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© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
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Torts -- Legal malpractice -- Attorney-client relationship -- Assignment of legal malpractice claim -- Claim arising out of attorney's negligence in connection with mortgage foreclosure action -- Plaintiff who was assigned mortgage and note after attorney's alleged malpractice, did not gain standing to sue attorney for malpractice by forming an attorney-client relationship with attorney during appeal of underlying foreclosure action -- Assignment to plaintiff of mortgage and note did not act as a valid assignment to plaintiff of legal malpractice claim -- Plaintiff did not have standing to bring action against attorney for legal malpractice either through attorney-client relationship or by general assignment
Reported at 32 Fla. L. Weekly S396a
Torts -- Defamation -- Corporations -- Action by employee against employer alleging that plaintiff was defamed by statements made in the course of investigation of charge brought against plaintiff by a co-worker -- Publication -- Communications between corporation's executive or managerial employees are considered to be the corporation talking to itself, and could not be the basis for a defamation claim because they lacked the essential element of publication to a third party -- Statements made to non-managerial personnel which were an integral part of employer's investigation were privileged -- Statements made to employees who sought an explanation of plaintiff's suspension were made to employees who had an interest in the disciplinary practices of their employer and in the safety and security of their workplace, and were privileged -- Error to enter judgment against defendant employer
Reported at 32 Fla. L. Weekly D1636a
Torts -- Medical malpractice -- Discovery -- Error to dismiss medical malpractice complaint for plaintiff's failure to comply with presuit discovery requirements where defendant was not prejudiced -- Defendant was not prejudiced where plaintiff's failure to provide presuit discovery did not prevent defendant from investigating the claim, assessing potential liability, and choosing whether or not to enter into settlement negotiations or admit liability and submit to arbitration on damages
Reported at 32 Fla. L. Weekly D1630a
Torts -- Breach of fiduciary duty -- Where plaintiff's theories to establish breach of fiduciary duty were premised on argument that plaintiff had orally agreed to be in charge of, and act on plaintiff's behalf, and court dismissed plaintiff's claim for breach of oral contract, court erred in allowing plaintiff to pursue the contract claim by renaming it as a breach of fiduciary duty -- There was no showing of a general fiduciary relationship between plaintiff and defendant where they were business associates, and there was no evidence that one of the parties undertook to advise, counsel, and protect the other party -- There was no showing that defendant incurred a fiduciary duty regarding the acquisition of additional shares in a corporation in which plaintiff and defendant were shareholders by dealing as plaintiff's agent in acquiring the additional stock -- There was no showing that defendant, as majority shareholder in closely held corporation, breached duty to plaintiff, as minority shareholder, when defendant purchased additional shares of stock in corporation from foreign investors -- With regard to plaintiff's claim that bonus paid to defendant was actually a disguised shareholder distribution to which plaintiff was entitled to one-half, plaintiff's proper remedy would be a shareholder derivative suit alleging corporate waste -- Defendant did not breach his fiduciary duty as majority shareholder by supporting corporation's termination of plaintiff's employment where plaintiff was an at-will employee, and termination was not wrongful -- Any claim regarding wrongful termination would be against corporation rather than defendant -- Defendant was entitled to directed verdict on breach of fiduciary duty claim
Reported at 32 Fla. L. Weekly D1637a
Contracts -- Construction and repair of condominium buildings -- Parol evidence -- Written contracts can be modified by subsequent oral agreement of the parties even though the written contract purports to prohibit such modification -- Parol evidence rule applies to verbal agreements between parties to written contract which are made before or at time of execution of the contract and does not apply to admission of subsequent oral agreements that alter, modify, or change former existing agreement between the parties -- Where original written contract required contractor to obtain performance bond; contractor applied for and attempted to obtain bond prior to commencing work, but obtaining bond became impractical; and over a month after execution of original contract, the parties negotiated an alternative course of conduct in which