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

TEMPORARY SUPPORT

Bengisu v. Bengisu,  ___ So. 2d ___, 34 Fla. L. Weekly D1103 (Fla. 4th DCA 6/3/09)

            “[T]he trial court abused its discretion in awarding [temporary] monthly support which greatly exceeds husband’s monthly income without competent, substantial evidence that husband’s actual monthly income exceeds his stated monthly income.”  Upon remand, the trial court was directed “to make the necessary findings based on competent substantial evidence of husband’s income and to award an appropriate amount of temporary support based on those findings.”

APPRAISAL; ATTORNEY’S FEES

Lewis v. Universal Property & Casualty Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1104 (Fla. 4^th DCA 6/3/09)

            After Hurricane Wilma damaged their roof, the insureds made a claim under their homeowner’s policy.  For more than more than one year, the insurer took the position that the majority of the damage was the result of aging, wear and tear, or construction deficiencies.  The insurer offered to pay to replace a small number of tiles and stated that it was closing its file.  The parties went to mediation, but an impasse was declared.  The homeowners retained a lawyer, who submitted a draft complaint for breach of contract, and the insurer invoked its right to appraisal but expressly reserved the right to deny the claim.   The Lewis’s sued for breach of contract and declaratory relief on the issue of coverage.  The lawsuit was stayed over the objection of the insured, and the case proceeded to appraisal, which resulted in an award to the homeowners for more than $51,000.00.  The trial court denied the insureds request for attorney’s fees under Section 627.428, Florida Statutes, but the appellate court reversed.  According to the court, the issue was not whether suit was filed before or after the invocation of appraisal, but whether the lawsuit served a legitimate purpose rather than a pretext for the award of fees.  According to the court, the facts in this case were “not indicative of an insured who ‘raced to the courthouse’ or who filed suit simply for the purpose of securing a fee award and, while it is true the trial court never entered a judgment or an order confirming the appraisal award, it is undisputed that the insurer paid the claim. Florida law squarely holds that ‘payment after suit was filed operates as a confession of judgment . . . entitling [the insured] to attorney’s fees.’”

TRUTH IN LENDING ACT

Gancedo v. Carpio, ___ So. 2d ___, 34 Fla. L. Weekly D1105 (Fla. 4^th DCA (6/3/09)

            A wife who did not have an ownership interest in the marital home when a second mortgage was executed did not qualify as a “consumer” under the Truth in Lending Act and, thus, was not entitled to the disclosures required by the Act or the extended cancellation period resulting from non-disclosure. 

PREJUDGMENT INTEREST

Westgate Miami Beach, Ltd. v. Newport Operating Corp., ___ So. 2d ___, 34 Fla. L. Weekly D1107 (Fla. 3d DCA 6/3/09)

            The trial court entered a money judgment in favor of the plaintiff and provided that pre-judgment interest would be entered by separate order.  The plaintiff moved to assess pre-judgment interest but did not obtain a ruling before taking an appeal that resulted in an affirmance of the final judgment. When the plaintiff sought to obtain an assessment of pre-judgment interest after the appellate court issued its mandate, the defendant contended that the trial court lacked jurisdiction to grant the requested relief, the trial court agreed, and the appellate court affirmed.  A trial court should not enter a final money judgment that leaves the determination of pre-judgment interest for future adjudication.  Although such a judgment technically is not final, it will be treated as final and will trigger the time period for filing a notice of appeal.  Once an appeal is taken, the trial court will lose jurisdiction to assess pre-judgment interest.  This problem may be addressed in either of two ways: (1) motion under Fla.R.Civ.P. 1.530(b) for rehearing to correct improper final judgment, or (2) motion under Fla.R.App.P. 9.600(b) to permit the lower tribunal to proceed with specially stated matters.  In the present case, the plaintiff did not exercise either option and, thus, waived its right to pre-judgment interest.  The plaintiff’s motion before appeal to assess pre-judgment interest would not be construed as a Rule 1.530(b) motion for rehearing because it did not object to the provision in the final judgment for a later determination of pre-judgment interest.  The doctrines of invited error and judicial estoppel were inapplicable because both lawyers and the trial judge were acting under a mistake of law; namely, that jurisdiction could be reserved to award prejudgment interest.  Furthermore, neither the doctrine of invited error nor judicial estoppel may be used to confer subject matter jurisdiction.

