A marital settlement agreement that provided the father’s duty to pay child support would end with the majority of the child even though secondary education is not yet complete was valid and enforceable, and the trial court erred by modifying the agreement fourteen years after it was incorporated in the final judgment of dissolution of marriage. 

VENUE

McCarroll v. Van Dyk, ___ So. 2d ___, 34 Fla. L. Weekly 906 (Fla. 4^th DCA 5/6/09)

            The plaintiff sued the defendants for failing to pay commission that he had earned.  The plaintiff brought the lawsuit in Palm Beach County, where he resided.  The defendants moved to transfer the lawsuit to Broward County, where the business was located and the defendants resided.  The plaintiff relied upon the debtor-creditor venue rule, which provides that if “payment of a debt is the performance called for by a contract, the residence of the payee is presumed to be the place of the required performance and thus where the cause of action accrues.”  The court held that the debtor-creditor venue rule did not apply in this case because (1) the plaintiff always picked up his checks at headquarters in Broward County, and (2) the debtor-creditor venue rule does not apply in an employment context.

IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; DIRECTED VERDICT; PRESERVATION OF ERROR

Meruelo v. The Mark Andrew of the Palm Beaches, Ltd., ___ So. 2d ____, 34 Fla. L. Weekly, D907 (Fla. 4^th DCA 5/6/09)

            Meruelo agreed to purchase a parcel of land from The Mark Andrew and agreed to pay a bonus if he obtained approval to construct a building in excess of 600,000 square feet. The Mark Andrew sued Meruelo for breach of an implied covenant of good faith and fair dealing because Meruelo did not seek approval of a site plan in excess of 600,000 square feet.  The jury found in favor of the Mark Andrew, but the appellate court reversed because the contract did not impose a duty on the buyer to seek approval to construct a building of a certain size.  Therefore, there was not an express duty to which the implied duty of good faith could relate.  The court rejected the seller’s argument that the buyer failed to preserve this issue for appeal by renewing his motion for directed verdict at the close of all the evidence.  "When a motion for a directed verdict is made at the close of the plaintiff’s case and denied, it must be renewed at the close of all the evidence to preserve it for appellate review.  If the trial court reserves ruling on the motion, the defendant must renew the motion at the close of all the evidence.  The only exception is where 'the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice.'"  In this case, the court applied the manifest miscarriage of justice exception because the plain language of the contract revealed that the buyer had no duty to seek approval to build in excess of 600,000 square feet.

RELEASE

AXA Equitable Life Insurance Co. v. Gelpi, ___ So. 2d ___, 34 Fla. L. Weekly D911 (Fla. 3d DCA 5/6/09)

            The language in a release, “including but not limited to,” followed by an enumeration of certain causes of action did not limit the release to the causes of action specifically listed.

INCONSISTENT VERDICTS

Granada Gardens Association, LLC v. Castro, ___ So. 2d ___, 34 Fla. L. Weekly D912(Fla. 3d DCA 5/6/09)

The jury did not return an inconsistent verdict by finding that the defendants’ negligence was the legal cause of damage to only three of the four plaintiffs.  As a result, the trial court erred in directing a verdict in favor of the fourth plaintiff in the amount of his past medical expenses and then resubmitting the case to the jury and granting a new trial when the jury returned a verdict for less than the amount of the fourth plaintiff’s past medical expenses.

PIP  

United Automobile Insurance Co. v. Millenium Diagnostic Imaging Center, Inc., ___ So. 2d ___, 34 Fla. L. Weekly

            The Third District Court of Appeal answered two questions involving personal injury protection insurance coverage certified by the county court as being of great public importance.  "We hold that (1) an insurer, in challenging a PIP claim under section 627.736(7)(a) on the ground that the treatment was not reasonable, related, or necessary may rely on a report obtained more than thirty days after the claim was submitted; and (2) under section 627.736(7)(a), the reviewing physician’s report issued to deny PIP benefits may be based on either a physical examination of the insured by the physician submitting the report or a physical examination of the insured by “another physician,” such as an  IME physician."  If the insurer erroneously fails to pay PIP benefits within thirty days on the ground that the treatment was not reasonable, related, or necessary, the penalty for the insurer’s mistake is liability for interest and attorney’s fees.

