Appeal Of Order Only Determining Entitlement to Fees Is Premature

In Low Key Limited Inc., et al v. Annsser, et al (3D12-261), the Third District affirmed the trial court affirmed the trial court and dismissed the appeal to the extent it related to the trial court's order finding entitlement to attorneys fees but deferring a ruling on the amount.

As to the portion of the final judgment determining that the parties are entitled to attorney’s fees and costs but reserving jurisdiction to set the amount of the fees, we dismiss the appeal and cross-appeal of that issue in case number 3D12-2611 as a non-final determination not yet ripe for appellate review.  E.g., Rhodes v. Newport Bldg. & Constr., Inc., 86 So. 3d 1245, 1247 (Fla. 2d DCA 2012) (“Because the order determines that [the appellee] is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review.” (citing Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010))).

Motion For Stay Must Be Presented To Trial Court Before Appellate Court

In Sunbeam Television v. Clear Channel Metroplex (3D12-2138), the Third District denied a motion for stay because the trial court had not ruled on the motion. The limited circumstances that would allow the appellate court to rule in the first instance did not exist in this case. The court did enter a temporary thirty day stay to allow the trial court to rule on the stay motion.

Summary Judgment Should Not Be Entered With Reservation To Consider Defenses

In Bertha Sanchez and International Restaurants Corp. v. Soleil Builders, Inc., the Fifth District reversed the trial court's summary judgment order. The trial court  entered judgment when affirmative defenses raised by Ms. Sanchez were not considered.  The court stated:

Soleil Builders filed a Motion for Summary Final Judgment.  Several months later, the parties convened for the hearing on the Motion, which resulted in a Partial Summary Final Judgment in favor of Soleil Builders for the total amount it sought.  This judgment is the first reference to Soleil Builders’ motion as having sought only a partial summary judgment:  the court reserved jurisdiction to determine pre-judgment interest and attorney’s fees and “all issues that remain pending before the Court, including deciding the issues raised in the counterclaim filed by the SANCHEZES.”  Sanchez subsequently filed for rehearing of the Partial Summary Final Judgment, contending, among other things, that her affirmative defenses had not been considered at the hearing; Sanchez wanted her defenses heard and the counterclaims considered.  Sanchez argued that since Soleil Builders had failed to refute  her affirmative defenses or address the counterclaims, summary judgment was improper.  Shortly thereafter, Soleil Builders filed its Motion for Summary Final Judgment on Sanchez’s counterclaims.  

When the hearing was held on the second motion for summary judgment, "Soleil Builders essentially contended that the issues  raised in the affirmative defenses and counterclaims had been resolved in the Partial Summary Final Judgment when the court found in favor of Soleil Builders for the total sum it had sought. The trial court entered a Final Summary Judgment on all affirmative defenses and counterclaims without comment." The court continued:

A troubling aspect of this case is the bifurcation of the claims raised in the Complaint from those asserted in Sanchez’s affirmative defenses.  The record does not provide any clue as to how it came to pass that the court rendered only a partial summary final judgment when there was nothing in Soleil Builders’ Motion that would have restricted its Motion to only the counts of its Complaint. Nothing occurred at the summary judgment hearing that suggested that it was agreed or understood that only the claims of the Complaint would be decided and, given the interwoven nature of all of the issues in the Complaint and affirmative defenses, they all should have been decided before summary judgment was entered.  It is well settled that, “[i]n order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party's claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient.” 

Finally, the court concluded:

The problem in entering the Partial  Summary Final Judgment and leaving for another day the issues raised in the affirmative defenses and counterclaims was made all the more apparent when Soleil Builders used the entry of the Partial Summary Final Judgment to successfully argue at the subsequent hearing that the affirmative defenses and counterclaims had already been decided adversely to Sanchez.  In short, the case below was a muddle and reversal is required because of the error that occurred when the trial court entered the two summary judgments without properly addressing the issues raised by the affirmative defenses and counterclaims filed by Sanchez.  Accordingly, the judgments  under review are reversed and this case is remanded for further proceedings.  