association agreed to accept a personal guaranty by contractor's president and a modified payment schedule which favored the association in lieu of performance bond requirement, trial court erred in entering partial summary judgment and final judgment in favor of association on ground that written contract was unambiguous and required all modifications to be in writing and signed by both parties -- Regardless of whether there was express oral agreement to change procedure by which parties could modify written contract, association wrote acceptance letter and submitted for signature the addendum and personal guarantee to contractor, and this is conduct from which waiver of original contract provision could be inferred -- Moreover, there is factual dispute as to whether signed addendum and personal guarantee were sent to and received by association's counsel before revocation letter was sent to and received by contractor's counsel -- Remand for further proceedings
Reported at 32 Fla. L. Weekly D1623a
Contracts -- Employment -- Noncompetition covenant -- Assignment -- Company which acquired the assets of original employer's international division as part of tax-free reorganization had standing to enforce non-compete agreement where valid and enforceable assignment of agreement was made under Connecticut law -- Choice-of-law provision in employment agreement, which provided that agreement would be interpreted and enforced in accordance with laws of Connecticut, was valid and enforceable -- Under Connecticut law, employee's covenant not to compete is an assignable asset of the employer -- In order for terms of a non-compete employment agreement to be enforced by purchasing company, the company must either acquire all of the assets of the company that initially held employment agreement or upon sale be assigned the rights to the covenant -- In this case, assignment was executed by treasurer of predecessor corporation assigning employment agreement to plaintiff
Reported at 32 Fla. L. Weekly D1624a
Dissolution of marriage -- Abuse of discretion to require husband to pay 100% of attorney's fees, accountant's fees, and costs incurred by former wife in dissolution action where husband did not have ability to pay entire amount out of current earned income and wife had financial ability to pay some portion of her litigation fees without suffering an inequitable diminution of her assets
Reported at 32 Fla. L. Weekly D1625a
Labor relations -- Labor Pool Act -- Trial court properly held that statute prohibiting a labor pool from charging more than a reasonable amount to transport day worker to or from designated worksite, which in no event could exceed the prevailing rate for public transportation in the geographic area, was unconstitutionally vague
Reported at 32 Fla. L. Weekly D1628a
Appeals -- Jurisdiction -- Supreme Court -- Conflict -- District court decisions that simply acknowledge, discuss, cite, suggest, or in any other way recognize conflict do not provide proper basis for party to seek Court's review under “certified conflict” jurisdiction -- To support such review, conflict must be “certified” -- Jurisdiction may nevertheless exist under Court's “express and direct conflict” jurisdiction -- Criminal law -- Counsel -- Ineffectiveness -- Claim that counsel was ineffective for failing to request instruction on lesser-included offense may be summarily denied -- Decisions under review, in which district courts acknowledged conflict with another district's decision on this issue, are quashed and remanded for reconsideration in light of Court's decision approving conflicting case
Reported at 32 Fla. L. Weekly S425a
Probate Rules -- Amendments
Reported at 32 Fla. L. Weekly S413a
Civil procedure -- Discovery -- Deposition duces tecum of non-party witness -- Declaratory action against municipality by plaintiff who proposed development of properties within Downtown Historic District of municipality -- Trial court improperly entered protective order prohibiting plaintiff from taking deposition of party who was a member of Historic Preservation Board and municipality's Land Planning Agency, and who was a vocal opponent of projects such as those proposed by plaintiff, and relieving party of producing documents -- Trial court's finding that plaintiff's cause of action in part is an attempt to investigate whether party had unauthorized ex parte communications regarding lot splitting ordinance while on Land Planning Agency is not a proper reason to prohibit party's deposition from being taken -- In relieving party of obligation to produce requested documents, trial court failed to address individual requests -- Trial court's broad labeling of entire document production process as a fishing expedition without addressing individual categories of documents sought is insufficient -- Because trial court's order constitutes departure from essential requirements of law that would cause plaintiff material injury throughout remaining proceedings, and because error could not be adequately remedied by appeal, writ of certiorari is granted
