Current Laws

Injunctions -- Contracts -- Employment -- Non-competition covenant -- Error to deny temporary injunction after finding restrictive covenants in employment agreement were enforceable and had been violated on ground that employer had failed to prove element of irreparable harm -- Findings triggered statutory presumption of irreparable injury and, accordingly, burden shifted to defendants to rebut presumption

MEDCO DATA, LLC, Appellant, v. DIANA BAILEY, JOANNE KENYON, and LAURA PEACH, Appellees. 2nd District.

Torts -- Automobile accident -- Intersection collision between motorcycle and vehicle -- Evidence -- Error to permit officer who assisted in accident investigation to testify that defendant violated right-of-way and that plaintiff did not -- Jurors should not be informed of investigating officer's determination of who caused accident -- New trial required -- Error to permit plaintiffs' counsel to publish to jury defendant's interrogatory answers concerning defense's surveillance of the plaintiffs where defense counsel advised court he did not intend to introduce surveillance videos at trial or present any testimony concerning surveillance, and only purpose for admitting interrogatory answers was to denigrate defendant

ROBERT L. SHAVER, Appellant, v. MAX CARPENTER and REBECCA CARPENTER, individually, and as husband and wife, Appellees. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Damages -- Setoff -- Collateral source statute does not allow for set-off of unemployment compensation benefits

YEINSON TORRES HURTADO and VIVIANA HURTADO ESCOBAR, Appellants, v. NIGEL DESOUZA, Appellee. 4th District.

Paternity -- Child custody -- Child support -- Attorney's fees -- Trial court abused its discretion by failing to include in final judgment sufficient findings regarding father's net income and allowable deductions, basis for amount of child support and child support arrearages awarded, and findings regarding father's ability to pay -- Error to include attorney's fees award in final judgment without determining father's ability to pay

ROBERT JOHN ALBERT VAN EXTER, Appellant, vs. NICOLE DIODONET-MOLINA, Appellee. 3rd District.

Injunctions -- Contracts -- Employment -- Non-competition agreement -- Error to deny temporary injunction to enforce non-compete agreement on ground that non-compete period had run, mostly during the time it took to appeal an erroneous ruling on the interpretation of the non-compete clause -- Where there has been delay in entry of non-compete injunction enforceable under section 542.335(1)(c), party seeking to enforce the non-compete clause is entitled to receive full benefit of its bargain, which is the enforcement of the full non-compete period specified in the agreement between the parties -- Remand for determination whether company proved section 542.335's requirements or elements of temporary injunction.

Civil procedure -- Error to enter final judgment where case was tried before it was "at issue" -- Case was not at issue where trial proceeded less than twenty days after defendant served answer and affirmative defenses.
ANA LOPEZ, Appellant, vs. U.S. BANK, N.A., AS TRUSTEE FOR JP MORGAN MORTGAGE TRUST 2006-A2, Appellee. 3rd District.

Civil rights -- Employment discrimination -- No error in dismissing action brought under Florida Civil Rights Act alleging employment discrimination based on pregnancy.
MARLENA BLANCO, Appellant, vs. MONIQUE & ME, INC. D/B/A CULINARY SPECIALTY FOOD AND CWF WAREHOUSE, LLC, Appellees. 3rd District.

Contracts -- Commercial lease -- Breach by assignee -- Damages -- Error to find lessee liable for damages arising from a breach of commercial lease by lessee's assignee where undisputed evidence introduced at trial established that landlord terminated the lease prior to assignee's alleged breach -- Trial court incorrectly found that lease was not terminated -- Once lease was terminated by landlord, lessee had no further obligations to landlord under the lease -- Evidence that assignee disagreed with basis for termination and continued to pay rent is insufficient to support finding that lease was not terminated, and did not negate undisputed evidence that landlord sent assignee a termination notice, intended to terminate the lease, and never took any action to rescind the termination notice.
DAVID LOUGAS a/k/a DAVID LOUGASI, Appellant, v. SOPHIA ENTERPRISES, INC., and NANCY FELDMAN, Appellees. 4th District.