PROPOSAL FOR SETTLEMENT; PREJUDGMENT INTEREST

Lorillard Tobacco Co. v. French, ___ So. 2d ____, 34 Fla. L. Weekly D915 (Fla. 3d DCA 5/6/09)

            The plaintiff sought attorney’s fees based upon a proposal for settlement.  The court held that prejudgment interest began to run on the date on which the plaintiff obtained judgment for more than 25% of the amount of her proposal rather than the date, five years later, when the trial court overruled the defendant’s challenge to the validity, sufficiency, or good faith of the proposal. To hold otherwise, would provide the defendant with an incentive to delay the determination of the entitlement to fees.

FOREIGN JUDGMENTS; STAY PENDING APPEAL

Tettamanti v. Opcion Sociedad Anonima, ___ So. 2d___, 34 Fla. L. Weekly D917 (Fla. 3d DCA 5/6/09)

            The judgment debtor obtained a stay pending appeal after the trial court domesticated an Argentine judgment.  The stay was based upon Section 55.607, Florida Statutes, which authorizes a stay pending the appeal of a foreign judgment if the judgment has been stayed by the rendering court.  In this case, the debtor was not entitled to a stay under the statute because the debtor did not obtain a stay of the foreign judgment from the foreign court.  As a result, the debtor would be required to post a bond under Fla.R.App.P. 9.310(b)(1) in order to obtain a stay.

REAL PARTY IN INTEREST; STANDING

Juega v. Davidson, ___ So. 2d ____, 34 Fla. L. Weekly D917 (Fla. 3d DCA 5/6/09)

            An agent has standing to prosecute an action on behalf of the real party in interest.

JUDGES; DISQUALIFICATION

Blake v. Waks, ___ So. 2d ___, 34 Fla. L. Weekly D919 (Fla. 3d DCA 5/6/09)

            The court disqualified a probate judge who refused to disburse the net proceeds of the estate to the petitioner, who was acting under a power of attorney, because the judge, “based on nothing in the record or otherwise,” said that she did not trust the petitioner to make the required distribution to his principals.

JUDGES; DISQUALIFICATION

Marquez v. State, ___ So. 2d ___, 34 Fla. Weekly D920 (Fla. 3d DCA 5/6/09)

            The court denied a petition for prohibition that challenged the failure of the trial judge to disqualify himself because the certificate of service on the motion for disqualification did not reflect that a copy was served on the trial judge.

EXCULPATORY CLAUSES

JM Family Enterprises, Inc. v. Winter Park Imports, Inc., ___ So. 2d____, 34 Fla. L. Weekly D927(Fla. 5^th DCA 5/8/09)

            The court per curiam affirmed the failure to enforce an exculpatory clause.  The opinion is devoid of facts or analysis but cites to a number of cases on the subject.

DOMESTIC VIOLENCE

Tacy v. Sedlar, ___ So. 2d ___, 34 Fla. L. Weekly D928 (Fla. 2d DCA 5/8/08)

            The trial court erred by modifying a final judgment of injunction for protection against domestic violence to add the teenage child of the parties as a protected party.  "At the evidentiary hearing held in this action, [the mother] established no conduct on the part of [the father] that demonstrated domestic violence as related to the parties’ child. Indeed, [the mother] testified that she was not scared--she simply did not want [the father] to have any involvement with the parties’ child.  In short, her testimony belied her claim for injunctive relief."

