In Morton, et al v. Boyd, et al (2D08-5207), the Second District reversed the award of attorneys fees based upon a proposal for settlement because the court had previously reversed the underlying judgment.
Sunday, February 7, 2010
Florida Supreme Court Releases 2008-2009 Foreclosure Statistics
The Florida Supreme Court released foreclosure statistics for 2008-2009. The document can be viewed HERE. Paul Brinkmann at the South Florida Business Journal wrote an article about the report titled "Florida high court issues foreclosure report." The South Florida Business Journal article notes:
In Miami-Dade County, foreclosures rose 13.2 percent, to 63,522 in 2009 from 56,100 in 2008. In Broward County, they were up 8 percent, to 49,640 from 45,923. And in Palm Beach County, foreclosures rose 3 percent, to 30,304 from 29,411.
Other articles can be found at the following links: Palm Beach Post; SunSentinel; Jackonville Observer; and TampaBay.com.
Previously, on December 29, 2009, the Florida Supreme Court entered an orde requiring mediation prior to the entry of a final judgment in residential foreclosure cases. That was discussed HERE. The Task Force that led to the entry of the Administrative Order was discussed HERE. Some of the mandatory foreclosure programs throughout the state were discussed on April 25, 2009 HERE.
Friday, February 5, 2010
Prohibition Granted And Trial Judge Recused Based Upon Allegations Of Favorable Interest Rates From Lender
In Mines v. Countrywide Home Loan, Inc. (1D09-5669), the First District granted a writ of prohibition and ordered the Chief Circuit Judge to appoint a new trial judge. The Petitioner alleged the trial judge should be recused "based upon an alleged financial interest in the form of favorable interest rates not available to the public in the judge’s own dealings with a lender with a close corporate affiliation to the plaintiff in the instant cause." The First District held that:
This court finds that these facts, taken as true as they must be, would prompt a reasonably prudent person to fear that he or she will not obtain a fair and impartial hearing. We therefore grant the petition and direct the trial judge to enter an order of recusal, requesting that the chief circuit judge appoint a new judge to preside over the cause.
The docket from the trial court can be viewed HERE and the First District's docket for the case can be viewed HERE. The Petitioner's Petition can be viewed HERE, the Respondent's Answer Brief HERE and the Petitioner's Reply Brief HERE. The Petition is also below:
Mines v. Countrywide - Petition
Florida Supreme Court February 2010 Oral Argument Summaries
Summaries of the cases being argued before the Florida Supreme Court in February 2010 are below:
Thursday, February 4, 2010
Application of Presuit Notice To Insurance Policy Is A Substantive Right, Cannot Be Retroactively Applied
The Florida Supreme Court released its opinion today in Menendez v. Progressive Express Insurance Co., Inc. (SC08-789) and concluded that "the Third District erred in holding that requiring the insureds to comply with the presuit notice requirements of the statute did not 'violate the general rule against retrospective operation'.” Because “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract,” the Third District's decision was quashed. The Florida Supreme Court stated:
In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was "merely procedural" and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004). Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.
The briefs, oral argument and the Third District's opinion are linked below.
Florida Supreme Court
Florida Supreme Court
*Oral Argument at the Florida Supreme Court:
*Transcript of Oral Argument at the Florida Supreme Court
*Transcript of Oral Argument at the Florida Supreme Court
*Third District's Opinion, 2007 WL 4245385 (12/05/2007)
Wednesday, February 3, 2010
Florida Supreme Court Enters Order Accepting Oral Argument In Nine Cases
The Florida Supreme Court entered orders scheduling oral argument in the following cases which it had previously accepted jurisdiction:
Order Compelling Appraisal Of Hurricane Damage Reversed As Premature
In Sunshine State Insurance Company v. Corridori (4D09-2502), the Fourth District reversed the trial court's order compelling appraisal of a Hurricane Wilma claim because the court "concluded that the appraisal was premature."