Contracts -- Torts -- Action by contractor against defendant who purchased assets of waterproofing subcontractor for project and assumed subcontractor's obligations under the subcontract, alleging breach of the subcontract and negligence in the performance of the waterproofing work -- Error to enter summary judgment for defendant where, under asset purchase agreement, defendant assumed all obligations of initial subcontractor after the closing date, and there was factual issue as to whether all defective work was performed before the closing of the asset purchase agreement -- There is no merit to defendant's claim that plaintiff was not a third-party beneficiary of asset purchase agreement whereby defendant assumed initial subcontractor's liabilities to plaintiff because plaintiff never approved initial subcontractor's assignment of subcontract -- Enforcement of provision of subcontract which precluded assignment without contractor's prior written consent was a matter within plaintiff's discretion -- Summary judgment was precluded by factual issues as to the cause of leaks in the project and whether the leaks were a result of work performed by the initial subcontractor or by defendant.
THE WEITZ COMPANY, LLC, Appellant, vs. MCW ACQUISITION, LLC, ETC., Appellee. 3rd District.

Corporations -- Limited liability companies -- Action by plaintiff having minority ownership interests claiming unlawful denial of access to corporate books and records and unlawful denial of access to limited liability company records -- Corporation is not obligated to produce a corporate record that it does not have at the time the request is made, and is not required to prepare the requested record from documents that it might obtain from others -- Corporation is required to provide access to its existing records that would be used to prepare statement of cash flows, and trial court properly found that defendants provided such access.
ALEJANDRO "ALEX" OMES, Appellant, vs. ULTRA ENTERPRISES, INC., et al., Appellees. 3rd District.

Insurance -- Personal injury protection -- Under 2008 amendments to PIP statute, a PIP insurer cannot take advantage of Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy -- Because policy in instant case did not reference permissive method of calculation based on Medicare fee schedules, insurer could not limit its reimbursement based on those fee schedules.
GEICO GENERAL INSURANCE COMPANY, Petitioner, vs. VIRTUAL IMAGING SERVICES, INC., etc., Respondent. Supreme Court of Florida.

Insurance -- Mediation -- Appearance by telephone -- Defendant is not entitled to appear by telephone at court-ordered mediation, requiring each party to be physically present, based on claim that "it's a significant burden for the litigation manager handling this matter to travel to Florida to attend the mediation as she has a baby and lives and works in Connecticut".
ANTHONY CHANCEY, Plaintiff, v. THE HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Tampa Division.

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- MRI -- Florida's No-Fault Statute, section 726.736, did not allow insurer to limit reimbursement for magnetic resonance imaging services to Medicare's Outpatient Prospective System fee schedule amount.
ALL FAMILY CLINIC OF DAYTONA BEACH, INC., on behalf of itself and all others similarly situated, d.b.a. Florida Medical Associates, Plaintiff - Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant - Appellant. 11th Circuit.

Torts -- Legal malpractice -- Representation of owner in unsuccessful attempt to obtain a new build determination from the Naval Vessel Documentation Center for a vessel that was to be deconstructed and rebuilt -- Error to enter summary judgment for defendants in professional negligence action where there were factual issues regarding the sufficiency and clarity of legal advice given on the difficulty of obtaining a new build determination, and the effect of this advice on plaintiff's decision to continue to rebuild the vessel.
MARINE RESOURCE DEVELOPMENT FOUNDATION, INC., A NON-PROFIT CORPORATION, Appellant, vs. MICHAEL MOORE, ESQ., ERIN ACKOR, AND MOORE & COMPANY, P.A., Appellees. 3rd District.

