expectations
©
appellate
raising
Follow Us
National Federal & Florida representation. Global clientele.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Your contact with this firm reflects your understanding and agreement with these statements.
Recommendations or testimonials are not necessarily representative of results obtained, or all clients’ experiences with the lawyer. Facts and circumstances may differ from the matter(s) in which the results or recommendations are provided. Decisions about any lawyer are important and should not be based solely upon what is stated in a social networking site, website or blog. Your contact with this firm reflects your understanding and agreement with these statements.
© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
4000 Ponce de León Blvd., Suite 470, Miami, Florida 33146
(800) 216-6185 (305) 444-1599 [email protected]
Torts -- Workers' compensation immunity -- Employer-employee relationship -- Borrowed servant -- Employee of help supply services company -- Where it was undisputed that plaintiff was employed by help supply services and was sent to defendant as a temporary laborer, and defendant's personnel supervised, instructed, and controlled plaintiff, who in turn acted in furtherance of defendant's business, plaintiff was defendant's “borrowed employee” under section 440.11(2) and, as such, precluded from recovering against defendant in tort for injuries sustained when trusses collapsed at the end of day after his work was completed -- To be entitled to immunity under statute, an employer need only “utilize the services” of employee of a help supply company and employee must be “acting in furtherance of the employer's business” -- Jury instructions -- Intentional tort exception -- No error in instructing jury that employer is liable for employee's work-related injuries, notwithstanding workers' compensation immunity, if “reasonably prudent person would have understood” that employer's conduct was substantially certain to result in injury -- Evidence -- No abuse of discretion in admitting evidence of plaintiff's settlement with truss manufacturing company which was a previous defendant in the case -- Where plaintiff called president of truss company as expert witness at trial, and president opined that collapse of trusses was not due to manufacturing defect, but because of the way they were installed, evidence of settlement was properly admitted to show witness's potential bias
Reported at 32 Fla. L. Weekly D2115a
Torts -- Limitation of actions -- Action by beneficiary against the estate of deceased personal representative alleging, among other claims, breach of fiduciary duty -- Error to grant summary judgment in favor of estate based on conclusion that cause of action for breach of fiduciary duty was barred by statute of limitations where there was issue of material fact as to whether actions of decedent constituted a continuing tort -- Evidence as to whether estate of which plaintiff was beneficiary was ever closed and decedent discharged as personal representative was inconclusive -- Moreover, there was evidence that decedent continued to deal with estate assets, signing various documents as executor of the estate, and continued to collect dividends on stocks belonging to the estate, which he never distributed to estate beneficiaries but kept in escrow, up until the date of his death -- Whether plaintiff was on notice of alleged breach of fiduciary duty as early as 1963 when he received only $25,000 from an estate from which he expected to receive around $200,000 is issue of fact for jury
Reported at 32 Fla. L. Weekly D2114a
Dependent children -- Child custody -- Predisposition change in custody -- Error to order change in custody for two children who had been adjudicated dependent but who remained in mother's care where there was no competent, substantial evidence in record establishing that change from mother's custody to foster care was in best interests of children -- Evidence offered in support of allegation that mother was renting rooms to two individuals with criminal histories was not sufficient to support conclusion that removing children from mother's custody and home and placing them in foster care was in their best interests
Reported at 32 Fla. L. Weekly D2113b
Insurance -- Automobile -- Cancellation of policy -- Return of unearned premium -- Interest -- Insurer required by statute to refund unearned premiums to premium financers within thirty days is liable for interest where the premiums are not refunded in thirty days -- Interest is due on late refunds to premium financers based on assignments to premium financers from insureds, which give premium financers same right as insureds to receive interest under Section 627.7283, and based on common law right to recover interest, where premium has not been refunded within statutory grace period
Reported at 32 Fla. L. Weekly D2113a
Torts -- Negligence -- Limitation of actions -- Tolling -- Trial court properly dismissed amended complaint for negligence arising from alleged sexual abuse of plaintiff by teacher and clergyman over thirty years ago when he was student at Catholic high school, because plaintiff filed action outside statute of limitations for negligence and failed to allege sufficient facts to justify tolling statute of limitations on equitable estoppel theory -- Plaintiff failed to allege any wrongful conduct or specific acts of fraud or fraudulent concealment by defendants at any point after acts alleged in complaint to justify applying equitable estoppel -- Claim that defendants breached fiduciary duty to disclose the abuse of other boys does not explain how plaintiff was induced to wait almost thirty years to sue for abuse -- No authority exists which would render a violation of duty to report child abuse sufficient to justify applying equitable estoppel theory -- Dismissal properly entered with prejudice because any further attempt to amend complaint to state requisite allegation for tolling of statute of limitations would be futile
Reported at 32 Fla. L. Weekly D2110c
