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

ANNULMENT; CUSTODY

Cobo v. Sierralta,  ___ So. 2d ___, 34 Fla. L. Weekly D1041 (Fla. 3d DCA 5/27/09)

            The trial court should not have annulled the marriage of the parties on the ground that the wife’s prior marriage had not been dissolved because (1) the husband did not overcome the presumption that the current marriage was valid, and (2) the wife lacked adequate legal representation because the wife did not receive temporary attorney’s fees during the course of the litigation.  The trial court erred in selecting the husband as the primary residential parent because (1) the record failed to demonstrate that the trial court considered the factors set forth in Section 61.13 Florida Statutes, and (2) the wife lacked adequate financial resources to litigate this issue.

UNINSURED MOTORIST COVERAGE

Diaz-Hernandez v. State Farm Fire & Casualty Co., ___ So. 2d ___, 34 Fla. L. Weekly D1046 (Fla. 3d DCA 5/27/09)

            A provision in an uninsured motorist policy that required the insured to join the uninsured motorist in his claim against the uninsured motorist carrier was invalid and unenforceable because it violated the public policy expressed in the uninsured motorist statute, Section 627.727, Florida Statutes.  The requirement imposed an additional burden upon the insured, but the purpose of uninsured motorist coverage is to protect the injured motorist rather than the uninsured motorist or the uninsured motorist carrier.  The carrier has the ability to resolve questions of liability by calling the uninsured motorist as a witness and may protect its subrogation rights by bringing the uninsured motorist into the lawsuit, but requiring the insured to sue the uninsured motorist benefits only the carrier and not the insured.

REAL ESTATE SALES

Bellon v. Acosta, ___ So. 2d ___, 34 Fla. L. Weekly D1047 (Fla. 3d DCA 5/27/09)

            The buyers of a home forfeited their $100,000.00 deposit because they failed to notify the sellers in writing within 20 days that the buyers were unable to obtain a financing commitment.  The facts that the buyers were only 5 days late in providing notice and that they kept the sellers informed of the status of their loan application did not alter this result.

REAL ESTATE COMMISSIONS

Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., ___ So 2d ___, 34 Fla. L. Weekly D1048 (Fla. 3d DCA 5/27/09)

            The developer of a condominium project entered into a listing agreement with a real estate broker.  The agreement provided for the payment of commissions, in three equal installments, to co-brokers, with the final installment due upon closing.  The developer refused to pay the final installment when buyers cancelled their purchase contracts after the developer made substantial changes to the project.  The trial court dismissed a class action by a co-broker because the final commissions were not due in the absence of a closing or a default by the developer, and the developer was entitled to make material changes.  The appellate court reversed because the amended complaint alleged that the developer failed to pay all commissions due and owing and that the developer defaulted by making material adverse changes to the plans.  According to the court, these allegations were sufficient to state a cause of action, and the court was not entitled to consider affirmative defenses when ruling on the defendant’s motion to dismiss.

ARBITRATION

Bland v. Green Acres Group, LLC, ___ So. 2d___, 34 Fla. L. Weekly F1051 (Fla. 4^th DCA 5/27/09)

            The court affirmed a finding that the defendant waived his right to arbitration.  “Here, the trial court heard evidence that Bland knew of the 2005 suit no later than March of 2006; actively avoided service; never sought to trigger the mediation pre-condition to arbitration; never made a demand to arbitrate under Fla. Stat. Section 684.22(1); waited 11 months after learning suit had been re-filed and over 7 months after appearing to seek to compel arbitration; and engaged in settlement negotiations for years without raising the arbitration clause.  These actions are sufficient to waive arbitration.”  Judge Farmer dissented in a lengthy opinion.

CONTEMPT

Fiore v. Athineos, ___ So. 2d ___, 34 Fla. L. Weekly D1056 (Fla. 4^th DCA 5/27/09)

            The trial court erred in holding the mother in direct criminal contempt of court because her misconduct, the failure to execute and return completed passport applications to the father, did not occur in the actual presence of the court.

ATTORNEY-CLIENT PRIVILEGE

S & I Investments v. Payless Flea Market, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1059 (Fla. 4^th DCA 5/27/09)

            A law firm took the deposition of its client after suing her for unpaid legal fees.  The client did not assert a claim of privilege during the deposition.  As a result, the client waived the attorney client privilege, and a third party who sued the client was entitled to obtain a copy of the deposition transcript.