Reported at 32 Fla. L. Weekly D1658c
Jurisdiction -- Prohibition -- Appeal to county court of county code enforcement board determination that party's dogs are dangerous dogs -- Where parties properly agreed that county court has subject matter jurisdiction to hear challenges of code enforcement board decisions, but disagreed as to whether county court's review authority is in nature of plenary appeal, by petition for writ of certiorari, or de novo, circuit court departed from essential requirements by issuing writ of prohibition and directing county court to proceed de novo -- Prohibition was not appropriate remedy to address the manner by which county court determined to exercise its jurisdiction -- Prohibition will lie only to prevent lower tribunal from acting without jurisdiction or in excess of its jurisdiction, and it is without dispute that county court has jurisdiction to review actions of board
Reported at 32 Fla. L. Weekly D1657a
Dependent children -- Child custody -- Counsel -- Mother seeking change of custody of minor daughter who had been living with father following dependency orders -- Court views matter as stage of dependency proceeding to which right to counsel attached, notwithstanding fact that protective supervision had been terminated and Department of Children and Families did not participate in proceeding -- Trial court may elect to retain jurisdiction over a child after protective supervision has been terminated until child reaches age of majority, and trial court elected to retain jurisdiction over child in this case -- Trial court erred in excluding child from hearing and not speaking to her regarding her desire to remain with mother in Florida following summer visitation -- Remand with directions to consider mother's financial eligibility for appointment of counsel and for new hearing on request for change in custody -- Child may attend hearing and be called as witness
Reported at 32 Fla. L. Weekly D1654a
Workers' compensation -- Permanent total disability -- Offset -- Collateral sources -- Dependent benefits received by claimant's children solely as a result of claimant's disability constitute benefits from a collateral source under supreme court's ruling in Escambia County Sheriff's Department v. Grice and, thus, may be included in Grice offset calculation
Reported at 32 Fla. L. Weekly D1653a
Workers' compensation -- Settlement -- Claimant's appeal from order granting employer/servicing agent's motion to enforce settlement dismissed as moot -- Claimant who accepted benefits of settlement agreement is estopped from seeking reversal -- Argument that acceptance of benefits doctrine does not apply because judge of compensation claims ordered parties to file washout papers and claimant would have been in contempt of court had he failed to comply with order is rejected because claimant could have pursued alternative remedy instead of accepting proceeds of settlement
Reported at 32 Fla. L. Weekly D1652a
Domestic violence -- Evidence was insufficient to support granting of injunction for protection of minor child against domestic violence by mother -- Evidence that mother injured herself and grabbed at the child in an attempt to physically take child from individual who was holding child was not sufficient to establish that child was either victim of domestic violence or in imminent danger of being victimized by mother -- Domestic violence proceeding was not proper forum to address concern about child living alone with mother who had attempted suicide
Reported at 32 Fla. L. Weekly D1663a
Contracts -- Discovery -- Order requiring defendant in action for breach of settlement agreement to produce corporate tax returns, corporate general ledgers maintained during ordinary course of business, and all supporting documents used to prepare the ledgers was overbroad -- Time frame of order requiring production of tax returns, general ledgers, and supporting documentation from 1997 through the present was unreasonably broad where settlement agreement which forms basis of breach of contract action was not executed until 1999 -- Further, order requires wholesale turnover of document without regard to issues framed by alleged breaches of settlement agreement -- Certiorari is appropriate when discovery order departs from essential requirements of law, causing material injury to petitioner throughout remainder of proceedings, and leaving no adequate remedy on appeal
Reported at 32 Fla. L. Weekly D1691a
Torts -- Defamation -- Jurisdiction -- Non-residents -- Injury to Florida plaintiff caused by tortious act committed outside Florida is insufficient to invoke jurisdiction of Florida courts under section 48.193(1)(b), Florida Statutes -- Florida court did not have jurisdiction over non-resident defendants in action seeking damages for defamation, tortious interference with business relations, and tortious interference with contractual relations where there was no showing that defendants published injurious statements within Florida
