Friday, May 27, 2011

Florida's Medical Malpractice Limits Do Not Violate U.S. Constitution

In Estate of Michelle Evette McCall v. USA (09-16375), the Eleventh Circuit released a published opinion addressing the constitutionality of the limits in Florida on noneconomic medical malpractice damages. The Court held the limit on noneconomic damages is constitutional under the United States Constitution and the takings clause of the Florida Constitution but certified other issues to be determined by the Florida Supreme Court. The court stated:
The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions. The Estate of Michelle McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son (collectively “Plaintiffs”) also appeal the District Court’s application of that statutory cap. After thorough review and having had the benefit of oral argument, we conclude that the District Court did not err in applying the cap. We also conclude that Florida’s statutory cap passes muster under the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the United States Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida Constitution. Because no Florida Supreme Court decisions provide controlling guidance to resolve Plaintiffs’ other challenges to this cap on noneconomic medical malpractice damages under that state’s Constitution, we grant, in part, Plaintiffs’ motion to certify questions to the Florida Supreme Court.
We certify the following questions to the Supreme Court of Florida:
  1. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?
  2.  Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?
  3. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?
  4. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?

We affirm the district court’s application of Florida’s statutory cap on noneconomic damages. We also conclude that the cap comports with the Equal Protection and Takings Clauses of the United States Constitution. We conclude that the statute does not constitute a taking in violation of the Takings Clause of the Florida Constitution, and we grant Plaintiff’s motion to certify questions regarding Plaintiffs’ remaining challenges to the cap under state constitutional law to the Florida Supreme Court.
*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

Friday, May 20, 2011

Attorney Fee Award After Voluntary Dismissal Reversed

In Guarantee Insurance Company v. Worker's Temporary Staffing Inc. (5D10-1905), the Fifth District reversed the trial court's order awarding attorneys' fees after a voluntary dismissal. The court stated:
Appellant challenges the judgment awarding attorney's fees and costs to Appellee, pursuant to section 627.428, Florida Statutes (2006), after Appellant voluntarily dismissed (without prejudice) its action for unpaid premiums. Because the voluntary dismissal was neither a judgment nor the functional equivalent of a confession of judgment - a precondition to an award under section 627.428 - we reverse.

Thursday, May 19, 2011

Denial Of Motion To Transfer Venue Reversed

In Drucker, et al v. Duvall (4D10-4443), the Fourth District reversed the trial court's order denying a motion to transfer venue. 
Appellants filed the affidavit of appellant Jonathan Drucker, who averred that appellee executed the engagement agreement in Miami-Dade County, that all transfers into and out of appellants’ trust account occurred in Miami-Dade County, and that the settlement negotiations occurred outside of Palm Beach County. Appellee responded with legal arguments but offered no affidavits or evidence to support her claim that venue was proper in Palm Beach County.
The parties here agree that appellants reside or maintain their principal place of business in Miami-Dade County. Likewise, the parties agree that this dispute does not involve real “property in litigation” that could serve as a basis for venue....The allegedly wrongful act of withholding appellee’s money occurred at appellants’ offices in Miami-Dade County, where all funds were received and distributed.
With regard to the law, the Court stated:
Pursuant to section 47.011, Florida Statutes, venue is proper “only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located." “It is the plaintiff’s option to select venue in the first instance, and ‘when that choice is one of the three statutory alternatives, it will be honored.’....The plaintiff bears the initial burden of alleging facts in the complaint sufficient to demonstrate that the action was filed in the proper venue....When a defendant challenges the plaintiff’s chosen venue “by filing an affidavit controverting the plaintiff’s venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection.
Because there was no connection to Palm Beach County, the Fourth District reversed the trial court's order with instructions that the venue be transferred.

Wednesday, May 18, 2011

Attorneys' Fee Claim Does Not Need To Be Raised In A Motion To Dismiss

In Nudel v. Flagstar Bank, FSB (4D10-3001), the Fourth District held "that a defendant is entitled to recover her attorney’s fees as a prevailing party under subsection 57.105(7), Florida Statutes (2009), after the court granted a motion to dismiss a mortgage foreclosure action and dismissed the case without prejudice."

After a foreclosure complaint was filed, "Nudel moved to dismiss the complaint, arguing that Flagstar lacked standing because MERS did not assign the bank the mortgage until after the bank filed the complaint." The trial court agreed and granted the motion to dismiss without prejudice. "Nudel [then] moved for attorney’s fees and costs on April 15, relying in part on the attorney’s fee provision in the mortgage. The circuit court denied the motion for fees, accepting Flagstar’s argument that Nudel had waived entitlement to fees under Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), and Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So. 2d 416 (Fla. 5th DCA 2003), because she had not sought attorney’s fees in her motion to dismiss." The Fourth District held that:
Initially, we hold Nudel did not waive her entitlement to attorney’s fees. It was proper for her to seek attorney’s fees in a motion filed after the entry of the dismissal without prejudice, because she had not yet filed a responsive pleading....Because a motion to dismiss is not a pleading, Stockman does not require the movant to raise the attorney’s fee claim in the motion; rather, “a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.”...Nudel timely moved for attorney’s fees within thirty days of the dismissal, so she did not waive her claim.
Therefore, the Appellant was entitled to recover her prevailing party attorney fees pursuant to her motion for attorneys fees which was based upon the fee provision in her mortgage.

