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

SPECIFIC PERFORMANCE

 McMillan v. Shively,  ___ So. 3d ___, 34 Fla. L. Weekly D2520 (Fla. 1^st DCA 12/8/09)

            Although the plaintiffs’ action for specific performance could not be based upon the defendant’s breach of the express contract between the parties because the action was brought more than one year after the breach, the trial court erred in denying specific performance without considering plaintiffs’ argument that the defendant subsequently breached an implied in fact contract.

DOCTRINE OF FORFEITURE

Chavez  v. State,  ___ So. 3d ___, 34 Fla. L. Weekly D2521 (Fla. 1^st DCA 12/8/09)

             The trial court erred in admitting the murder victim’s statements that her husband threatened to kill her.  Florida does not recognize the doctrine of forfeiture by wrongdoing.  In any event, the doctrine was inapplicable because of the absence of evidence that the defendant killed his wife to prevent her from testifying.

 SINKHOLE INSURANCE; PRESUMPTIONS

Warfel v. Universal Insurance Company of North America,  ___ So. 2d ___, 34 Fla. L. Weekly D2527 (Fla. 2d DCA 12/9/09)

            Section 627.7073(1)(c), Florida Statutes, provides that the opinions of the insurer’s experts in a sinkhole case are presumed correct.  The trial court erred in concluding that this statute shifted to the insured the burden of proving that the opinions of the insurer’s experts were incorrect.  The statute creates a vanishing presumption that places the burden on the insured to produce evidence contradicting the opinions of the insurer’s experts.  Once the insured satisfies this burden, the jury should not be informed of the existence of the presumption.

 APPEALABILITY

Workmen’s Auto Insurance Company v. Franz,  ___ So. 2d ___, 34 Fla. L. Weekly D2530 (Fla. 2d DCA 12/9/09)

             The insureds sought to establish that they were entitled to stacked uninsured motorist coverage and the amount of the benefits to which they were entitled in the same action.  As a result, the trial court’s determination that the insureds were entitled to stacked uninsured motorist coverage was not an appealable, non-final order.

 MORTGAGE FORECLOSURE

 Citimortgage, Inc. v. Henry,  ___ So. 2d ___, 34 Fla. L. Weekly D2530 (Fla. 2d DCA 12/9/09)

            “A prior mortgagee” may not “be compelled to be a party by a junior encumbrancer foreclosing his lien.”

SHAREHOLDERS DERIVATIVE ACTION

Karten v. Woltin,  ___ So. 2d ___, 34 Fla. L. Weekly D2533 (Fla. 4th DCA 12/9/09)

            A minority shareholder, who alleged that his two fellow shareholders formed a competing business and diverted the assets of the corporation to the competitor, was required to bring a shareholder’s derivate, rather than a direct, action.

 APPEALABILITY; CONCURRENT JURISDICTION

Pecora v. Signature Gardens, Ltd.,  ___ So. 2d ___, 34 Fla. L. Weekly D2536 (Fla. 4th DCA 12/9/09)

             “An order abating or staying an action pending disposition of another action is not a reviewable non-final order,” but the court may review the order by petition for certiorari.

 ARBITRATION

Ballenisles Country Club, Inc. v. Dexter Realty,  ___ So. 2d ___, 34 Fla. L. Weekly D2536 (Fla. 4^th DCA 12/9/09)

             The developer of, and the corporation formed to own and operate, a country club entered into a subscription agreement that contained two arbitration clauses.  The court held that the duty to arbitrate continued after the corporation assumed full control of the board of directors because “the plain language of both arbitration clauses in the Subscription Agreement shows that the parties intended for arbitration to apply to ‘each and every dispute’ arising out of the Subscription Agreement, without time limitation. . . .  The mere fact that the arbitration procedure that the parties selected cannot be implemented after all of the company representatives resigned from the board does not limit the broad scope of the arbitration clauses. The legislature provides courts with a procedure for selecting arbitrators should the parties’ agreed method fail for any reason . . . .”

 INJUNCTION

Solares v. The City of Miami,  ___ So. 2d ___, 34 Fla. L. Weekly D2541 (Fla. 3d DCA 12/9/09)

             An emergency motion for temporary injunction to stop the sale of bonds pending the outcome of a lawsuit became moot after the bonds were sold.  Dismissal could not be avoided by seeking to enjoin the use of the proceeds from the sale because this relief was not sought in the emergency motion.

CREDITORS REMEDIES; PROCEEDINGS SUPPLEMENTARY

PMI Mortgage Insurance Co.  v. Kahn,  ___ So. 2d ___, 34 Fla. L. Weekly D2542 (Fla. 3d DCA 12/9/09)

             A judgment creditor who institutes proceedings supplementary must pay the fees of a special magistrate, but that expense may be taxed against the debtor.

JUDGES: DISQUALIFICATION

Fernwoods Condominium Association #2, Inc. v. Alonso,  ___ So. 2d ___, 34 Fla. L. Weekly D2543 (Fla. 3d DCA 12/9/09)

            “It is well settled in Florida that a disqualified judge may enter orders that are part of his/her ministerial duties, including reducing to writing oral rulings made prior to a motion to disqualify . . . .”

 WORKER’S COMPENSATION IMMUNITY; ELECTION OF REMEDIES

 Petro Stopping Centers, L.P. v. Gall,  ___ So. 2d ___, 34 Fla. L. Weekly D2547 (Fla. 5th DCA 12/11/09)

The trial court erred in denying the employer’s motion for summary judgment based upon the doctrine of election of remedies.  The employee filed a workers’ compensation claim and settled her claim at mediation.  The settlement established that the employee was permanently and totally disabled and was entitled to benefits.  The mediated settlement agreement constituted a conclusion on the merits of the employee’s workers’ compensation claim, and “litigating a workers’ compensation case to a conclusion on the merits manifests a conscious intent to choose workers’ compensation benefits to the exclusion of tort benefits.”

 COVENANT NOT TO COMPETE

Reinstein Pediatric Gastroenterology,  ___ So. 2d ___, 34 Fla. L. Weekly D2550 (Fla. 2d DCA 12/11/09)

 Dr. McClenathan was the majority shareholder, and Dr. Reinstein was the minority shareholder, in the P.A.  The two doctors and the P.A. entered into a Buy-Out Agreement and an Employment Agreement, both of which contained covenants not to compete.  When Dr. Reinstein sued Dr. McClenathan and the P.A. for a declaration that the covenants not to compete were unenforceable, Dr. Reinstein’s employment was terminated, and he opened a competing practice, the P.L.  The P.A. filed a separate action for injunctive relief and damages against Dr. Reinstein and the P.L.  The lawsuits were consolidated, and the trial court dismissed Dr. McLenathan because the P.A. was the only party seeking to enforce the covenants not to compete.  The Buy-Out Agreement empowered the P.A. or any shareholder to enforce the agreement.  The appellate court rejected Dr. McLenathan’s argument that he was barred from seeking to enforce the covenant because the P.A. had already filed suit to do so and the empowerment clause was written in the disjunctive.  The appellate court concluded that the filing of suit by one party did not preclude the filing of suit by another party, and Dr. Reinhart was entitled to a determination that would be binding on both the P.A. and Dr. McLenathan.

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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/.