Posted on May 29, 2009 in Appellate Practice
D.H. v. Department of Children & Families, ___ So. 2d ___, 34 Fla. L. Weekly D980 (Fla. 1st DCA 5/19/09)
The trial judge in a proceeding to terminate parental rights should have disqualified himself because (1) he denied that he was a material witness, thus doing more than determining the legal sufficiency of the motion and creating and adversarial atmosphere; and (2) he stated at pretrial conference that the mother was well known to have psychiatric and psychological deficits, which suggested that he was biased.
Arthur v. Smith, ___ So. 2d ___, 34 Fla. L. Weekly D983 (Fla. 1st DCA 5/19/09)
The court dismissed an appeal for prematurity because the order under review was “inextricably intertwined with the counterclaims that remain pending.”
Nottage v. State, ___ So. 2d ___, 34 Fla. L. Weekly D993 (Fla. 3d DCA 5/20/09)
The trial judge did not commit reversible error by recessing the trial until the following day after giving an Allen charge, but the judge should have admonished the jury at the outset of deliberations not to indicate how they stood during their deliberations.
BAD FAITH: DISCOVERY
Grenada Insurance Co. v. Ricks, ___ So. 2d ___, 34 Fla. L. Weekly D1001 (Fla. 3d DCA 5/20/09)
Ricks claimed that Triangle was negligent. Triangle was insured by Grenada, but Grenada denied coverage. Triangle and Ricks sought to establish coverage and Ricks set the deposition of Grenada’s President in order to discover whether Grenada had a corporate policy to deny a certain category of claims. The court quashed an order allowing the deposition because “potential issues of bad faith or other purported improprieties in defending the claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage.”
Kersaint v. State, ___ So. 2d ___,34 Fla. L. Weekly D1001 (Fla. 3d DCA 5/20/09)
The trial judge should have disqualified himself after making statements indicating that he had determined the defendant’s sentence before the sentencing hearing.
Downrite Engineering Corp. v. Overland Carriers, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1002 (Fla. 3d DCA 5/20/09)
An order the merely grants summary judgment without incorporating the traditional words of finality is not a final order subject to appellate review.
GEICO Indemnity Insurance Co. v. Reed, ___ So. 2d ___, 34 Fla. L. Weekly D1005 (Fla. 4th DCA 5/20/09)
The court reversed a summary judgment for GEICO in a declaratory judgment action to determine the existence of uninsured motorist coverage. The determinative issue was whether the decedent owned the accident vehicle, which was titled in his name, creating a presumption of ownership. Based upon the affidavit of the widow, who swore that she mistakenly titled the vehicle in her husband’s name although it was used solely as a business vehicle by the corporation of which he was the president and sole shareholder, the court determined that an issue of fact existed.
VENUE: FORUM NON CONVENIENS
Cardelles v. Catholic Health Services, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1008 (Fla. 4th DCA 5/20/09)
The trial court erred in transferring a wrongful death case from Broward County to Dade County on the basis of forum non conveniens because the movants did not submit sworn proof in support of their motion.
Universal Property and Casualty Insurance Co. v. Stark, ___ So. 2d___, 34 Fla. L. Weekly D1014 (Fla. 2d DCA 5/22/09)
An insurance company was not entitled to certiorari relief from a production order because “it made no claim in the trial court that the material at issue were proprietary. The perfunctory assertion of privilege in its petition to this court, which is without any factual support in the record, is too little too late.”
ARBITRATION; NURSING HOMES
Sovereign Heathcare of Tampa, LLC v. Huerta, ___ So. 2d ___, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 5/22/09)
Contrary to the ruling of the trial court, the decedent’s daughter-in-law had authority under a power of attorney to consent to the arbitration provision in the documents for admission to a nursing home. The catch-all provision of the power of attorney set forth a broad and unambiguous grant of authority, and the specific provisions of the power of attorney included grants of authority to consent to hospitalization and to sign releases or consents to effectuate hospitalization.
APPEALS: FINALITY, TIMELINESS
City of Marco Island v. Dumas, ___ So. 2d ___, 34 Fla. L. Weekly D1015 (Fla. 2d DCA 5/22/09)
The City brought an action in county court to enforce an ordinance. The county court entered an order declaring parts of the ordinance unconstitutional, but the order did not dismiss the proceeding. Thirty-two days later, the court dismissed the charge against the defendant, and the City appealed to the circuit court. The circuit court dismissed the appeal because it mistakenly measured the time for filing the notice of appeal from the date of rendition of the order rather than the date of dismissal of the charges. The district court ordered reinstatement of the appeal because the order “did not expressly adjudicate the merits of the enforcement proceeding or dispose of the action; it merely entered a legal ruling as to an issue in the case.”
BAD FAITH: DISCOVERY
Allstate Indemnity Insurance Co. v. Nelson, ___ So. 2d ___, 34 Fla. L. Weekly D1023 (Fla. 2d DCA 5/22/09)
After Allstate tendered its uninsured motorist limits of $250,000.00 to Nelson, Allstate asked Nelson to execute a release that would absolve Allstate of any further claims, including bad faith. In response to this request, Nelson sued Allstate for (1) enforcement of the settlement agreement, which did not include a release of future claims; (2) Nelson’s damages in excess of the policy limits; and (3) bad faith under Section 624.155, Florida Statutes. After granting summary judgment for Nelson on his first claim to enforce the settlement agreement, the trial court ordered Allstate to produce its claim file. Upon certiorari review, the appellate court quashed the order of production because Nelson’s second claim for damages in excess of the policy limits rendered his bad faith premature.
TIMELINESS OF SERVICE; RECORD ON APPEAL
Robinson v. Shackelford, ___ So. 2d ___, 34 Fla. L. Weekly D1033 (Fla. 5th DCA 5/22/09)
The defendants moved to dismiss the plaintiff’s action because she failed to obtain service of process with 120 days. The magistrate judge recommended granting the motion. After holding a hearing on the plaintiff’s exceptions and motion for rehearing, the trial court granted the motion based upon the absence of good cause or excusable neglect. The appellate court affirmed because the hearings before the magistrate and the trial judge were not transcribed and, without a transcript of the hearings, the appellate could not determine whether the trial court abused her discretion.
This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.Fort Lauderdale, Florida insurance attorney Joseph S. Kashi provides a summary of numerous Florida appellate opinions decided during the week of May 17, 2009.