Tuesday, September 25, 2012
In Tennant v. West Virginia Secretary of State, a unanimous Supreme Court reversed a three judge district court's decision that agreed with the plaintiff's "claim that West Virginia’s 2011 congressional redistricting plan violates the “one person, one vote” principle that we have held to be embodied in Article I, §2, of the United States Constitution."
In Chalfonte Condominium Apartment Association v. QBE Insurance Corporation (No. 08-10009), based upon THIS opinion from the Florida Supreme Court answering certified questions, the Eleventh Circuit released a published opinion holding:
Accordingly, based on the Florida Supreme Court’s answers to our certified questions, attached hereto as an appendix, we affirm in part and reverse in part the district court’s judgment. We affirm the district court’s judgment of dismissal of Chalfonte’s claim under Section 627.701(4)(a) of the Florida Statutes, because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision, and we instruct the district court on remand to disallow any evidence of the policy’s failure to comply with these requirements. We reverse the district court’s order denying QBE a new trial and instruct the court on remand to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.The Chalfonte case was previously discussed on this blog HERE and HERE.
Friday, September 21, 2012
In Raza v. Deutsche Bank National Trust Company, the Second District determined that the borrower had properly preserved a claim for attorneys fees by pleading entitlement in his answer and filing a motion for fees within thirty days of the involuntary dismissal. However, the borrower did not sufficiently establish the fees incurred.
Deutsche Bank argues that Mr. Raza failed to prove a reasonable fee under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Principally, it argues that the record contains no information regarding the number of hours spent by Mr. Raza's counsel and the amount of work performed. Mr. Raza responds that the flat fee satisfies any evidentiary burden. We cannot agree.Emphasis supplied. The court later stated that "We do not hold that the absence of time records is fatal to an effort to recover fees under a flat fee arrangement." The flat fee may be sufficient when "combined with expert testimony...if it accounts for all matters addressed in Florida Patient's Compensation Fund." In this case, the fee expert's affidavit "was facially inadequate" Finally, "Even if Mr. Raza did present sufficient evidence, the amount of fees remains in the trial court's discretion"
Wednesday, September 19, 2012
In Swan Landing Development LLC v. First Tennessee Bank National Association (2D11-3410), the Second District reviewed the trial court's imposition of sanctions against the Appellant and its attorneys. Ultimately, the sanctions order was reversed because the organization had a colorable claim and basis to file a motion seeking relief they sought.
The court stated that "[a] finding that a party is entitled to recover attorney's fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record." That being said, in this case, the Court stated:
We are compelled to conclude based on the facts of this case that the trial court abused its discretion in awarding fees under section 57.105. Rule 1.540(b) permits a trial court to relieve a party from a final judgment based, in part, on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, . . . fraud . . . , misrepresentation, or other misconduct of an adverse party . . . ." Here, the Bank's audit inquiry letter, which was sent after entry of the final judgment of foreclosure, facially contradicted the Bank's position at trial that the parties had agreed to a concession. And because Swan Landing's efforts seeking an explanation of this contradiction proved unsuccessful, we conclude it was reasonable under these circumstances for Swan Landing and its attorneys to pursue the 1.540(b) motion.
Tuesday, September 18, 2012
The Village concedes that Harvard, as the representative of her son, qualifies as a "victim." However, the Village emphasizes that although section 985.04(3) permits the release of a juvenile offense report to a victim, such a release is discretionary, not mandatory. In support of its argument, the Village emphasizes the presence of the word "may" in the statute.
First, we address whether the Village was required to produce the requested juvenile offense report to Harvard under section 985.04(3). Our analysis begins by applying accepted rules of statutory construction. "Legislative intent is the polestar that guides a court?s statutory construction analysis." Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). If the statute is clear and unambiguous, we will not look behind its plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002). In such an instance, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So. 2d 408, 410 (Fla. 2004). Here, the issue is whether the term “may” as used in section 985.04(3) is permissive or mandatory. We hold that the plain language of section 985.04(3) is unambiguous, and thus interpret the word “may” as a permissive term. Noel v. Sheldon J. Schlesinger, P.A., 984 So. 2d 1265, 1267 (Fla. 4th DCA 2008) (“The word ‘may’ denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”) (citations and quotations omitted). Accordingly, we affirm the trial court’s ruling that the Village was not required to produce the requested juvenile offense report to Harvard.
Post Loss Insurance Claim Can Be Assigned, But The Insured Still Must Cooperate With Loss Investigation
Because we find there were genuine issues of material fact as to whether Haim was a resident spouse on the date of loss, and because the Assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy, we reverse.