Wills -- Employment codicil -- Substantial competent evidence supported trial court's conclusion that, through employment codicil of will, testator did not intend to confer a guarantee of lifetime employment in the corporate headquarters of testator's vast conglomerate company -- Trial court correctly construed employment codicil to reflect testator's present intention of wanting his son to continue working for testator's companies but giving deference to his fiduciaries' responsibility to corporations with respect to son's future employment -- First sentence of employment codicil stating testator's intention that his son continue to be employed in a suitable and reasonable position was a precatory statement and does not compel a conclusion that testator's intention was to provide lifetime employment with company, particularly where son's past performance did not convince his father that he was a capable employee -- Trial court interpreted the employment clause in a way to preserve it to the extent that it could be enforced without encroaching on fiduciary duties of personal representative, business trustee, directors and officers of the corporation -- Trial court correctly found that employment with testator's company could not be the subject of a testamentary direction binding upon officers and directors of various companies in conglomerate, as such a finding would conflict with fiduciary duties of officers and directors to corporation and its creditors.
THOMAS GRANT, Appellant, v. BESSEMER TRUST COMPANY OF FLORIDA, INC., as personal representative of the Estate of Milton Grant, Appellee. 4th District.

Contracts -- Implied warranties of fitness, merchantability, and habitability -- Action by homeowners association against developer/builder of subdivision alleging breach of implied warranties of fitness, merchantability and habitability -- Law of implied warranties of fitness and merchantability apply to improvements that provide essential services to the habitability of a residence -- District court properly held that implied warranties of fitness and merchantability apply to infrastructure, drainage systems, retention ponds, and underground pipes located in residential subdivision, which directly impact the homes and provide services essential to the habitability of residences -- Section 553.835, Florida Statutes (2012), whose purpose was to abrogate decision of district court and affirm prior limitations to implied warranties, is substantive and does not apply to causes of action that accrued before effective date of statute.

Insurance -- Home health care -- Limited home health care policy is ambiguous -- Under reasonable interpretation of policy, the automatic benefit increase percentage provision of policy applies to per occurrence maximum benefit and lifetime maximum benefit amount as well as daily benefit amount -- Under Florida law, where the policy is ambiguous it must be construed against the insurer and in favor of coverage without resort to extrinsic evidence.
WASHINGTON NATIONAL INSURANCE CORPORATION, etc., Appellant, vs. SYDELLE RUDERMAN, etc., et al., Appellee. Supreme Court of Florida.

Torts -- Automobile accident -- Permanent injury -- Directed verdict -- Trial court erred in granting plaintiff's post-verdict renewed motion for directed verdict on issue of permanency of one of plaintiff's claimed injuries where directed verdict was based on testimony of plaintiff's expert, but it was clear from record that there were several grounds upon which jury could have rejected expert's testimony -- Independent medical examiner who appeared as defense witness testified that there was no permanent injury; the expertise of plaintiff's expert with respect to the claimed injury, a temporomandibular joint condition, was hotly debated, in that her ability to diagnose plaintiff at all was a feature of trial; and plaintiff's witness was not given complete medical record, which included historical dental problems which may have been linked to TMJ
BRITTANY BROWN and JOSEPH BROWN, Appellants, v. MICHAEL LUNSKIS, Appellee. 2nd District.

Torts -- Fraud -- Contracts -- Violations of Jordanian law -- Dispute arising out of agreements, acts, and communications relating to U.S. government procurement contracts -- Under totality of circumstances, trial court did not abuse its discretion in excluding expert testimony concerning whether there is condition precedent, under Jordanian law, that notice be given to certain Jordanian ministry prior to plaintiff's instituting suit where affirmative defense of failure of condition precedent was not raised in defendants' motion for leave to amend answer and was addressed for first time mid-trial -- Moreover, all jury instructions on Jordanian law had been extensively negotiated and were presented to court by stipulation, thereby removing any battle of experts on Jordanian law, plaintiff had relied on stipulation in withdrawing his Jordanian law expert, and defendants failed to comply with disclosure requirements of pre-trial order -- Damages -- Lost profits -- New trial on damages not required because jury's damage award did not distinguish between fraud claims and Jordanian law claims where parties stipulated to verdict form that did not distinguish between liability counts, and verdict was for precise amount sought as basic lost profits, regardless of count -- Error to deny prejudgment interest where, even without verdict form breakdown, it was clear that total sum for lost profits was, at a minimum, fixed as of the end of last contract between the parties.
HARRY SARGEANT, III, MUSTAFA ABU-NABA'A, and INTERNATIONAL OIL TRADING COMPANY, LLC, Appellants, v. MOHAMMAD ANWAR FARID AL-SALEH, Appellee. 4th District.