Reported at 32 Fla. L. Weekly D1690a
Contracts -- Mortgage brokers -- Injunctions -- Action by mortgage broker who had entered into agreement to act as exclusive broker to obtain financing for acquisition and development of real estate project, with broker to be paid commission of 1% of amount to be funded by lender -- Trial court did not abuse discretion in denying broker's request for temporary injunction to require developer to segregate funds for payment of broker's commission where broker had learned that developer was ready to close on a loan -- Court properly determined that broker failed to establish that it had substantial likelihood of success on merits where complaint and motion for injunction do not assert that broker complied with requirements of brokerage agreement or that broker was procuring cause of loan that developer intends to obtain -- Court did not abuse discretion in concluding that broker had adequate remedy at law
Reported at 32 Fla. L. Weekly D1687a
Insurance -- Homeowners -- Injunction -- Action by insureds to recover for theft of personal property under actual cash value homeowner's policy which contained “Personal Property Replacement Cost” endorsement -- Insureds' position that they are entitled to be paid for the total replacement value of loss, and that their obligation was to do nothing more than produce receipts is contrary to express provisions of policy -- Trial court abused discretion in entering injunction requiring insurer to pay disputed sums under policy prior to final determination of case -- By granting injunction, court vitiated insurer's contractual rights prior to trial on merits -- Order granting injunction reversed and remanded with directions to permit insurer to amend to allege defense of insurance fraud and such other defenses as it may have to breach of contract claim
Reported at 32 Fla. L. Weekly D1685a
Torts -- False imprisonment -- Malicious prosecution -- Discovery -- Work product -- Privacy -- Action against supermarket by plaintiff who was stopped and held by security agents who suspected him of shoplifting, who declined to participate in civil theft recovery program created by supermarket to avoid police involvement, and who was ultimately prosecuted and found not guilty of two charges -- Trial court departed from essential requirements of law by ordering production of copies of correspondences from defendant's attorneys to other suspected shoplifters related to civil theft recovery program -- Documents are protected by work-product privilege, and plaintiff failed to show that he had need for such material and could not, without undue hardship, obtain substantial equivalent by other means -- Further, requested correspondences implicate privacy interests of non-party suspected shoplifters, and plaintiff failed to show how requested correspondences would have any relevance to his case
Reported at 32 Fla. L. Weekly D1681a
Civil procedure -- Torts -- Dismissal -- Failure to prosecute -- Failure to file notice of good cause at least five days before hearing -- Involuntary dismissal -- Plaintiff becoming incompetent during pendency of litigation -- Neither petition for guardianship of plaintiff filed in Flagler County nor subsequent order appointing attorney and elisor for alleged incapacitated person entered in Flagler County constitute record activity in negligence action filed against defendant in Palm Beach County sufficient to defeat dismissal for lack of prosecution because neither of these documents “appear on the face of the record” in the negligence action -- Trial court did not err in finding that there was no record activity during relevant time period and in concluding that plaintiff's failure to show good cause in writing at least 5 days before hearing required dismissal of personal injury action under amended rule 1.420(e) -- However, when unrepresented plaintiff in this action became incompetent during pendency of action, trial court itself should have either appointed guardian ad litem or entered such other order as it deemed proper for protection of incompetent plaintiff -- “Limitations” period of rule 1.420(e) cannot be fairly applied against a party who is incapable of complying with its requirements, and it was denial of due process to dismiss plaintiff's claim
Reported at 32 Fla. L. Weekly D1680a