5th DCA Opinion Regarding Attempt To Require Appellant To Pay To Supplement Record

In Fay v. Craig (5D12-3224), the Fifth District released an opinion denying the Appellee's "Motion To Compel Appellant To Order A Complete Trial Transcript." The court stated that "She purports  to base her motion  on Florida Rule of Appellate Procedure 9.200(f)(2), contending that the partial transcript designated by Appellant is insufficient to address the issues on appeal.  Because we have recently experienced an increased number of similar  motions, and in an effort to curb this particular practice and conserve this Court’s resources, we have determined that a published opinion is warranted."

Rule 9.200(f)(2) was promulgated in 1977 with the avowed intent to ameliorate the harsh consequences to an appellant when the court’s decision to affirm is based on an incomplete record or transcript...This rule prohibits a court from disposing of a case based on an incomplete record “until an opportunity to supplement the record has been given.” The relief Appellee seeks—to compel Appellant to designate the entire transcript for inclusion in the record—is not available under this rule, especially at this procedural juncture before the briefing period ends.  

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The appellate rules do not require the filing of the entire trial transcript; rather, the appellant need only file portions of the transcript “deemed necessary.”....Indeed, depending on the issue(s), an appeal may proceed on the merits with a partial transcript or no transcript at all....

Our decision to deny the motion should not be viewed as a determination that Appellant has met his burden  to furnish the necessary record.  To a large extent appellants proceed at their peril when they furnish a partial transcript. ...Courts often conclude that the “opportunity” to supplement the record afforded by rule 9.200(f) (2) is waived or deemed satisfied when a litigant fails to promptly seek to supplement the record after notice is given of a perceived deficiency.

Judgment In Favor Of Insurer For Late Reported Loss Affirmed

In Slominski v. Citizens Property Insurance Corporation (4D10-4372), the Fourth District affirmed the circuit court's summary judgment in favor of the appellee.​ The appellant's filed a lawsuit claiming their property was damaged by Hurricane Wilma on October 24, 2005. Three and a half years after the hurricane, the appellant's filed their claim with Citizens. 

Citizens then  investigated and made a  final  determination that “the  damages  reported  cannot  be attributed  to  Hurricane  Wilma  due to  the  amount  of  time  that  has transpired since the purported date of loss to the present date.” Citizens also  cited  the  Slominskis’  failure  to  comply  with  post-loss  duties,  a condition precedent to reimbursement of a claim, pursuant to the policy. The  contractual  post-loss  duties  required  the  Slominskis,  in  a case  of loss to their property, to “[g]ive prompt notice to [Citizens].”

Citizens filed a motion for summary judgment alleging the appellants breached their duty by failing to timely report the claim. ​In support of the motion, Citizens filed various affidavits and depositions including a transcript of the contractor that performed work for the insured. In the deposition of the contractor:

the  contractor  concluded  that  the  wind  damage would not have occurred “without hurricane-force[] winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane  Wilma,  as  opposed to  Hurricane  Frances  in  2004.  On  the other  hand, he  testified  that  the  direction  from  which  the  respective storms hit varied, which formed the basis for his opinion.  He admitted that,  with  regard to  water  damage, there  was “no  way to  differentiate” one storm from another.  However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma." 

Additionally, "in  deposition  testimony,  the  engineer  admitted  that  he was  unable  to  determine  exactly  when  the  interior  staining  or  roof damage occurred, but opined only that it was caused by a hurricane."

The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured  can demonstrate that the  insurer has not been  prejudiced thereby,  then the insurer  will not be relieved of  liability merely  by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred  Therefore, the insurer was prejudiced and the judgment was affirmed.

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Unanimous Supreme Court On One Person One Vote

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."

11th Circuit Sends Bad Faith Case Back To District Court After Certified Questions Answered

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.​

Order Denying Fees Based On Flat Fee Agreement With Foreclosure Attorney Affirmed

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"

Sanctions For Filing Motion to Vacate Reversed Due To Colorable Claim

​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. 

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