Insurer Not Required To Pay Overhead & Profit Until Incurred By Insured

In Trinidad v. Florida Peninsula Insurance Company (3D10-1087), the Third District held that the insurance company was not liable to the insured for "overhead and profit" costs unless the insured had actually incurred those costs. The court stated that "Trinidad’s lawsuit was based on Florida Peninsula’s failure to pay him for overhead and profit. Because Trinidad’s insurance policy is unambiguous, and he has not contracted to incur or incurred these costs, the trial court properly granted summary judgment in favor of Florida Peninsula, and we affirm."

After a discussion of the facts, the court stated:
In granting summary judgment in favor of Florida Peninsula, the trial court concluded: 1) the policy was unambiguous; 2) it excluded payment for overhead and profit unless such expenses are either incurred by the insured or reflected in a contract that binds the insured; and 3) because neither event occurred in this case, Trinidad was not entitled to such payments. We agree.
The policy, therefore, unambiguously provides that Florida Peninsula pay replacement costs or the costs Trinidad actually incurs or which he demonstrates he is likely to incur....Trinidad’s policy is not an actual cash value policy, it is a replacement cost policy, which only requires Florida Peninsula to pay costs incurred by Trinidad (money Trinidad actually spent or which he became contractually obligated to spend for repair of the damages) when repairing the property. Not all repairs require the services of a general contractor. Because Trinidad has not hired a general contractor, spent any money for overhead and profit, or become contractually obligated to pay for such costs, payment for a contractor’s overhead and profit is not contractually owed by Florida Peninsula under the policy.
The policy’s unambiguous terms require Trinidad to either hire a contractor who charges for overhead and profit or to incur expenses for overhead and profit before Florida Peninsula is required to pay for such costs. Because he did neither, Florida Peninsula was not obligated under the policy to pay Trinidad for overhead and profit, and the trial court correctly granted summary judgment in Florida Peninsula’s favor.

Friday, May 6, 2011

It Is The Plaintiff's Burden To Prove The Validity Of Service Of Process

In Silva v. BAC Home Loans Servicing, L.P. (5D10-3511), the Fifth District reversed an order denying a motion to set aside a default judgment. In this case, the plaintiff served the defendant under section 48.031, Florida Statutes, by serving “Luz Rodriguez,” who was purportedly living at the property. After judgment was entered, the appellant/defendant sought to vacate the judgment and filed affidavits establishing they did not know Luz Rodriguez, that the property had been vacant for "some time" before the purported substituted service, and that they had lived in Miami for at least 18 months.

The Fifth District stated:
The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).
For what it's worth, the appellee did not appear in this appeal.

Wednesday, May 4, 2011

Order Canceling Foreclosure Sale Reversed

In Jade Winds Association, Inc. v. Citibank, N.A. (3D11-275), the Third District reversed an order entered by the trial court canceling a foreclosure sale. After a foreclosure complaint was filed, a condominium association filed a cross-claim against the debtor for unpaid assessments. A default judgment was entered on the cross-claim and Jade Winds took title to the property.

Jade Winds the filed a "Waiver of Public Sale" and Jade Winds also sought summary judgment in favor of Citibank. A summary judgment was entered and a foreclosure sale was scheduled. On the morning of the foreclosure sale, the bank filed an emergency motion to cancel the foreclosure sale allegedly based upon instruction from the client (bank) to cancel the sale to determine if the borrower qualified for a loan modification.

The Third District said the basis for canceling the sale, to explore loan modification, "obviously was misleading" since the borrower no longer owned the property. Further, Jade Winds was not served with the motion to cancel the sale. Therefore, the motion to cancel was heard on an ex parte basis and was granted.

After the order was entered, Jade Winds sought sanctions against the bank. The motion was granted and monetary sanctions were imposed against the bank. The court also ordered the sale be rescheduled for January 4, 2011 and that the sale could not be cancelled. Notwithstanding the bar on canceling the sale, the bank filed a motion to cancel the January 2011 sale. Jade Winds was not served with the motion to cancel or the notice of hearing. The motion to cancel the January 2011 sale was considered, ex parte, and granted due to "affidavit review." The Third District stated:
In the instant case, without rehashing the facts set forth in this opinion, it is clear that Citibank failed to properly serve Jade Winds’ counsel with the Second Motion to Cancel and failed to notify counsel of the hearing. We recognize that the Second Motion to Cancel was filed on an “emergency” basis, but note that Citibank apparently made no attempt to notify Jade Winds’ counsel of the motion by either delivery, facsimile, email, or phone call, although Jade Winds’ counsel actively participated in this litigation. Further, based on Judge Langer’s previous order imposing sanctions against Citibank, Citibank knew that its actions were inappropriate. As Judge Langer simply found, Citibank’s “conduct was in direct violation of [Jade Winds’] due process rights” and the Order Canceling Sale was “void for lack of notice.”
The Court then referred Citibank's counsel to the applicable Miami-Dade administrative order (10-E), In re Amendments to the Florida Rules of Civil Procedure, 44 So. 3d 555, 557-58 (Fla. 2010), and reversed the order canceling the foreclosure sale with instructions to consider whether sanctions should be imposed.