After an initial claim for damages was paid, the insurer closed the claim. However, "two years later, appellees submitted a 'supplemental claim' for damages discovered by a public adjuster." After demanding certain documents (and claiming the insured did not comply, the insurer "denied the claim, concluding that the damages claimed were not in fact 'supplemental' to the original damages. Appellants further claimed that appellees breached the contract by failing to comply with the proof of loss requirement, and appellees materially breached the policy."
Because the insurer denied coverage, appraisal is not yet appropriate. According to the opinion, "Issues of coverage are 'for judicial determination by a court,' not the appraisal panel. Id. [Johnson v. Nationwide Mutual Insurance Co., 828 So. 2d 1021, 1026 (Fla. 2002)]. Once the court establishes that the losses are covered by a policy, then those losses may be appraised." The court then stated:
The parties dispute whether the claimed losses are covered by the policy and whether appellees complied with the policy requirements. Specifically, appellees claim that their compliance with the policy requirements was not necessary because appellant previously admitted coverage....By contrast, appellant claims it never admitted coverage and maintains that appellees’ compliance with the policy demands was insufficient....Whether appellees’ compliance with the policy terms was necessary or sufficient is a dispute of fact. The trial court, without taking any evidence, did not resolve this dispute of fact with competent evidence to support its determination of coverage. Because the trial court must resolve all underlying coverage disputes prior to ordering an appraisal, we reverse and remand for further proceedings consistent with this opinion.
First District Oral Arguments Relating To Bad Faith, Insurable Interest and Equitable Estoppel
There were (at least) two interesting oral arguments before the First District last week. As is explained at the bottom of the post, the court did not find either interesting and affirmed both within days of the respective arguments.
This first case involved a number of issues including bad faith and equitable estoppel. The case style is Cessna Aircraft Co. v. Certain Underwriters at Lloyd's, London, et al (1D09-2497) and the video is below:
The second was in the case of First Protective Insurance Company v. Mitchell (1D08-5727). The issue before the court was whether the insured had an insurable interest in the property. The insured did not own the property at the time of loss, however, was under contract to purchase the property (with the option to back out). The video is below:
Monday, February 1, 2010
Test To Apply When Party Seeking DNA In Paternity/Probate Dispute
In Doe v. SunTrust Bank, et al (2D08-1239), the Second District granted a petition for certiorari and reversed a trial court order that required the petitioners submit to DNA testing. The court concluded the movant below failed to comply with the requirement of rule 1.360 that "the movant must make an affirmative showing that the 'condition as to which the examination is sought is really and genuinely in controversy' and that good cause exists for ordering the examination." Judge Kelly wrote the opinion and Judge Altenbernd concurred. Judge Silberman concurred in part and dissented in part. After quashing the order below, the majority stated:
Because it seems likely that Madelin will again attempt to obtain discovery to assist her in establishing that she is a beneficiary of Doe's trusts, and because a request to test the relatives of a deceased putative father in the context of an action to determine the beneficiaries of a trust presents some unique issues, we believe it is appropriate to offer the parties and the court some guidance should this issue arise again.
First, we note that the issue of whether Madelin is Doe's child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee's verified complaint, which simply attests to the Trustee's knowledge that Madelin claims to be Doe's child and her verified motion to compel testing which states only that she "maintains she is a child born out of wedlock" to Doe. We believe something more is required, for example, an affidavit from Madelin's mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe. See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be "really and genuinely" in controversy. See Schlagenhauf, 379 U.S. at 119.
Madelin will also have to demonstrate "good cause" for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 34 Fla. L. Weekly at D1613. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe's legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee's verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin's guardian ad litem.
Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 34 Fla. L. Weekly at D1613. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe's child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-ofwedlock child to share in a parent's estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father. See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom), 397 So. 2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs (In re Estate of Smith), 685 So. 2d 1206 (Fla. 1996).
On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal—the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe's child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin's claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.
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