Venue -- Contracts -- Liens -- Construction -- Action by subcontractor asserting claims against lien transfer bond against contractor and surety and breach of contract claims against contractor only -- Statute provides that any claim on bond must be brought in circuit court of county where security is deposited, and contract claims involving same matters should be brought in the same place to avoid inconsistent rulings -- Trial court erred in directing that suit filed in county in which liened property was located be changed to county designated as proper venue in the contracts between contractor and subcontractor.
ATTAWAY ELECTRIC, INC., Appellant, v. KELSEY CONSTRUCTION, INC. and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Appellees. 4th District.

Wrongful death -- Medical malpractice -- Dismissal -- Fraud on court -- Trial court did not abuse its discretion by dismissing case with prejudice based on fraud on court where there was competent, substantial evidence that plaintiff sentiently set in motion an unconscionable scheme calculated to interfere with judicial system's ability to adjudicate the matter impartially -- Plaintiff not only kept diary chronicling decedent's medical condition which he failed to disclose to defense in response to requests for production of any notes or diaries maintained by him that pertained to issues raised in lawsuit, but notations in diary, once it came to light, revealed repeated fabrications which contradicted plaintiff's trial testimony in several key aspects.
EDWARD HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants, v. INTRACOASTAL CARDIOLOGY CENTER, MITCHELL D. SILVER, M.D., individually, and MITCHELL D. SILVER, M.D., P.A., Appellees. 4th District.

Wrongful death -- Product liability -- Tobacco -- Fraudulent concealment -- Conspiracy -- Engle progeny case -- Jury instructions -- Trial court did not reversibly err in giving concurring cause instruction on class membership, although the decedent's own negligence in failing to quit smoking was the only other alleged concurring cause -- Argument -- Comments by plaintiff's counsel during closing argument to the effect that defendant tobacco companies failed to take responsibility for their actions and comparing distribution of cigarettes to the distribution of heroin, although improper, were not preserved for review by contemporaneous objection and did not rise to level of fundamental error.
PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company); R.J. REYNOLDS TOBACCO COMPANY and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Appellants, v. MARY TULLO, as Personal Representative of the ESTATE OF DOMINICK TULLO, deceased, Appellee. 4th District.

Torts -- Automobile accident -- Jurors -- Challenges -- Cause -- Trial court abused discretion by refusing to excuse for cause a juror who was employed as risk manager and who agreed that she was defense-oriented and expressed concern with awarding noneconomic damages -- Evidence -- Error to prohibit plaintiff from presenting evidence that she had been determined disabled by Social Security Administration and was receiving disability benefits where defense counsel opened door by questioning plaintiff's daughter about fact that plaintiff did not work, had not made any effort to seek work, and "basically lays around and watches TV all day". -- New trial required on damages -- Error to rule that plaintiff was not entitled to costs, even though final judgment was entered awarding plaintiff partial damages.
EVELYN PELHAM, Appellant, v. JOSEPHINE LATASHA WALKER, Appellee. 2nd District.

Torts -- Rescue doctrine -- Action against rehabilitation hospital by plaintiff who was injured while assisting in the gait training of her mother in hospital when she threw herself from a position of safety in an attempt to cushion her mother's fall -- Under plaintiff's theories of liability of premises liability and physical therapy malpractice, duty and proximate cause cannot be established except by application of rescue doctrine -- Because rescue doctrine was not pled or argued to trial court, summary judgment for defendant is affirmed.
MARIE E. MENENDEZ, Appellant, vs. WEST GABLES REHABILITATION HOSPITAL, LLC, Appellee. 3rd District.