Insurance -- Personal injury protection -- Trial court properly entered directed verdict for defendant insurer in action by insured's medical provider on ground that insured failed to report for two consecutive independent medical examinations without explanation -- Insured's failure to comply with condition precedent that he appear for independent medical examination constitutes grounds to enter judgment for insurer -- Circuit court appellate division departed from essential requirements of law by reversing trial court's directed verdict
Reported at 32 Fla. L. Weekly D2105a
Dissolution of marriage -- Alimony -- Reduction or termination of wife's alimony based on her ten-year cohabitation with another man -- Trial court erred in denying former husband's motion to reduce or terminate alimony on ground that former wife and her long-term companion were not engaged in a supportive relationship -- After finding that companion provides both financial and emotional support for former wife, court improperly found that they are not in a supportive relationship because former wife and companion do not have joint bank account and because former wife is employed -- Statute does not require that recipient spouse be completely dependent on cohabitant before a supportive relationship can exist -- Financial support is not the only factor to be considered in determining whether a supportive relationship exists -- On remand, trial court is to consider factors listed in section 61.08(2) in determining whether to reduce or terminate alimony and, if to reduce it, by how much
Reported at 32 Fla. L. Weekly D2129a
Unemployment compensation -- Voluntary termination of employment for reasons not attributable to employer -- Where claimant who was receiving unemployment benefits investigated a job as a cable installer and, after two days of training, left the job upon concluding that he was physically unable to perform the work, it was error to disqualify claimant from receiving benefits on basis the he went to work for new employer and left for reasons not attributable to the employer -- Referee improperly rejected claim on basis that claimant's physical inability to perform job was personal reason not attributable to employer -- Statutory definition of good cause does not require that cause be attributable to employer when employee voluntarily leaves because of illness or disability that renders employee unable to perform the work -- Remand with directions to reinstate benefits claimant was receiving before he attempted job as cable installer
Reported at 32 Fla. L. Weekly D2127b
Constitutional law -- Access to courts -- Florida Vexatious Litigant law satisfies the constitution -- Section 68.093 satisfies Kluger “no alternative method of correcting the problem” test where there is compelling state interest in preventing vexatious litigation from interfering with business of court system and there are no other effective methods of controlling frivolous lawsuits filed by vexatious litigants -- Statute does not restrict any claim, frivolous or legitimate, filed by a person who does not meet definition of a vexatious litigant, does not deny access to a court or any judicial determination, and does not require the posting of security regardless of merits of lawsuit
Reported at 32 Fla. L. Weekly D2122b
Estates -- Probate court erred in charging to decedent's son four-fifths of life insurance proceeds from insurer upon his mother's death based upon conclusion that proceeds should have been shared equally by son and his siblings, because only evidence presented concerning insurance proceeds was son's testimony that he properly received the money -- Arguments of estate's counsel and unsworn pleadings and attachments from estate's previous action against insurer do not suffice as competent, substantial evidence for trial court's ruling
Reported at 32 Fla. L. Weekly D2122a
Limited liability companies -- Breach of statutorily mandated duties of loyalty and care by manager and managing members -- No error in dismissing claim that defendants breached duties of loyalty and care owed under section 608.423, which authorizes parties to execute operating agreement, but then places restrictions on that agreement, because plaintiff did not allege that the parties executed an operating agreement in violation of the statutory restrictions -- Allegations that manager breached section 608.4225 by failing to carry out its accounting duties were sufficient to support cause of action for breach of this statute -- Allegation that manager violated section 608.4225 by “failing to deal with members of the LLC in good faith” was insufficient standing alone to state cause of action for breach of statute, but factual allegations made elsewhere in third amended complaint sufficiently alleged type of intentional misconduct that would support cause of action for breach of duty of care under section 608.4225 -- Trial court properly dismissed remaining claims regarding violations of duties owed pursuant to section 608.4225
Reported at 32 Fla. L. Weekly D2121a
Contracts -- House inspection -- Arbitration -- Filing fee -- Error to grant defendant's motion to compel arbitration on condition that defendant pay filing fee required by American Arbitration Association -- Pursuant to contract, plaintiff, as the party pursuing the claim, was required to initiate the arbitration proceedings and advance the arbitration filing fees -- No merit to plaintiff's contention that arbitration clause was ambiguous and did not require her to seek resolution of contractual dispute as an arbitration action “at its outset”
Reported at 32 Fla. L. Weekly D2118a
Mortgage foreclosure -- Sale -- Surplus proceeds -- Town was entitled to surplus proceeds for payment towards code enforcement liens against foreclosed property -- Although mortgagors claimed that surplus enjoyed same homestead protection as property, there was no proof that mortgagors had abiding good faith intention prior to and at time of sale of homestead to reinvest proceeds in another homestead within a reasonable time
Reported at 32 Fla. L. Weekly D2117a
