Archive for the ‘SANCTIONS’ Category

REAL ESTATE: MORTGAGE FORECLOSURE: CIVIL PROCEDURE: TRIAL COURT DID NOT VIOLATE DUE PROCESS BY CONDUCTING TRIAL LESS THAN TWENTY DAYS AFTER THE LAST PLEADING WAS SERVED BECAUSE THE CASE WAS AT ISSUE BEFORE THE ANSWER WAS AMENDED, PLAINTIFF REPLIED TO THE ANSWER, PLAINTIFF DID NOT MOVE FOR AN IMMEDIATE CONTINUANCE AFTER THE ANSWER WAS FILED, AND THE BANK’S FAILURE TO PRODUCE A WITNESS FOR TRIAL WAS UNRELATED TO THE AMENDMENT: TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING MOTION FOR CONTINUANCE MADE AT TRIAL BECAUSE ALL OF BANK’S REPRESENTATIVES HAD BEEN ASSIGNED TO OTHER CASES: BANK’S OVERSCHEDULING OF ITS REPRESENTATIVES IN OTHER CASES DID NOT CONSTITUTE GOOD CAUSE FOR CONTINUANCE: TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DISMISSING ACTION WITHOUT PREJUDICE BECAUSE THE TRIAL ORDER ADMONISHED THAT INABILITY TO RESOLVE CASE BY NON-JURY TRIAL MIGHT RESULT IN THE IMPOSITION OF SANCTIONS

Case Decision Date:October 23rd, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

HSBC Bank USA, N.A. v. Serban, ___ So. 3d ___, 39 Fla. L. Weekly D2218 (Fla. 1st DCA October 23, 2014)

Thirty-six days before the non-jury trial of a mortgage foreclosure, the trial court granted the defendant’s motion to amend his answer.  The bank filed its reply fifteen days before trial.  The bank moved for a continuance on the … Click To Read Full Case Law Review…

ARBITRATION: APPEALS: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: APPELLATE COURT DECIDES THAT SANCTIONS SHOULD BE IMPOSED AGAINST THE APPELLANT AND HIS LAWYER BECAUSE THEIR APPEAL PRESENTED NO JUSTICIABLE QUESTION AND WAS ON ITS FACE DEVOID OF MERIT

Case Decision Date:October 15th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Nordt v. Nordt, ___ So. 3d ___, 39 Fla. L. Weekly D2184 (Fla. 3d DCA October 15, 2014)

The appellate court affirmed a non-final order compelling arbitration and “conclude[d] that sanctions should be imposed on [the appellant] and his counsel pursuant to section 57.105(1) [Florida Statutes] because his appeal of the order presented no justiciable question and was on its … Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS: DEEMING CERTAIN PARAGRAPHS OF COMPLAINT ADMITTED; APPEALS: CERTIORARI: ABSENCE OF IRREPARABLE HARM

Case Decision Date:September 16th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

STO Corp. v. Greenhut Construction Company, Inc., ___ So. 3d ___, 39 Fla. L. Weekly D1978 (Fla. 1st DCA September 16, 2014)
The defendant filed a petition for certiorari from an order of the trial court deeming certain paragraphs of the complaint admitted as a sanction for failing to comply fully with an order compelling production.  The appellate court denied … Click To Read Full Case Law Review…

TORTS: MOTOR VEHICLE NEGLIGENCE; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: PERJURY; INSURANCE: INSURED’S FALSE DEPOSITION TESTIMONY IN PERSONAL INJURY CASE DID NOT TRIGGER FRAUD PROVISION UNDER LIABILITY INSURANCE POLICY BECAUSE THE TESTIMONY DID NOT RELATE TO THE INSURANCE COVERAGE: COURT DOES NOT DECIDE WHETHER EXCLUSION, IF APPLICABLE, WOULD PROVIDE COVERAGE DEFENSE (REQUIRING COMPLIANCE WITH CLAIMS ADMINISTRATION STATUTE) OR DEFENSE OF NO COVERAGE (TO WHICH CLAIMS ADMINISTRATION STATUTE WAS INAPPLICABLE): INSURED COULD CONDITION ACCEPTANCE OF REPLACEMENT INSURANCE DEFENSE COUNSEL ON WITHDRAWAL OF INSURER’S RESERVATION OF RIGHTS: INSURED DID NOT OWE DUTY TO COOPERATE AFTER INSURER ISSUED RESERVATION OF RIGHTS: INSURED COULD DISMISS APPEAL FROM SANCTIONS JUDGMENT AFTER ASSUMING CONTROL OF ITS DEFENSE: SANCTIONS WERE COVERED AS COSTS UNDER THE SUPPLEMENTARY PAYMENTS PROVISION OF POLICY: PUBLIC POLICY DID NOT BAR COVERAGE FOR SANCTIONS AGAINST INSURED

Case Decision Date:September 10th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

 GEICO General Insurance Company v. Rodriguez, ___ So. 3d ___, 39 Fla. L. Weekly D1937 (Fla. 3d DCA September 10, 2014)

During his deposition in a motor vehicle negligence case, the defendant denied having visual impairments although he was legally blind.  As a result, the trial court imposed monetary sanctions against the defendant.  After the motion for sanctions was filed, … Click To Read Full Case Law Review…

APPEALS: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: PURSUING ACTION ON ORAL GUARANTY THAT WAS BARRED UNDER WELL-SETTLED LAW BY STATUTE OF FRAUDS

Case Decision Date:August 22nd, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

The Law Offices of Lynn W. Martin, P.A. v. Madson, ___ So. 3d ___, 39 Fla. L. Weekly D1782 (Fla. 1st DCA August 22, 2014)

The plaintiff filed an action on an oral guarantee.  The trial court dismissed the action with prejudice based upon the Statute of Frauds.  The appellate court affirmed and awarded fees, under Section 57.105, Florida … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: ERROR TO DISMISS ACTION WITH PREJUDICE BASED ON THE FAILURE TO FILE A TIMELY AMENDED COMPLAINT: FAILURE TO PROVIDE NOTICE OF THE POTENTIAL FOR DISMISSAL WITH PREJUDICE: FAILURE TO CONSIDER KOZEL V. OSTENDORF FACTORS    

Case Decision Date:August 20th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Gerbino v. Isle of Paradise B, Inc., ___ So. 3d ___, 39 Fla. L. Weekly D1766 (Fla. 4th DCA August 20, 2014)

The defendant moved to dismiss the plaintiff’s third amended complaint with prejudice based upon the failure to join indispensable parties.  The trial court granted the motion without prejudice and gave the plaintiff thirty days to amend.  On … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: ENTRY OF SUMMARY JUDGMENT FOR POLICE OFFICER BASED UPON QUALIFIED IMMUNITY DOES NOT NECESSARILY MEAN THAT PLAINTIFF’S ACTION FOR MALICIOUS PROSECUTION WAS FRIVOLOUS  

Case Decision Date:August 13th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Phillips v. Garcia, ___ So. 3d ___, 39 Fla. L. Weekly D1712 (Fla. 3d DCA August 13, 2014)

A police officer moved for attorney’s fees as a sanction under Section 57.105, Florida Statutes, after the trial court granted her motion for summary judgment based upon qualified immunity in an action for malicious prosecution.  The trial court denied the motion, and … Click To Read Full Case Law Review…

 CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FAILURE TO APPEAR FOR HEARING SET BY COURT: FAILURE TO CONSIDER KOZEL v. OSTENDORF FACTORS  

Case Decision Date:July 25th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

BAC Home Loan Servicing, L.P. v. Ellison, ___ So. 3d ___, 39 Fla. L. Weekly D1562 (Fla. 1st DCA July 25, 2014)

The appellate court reversed an order dismissing the plaintiff’s case with prejudice, based upon of the plaintiff’s failure to appear for a hearing set by the trial court, because the trial court failed to consider the Kozel Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: PLAINTIFF’S ATTORNEY WAS NOT SUBJECT TO SANCTIONS FOR DISRUPTING COMPULSORY MEDICAL EXAMINATION OF CLIENT

Case Decision Date:July 11th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

 Rush v. Burdge, ___ So. 3d ___, 39 Fla. L. Weekly D1447 (Fla. 2d DCA July 11, 2014)

The appellate court reversed an award of sanctions against the plaintiff’s lawyer for disrupting a compulsory medical examination.  The plaintiff contacted his lawyer when the defense doctor instructed him to complete a lengthy questionnaire over his lawyer’s written objections.  The lawyer went … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT: COMPETENT, SUBSTANTIAL EVIDENCE; APPEALS: ORDER STRIKING ANSWER AND AFFIRMATIVE DEFENSES AND ENTERING JUDGMENT ONLY ON LIABILITY WAS NON-FINAL AND NON-APPEALABLE  