 ARBITRATION

DFC Homes of Florida v. Lawrence, ___ So. 2d___, 34 Fla. L. Weekly D1060 (Fla. 4^th DCA 5/27/09)

            Lawrence agreed to purchase a home from DFC. When Lawrence claimed that the contract was illegal, DFC invoked arbitration and prevailed.  Lawrence responded by suing DFC for specific performance and objected to the arbitration award.  DFC moved to confirm the award, but the trial court refused to do so because it was unclear whether the arbitrator considered and ruled upon all issues. DFC appealed, but the appellate court dismissed for lack of subject matter jurisdiction because the challenged order was not final.  After one year of inactivity, Lawrence sought to depose DFC, and DFC moved to compel arbitration.  The trial court ruled that DFC waived its right to arbitration, but the appellate court reversed.  Although DFC participated in a deposition, made offers to settle the lawsuit, filed a motion to dismiss for lack of prosecution, answered interrogatories, and participated in mediation, all of those actions occurred after DFC invoked arbitration and the arbitrator rendered a decision.  The discovery in which DFC participated related to the right to arbitrate. Furthermore, “[a] mere attempt to settle a dispute outside the courtroom cannot be considered inconsistent with a party’s right to arbitration.”

APPEALS

Freeman v. Velez,  ___ So. 2d ___, 34 Fla. L. Weekly D1073 (Fla. 4^th DCA 5/27/09)

            An appeal of attorney’s fees was premature because the final judgment merely reserved jurisdiction to determine entitlement to, and the amount of, attorney’s fees.  The trial court’s determination of entitlement and amount after the notice of appeal was filed did not vest jurisdiction in the appellate court: An appellate court may not review actions of a trial court taken after a notice of appeal has been filed unless those acts are the subject of a new notice of appeal or other appropriate appellate proceedings.

LANDLORD/TENANT

Kosoy Kendall Associates LLC v. Los Latinos Restaurant, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1075 (Fla. 3d DCA 5/27/09)

            Based upon Section 83.232, Florida Statutes, the trial court ordered the tenant to deposit monthly rent payments into the registry of the court.  When the tenant failed to do so, the landlord was absolutely entitled to an ex parte, immediate default for a writ of possession of the premises.  This result was not altered by the subsequent tender of payment.  The trial court erred by conducting an adversarial hearing and refusing to issue a writ of possession.  The appellate court granted the landlord’s application for mandamus and ordered the trial court to issue forthwith a writ of possession.

INADEQUATE VERDICT; NEW TRIAL

Westminster Community Care Services, Inc. v. Mikesell, ___ So. 2d ___, 34 Fla. L. Weekly D1078 (Fla. 5^th DCA 5/29/09)

            When the jury found that the defendant was liable but awarded zero dollars in damages, the trial court entered an order of additur or new trial on the issue of damages only.  The appellate court reversed because the new trial should have extended to the issue of liability as well as damages because liability was hotly contested, and the award of zero dollars in damages may have been the result of a compromise on the issue of liability.  After several hours of heated and furious deliberations, the jury reported that it was deadlocked.  One hour after the court instructed the jury to continue to deliberate, the jury reached its problematic verdict.

AMENDMENT 7

Florida Eye Clinic, P.A. v. GMACH, ___ So. 2d ___,  34 Fla. L. Weekly D1080 (Fla. 5^th DCA 5/29/09)

            Fact work product is subject to production under Article X, Section 25 of the Florida Constitution, entitled “Patients right to know about adverse medical incidents  Therefore, the defendant was required to produce incident reports concerning infections that were prepared to assist defense counsel in the event of a lawsuit.  Opinion work product was not implicated because defense counsel never reviewed the reports in question.  The court did not read the constitutional provision “as evincing an intent from the voters to eliminate the privilege of opinion work product.”

MAGISTRATES

Lackner v. Central Florida Investments, Inc., ___ So. 2d ___, 34 Fla. L. Weekly F 1083 (Fla. 5^th DCA 5/29/09)

            “[T]here is no Florida authority either expressly permitting or prohibiting a magistrate from conducting a civil jury trial with the parties’ consent.  However, the relevant state constitutional provisions, statutes, rules, and interpreting decisions indicate that such a practice is not permitted in the absence of an express grant of authority by statute or rule of procedure.  Even if permitted by rule or statute, the order referring the case to the magistrate would also have to specifically grant the authority to preside over the jury trial, and the final order or judgment would have to be entered by the trial court.”