HOMEOWNER’S INSURANCE; BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

Citizens Property Insurance Co. v. Bertot, ___ So. 2d___, 34 L. Weekly D 1109 (Fla. 3d DCA 6/3/09)

            Homeowners sued Citizens for breach of contract and breach of the covenant of good faith and fair dealing.  The latter claim was based upon Citizens’ failure to investigate and resolve the insured’s claim within a reasonable time.  When its motion to dismiss was denied, Citizens filed a petition for writ of certiorari on the premise that the claim for breach of the covenant of good faith and fair dealing was a premature statutory bad faith claim because coverage and the extent of damages had not been determined.  The Third District Court of Appeal noted that federal district courts in Florida had reached conflicting decisions regarding the viability of a claim for breach of covenant of good faith and fair dealing in the context of an insurance policy, and the United States Court of Appeals for the Eleventh Circuit had certified this question to the Florida Supreme Court.  Inasmuch as the law was in a state of flux, the court could not determine that the decision of the trial court departed from the essential requirements of law.  As a result, the petition for certiorari was denied without prejudice to Citizens to advance its legal theory or to file a new petition if the Florida Supreme Court declines to exercise jurisdiction or fails to answer the certified question.

PIP; CLASS ACTIONS

Altamonte Springs Imaging, L.C. v. State Farm Mutual Automobile Insurance Co., ___So. 2d ___, 34 Fla. L. Weekly F1110 (Fla. 3d DCA 6/3/09)

            The court approved a class action settlement, dealing with a PIP carrier’s failure to make correct consumer price index adjustments to the benefits payable to MRI providers, over the objection of an MRI provider that intervened in the case.

PERSONAL JURISDICTION; LEGAL MALPRACTICE

Hirsch v. Weitz, ___ So. 2d ___, 34 Fla. L. Weekly 1113 (Fla. 4^th DCA 6/3/09)

            A client could not sue his New York lawyer in Florida for legal malpractice.  The lawyer represented the husband in an action in New York for dissolution of marriage.  The husband alleged that the lawyer was negligent in approving a settlement agreement.  As a result, the wife obtained a judgment in New York against the husband for what the husband regarded as an excessive share of the proceeds from the sale in New York of husband’s business.  When the wife sought to enforce the judgment in Florida, the husband alleged that his lawyer committed a tortious act, and breached a contract, in Florida.  The appellate court disagreed.  The husband was injured in New York when the New York court entered a judgment against him.  As a result, if the husband possessed a claim for legal malpractice, it accrued in New York rather than Florida.  Similarly, the lawyer did not breach his contract for representation in Florida.  “The mere fact that Weitz moved to Florida while his New York divorce was pending and Hirsch continued to work as his lawyer does not bring Hirsch within the provision of the long-arm statute.”  Continued communication with the client after he moved to Florida did not subject the lawyer to the jurisdiction of the Florida courts.

SETTLEMENT

Grant v. Lyons, ___ So. 2d ___, 34 Fla. L. Weekly D1114 (Fla. 4^th DCA 6/3/09)

            Grant was injured in a motor vehicle accident with Lyons and made a 20 day demand for Lyons’ $100,000 policy limits with AIG.  Within the 20 day period, AIG agreed in writing to pay its policy limits but required the execution of settlement documents that were unacceptable to Grant.  When Grant rejected the counteroffer and demanded an additional $500,000 to settle, Lyons moved to enforce settlement, and the trial court granted the motion.  The appellate court reversed. “Because the settlement documents included (1) a release of all persons liable to the plaintiff and not simply the insurance company and its insured; (2) a warranty that all hospital bills had been paid and none [was] outstanding; (3) a nondisclosure and confidentially agreement, the settlement contained more than the ‘usual’ settlement terms.  The insurance company’s response did not constitute an acceptance of the offer made by the plaintiff.  The trial court erred in enforcing the settlement.”  Significantly, Grant’s medical expenses were in excess of $250,000, and AIG would have required Grant to warrant that all hospital bills had been paid as a condition to receiving the $100,000 policy limits.

57.105 SANCTIONS

Montgomery v. Larmoyeux, ___ So. 2d ___, 34 Fla. L. Weekly D1118 (Fla. 4^th DCA 6/3/09)

            The court reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because the motion was filed only two days after notice was served upon the party against whom fees were sought.  “Section 57.105(4) could not be clearer in its requirement that a motion seeking sanctions may not be filed with or presented to the court within 21 days of service of the motion.  Statutes authorizing awards of attorney’s fees are in derogation of common law and must be strictly construed. . . .  As such, Larmoyeux’s failure to comply with the mandatory requirements of Section 57.105(4) did not constitute a procedural trap sprung on the unwary.”