Case Decision Date:July 9th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Bolera v. Papa, ___ So. 3d ___, 39 Fla. L. Weekly D1426 (Fla. 4th DCA July 9, 2014)

The trial court struck the defendant’s answer and affirmative defenses as a sanction for fraud on the court.  The trial court also entered judgment on liability and ordered a trial on damages.  As a result of the failure to award damages, … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: CIVIL PROCEDURE: SANCTIONS: DISMISSAL WITHOUT PREJUDICE FOR FAILING TO SERVE TRIAL ORDER UPON DEFENDANT THIRTY DAYS BEFORE TRIAL  

Case Decision Date:July 2nd, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Ocean Bank v. Garcia-Villalta, ___ So. 3d ___, 39 Fla. L. Weekly D1385 (Fla. 3d DCA July 2, 2014)

The trial court abused its discretion by dismissing without prejudice a foreclosure action because the plaintiff served the trial order on the defendant twenty-two days, rather than the required thirty days, before trial.  (1) The case was not at issue when … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: DISMISSAL: FAILURE TO MAKE FINDINGS REQUIRED BY KOZEL v. OSTENDORF

Case Decision Date:May 21st, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Deutsche Bank National Trust Company v. Parada, ___ So. 3d ___, 39 Fla. L. Weekly D1063 (Fla. 3d DCA May 21, 2014)

The trial court dismissed a foreclosure action as a sanction because of the plaintiff’s discovery violations, but the appellate court reversed “because the trial court failed to make the express factual findings required under Kozel v. Ostendorf, 629 … Click To Read Full Case Law Review…

TORTS: MOTOR VEHICLE NEGLIGENCE: PERSONAL INJURIES; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: DISMISSAL: FRAUD ON THE COURT: SURVEILLANCE VIDEO SHOWING PLAINTIFF PERFORMING ACTIVITIES HE TESTIFIED HE WAS INCAPABLE OF DOING

Case Decision Date:May 16th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Guillen v. Vang, ___ So. 3d ___, 39 Fla. L. Weekly D1014 (Fla. 5th DCA May 16, 2014)

The trial court dismissed the plaintiff’s personal injury case for fraud on the court based upon a surveillance video that showed the plaintiff performing activities he testified on deposition that he was incapable of doing.  The court concluded “that any discrepancies … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL WITH PREJUDICE: FAILURE TO COMPLY WITH NUMEROUS COURT ORDERS

Case Decision Date:April 16th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Jubran v. Bay Court Towers Condominium, Inc., ___ So. 3d ___, 39 Fla. L. Weekly D783 (Fla. 3d DCA April 16, 2014)

The appellate court affirmed the dismissal with prejudice of the plaintiff’s complaint because he failed to comply with numerous court orders over a six year period.  The plaintiff was represented by four different lawyers during the course of … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT: EVIDENTIARY HEARING

Case Decision Date:April 16th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Diaz v. Home Depot USA, Inc., ___ So. 3d ___, 39 Fla. L. Weekly D783 (Fla. 3d DCA April 16, 2014)

The appellate court reversed an order of dismissal with prejudice for fraud on the court because the trial court ruled without conducting an evidentiary hearing.  On remand, the trial court was directed to do so.… Click To Read Full Case Law Review…

CIVIL PROCEDURE: BREACH OF CONFIDENTIALITY ORDER: COMPENSATORY CONTEMPT SANCTION: INTENTIONAL VIOLATION; APPEALS: PRESERVATION: CHALLENGE FOR FIRST TIME ON APPEAL TO AMOUNT OF SANCTION

Case Decision Date:March 14th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Roberts v. Bonati, ___ So. 3d ___, 39 Fla. L. Weekly D562 (Fla. 2d DCA March 14, 2014)

The appellate court reversed a monetary sanction against the plaintiff’s lawyer in a medical malpractice case for violating “a confidentiality order to protect against the disclosure of [the defendants’] financial information.”  The appellate court reversed because the trial court imposed a compensatory … Click To Read Full Case Law Review…

TORTS: MOTOR VEHICLE NEGLIGENCE; CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT

Case Decision Date:February 7th, 2014 Reviewed by Joseph S. Kashi  |  No Comments »

Bosque v. Rivera, ___ So. 3d ___, 39 Fla. L. Weekly D302 (Fla. 5th DCA February 7, 2014)

The plaintiff sued to recover damages for personal injuries that he received in a motor vehicle accident in 2010.  The trial court dismissed his case for fraud on the court for failing to disclose that he had been involved in a … Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS: DISMISSAL

Case Decision Date:December 4th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Toll v. Korge, ___ So. 3d ___, 38 Fla. L. Weekly D2550 (Fla. 3d DCA December 4, 2013)

The appellate court reversed final default judgment for the plaintiff against one of four defendants as a sanction based upon repeated discovery violations.  Original counsel for the sanctioned defendant may have had a conflict of interests, may not have informed the sanctioned … Click To Read Full Case Law Review…

APPEALS: SANCTIONS: MAINTAINING FRIVOLOUS DEFENSE

Case Decision Date:October 2nd, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

M.B. v. Agency for Persons with Disabilities, ___ So. 3d ___, 38 Fla. L. Weekly D2089 (Fla. 3d DCA October 2, 2013)

The appellate court discharged an order to show cause why an agency should not be sanctioned for maintaining a frivolous defense because general counsel appeared before the court, admitted that the defense was frivolous, and represented that he … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: SUCCESSIVE MOTIONS: SUBSEQUENT MOTION FOR ATTORNEY’S FEES MUST COMPLY WITH SAFE HARBOR PROVISION OF SECTION 57.105(4), FLORIDA STATUTES

Case Decision Date:August 7th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Lago v. Kame By Design, LLC, ___ So. 3d ___, 38 Fla. L. Weekly D1688 (Fla. 4th DCA August 7, 2013)

The appellee filed two motions for attorney’s fees under Section 57.105, Florida Statutes.  The first motion contained two grounds.  The second motion repeated the two grounds in the first motion and added a third ground.  The first motion … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: DISMISSAL FOR FAILING TO COMPLY WITH COURT ORDERS: ATTORNEY’S FEES AND COSTS

Case Decision Date:July 31st, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

HSBC Bank USA, N.A. v. Williams, ___ So. 3d ___, 38 Fla. L. Weekly D1654 (Fla. 3d DCA July 31, 2013)

The trial court dismissed the plaintiff’s foreclosure case as a sanction because of its failure to comply with discovery orders and awarded costs and attorney’s fees to the defendant.  The appellate court affirmed because of the plaintiff’s history of … Click To Read Full Case Law Review…

FAMILY LAW: CIVIL PROCEDURE: SANCTIONS: FAILURE TO COMPLY WITH DISCOVERY ORDERS: FAILURE TO CONDUCT EVIDENTIARY HEARING

Case Decision Date:July 24th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Tobin v. Tobin, ___ So. 3d ___, 38 Fla. L. Weekly D1589 (Fla. 4th DCA July 24, 2013)

The trial court, in an action for dissolution of marriage, erred by striking the wife’s pleadings for failing to comply with  orders to answer interrogatories and submit to a video deposition without conducting an evidentiary hearing to give the wife an … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FAILURE TO ATTEND MEDIATION CONFERENCE: FAILURE TO CONSIDER KOZEL v. OSTENDORF FACTORS: DEFAULT: UNLIQUIDATED DAMAGES: EVIDENTIARY HEARING

Case Decision Date:May 29th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Motors, Pumps & Accessories, Inc. v. Miami Medley Business & Industrial, LLC, ___ So. 3d ___, 38 Fla. L. Weekly D1170 (Fla. 3d DCA May 29, 2013)

After the trial court struck the defendant’s pleadings and entered a default judgment because of the defendant’s failure to attend mediation, it denied the defendant’s sworn motion for relief from judgment, which asserted Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: NON-MOVING PARTY’S FAILURE TO ATTEND SUMMARY JUDGMENT HEARING BECAUSE OF CALENDERING ERROR; APPEALS: ISSUE NOT RAISED IN INITIAL BRIEF WAS WAIVED AND COULD NOT BE RESURRECTED IN REPLY BRIEF: COURT REFUSED TO CONSIDER POTENTIALLY DISPOSITIVE ISSUE THAT WAS NOT RAISED IN THE PARTIES’ BRIEFS: COURT DID NOT DECIDE ISSUE RAISED IN CONCLUSORY FASHION IN REPLY BRIEF: ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED AGAINST APPELLANT’S LAWYERS FOR FAILING TO BACK UP FACTUAL ASSERTIONS WITH CITATIONS TO THE RECORD, MISREPRESENTING THE FACTS IN INITIAL BRIEF, AND FILING A FRIVOLOUS REPLY BRIEF