CHILD CUSTODY; GRANDPARENTS

Dubois v. Leon, ___ So. 2d ___, 34 Fla. L. Weekly D1088 (Fla. 5^th DCA 5/29/09)

            The court reversed an award of temporary custody of a minor child to the maternal grandparents because the order was based upon the best interests of the child rather than the unfitness of the natural parent.

MASTERS

French v. French ___ So. 2d ___, 34 Fla. L. Weekly D1088 (Fla. 5^th DCA 5/29/09)

            The wife filed an exception to the general master’s report and recommendations regarding the issues of alimony and attorney’s fees.  At the hearing on her exceptions, the wife filed an affidavit which, for the first time, pointed to errors in the magistrate’s calculation of the wife’s expenses.  The trial court refused to consider the affidavit because it constituted an untimely exception to the report and recommendations.  The appellate court reversed because the errors were plain on the face of the report, and the trial judge should have discovered them himself based upon his obligation to conduct a careful review of the report and the transcript.

CAVEAT EMPTOR

Brown v. Carter, ___ So. 2d ___,  34 Fla. L. Weekly D1091 (Fla. 2d DCA 5/29/09)

            The court reversed a judgment for the buyers of residential real estate to compensate them for the cost of structural repairs because of the absence of evidence that the sellers knew about and failed to disclose the defects.  The sellers remodeled their home five years before they sold it.  The remodeling consisted of the removal of interior walls on the second floor of the home and the addition of a swimming pool.  One year after the remodeling was  completed, floor and ceiling deformation was visible.  The buyers’ home inspector noted that the pool was an addition, and the buyers’ structural engineer reported deflection in a beam installed after the removal of a bearing wall. Nevertheless, the buyers’ contracted to purchase the home.  After closing, the problems intensified, and the buyers’ incurred substantial costs to restore the structural integrity of the home.  The trial court awarded those costs to the buyers because of the failure to disclose the nature and extent of the work performed to install the pool.  The problems caused by the interior remodeling were not an issue because those were disclosed to the buyers.  The appellate court reversed the judgment in favor of the buyers because of the absence of competent, substantial evidence that (1) the sellers knew that the installation of the pool had caused a structural problem, and (2) the installation of the pool actually affected the structural integrity of the home.

JUDICIAL ASSIGNMENTS

Strong v. Ochs, ____ So. 2d____, 34 Fla. L. Weekly D1092 (Fla. 2d DCA 5/29/09)

            Judge Bennett presided over a family law case in Division H of the Circuit Court for Sarasota County.  Strong moved to disqualify Judge Bennett, and the case was reassigned to a county judge serving temporarily as an acting circuit judge.  The acting circuit judge disqualified herself on her own motion, and the chief judge reassigned the case to another county court judge serving temporarily as an acting circuit judge.  Strong filed a writ of prohibition to prevent the second county judge from presiding over her case and a writ of mandamus to compel someone other than the chief judge to reassign her case.  The district court held that it lacked subject matter jurisdiction over the writ of prohibition.  The judicial assignment that Strong challenged complied with an unambiguous local rule, and the Florida Supreme Court has exclusive jurisdiction to review judicial assignments.  The proper procedure to challenge a judicial assignment made by a chief judge is to object in the trial court and then seek review in the Florida Supreme Court by petition for writ of prohibition or petition under the all writs power.  The district court also held that mandamus could not be used to grant the type of relief that Strong requested.

ATTORNEY-CLIENT PRIVILEGE

Powell v. Solowsky, ___ So. 2d ___, 34 Fla. L. Weekly D1096 (Fla. 3d DCA 5/29/09)

            On numerous occasions, Powell consulted Dulberg, a lawyer and social friend, about legal matters.  During a lawsuit in which Powell was a party, her adversary deposed  Dulberg, who testified that he never represented Powell, although he had assisted her in drafting some letters.  During the deposition, Powell objected, based on the attorney-client privilege, to certain questions posed to Dulberg, and the trial court overruled the objections without granting Powell’s request for an evidentiary hearing.  The appellate court granted Powell’s petition for certiorari because Powell made a proffer in the trial court that Dulberg requested a referral fee on one matter, which suggested the existence of an attorney-client relationship.  As a result, the appellate court remanded for an evidentiary hearing. Whether a person who consults with a lawyer is a client is determined from the perspective of the person, but her belief must be reasonable.

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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/.