Torts -- Security company -- Action by insurer, as subrogee, against security company, alleging company was negligent in failing to advise client, who was plaintiff's insured, that analog-based security system that company installed would become obsolete once Federal Communications Commission transitioned from analog-based system to digital system, by failing to replace analog-based system with digital system, after transition, and by failing to advise client/insured that system stopped transmitting signals to security company's monitoring service once transition occurred -- Error to enter judgment on pleadings in favor of security company based on contract between parties where plaintiff alleged tort claims independent of contract.
UNITED STATES FIRE INSURANCE COMPANY, a foreign corporation, a/s/o M A Federal, Inc., Appellant, v. ADT SECURITY SERVICES, INC., a foreign corporation, Appellee. 2nd District.

Wrongful death -- Automobile accident -- Evidence -- Evidence that driver of vehicle in which decedent was a passenger at time of accident was unlicensed was admissible where evidence was relevant to show that driver's inexperience in handling automobile bore a causal connection to the accident.
APRIL LOPEZ, as Personal Representative of the Estate of Amalia Lozoya, Deceased, Appellant, v. WINK STUCCO, INC. and JESUS RIVERA, III, Appellees. 2nd District.

Wrongful death -- Torts -- Settlement -- Automobile accident -- Rear-end collision which pushed plaintiff's vehicle forward into moving train -- Settlement -- Where defendant's insurer accepted offer made by plaintiff, but acceptance deviated from release restrictions specifically delineated in the offer, the acceptance was not binding, even though it was accompanied by an offer to further modify the release terms -- Trial court correctly granted plaintiff's motion for partial summary judgment on issue of settlement.
ELI VILLAREAL a/k/a ELI VILLAREAL ALVAREZ, Appellant, v. HEATHER ERES, Individually and as Personal Representative of the Estate of Kevin D. Bryant, Appellees. 2nd District.

Estates -- Wills -- Holographic will -- Full faith and credit -- No error in dismissing counter-petition for administration of Colorado holographic will on ground that Florida statute does not recognize holographic wills, even if they are valid in state where executed -- Statute does not unconstitutionally restrain testator's right to devise property -- Question certified: Do sections 732.502(2) and 734.104(a) violate article I, section 2 of the Florida Constitution by categorically defeating the intent of the testator of a handwritten holographic will without a rational relation to the fraud it seeks to cure?
ANDREA LEE, Appellant, v. ESTATE OF RANDY JOHN PAYNE, and GARY M. FERNALD, as Guardian ad Litem for Hannah Jean Payne, a minor, Appellee. 2nd District.

Guardianship -- Incapacitated person -- Less restrictive alternatives to guardianship -- Trial court did not err in relying on verified statement by interested person to determine that trust, trust amendments, and durable power of attorney were not an alternative to guardianship.
DAIN F. SEARLE, Appellant, v. ANNE S. BENT, SABAL TRUST COMPANY, as Guardian of the property of Dain F. Searle, and THOMAS BELLINO, as Guardian of the person of Dain F. Searle, Appellees. 2nd District.