Case Decision Date:May 17th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Hagood v. Wells Fargo N.A., ___ So. 3d ___, 38 Fla. L. Weekly D1099 (Fla. 5th DCA May 17, 2013)

Summary final judgment of mortgage foreclosure was entered after a hearing on the plaintiff’s motion that defense counsel failed to attend because of a calendaring error, but the trial court summarily denied the defendant’s motions for rehearing and relief Click To Read Full Case Law Review…

TORTS: MOTOR VEHICLE NEGLIGENCE; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: FRAUD ON THE COURT: DENIAL OF PRIOR MIGRAINE HEADACHES

Case Decision Date:May 10th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Gautreaux v. Maya, ___ So. 3d ___, 38 Fla. L. Weekly D1041 (Fla. 5th DCA May 10, 2013)

The plaintiff in a personal injury case misrepresented in her deposition and to a treating neurologist that she did not suffer from migraine headaches before the motor vehicle accident involved in the lawsuit.  The trial court dismissed her case based upon Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: PRIVILEGE: WAIVER: FAILURE TO FILE PRIVILEGE LOG: CATEGORICAL ASSERTIONS OF PRIVILEGE: PRIVILEGE OBJECTIONS COUPLED WITH UNRESOLVED NON-PRIVILEGE OBJECTIONS: WAIVER OF PRIVILEGE AS A DISCOVERY SANCTION

Case Decision Date:April 24th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

DLJ Mortgage Capital, Inc. v. Fox, ___ So. 3d ___, 38 Fla. L. Weekly D897 (Fla. 4th DCA April 24, 2013)

The appellate court granted certiorari based upon the trial court’s ruling that the petitioner waived the work product and attorney-client privileges by failing to file a privilege log.  (1) Categorical assertions of privilege are not waived by the Click To Read Full Case Law Review…

TORTS: WRONGFUL DEATH: MEDICAL MALPRACTICE; CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT; APPEALS: LESS DEFERENTIAL ABUSE OF DISCRETION STANDARD OF REVIEW

Case Decision Date:April 24th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Herman v. Intracoastal Cardiology Center, ___ So. 3d ___, 38 Fla. L. Weekly D908 (Fla. 4th DCA April 24, 2013)

The wife sued for medical malpractice, alleging that she went into rental failure because her cardiologist failed to obtain a nephrology consult before clearing her for open hear surgery.  The wife died while her lawsuit was pending, her husband Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: STRIKING PLEADINGS: DISMISSAL OF ACTION: ABSENCE OF KOZEL v. OSTENDORF FINDINGS

Case Decision Date:April 10th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Deutsche Bank National Trust Company v. Sela, ___ So. 3d ___, 38 Fla. L. Weekly D801 (Fla. 4th DCA April 10, 2013)

The trial court in a mortgage foreclosure abused its discretion by striking the plaintiff’s pleadings and dismissing the case as a sanction for discovery violations because the trial court did not make the findings required by Kozel Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS: ORDER REQUIRING ALL DISCOVERY REQUESTS TO THIRD PARTIES TO BE CONDUCTED BY FORMAL COMPULSORY PROCESS THROUGH THE COURT SYSTEM IMPEDES ABILITY TO PREPARE FOR TRIAL BY PRECLUDING INFORMAL CONTACTS WITH WITNESSES AND VIOLATES RIGHT OF FREE SPEECH; APPEALS: CERTIORARI

Case Decision Date:March 8th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

SP Healthcare Holdings, LLC v. Surgery Center Holdings, LLC, ___ So. 3d ___, 38 Fla. L. Weekly D571 (Fla. 2d DCA March 8, 2013)

The buyers purchased ambulatory surgical centers from the sellers.  After the sale was completed, the parties accused each other of dishonest dealing.  The sellers sued the buyers, and the buyers counterclaimed against the sellers.  When the … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: ABSENCE OF EXPRESS WRITTEN FINDING OF WILLFUL NONCOMPLIANCE WITH COURT ORDER

Case Decision Date:March 6th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Taylor v. City of Lake Worth, ___ So. 3d ___, 38 Fla. L. Weekly D563 (Fla. 4th DCA March 6, 2013)

The appellate court reversed an order dismissing the pro se plaintiff’s complaint as a sanction because the order d[id] not contain an express written finding of willful noncompliance for dismissal pursuant to Florida Rule of Civil Procedure 1.420(b).”… Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: CIVIL PROCEDURE: DISCOVERY: DISMISSAL WITH PREJUDICE WAS TOO HARSH A SANCTION FOR BANK’S FAILURE TO COMPLY WITH DISCOVERY ORDER

Case Decision Date:February 13th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Deutsche Bank National Trust Company v. LGC, ___ So. 3d ___, 38 Fla. L. Weekly D342 (Fla. 2d DCA February 13, 2013)

The trial court abused its discretion by dismissing with prejudice a foreclosure action based upon the plaintiff’s violation of a discovery order.  “In addition to the fact that [the bank] violated only a single discovery order, there is … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: CIVIL PROCEDURE: FRAUD: BACKDATING OF ASSIGNMENT OF MORTGAGE: DEFENDANT WAS NOT ENTITLED TO SET ASIDE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE SO THAT TRIAL COURT COULD DISMISS THE ACTION WITH PREJUDICE AS A SANCTION FOR PLAINTIFF’S FRAUD BECAUSE PLAINTIFF DID NOT OBTAIN AFFIRMATIVE RELIEF: COURT HAS JURISDICTION TO DETERMINE WHETHER IT HAS JURISDICTION: DICTIONARY DEFINITIONS MAY BE USED TO CONSTRUE STATUTES OR RULES: NOTICE OF VOLUNTARY DISMISSAL DOES NOT DIVEST TRIAL COURT OF JURISDICTION TO AWARD SANCTIONS UNDER SECTION 57.105, FLORIDA STATUTES

Case Decision Date:February 7th, 2013 Reviewed by Joseph S. Kashi  |  No Comments »

Pino v. The Bank of New York, ___ So. 3d ___, 38 Fla. L. Weekly S78 (Fla. February 7, 2013)

The defendant in an action to foreclose upon his mortgage served a motion for sanctions under Section 57.105, Florida Statutes, because the plaintiff filed a backdated assignment of mortgage to establish its standing to bring the action, and the plaintiff … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT; APPEALS: PREMATURE: ORDER DETERMINING ENTITLEMENT TO ATTORNEY’S FEES UNDER SECTION 57.105, FLORIDA STATUTES, WITHOUT SETTING AN AMOUNT OF FEES

Case Decision Date:December 28th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Rocka Fuerta Construction Inc. v. Southwick, Inc., ___ So. 3d ___, 38 Fla. L. Weekly D79 (Fla. 5th DCA December 28, 2012)

The plaintiff sued the defendant on the original debt after the defendant defaulted in payment under a settlement agreement.  The trial court dismissed the complaint with prejudice as a sanction for fraud on the court because the … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: SANCTIONS: DISMISSAL FOR FAILURE TO PROSECUTE CASE TO FINAL DISPOSITION WITHIN SIXTY DAYS

Case Decision Date:November 21st, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Anson Street, LLC v. Rosado, ___ So. 3d ___, 37 Fla. L. Weekly D2681 (Fla. 4th DCA November 21, 2012)

After the trial court ordered the plaintiff in a foreclosure action to prosecute the case to final disposition or suffer dismissal, the plaintiff moved for summary judgment, and the defendant filed an answer, affirmative defenses, demand for jury trial, … Click To Read Full Case Law Review…

SANCTIONS: ATTORNEY’S FEES: FAILURE TO SET FORTH BASIS FOR, AND NECESSARY FINDINGS TO SUPPORT, AWARD

Case Decision Date:October 31st, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Roberts v. Roberts, ___ So. 3d ___, 37 Fla. L. Weekly D2554 (Fla. 3d DCA October 31, 2012)

The appellate court reversed an award of attorney’s fees and remanded to enable “the trial court to set forth the basis for the award” and the necessary findings to support the award if it was intended as a sanction.… Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: RELIEF FROM JUDGMENT: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105 FLORIDA STATUTES: COLORABLE CLAIM

Case Decision Date:September 19th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Swan Landing Development, LLC v. First Tennessee Bank National Association, ___ So. 3d ___, 37 Fla. L. Weekly D2225 (Fla. 2d DCA September 19, 2012)