AMENDMENT 7     

Lakeland Regional Medical Center v. Neely, ___ So. 2d ___, 34 Fla. L. Weekly D931(Fla. 2d DCA 5/8/09)

            The court held that at a hospital could not avoid disclosure of adverse medical incidents based upon the common law work product doctrine and certified to the Florida Supreme Court the following question of great public importance:

"DOES THE RIGHT OF ACCESS GRANTED PURSUANT TO AMENDMENT SEVEN, CODIFIED AS ARTICLE X, SECTION 25, OF THE FLORIDA CONSTITUTION, PREEMPT THE COMMON LAW WORK PRODUCT DOCTRINE AS IT APPLIES TO EXISTING REPORTS OF ADVERSE MEDICAL INCIDENTS?"

EQUITABLE DISTRIBUTION; MARITAL HOME

Kaaa v. Kaaa, ___ So. 2d ___, 34 Fla. L. Weekly D932 (Fla. 2d DCA 5/8/09)

            The husband purchased a residence six months before the parties were married.  During the course of their 27 year marriage, the parties used the residence as their martial home and used marital funds to pay the mortgage and increase the size of the lot on which the home was situated.  The trial court held that the wife was entitled to an equitable distribution award of one half of the mortgage payments and one half of the increased value of the home attributable to the acquisition of additional land but that the wife was not entitled to any portion of the passive appreciation in the home.  The court affirmed based upon Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003) but certified direct conflict with Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1^st DCA 1995).

RELOCATION

Coyle v. Coyle, ___ So. 2d___, 34 Fla. L. Weekly D933 (Fla. 2d DCA 5/8/09)

            The trial court erred in allowing the mother to relocate from Florida to New York with the two year old daughter of the parties. “[I]nstead of focusing on what was best for the child as required under the statute, the court favored the former wife because she was the primary residential parent, her reasons for relocation were genuine, and relocation would improve the quality of her life, not necessarily the life of the child.  This was error.”  In addition, the trial court allowed relocation before evaluating whether substitute visitation arrangements could be made to foster a continuing meaningful relationship between the father and daughter.  This evaluation should have been performed before deciding whether to permit relocation.

EQUITABLE DISTRIBUTION

Abdnour v. Abdnour, ___ So. 2d ___, 34 Fla. L. Weekly D938 (Fla. 2d DCA 5/8/09)

            The husband’s accumulated annual leave at the end of the marriage did not exceed the number of hours the husband had at the beginning of the marriage.  As a result, his remaining annual leave hours were not a marital asset subject to equitable distribution.

            The husband was not entitled to the cash value of unused sick leave.  As a result, his accumulated sick leave hours were not a marital asset subject to equitable distribution.

            The difference between the value of the husband’s employment related savings plan at the beginning and at the end of the marriage was marital property subject to equitable distribution.

            The husband purchased the marital home two years before the marriage of the parties.  It was titled solely in his name, but marital assets were used to pay down the mortgage.  The amount of the pay down was a marital asset subject to equitable distribution. 

            The husband owned a condominium in Illinois in which his disabled father resided.  The amount of marital assets used to pay down the mortgage on the nonmarital condominium was a marital asset subject to equitable distribution.

            The husband liquidated certain nonmarital investments and deposited the proceeds into an E*Trade cash account with marital funds.  Because money is fungible, it loses its separate character once it is commingled.   As a result, the entire E*Trade account was subject to equitable distribution.

            The court explained that a portion of the premium payment on a variable universal life insurance policy goes towards the cost of the policy and fees, while the remainder is invested in funds in a separate account selected by the owner of the policy.  The separate investment account is no different for equitable distribution purposes from securities held in a brokerage account.  In this case, the trial court erred in determining that the entire surrender value of the policy was a marital asset subject to equitable distribution. Only those shares in the separate investment account purchased with marital funds were subject to equitable distribution. 

            A car given to the husband by his grandfather while the husband was in high school was the premarital property of the husband and was not subject to equitable distribution.

            Paintings given to the husband by his sister both before and during the marriage were his nonmarital property.

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This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.