Attorney's fees -- No error in denying insured's request for attorney's fees under section 627.428(1) for insured's defense of declaratory action that resulted in finding of no coverage and entry of summary judgment in favor of insurer -- There were two requests for relief between insured and insurer, the first of which was insurer's petition for declaratory judgment on coverage issue, and the second of which was insured's counter-petition seeking declaration that insurer owed defense of wrongful death action against insured and that general liability and umbrella policies provided coverage -- On duty to defend, insurer conceded the issue from the start, providing a defense to insured under reservation of rights so that insured's request for declaration on duty to defend was unnecessary and could not serve as basis for attorney's fees award -- On coverage issue, insurer prevailed -- Trial court ultimately ruled in wrongful death action that plaintiff's wrongful death claim against insured was barred by workers' compensation statute, and trial court granted summary judgment for insurer on coverage issue based upon workers' compensation exclusion
Reported at 32 Fla. L. Weekly D1678a
Civil procedure -- Torts -- Automobile accident -- Trial court reversibly erred in vacating final judgment against defendant based on trial court's failure to serve defendant with order resetting trial on damages -- Trial court's failure to serve the order was remedied by plaintiff subsequently mailing defendant a copy of the order
Reported at 32 Fla. L. Weekly D1673c
Administrative law -- Charter schools -- Termination of charter by county school board -- Due process -- Process leading to school board's termination decision was subject to Administrative Procedure Act -- Discussion of relevant provisions of APA and statutes that address school board procedures in general and charter school termination process in particular -- Although school board may have complied with requirements for calling a special meeting of the school board, it did not follow requirements for conducting a hearing to determine whether good cause had been shown to terminate charters -- Notice and procedures provided for by APA were not observed in this case, as charters were terminated at a school board meeting that was not conducted like a hearing determining substantial interests which would involve the submission of evidence and cross-examination -- Remand for further proceedings following proper notice and subject to due process protections of APA
Reported at 32 Fla. L. Weekly D1670a
Torts -- Sovereign immunity -- Municipal corporations -- Error to grant summary judgment in favor of city on sovereign immunity grounds with respect to claim by plaintiff that he sustained injuries when police severely beat him after he was arrested and handcuffed because there was disputed issue of fact as to whether officers acted in bad faith, with a malicious purpose, or in wanton and willful disregard of human rights such that city was not liable for officers' conduct -- Error to grant summary judgment on claim that plaintiff sustained injuries when police failed to use available seat belt to secure him and “through continuous and rapid stopping and accelerating” caused plaintiff to be “hurled” around van during transport to jail where complaint did not allege that police deliberately or intentionally drove in manner so as to inflict injury upon plaintiff or that actions of officers were taken in bad faith or with malicious purpose; and city's motion for summary judgment did not conclusively establish such facts
Reported at 32 Fla. L. Weekly D1669a
Dissolution of marriage -- Equitable distribution -- Abuse of discretion to grant husband full credit for all property tax payments, home improvement expenses, and homeowner's insurance premiums tendered by him after former wife vacated marital home where trial court did not explain why it gave husband full credit and record did not provide justification for a disproportionate award -- Remand for modification of award or amendment of final judgment to make clear why former husband is entitled to a lopsided award -- Special equity -- Abuse of discretion to award former husband special equity in jointly titled marital home based on fact that down payment was made with nonmarital funds where evidence was insufficient to prove that husband did not intend a gift -- Because trial court did not provide value for down payment and final judgment makes no mention of Landay formula, which is to be used where non-marital assets are used by a spouse as a portion of the consideration for the entireties' property, it is unclear whether court used the formula in determining special equity -- Valuation of assets and liability -- Trial court erred in failing to identify and value all marital assets and liabilities -- Blanket statement that parties had successfully divided up all of their marital assets and debts other than ownership of jointly owned marital residence did not satisfy court's duties under Chapter 61
Reported at 32 Fla. L. Weekly D1668a
Real property -- Lis pendens -- Trial court did not depart from essential requirements of law in denying motion to extend notice of lis pendens beyond one-year limitation where good cause for extension was not shown -- Existence of fair nexus between apparent legal or equitable ownership of property and dispute embodied in lawsuit is not sufficient, by itself, to establish good cause
Reported at 32 Fla. L. Weekly D1665a