After final judgment of mortgage foreclosure was entered against it, the defendant received an audit inquiry letter, which raised the issue whether the plaintiff misrepresented at trial that it had provided the defendant with a … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: FACTUAL FINDINGS: BAD FAITH CONDUCT

Case Decision Date:August 17th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

The Law Office of Dario Diaz, P.A. v. FirstBank Florida, ___ So. 3d ___, 37 Fla. L. Weekly D1972 (Fla. 5th DCA August 17, 2012)

The appellate court reversed an award of attorney’s fees, entered as a sanction, “because the trial court failed to set forth detailed factual findings describing the specific bad faith conduct that resulted in the … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FRAUD: ERRONEOUS FINDINGS

Case Decision Date:July 27th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Health First, Inc. v. Hynes, ___ So. 3d ___, 37 Fla. L. Weekly D1780 (Fla. 5th DCA July 27, 2012)

The plaintiff moved for sanctions against the defendant because the defendant produced an edited version of a recorded telephone conversation material to the case.  The trial court granted the motion, prohibited the defendant from using either the full length … Click To Read Full Case Law Review…

TORTS: NEGLIGENCE: PREMISES LIABILITY: SLIP AND FALL; CIVIL PROCEDURE: DISCOVERY: SANCTIONS: FAILURE TO DISCLOSE ADDRESS OF WITNESS: SPOLIATION OF EVIDENCE: FAILURE TO PRESERVE SECURITY TAPE: VALCIN INSTRUCTION: EXCLUSION OF TESTIMONY BECAUSE OF UNTIMELY DISCLOSURE

Case Decision Date:July 27th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Jones v. Publix Super Markets, Inc., ___ So. 3d ___, 37 Fla. L. Weekly D1787 (Fla. 5th DCA July 27, 2012)

The husband sustained personal injuries when he slipped on water and fell in a Publix Super Market.  He and his wife sued Publix, but the jury returned a defense verdict.  The appellate court reversed and remanded for a … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: FRIVOLOUS DEFENSES: IMPOSITION OF FEES EQUALLY AGAINST LAWYER AND CLIENT; INTERVENTION: ACQUIESCENCE: SUBJECT MATTER JURISDICTION VERSUS STANDING

Case Decision Date:July 25th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Stratton v. 6000 Indian Creek, LLC, ___ So. 3d ___, 37 Fla. L. Weekly D1761 (Fla. 3d DCA July 25, 2012)

The assignee, which purchased a condominium unit from the successful bidder at a foreclosure sale, moved to enforce an existing order for the payment of rent and for immediate possession.  Counsel for the tenant attended the hearing and secured … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FAILURE TO ATTEND CASE MANAGEMENT CONFERENCE: ABSENCE OF FINDINGS OF DELIBERATE OR WILLFULL MISCONDUCT

Case Decision Date:July 25th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Giemme USA, LLC v. La Sala Group, Inc., ___ So. 3d ___, 37 Fla. L. Weekly D1765 (Fla. 4th DCA July 25, 2012)

The appellate court reversed a default final judgment based upon the defendant’s failure to appear at a case management conference because of the absence of findings of deliberate or willful misconduct.  On remand, the trial court … Click To Read Full Case Law Review…

ATTORNEY’S FEES: SANCTIONS: MEDIATION: FLA. R. CIV. P. 1.730(c): SPECIFIC FINDINGS: FEES FOR LITIGATING FEES

Case Decision Date:May 30th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Cox v. Great American Insurance Company, ___ So. 3d ___, 37 Fla. L. Weekly D1271 (Fla 4th DCA May 30, 2012)

The appellate court reversed an award of fees under Fla. R. Civ. P. 1.730(c), which authorizes fees as a sanction for breaching or failing to perform under a mediation agreement, because the trial court did not make “specific factual … Click To Read Full Case Law Review…

COMMERCIAL LITIGATION: CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FRAUD ON THE COURT; MOTIONS: DUE PROCESS: USE OF NEWLY FILED DOCUMENTS: VERBATIM ADOPTION OF PROPOSED ORDER

Case Decision Date:May 30th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Empire World Towers, LLC v. CDR Creances, S.A.S., ___ So. 3d ___, 37 Fla. L Weekly D1294 (Fla. 3d DCA May 30, 2012)

The bank sued three related individuals and thirty-four Florida corporations, alleging that a company controlled by the individuals borrowed money from the bank’s predecessor-in-interest in order to purchase and renovate a hotel in New York City. The … Click To Read Full Case Law Review…

TORTS: PREMISES LIABILITY: NEGLIGENT FAILURE TO PROVIDE SECURITY; SANCTION: FRAUD ON THE COURT: INCONSISTENCIES BETWEEN CRIMINAL AND CIVIL DEPOSITION TESTIMONY: DISMISSAL WITH PREJUDICE TOO HARSH

Case Decision Date:May 9th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Suarez v. Benihana National of Florida Corp., ___ So. 3d ___, 37 Fla. L. Weekly D1121 (Fla. 3d DCA May 9, 2012)

The plaintiffs, a husband and wife, sued a restaurant to recover damages for the personal injuries that they and their four-year-old daughter “sustained when they were attacked and beaten by at least three other patrons” while the plaintiffs … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: SANCTIONS: FAILURE TO COMPLY WITH ADMINISTRATIVE MEMORANDUM: DISMISSAL AFTER EXPIRATION OF STATUTE OF LIMITATIONS UNDULY HARSH

Case Decision Date:May 2nd, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

U.S. Bank National Association v. Cowell, ___ So. 3d ___, 37 Fla. L. Weekly D1063 (Fla. 3d DCA May 2, 2012)

The trial court dismissed the bank’s action to foreclose upon a mortgage because of the bank’s failure to comply with an Eleventh Circuit administrative memorandum, which requires movants for summary judgment in foreclosure cases to file a packet of … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: VERIFIED COMPLAINT; CIVIL PROCEDURE: SANCTIONS: MISTAKE: NOTICE AND OPPORTUNITY TO BE HEARD

Case Decision Date:April 27th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

JP Morgan Chase Bank v. Jurney, ___ So. 3d ___, 37 Fla. L. Weekly D1020 (Fla. 2d DCA April 27, 2012)

The trial court, on its own initiative, dismissed a complaint for mortgage foreclosure because it was not verified.  The appellate court reversed because verification was required by an amendment to Fla. R. Civ. P. 1.110(b), the effective date of … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FAILURE TO ATTEND STATUS CONFERENCE: FAILURE TO CONSIDER KOZEL FACTORS

Case Decision Date:April 25th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

 

Martin v. Maroone Chevrolet of Delray, LLC, ___ So. 3d ___, 37 Fla. L. Weekly D972 (Fla. 4th DCA April 25, 2012)

The trial court struck the plaintiff’s pleadings because his refusal to appear at a status conference was “part of a pattern of behavior” that prejudiced the defendant.  The appellate court reversed because the trial court failed … Click To Read Full Case Law Review…

INSURANCE: HOMEOWNER’S INSURANCE: SINKHOLE COVERAGE: CONDITION PRECEDENT: CONTRACT FOR REPAIRS; CIVIL PROCEDURE: SANCTIONS: PERJURY: DISMISSAL WITH PREJUDICE TOO EXTREME

Case Decision Date:April 20th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Pena v. Citizens Property Insurance Co.,  ___ So. 3d ___, 37 Fla. L. Weekly D946 (Fla. 2d DCA April 20, 2012)

The insureds sued the insurer when the parties disagreed over the value of the insureds’ sinkhole claim.  When the insurer moved for summary judgment on the ground that the lawsuit was premature because the insureds failed to perform a … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: STRIKING PLAINTIFFS’ PLEADINGS BECAUSE THEIR LAWYER FAILED TO ATTEND THREE CALENDAR CALLS: FAILURE TO CONSIDER KOZEL v. OSTENDORF FACTORS; APPEALS: LACK OF TRANSCRIPT

Case Decision Date:March 21st, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Alsina v. Gonzalez, ___ So. 3d ___, 37 Fla. L. Weekly D685 (Fla. 4th DCA March 21, 2012)

The appellate court reversed an order striking the plaintiffs’ pleadings as a sanction, based upon their lawyer’s failure to attend three calendar calls, because the trial court failed to consider the six factor test established by Kozel v. Ostendorf, 629 So. … Click To Read Full Case Law Review…

MEDIATION: ATTORNEY’S FEES: SANCTIONS FOR BREACH OF MEDIATION SETTLEMENT AGREEMENT: FLA. R. CIV. P. 1.730(c): ABSENCE OF SPECIFIC FINDINGS REGARDING BREACH AND FEES AND COSTS INCURRED AS A RESULT: FEES FOR LITIGATING FEES: RELEASE DOES NOT BAR SANCTIONS