Guardianship -- Incapacitated persons -- Guardian's action against attorneys and law firm who provided trust and estate services to ward, seeking declaratory and injunctive relief based on allegations that defendants breached legal duties to ward by allowing family members to exploit her and to dispose of her assets against her express wishes -- Appeals -- Certiorari -- Discovery -- Compulsory mental examination -- Petitioners not entitled to relief on claim that trial court departed from essential requirements of law by ordering compulsory mental examination of defendant after defendant filed motion for protection from discovery on ground that defendant suffered from medical conditions which would render his ability to participate in depositions and/or respond to interrogatories impossible -- Petitioners failed to meet burden of showing that order results in irreparable harm -- Trial court departed from essential requirements of law by allowing guardian's counsel to be present at examination.
RICHARD S. SCOLARO and SCOLARO, SHULMAN, COHEN, FETTER & BURSTEIN, P.C., Petitioners, v. M. ASHLEY BUTLER, PH.D., as Guardian of Claudine B. O'Connor, COMMERCE TRUST COMPANY, a Division of Commerce Bank, N.A., as Co-Trustee of the Claudine B. O'Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, and LESTER B. COX, as Co-Trustee of the Claudine B. O'Connor Revocable Trust Agreement dated January 27, 1984, as amended on August 22, 2002, RespoTorts -- Nursing homes -- Arbitration -- Trial court erred in denying nursing home owners' motion to compel arbitration of claims against them on grounds that arbitration agreement, which required plaintiff to pay 40 percent of the costs of arbitration, was unconscionable and impossible to perform -- It was error to find agreement to be unconscionable where plaintiff presented no evidence of procedural unconscionability -- It was error to find that agreement was impossible for plaintiff to perform because she could not afford the cost where plaintiff failed to establish that performance was impossible and failed to establish an adverse change in circumstances from the time she entered into the agreement to the time the issue was presented to the trial court -- Under decision of U.S. Supreme Court holding that an arbitration agreement may be invalidated upon showing that arbitration would be prohibitively expensive, fee-splitting provisions are not per se unenforceable, but should be considered on a case-by-case basis -- Plaintiff did not show that arbitration would be prohibitively expensive where she presented no evidence of the likely cost of arbitration and presented no evidence that the likely expenses of arbitration would exceed the likely expenses of litigation.
ZEPHYR HAVEN HEALTH & REHAB CENTER, INC.; SUNBELT HEALTH CARE CENTERS, INC.; ADVENTIST CARE CENTERS; ADVENTIST HEALTH SYSTEM/SUNBELT, INC.; and ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORPORATION (as to ZEPHYR HAVEN HEALTH & REHAB CENTER, INC.), Appellants, v. EDNA HARDIN, by and through CHRISTOPHER R. HARDIN, Attorney In Fact, Appellee. 2nd District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Fraudulent concealment -- Limitation of actions -- Statute of repose -- Trial court erred in striking defendant's statute of repose defense to fraudulent concealment claim -- Although Engle decision established conduct elements of claims for fraudulent concealment and conspiracy to commit fraudulent concealment, Engle progeny plaintiff still must prove detrimental reliance on tobacco company's misinformation within repose period -- Remand for jury determination on statute of repose issue -- Punitive damages -- Trial court erred in finding statute required reduction of punitive damages to three times compensatory damages -- Under applicable version of statute, trial court is free to exceed three-times-compensatory cap on punitive damages if claimant demonstrates to the court by clear and convincing evidence that award was not excessive in light of facts and circumstances presented to trier of fact -- Should jury find in favor of plaintiff on statute of repose issue, trial court may reinstate punitive damages award made by jury, subject to any reduction made by trial court in the exercise of discretion afforded under controlling statute.
R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. CONNIE BUONOMO, as Personal Representative of the Estate of Matthew Buonomo, Appellee. 4th District.ndents. 2nd District.

Civil procedure -- Dismissal -- Failure to consider factors set forth in Kozel v. Ostendorf prior to dismissing case for failure to appear at hearing constituted reversible error
BAC HOME LOANS SERVICING, L.P., Appellant, v. DONALD H. ELLISON, et al., Appellees. 1st District.
Civil procedure -- Torts -- Relief from judgment -- Attorney fraud -- Error to grant motion to set aside settlement agreement and to strike final order of dismissal on ground that plaintiff's attorney committed fraud in procuring settlement agreement without making specific findings as to which party bears burden of the fraud -- Factors to be addressed on remand include whether plaintiff demonstrated due diligence in hiring attorney, whether attorney had actual or apparent authority to settle case, whether opposing party knew or should have known proposed settlement was suspect, whether plaintiff demonstrated due diligence upon discovering fraud, and whether plaintiff ratified fraud
THE FLORIDA PHILHARMONIC ORCHESTRA, INC., a nonprofit corporation, Appellant, v. PHILLIP BRADFORD; ROBERT WILLIAMS MOVING & STORAGE, INC., a Florida corporation, and FISHER AUCTION CO., INC. a Florida corporation, Appellees. 4th District.

Contracts -- Arbitration -- Waiver -- Defendant did not waive its right to arbitration by filing a motion to transfer venue based on forum non conveniens while simultaneously filing a motion to compel arbitration
TRULY NOLEN OF AMERICA, INC., Appellant, vs. KING COLE CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

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