LAY OPINION

Bryant v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1120(Fla. 4^th DCA 6/3/09)

            Bryant claimed that he acted in self-defense when he shot and killed the victim.  An eye witness should have been permitted to testify during Bryant’s trial for first-degree murder that Bryant appeared to be afraid when he discharged the weapon.  The testimony was admissible lay opinion under Section 90.701, Florida Statutes.

PRIVATE MAILBOX SERVICE

Beckley v. Best Restoration, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1121 (Fla. 4^th DCA 6/3/09)

            Under specified circumstances, Section 48.031(6) Florida Statutes, permits substitute service “by leaving a copy of the process with the person in charge of [a] private mailbox.”  This form of service may be used if “the only address discoverable through the public records to effect service is a private mailbox maintained by the party to be served.”  Mailbox service could not be used in the present case because the plaintiff failed to prove that “the only address for the Defendants, which was discoverable through public records, was a private mailbox. . . .

The record reflects that the Plaintiff discovered at least one address through public records at which to serve the Defendants, and unsuccessfully attempted to serve them at that address.”

ATTORNEY’S FEES

Glantz and Glantz, P.A. v. Chinchilla, ___ So. 2d ___, 34 Fla. L. Weekly D1124 (Fla. 4^th DCA) 6/3/09)

            The personal representative of an estate retained the law firm to which she was referred by the prepaid legal services program of which she was a member.  Based upon the guidelines of the program, the law firm charged $115.00 per hour, a 51% discount from its customary billing rate of $225.00 per hour.  Although the probate court found that the discounted fee was reasonable, it “inexplicably reduced the reasonable fee by another 51%.  In doing so, it abused its discretion.”

PEREMPTORY CHALLENGES

Ross v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1125 (Fla. 4^th DCA 6/3/09)

            “The appellant’s challenge to the State’s use of preemptory challenges against African-American jurors was not properly preserved for appeal, because appellant failed to renew his objection prior to the jury being sworn.”

SERVICE OF PROCESS ON UNINCORPORATED ASSOCIATIONS

Mt. Nebo Missionary Baptist Church v. Glee, ___ So. 2d ___, 34 Fla. L. Weekly D1135 (Fla. 1^st DCA 6/3/09)

            Glee filed a complaint to obtain reinstatement as a deacon of Mt. Nebo Missionary Baptist Church, but he served three individuals who were not alleged in the complaint to have authority to act on behalf of Mt. Nebo or to reinstate Glee.  “Here, it is uncontested that Mt. Nebo was an unincorporated association and that its individual members were not served notice.  Therefore, the trial court did not have personal jurisdiction over Mt. Nebo, and the trial court’s order that [Glee] be ‘reinstated as a deacon in the Defendant’s/Church’ is not binding on Mt. Nebo.”

57.105; ATTORNEY’S FEES

Brown v. Panhandle Citizens Coalition, ___ So. 2d ___, 34 Fla. L. Weekly D1136 (Fla. 1^st DCA 6/3/09)

            The court reluctantly reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because the Order awarding fees failed “to set forth findings as to the time reasonably expended.”

ARBITRATION

Newport Richey Medical Investors, LLC v. Stern, ___ So. 2d ___, 34 Fla. L. Weekly D1140 (Fla. 2d DCA 6/5/09)

            The trial court erred in ruling that a nursing home arbitration agreement was invalid or unenforceable because the arbitrator designated in the agreement was unwilling to serve.  Instead, the trial court, acting under Section 682.04, Florida Statutes, should have designated another arbitrator.

CLASS ACTIONS; INTERVENTION

Ownby v.Citrus County, ___ So. 2^nd ____, 34 Fla. L. Weekly D1141 (Fla. 5^th DCA 6/5/09)

            The trial court properly refused to certify a class action “because the proposed class representative failed to establish that he would adequately represent the putative class.”  The trial court erred, however, in refusing to allow a member of the putative class to intervene. “The case met all the criteria for class certification except the adequacy of the proffered representative. . . .   Although the litigation had been pending for some time, the case had not been set for trial, and there is no indication that the intervention would delay the proceeding.”

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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/.