Case Decision Date:March 21st, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Cox v. Great American Insurance Company, ___ So. 3d ___, 37 Fla. L. Weekly D686 (Fla. 4th DCA March 21, 2012)

The appellate court reversed an award of attorney’s fees as a sanction under Fla. R. Civ. P. 1.730(c) for breaching or failing to perform under a mediation settlement agreement because the trial court failed to make specific findings … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: SECTION 57.105, FLORIDA STATUTES: FILING OF FRIVOLOUS THIRD PARTY COMPLAINT: AWARD AGAINST LAWYER WHO DID NOT SIGN PLEADING AND AGAINST WHOM FEES WERE NOT SOUGHT

Case Decision Date:March 16th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Airan2, Airan-Pace & Crosa, P.A. v. Cadence Bank, N.A., ___ So. 3d ___, 37 Fla. L. Weekly D648 (Fla. 2d DCA March 16, 2012)

The appellate court upheld the award of sanctions under Section 57.105, Florida Statutes, for the filing of a frivolous third party complaint, but it reversed the award against one of the members of the offending law … Click To Read Full Case Law Review…

CRIMINAL LAW: VOIR DIRE: CHALLENGE TO THE ARRAY: OPINION OF ONE VENIRE MEMBER THAT MOST DEFENDANT’S ARE CAREER CRIMINALS: CURATIVE INSTRUCTION

Case Decision Date:March 16th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Reppert v. State, ___ So. 3d ___, 37 Fla. L. Weekly D649 (Fla. 2d DCA March 16, 2012)

The trial court in a criminal case did not abuse its discretion by denying the defendant’s challenge to the venire panel based upon the opinion of one prospective juror that most defendants are career criminals.  “In this case, the prospective juror’s comments … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL FOR FAILURE TO COMPLY WITH COURT ORDER: WILLFUL OR DELIBERATE DISREGARD: KOZEL v. OSTENDORF FACTORS

Case Decision Date:March 16th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Hawthorne v. Wesley, ___ So. 3d ___, 37 Fla. L. Weekly D653 (Fla. 2d DCA March 16, 2012)

After denying the defendant’s motion to dismiss for lack of prosecution, the trial court warned the plaintiff that that his case would be dismissed with prejudice in thirty days unless “movement” occurred.  Two months later, the trial court granted the defendant’s motion … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FAILURE TO COMPLY WITH DISCOVERY ORDERS: DISMISSAL WITH PREJUDICE: EXPLICIT FINDING OF WILLFUL NONCOMPLIANCE

Case Decision Date:March 7th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Young v. USAA Casualty Insurance Company, ___ So. 3d ___, 37 Fla. L. Weekly D576 (Fla. 4th DCA March 7, 2012)

The trial court dismissed with prejudice the plaintiff’s complaint because of her “failure to comply with various discovery orders.”  The appellate court reversed.  “[A]lthough the trial court’s order contain[ed] details surrounding [the plaintiff’s] failure to comply with the … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: INJUNCTION AGAINST PRO SE FILINGS: NOTICE: ORDER TO SHOW CAUSE

Case Decision Date:March 6th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Pullins v. Britton, ___ So. 3d ___, 37 Fla. L. Weekly D543 (Fla. 1st DCA March 6, 2012)

The trial court erred by prohibiting a pro se litigant from filing pleadings without a certification of good faith from a member of the Florida Bar because the injunction was issued without notice.  The appellate court remanded with instructions to issue … Click To Read Full Case Law Review…

CONTRACTS: ADDITIONS TO, AND REMODELING OF, HISTORIC HOME: NET JUDGMENT IN FAVOR OF CONTRACTOR NOT 25% GREATER THAN JOINT PROPOSAL FOR SETTLEMENT FROM HOMEOWNERS; CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 768.79, FLORIDA STATUTES; COSTS

Case Decision Date:February 29th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Wolfe v. Culpepper Constructors, Inc., ___ So. 3d ___, 37 Fla. L. Weekly D505 (Fla. 2d DCA February 29, 2012)

The owners, a husband and wife, hired the contractor to build an addition to, and remodel, their historic home.  When the owners refused to pay the final bill based upon alleged overcharges and defective workmanship, the contractor recorded a claim … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FAILURE TO ATTEND STATUS CONFERENCE: RELIEF FROM JUDGMENT: MAILING NOTICE TO WRONG ADDRESS

Case Decision Date:February 29th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Touloute v. City of Fort Lauderdale, ___ So. 3d ___, 37 Fla. L. Weekly D521 (Fla. 4th DCA February 29, 2012)

When the trial court dismissed his case for failure to appear at a status conference, the plaintiff moved for relief from judgment, and the trial court denied his motion.  The appellate court reversed because notice of the status … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: OFFER OF JUDGMENT: SECTION 768.79, FLORIDA STATUTES: REVERSAL OF UNDERLYING CASE

Case Decision Date:February 24th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Hodge v. Cichon, ___ So. 3d ___, 37 Fla. L. Weekly D489 (Fla. 5th DCA February 24, 2012)

An award of attorney’s fees under Section 768.79, Florida Statutes, was reversed because the summary judgment on which it was based was reversed.… Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: ABSENCE OF FINDINGS OF FACT TO SUPPORT AN AWARD

Case Decision Date:February 17th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Regions Bank v. Gad, ___ So. ___, 37 Fla. L. Weekly D448 (Fla. 1st DCA February 17, 2012)

The appellate court reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because of the absence of “findings of fact to support the award.”… Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL FOR FRAUD ON THE COURT: EXPRESS WRITTEN FINDINGS

Case Decision Date:February 8th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Chacha v. Transport USA, Inc., ___ So. 3d ___, 37 Fla. L. Weekly D342 (Fla. 4th DCA February 8, 2012)

The Fourth District Court of Appeal held that “an order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion … Click To Read Full Case Law Review…

TORTS: MEDICAL MALPRACTICE: VICARIOUS LIABILITY; APPEALS: SANCTIONS: 57.105, FLORIDA STATUTES: FRIVOLOUS APPEAL

Case Decision Date:January 30th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Waddington v. Baptist Medical Center of the Beaches, Inc., ___ So. 3d ___, 37 Fla. L. Weekly D263 (Fla. 1st DCA January 30, 2012)

The plaintiff sought to impose vicarious liability against the hospital based upon the alleged negligence of two physicians, but the plaintiff voluntarily dismissed with prejudice his claim against one physician, and the other physician prevailed … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: STANDING: INDORSEMENT IN BLANK; CIVIL PROCEDURE: SANCTIONS: DISMISSAL: KOZEL v. OSTENDORF FACTORS

Case Decision Date:January 20th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Deutsche Bank National Trust Company v. Lippi, ___ So. 3d ___, 37 Fla. L. Weekly D201 (Fla. 5th DCA January 20, 2012)

The trial court erred by dismissing the bank’s second amended complaint to foreclose upon a mortgage based upon lack of standing.  Although the bank was not the original owner and holder of the note and mortgage, the … Click To Read Full Case Law Review…

APPEALS: SANCTIONS: UNEXCUSED FAILURE OF PARTIES TO ATTEND MEDIATION

Case Decision Date:January 6th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Carden & Associates, Inc. v. C.O.D. Trees Partnership, ___ So. 3d ___, 37 Fla. L. Weekly D104 (Fla. 5th DCA January 6, 2012)

The appellate court imposed sanctions against two parties for failing to attend court ordered appellate mediation.  The appearance of their insurance company representative and attorney was insufficient.  “The law is clear that, absent being excused by … Click To Read Full Case Law Review…

TORTS: CONVERSION: TORTIOUS INTERFERENCE WITH EXPECTED INHERITANCE; CIVIL PROCEDURE: DIRECTED VERDICT: FAILURE TO PROVE DAMAGES WITH REASONABLE CERTAINTY: DISCOVERY: SANCTIONS: FAILURE TO MOVE TO COMPEL: NEW TRIAL: FAILURE TO OBTAIN EVIDENCE FROM INDEPENDENT SOURCES

Case Decision Date:January 4th, 2012 Reviewed by Joseph S. Kashi  |  No Comments »

Saewitz v. Saewitz, ___ So. 3d ___, 37 Fla. L. Weekly D75 (Fla. 3d DCA January 4, 2012)

The decedent’s daughters sued their step-mother for conversion and tortious interference with an expected inheritance.  Although the daughters produced evidence of manipulative behavior, the trial court directed a verdict for the stepmother because the daughters failed to prove damages with reasonable certainty.  … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE; CIVIL PROCEDURE: RELIEF FROM JUDGMENT: GENERAL ALLEGATIONS OF FRAUD INSUFFICIENT: WAIVER OF OBJECTIONS TO AFFIDAVIT; PROFESSIONAL RESPONSIBILITY: KNOWLEDGE OF LAW: SANCTIONS

Case Decision Date:December 21st, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Vilvar v. Deutsche Bank Trust Company Americas, ___ So. 3d ___, 36 Fla. L. Weekly D2779 (Fla. 4th DCA December 21, 2011)

The defendant in an action to foreclose upon her mortgage moved for relief from judgment based upon the alleged incompetence and inaccuracy of an affidavit executed by the assistant vice president of the loan servicer.  The trial … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: TORTIOUS INTERFERENCE: ABSENCE OF FINDINGS: DEATH OF TRIAL JUDGE: REFERENCE TO WRONG CAUSE OF ACTION: INDEPENDENT REVIEW: COST AWARD AGAINST ATTORNEY

Case Decision Date:December 16th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Kenniasty v. Bionetics Corporation, ___ So. 3d ___, 36 Fla. L. Weekly D2749 (Fla. 5th DCA December 16, 2011)

The appellate court reversed an award of attorney’s fees, under Section 57.105, Florida Statutes, against plaintiffs who asserted a claim for interference with business relationships that failed at the pleading level.  Review was complicated by (1) the absence of findings, … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: FRAUDULENT ASSIGNMENT; CIVIL PROCEDURE: SANCTIONS: VOLUNTARY DISMISSAL: JURISDICTION TO VACATE DISMISSAL; APPEALS: SETTLEMENT: MOOTNESS: RETENTION OF JURISDICTION OVER CASES AFTER SETTLEMENT WHEN QUESTIONS RAISED ARE OF GREAT PUBLIC IMPORTANCE OR ARE LIKELY TO RECUR

Case Decision Date:December 8th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Pino v. The Bank of New York, ___ So. 3d ___, 36 Fla. L. Weekly S711 (Fla. December 8, 2011)

The bank voluntarily dismissed its action to foreclose upon a mortgage to prevent an adjudication of the borrower’s motion for sanctions based upon a fraudulent assignment of mortgage.  The trial court subsequently denied the borrower’s motion to vacate the voluntary … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: AFFIDAVIT OF INDEBTEDNESS; EVIDENCE: HEARSAY: BUSINESS RECORDS; CIVIL PROCEDURE: SUMMARY JUDGMENT: SANCTIONS: SECTION 57.105, FLORIDA STATUTES: INHERENT POWER OF THE TRIAL COURT

Case Decision Date:November 17th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Glarum v. Lasalle Bank National Association, ___ So. 3d ___, 36 Fla. L. Weekly D2526 (Fla. 4th DCA November 17, 2011)

The appellate court reversed summary judgment for the bank in a mortgage foreclosure case because the affidavit of indebtedness, upon which the trial court relied in entering judgment, constituted inadmissible hearsay, rather than a business record under Section … Click To Read Full Case Law Review…

ADMINISTRATIVE LAW: APPEALS: DISMISSAL: LACK OF STANDING: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES

Case Decision Date:November 4th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Martin County Conservation Alliance v. Martin County, ___ So. 3d ___, 36 Fla. L. Weekly D2416 (Fla. 1st DCA November 4, 2011)

The court imposed appellate fees under Section 57.105, Florida Statutes, as a sanction against the appellants because they failed to establish that they possessed standing to appeal from the order of an administrative law judge.… Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL FOR FAILURE TO ATTEND CASE MANAGEMENT CONFERENCE

Case Decision Date:October 19th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Incarnacion v. Thomas, ___ So. 3d ___, 36 Fla. L. Weekly D2318 (Fla. 3d DCA October 19, 2011)

The appellate court reversed the dismissal of the plaintiff’s lawsuit based upon the failure of her lawyer to appear for a case management conference because there was no showing of willfulness or the client’s responsibility for her lawyer’s non-compliance.… Click To Read Full Case Law Review…

SANCTIONS: ATTORNEY’S FEES: SECTION 57.105, FLORIDA STATUTES: AWARD OF COSTS AGAINST ATTORNEY; STATUTE OF FRAUDS: MONEY LENT

Case Decision Date:October 5th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Siegel v. Rowe, ___ So. 3d ___, 36 Fla. L. Weekly D2169 (Fla. 2d DCA October 5, 2011)

The plaintiff alleged that the defendants failed to repay a $50,000 loan from the plaintiff and her deceased husband. The defendants claimed that the money was a gift, and the plaintiff’s claim was barred by the statute of frauds. The trial court, … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: AFFIDAVIT OF INDEBTEDNESS; CIVIL PROCEDURE: SUMMARY JUDGMENT: HEARSAY: BUSINESS RECORDS; SANCTIONS: 57.105, FLORIDA STATUTES: INHERENT POWER OF THE COURT

Case Decision Date:September 7th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Glarum v. LaSalle Bank National Association, ___ So. 3d ___, 36 Fla. L. Weekly D1967 (Fla. 4th DCA September 7, 2011)

The appellate court reversed summary judgment for the bank in an action to foreclose on a mortgage because the borrowers disputed the amount due, and the bank’s affidavit of indebtedness contained inadmissible hearsay. The affiant “explained that he derived … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS FOR FAILING TO MAKE DISCOVERY AND ATTEND HEARINGS: KOZEL FACTORS

Case Decision Date:August 10th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Bennett v. Tenet St. Mary’s, Inc., ___So. 3d ___, 36 Fla. L. Weekly D1756 (Fla. 4th DCA August 10, 2011)

The appellate court reversed an order denying the plaintiff’s motion to set aside a final judgment of dismissal in a medical malpractice case based upon repeated failures to comply with discovery and court orders and to attend scheduled hearings. The … Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS: RELIEF FROM JUDGMENT: EXCUSABLE NEGLECT: LACK OF NOTICE: EXCESSIVE PENALTY

Case Decision Date:June 22nd, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

America’s Yate de Costa Rica v. Armco Manufacturing, Inc., ___ So. 3d ___, 36 Fla. L. Weekly D1331 (Fla. 4th DCA 6/22/11)

The appellate court reversed a final judgment against the defendant because the trial court abused its discretion by “denying [the defendant's] motion for relief from an earlier order striking its pleadings” for failing to make discovery. Excusable neglect … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: FRIVOLOUS AFFIRMATIVE DEFENSES; SANCTIONS: 57.105, FLORIDA STATUTES: ATTORNEY’S FEES: DELAY DAMAGES

Case Decision Date:June 8th, 2011 Reviewed by Joseph S. Kashi  |  1 Comment »

Korte v. US Bank National Association, ___ So. 3d ___, 36 Fla. L. Weekly D1215 (Fla. 4th DCA 6/8/11)

The appellate court affirmed the imposition of sanctions under Section 57.105, Florida Statutes, against defense counsel in a mortgage foreclosure case based upon his assertion of frivolous affirmative defenses. Without consulting with his clients, defense counsel alleged that the bank failed … Click To Read Full Case Law Review…

CIVIL PROCEDURE: PLEADING: AMENDMENT: SIXTH ATTEMPT: PROLIXITY: MUDDLED PLEADING: FLA. R. CIV. P. 1.110 : FAILURE TO PLEAD A SHORT AND PLAIN STATEMENT OF ULTIMATE FACTS: SANCTIONS : DISMISSAL: KOZEL v. OSTENDORF FACTORS: FLA. R. CIV. P. 1.170(h): JOINDER OF NEW PARTIES TO COUNTERCLAIM OR CROSS CLAIM: PARTIES NECESSARY TO GRANT COMPLETE RELIEF

Case Decision Date:June 3rd, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Myers v. Highway 46 Holdings, L.L.C., ___ So. 3d ___, 36 Fla. L. Weekly D1187 (Fla. 5th DCA 6/3/11)

After six unsuccessful attempts to assert concise counterclaims, cross-claims, and third-party claims, the trial court dismissed with prejudice the defendants’ claims for affirmative relief, remarking that their latest effort was “repetitive,” “disorganized,” “disjointed,” “replete with superfluous factual allegations and rambling legal … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL: FAILURE TO RETAIN NEW COUNSEL AND FILE AMENDED COMPLAINT

Case Decision Date:June 1st, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Gardner v. Moving Cost, Inc., ___ So. 3d ___, 36 Fla. L. Weekly D1183 (Fla. 4th DCA 6/1/11)

Dismissal with prejudice was too harsh a sanction for the plaintiff’s failure to comply with the trial court’s deadline to retain new counsel and file an amended complaint. Significantly, “[t]he trial court’s order ‘did not make an explicit finding of willful noncompliance … Click To Read Full Case Law Review…

FAMILY LAW: ATTORNEY’S FEES: ABSENCE OF FINDINGS: MEDIATION: SANCTIONS: LOST WAGES

Case Decision Date:May 27th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Thomas v. Thomas, ___ So. 3d ___, 36 Fla. L. Weekly D1135 (Fla. 5th DCA 5/27/11)

The trial court, in post-dissolution proceedings, erred in its award of attorney’s fees and mediation sanctions. “First, although the trial court properly awarded fees to the former husband pursuant to the terms of the marital settlement agreement, the order on appeal does not include … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: DISMISSAL FOR FAILURE TO ATTEND STATUS CONFERENCE: WILLFUL AND CONTUMACIOUS CONDUCT: PREMATURE DISMISSAL FOR FAILURE TO PROSECUTE FOR LESS THAN ELEVEN MONTHS OF INACTIVITY

Case Decision Date:May 18th, 2011 Reviewed by Joseph S. Kashi  |  1 Comment »

Dedmon v. Kelly, ___ So. 3d ___, 36 Fla. L. Weekly D1071 (Fla 4th DCA 5/18/11)

The trial court erred by dismissing the plaintiff”s case for failure to attend a status conference because the court did not make “an express finding of willful and contumacious behavior in its order.” Nor could such a finding be made because notice of … Click To Read Full Case Law Review…

REAL ESTATE: MORTGAGE FORECLOSURE: CANCELLATION OF SALE: CIVIL PROCEDURE: NOTICE OF HEARING: DUE PROCESS; SANCTIONS

Case Decision Date:May 4th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Jade Winds Association, Inc. v. Citibank, N.A., ___ So. 3d ___, 36 Fla. L. Weekly D958 (Fla. 3d DCA 5/4/11)

The bank filed a foreclosure action against the unit owner and the association.  The association filed a cross claim against the unit owned and obtained a default final judgment and certificate of sale.  The association filed a waiver of public … Click To Read Full Case Law Review…

CIVIL PROCEDURE: SANCTIONS: FAILURE TO RETAIN REPLACEMENT COUNSEL AND FILE AMENDED COMPLAINT: DISMISSAL

Case Decision Date:April 6th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Gardner v. Moving Cost, Inc., ___ So. 3d ___, 36 Fla. L. Weekly D733 (Fla. 4th DCA 4/6/11)

The trial court dismissed the plaintiff’s case with prejudice for failure to comply with a court order to retain replacement counsel and file an amended complaint by a specific date.  Six days after the deadline, the plaintiff filed a pro se … Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS

Case Decision Date:March 16th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Bistricer v. Oceanside Acquisitions, LLC, ___ So. 3d ___, 36 Fla. L. Weekly D549 (Fla. 3d DCA 3/16/11)

The trial court did not abuse its discretion “by striking a portion of the Plaintiffs’ pleadings as a sanction for violating discovery orders and presenting false testimony.”   The discovery violations consisted of failing to produce all materials requested and ordered during the … Click To Read Full Case Law Review…

ATTORNEY’S FEES: SANCTIONS: SECTION 57.105, FLORIDA STATUTES, FEES FOR LITIGATING FEES

Case Decision Date:March 2nd, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Wood v. Haack, ___ So. 3d ___, 36 Fla. L. Weekly D439 (Fla. 4th DCA 3/2/11)

After the plaintiff filed a third amended complaint, the defendant filed a motion for attorney’s fees under Section 57.105, Florida Statutes.  The trial court granted the motion but limited fees to those incurred after the third amended complaint was filed.  The appellate court … Click To Read Full Case Law Review…

SANCTIONS: DEFENDANT WAS NOT RESPONSIBLE FOR MISCONDUCT OF IME PHYSICIAN

Case Decision Date:February 2nd, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

State Farm Mutual Automobile Insurance Company v. Swindoll, ___ So. 3d ___, 36 Fla. L. Weekly D232 (Fla. 3d DCA 2/2/11)

The trial court in an action for uninsured motorist benefits granted the plaintiffs’ motion for mistrial because of the misconduct of the defendant’s IME physician and sanctioned the defendant, by means of an award of costs and attorney’s fees, … Click To Read Full Case Law Review…

SANCTIONS: FAILURE TO FILE PRETRIAL NOTEBOOK: CLIENT’S FAILURE TO PARTICIPATE IN MISCONDUCT OF COUNSEL, PROPORTIONALITY OF SANCTION TO SEVERITY OF OFFENSE

Case Decision Date:February 2nd, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Cossio v. Arrondo, ___ So. 3d ___, 36 Fla. L. Weekly D234 (Fla. 3d DCA 2/2/11)

The appellate court reversed a final judgment because of the imposition of excessive sanctions against the defendant.  Defense counsel violated a court order by failing to file a pretrial notebook.  The trial court fined defense counsel and precluded the defendant from introducing exhibits into … Click To Read Full Case Law Review…

SANCTIONS: ABSENCE OF FINDINGS

Case Decision Date:January 26th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Arkiteknic, Inc. v. United Glass Laminating, Inc., ___ So. 3d ___, 36 Fla. L. Weekly D186 (Fla. 3d DCA 1/26/11)

The appellate court reversed a “final default judgment and order striking pleadings as a sanction for failure to comply with certain disclosure deadlines” because “the trial court did not make the preliminary findings of fact concerning each of the Kozel Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS

Case Decision Date:January 19th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Horace Mann Insurance Company v. Chase, ___ So. 3d ___, 36 Fla. L. Weekly D136 (Fla. 1st DCA 1/19/11)

The appellate court reversed an order imposing “sanctions for a party’s bad-faith failure to participate in pre-trial discovery.”  “Sanctions were inappropriate under [Fla. R. Civ. P.] 1.380 because the Appellees did not prevail on a motion to compel … Click To Read Full Case Law Review…

CIVIL PROCEDURE: DISCOVERY: SANCTIONS: STRIKING EXPERT WITNESS FOR FAILING TO PROVIDE DISCOVERY; APPEALS: CERTIORARI: STRIKING MATERIAL WITNESS

Case Decision Date:January 14th, 2011 Reviewed by Joseph S. Kashi  |  No Comments »

Heathrow Master Association, Inc. v. Zulia, ___ So. 3d ___, 36 Fla. L. Weekly D108 (Fla. 5th DCA 1/14/11)

The appellate court granted the defendants’ petition for certiorari and quashed an order striking the defendants’ expert witness.  The plaintiff slipped and fell as a result of an exposed irrigation pipe and suffered an abrasion that allegedly resulted in reflex … Click To Read Full Case Law Review…

SANCTIONS: SECTION 57.105, FLORIDA STATUTES; REAL ESTATE: MORTGAGE FORECLOSURE: STANDING

Case Decision Date:December 29th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Country Place Community Association, Inc. v. J.P. Morgan Mortgage Acquisition Corp., ___ So. 3d ___, 36 Fla. L. Weekly D31 (Fla. 2d DCA 12/29/10)

The lender failed to respond to a request for admissions that “it had no evidence to show that it owned or possessed the note and mortgage on the date it filed the mortgage foreclosure action.” As … Click To Read Full Case Law Review…

DISMISSAL: LACK OF PROSECUTION; APPEALS: FINALITY, SANCTIONS, COSTS, ATTORNEY’S FEES

Case Decision Date:December 22nd, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Bay Park Towers Condominium Association, Inc. v. Triple M. Roofing Corp., ___ So. 3d ___, 35 Fla. L. Weekly D2904 (Fla. 3d DCA 12/22/10)

The appellate court reversed an order of dismissal for lack of prosecution because five entries appeared in the docket during the ten-month period before service of the notice of lack of prosecution.

The appellate court granted … Click To Read Full Case Law Review…

SANCTIONS: SECTION 57.105, FLORIDA STATUTES: ABSENCE OF STATUTORY FINDINGS

Case Decision Date:December 22nd, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Kurgan v. Weiner, ___ So. 3d ___, 36 Fla. L. Weekly D3 (Fla. 3d DCA 12/22/10)

The appellate court reversed a final judgment awarding attorney’s fees and costs under Section 57.105, Florida Statutes, because of the absence of the statutory findings required by Section 57.105.… Click To Read Full Case Law Review…

SANCTIONS: DEFAULT, DISALLOWANCE OF DEFENSE, PUNITIVE DAMAGES; JURY INSTRUCTIONS AFTER DEFAULT INVADED THE PROVINCE OF THE JURY ON PUNITIVE DAMAGES

Case Decision Date:December 15th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Belle Glade Chevrolet v. Figgie, ___ So. 3d ___, 35 Fla. L. Weekly D2845 (Fla. 4th DCA 12/15/10)

The buyer sued the used car dealer for civil theft, conversion, negligence, breach of contract, violation of the Florida Deceptive and Unfair Trade Practices Act, fraud, and punitive damages.  The trial court struck the dealer’s pleadings and prohibited the dealer from … Click To Read Full Case Law Review…

SANCTIONS: BAD FAITH LITIGATION CONDUCT; ATTORNEY’S FEES: FINDINGS, FEES FOR FEES

Case Decision Date:December 8th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Bennett v. Berges, ___ So. 3d ___, 35 Fla. L. Weekly D2689 (Fla. 4th DCA 12/8/10)

The appellate court affirmed the award of attorney’s fees against the decedent’s mistress for wrongfully accusing the decedent’s children of misappropriating assets in a probate case. The accusation, which the mistress was unable to substantiate, resulted in the continuation of a hearing. “A … Click To Read Full Case Law Review…

APPELLATE MEDIATION: SANCTIONS: FAILURE TO APPEAR

Case Decision Date:December 3rd, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Mash v. Lugo, ___ So. 3d ___, 35 Fla. L. Weekly D2660 (Fla. 5th DCA 12/3/10)

The appellate court imposed sanctions against the appellees and their lawyer because the appellees failed to appear for an appellate mediation although their appearance was not excused by court order or an agreement that they could appear electronically. “Appellees’ counsel’s claim that he … Click To Read Full Case Law Review…

DISCOVERY: SANCTIONS

Case Decision Date:November 30th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Horace Mann Insurance Co. v. Chase, ___ So. 3d ___, 35 Fla. L. Weekly D2599 (Fla.1st DCA 11/30/10)

The appellate court reversed an order imposing sanctions “for a party’s bad-faith failure to participate in pre-trial discovery.”  “Sanctions were inappropriate under Rule 1.380 because the [plaintiffs] did not prevail on a motion to compel and [the defendant’s] counsel did … Click To Read Full Case Law Review…

DISCOVERY: SANCTIONS, DISMISSAL; RECORD ON APPEAL: ABSENCE OF TRANSCRIPT, PRESUMPTION OF CORRECTNESS

Case Decision Date:November 17th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Estes v. Sassano, ___ So. 3d ___, 35 Fla. L. Weekly D2522 (Fla. 1st DCA 11/17/10)

The appellate court affirmed the dismissal with prejudice of the plaintiff’s complaint as a sanction for the plaintiff’s failure, over a three year period, “to comply with a straightforward request for production” because the plaintiff failed to provide a transcript of the … Click To Read Full Case Law Review…

SANCTIONS: ATTORNEYS, BAD FAITH

Case Decision Date:November 3rd, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Rivero v. Meister, ___ So. 3d ___, 35 Fla. L. Weekly D2452 (Fla. 4th DCA 11/3/10)

The trial court abused its discretion by imposing monetary sanctions against a defense lawyer who, as a result of negligence, failed to appear for trial because the trial court did not make an express finding of bad faith.  The appellate court was concerned … Click To Read Full Case Law Review…

SETOFF: SANCTIONS MAY BE SETOFF AGAINST DAMAGES AWARDED IN THE SAME PROCEEDING

Case Decision Date:October 20th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Law-Yue v. Miami River, L.L.C., ___ So. 3d ___, 35 Fla. L. Weekly D2322 (Fla. 3d DCA 10/20/10)

The buyers sued “for the return of their deposits and the cancellation of their preconstruction contracts for the purchase of condominium units in a later completed building.”  The trial court dismissed the complaint, and the appellate court affirmed without explanation other … Click To Read Full Case Law Review…

SANCTIONS: FAILURE TO PRODUCE FORMER EMPLOYEE AT TRIAL; TRIAL: DISCLOSURE OF MARY CARTER AGREEMENT; SETOFF: PAYMENTS RECEIVED FROM EMPLOYER FOR REPURCHASE OF STOCK; PROPOSAL FOR SETTLEMENT: REVERSAL OF UNDERLYING JUDGMENT

Case Decision Date:October 15th, 2010 Reviewed by Joseph S. Kashi  |  No Comments »

Packaging Corporation of America v. DeRycke, ___ So. 3d ___, 35 Fla. L. Weekly D2287 (Fla. 2d DCA 10/15/10)

Upon retrial of a wrongful death case, the trial court directed a verdict on liability against the corporate defendant because its representative during the first trial, who resided outside the State of Florida and was retired by the time of … Click To Read Full Case Law Review…

APPEALS: SANCTIONS, ATTORNEY’S FEES

Case Decision Date:September 22nd, 2010 Reviewed by Joseph S. Kashi  |  1 Comment »

South Florida Express Bankserv, Inc. v. Aponte, ___ So. 3d ___, 35 Fla. L. Weekly D2099 (Fla. 1st DCA 9/22/10)

The appellate court imposed attorney’s fees under Fla. R. App. P. 9.410 as a sanction for the appellant’s frivolous response to the appellee’s motion to enforce a prior award of appellate attorney’s fees.  The fact that the appellant ultimately … Click To Read Full Case Law Review…

SANCTIONS, SECTION 57.105, FLORIDA STATUTES

Case Decision Date:August 15th, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Long v. AvMed, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1377 (Fla. 1st DCA 7/8/09)

Long filed an action for injunctive relief although AvMed agreed to pay for her contested medical treatment before Long’s complaint was filed.  The trial court dismissed with prejudice Long’s claims for injunctive relief and attorney’s fees on the ground that the … Click To Read Full Case Law Review…

APPEALS: SANCTIONS

Case Decision Date:July 8th, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Affirmative Insurance Co. v. Gomez, ___ So. 3d ___, 34 Fla. L. Weekly D1350 (Fla. 4th DCA 7/1/09)

The circuit court denied procedural due process of law to the appellant by dismissing its appeal for violation of a court order because the order failed to warn the appellant that failure to comply with the order could result in … Click To Read Full Case Law Review…

SANCTIONS

Case Decision Date:July 7th, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

SANCTIONS, Volume 1, Issue 38

Cinquegrana v. Rowley, ___ So. 3d ___, 34 Fla. L. Weekly D1290 (Fla. 4th DCA) 6/24/09)

The trial court erred in dismissing the plaintiff’s complaint based upon the litigation misconduct of his lawyer because (1) the defendant requested the imposition of lesser sanctions, and (2) one discovery dereliction was corrected prior to dismissal.  … Click To Read Full Case Law Review…

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SANCTIONS, SECTION 57.105, FLORIDA STATUTES

Case Decision Date:June 22nd, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Kenniasty v. Bionetics Corporation, ___ So. 2d ___, 34 Fla. L. Weekly D1187 (Fla. 5th DCA 6/10/09)

On July 1st, 2002, the Florida legislature added a safe harbor provision to Section 57.105, Florida Statutes.  Under this provision, the party seeking sanctions must serve its motion for attorney’s fees 21 days before filing it.  This provision applies … Click To Read Full Case Law Review…

SANCTIONS

Case Decision Date:June 22nd, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Laurore v. Miami Automotive Retail, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1160 (Fla. 3d DCA 6/10/09)

The trial court erred by dismissing with prejudice for fraud upon the court a personal injury case.  The plaintiff allegedly sustained four cervical herniated discs as a result of a rear-end motor vehicle accident.  In answers to interrogatories and his … Click To Read Full Case Law Review…

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SANCTIONS, SECTION 57.105, FLORIDA STATUTES

Case Decision Date:June 9th, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Montgomery v. Larmoyeux, ___ So. 2d ___, 34 Fla. L. Weekly D1118 (Fla. 4th DCA 6/3/09)

The court reversed an award of attorney’s fees under Section 57.105, Florida Statutes, because the motion was filed only two days after notice was served upon the party against whom fees were sought.  “Section 57.105(4) could not be clearer in its requirement … Click To Read Full Case Law Review…

SANCTIONS

Case Decision Date:April 28th, 2009 Reviewed by Joseph S. Kashi  |  No Comments »

Cooper v. Cooper, ___ So. 2d ___, 34 Fla. L. Weekly, D782 (Fla. 3rd DCA 4/15/09)

The trial court erred in imposing discovery sanctions against both a lawyer and his client because the client did not participate in the misconduct.… Click To Read Full Case Law Review…

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