Points of View

Thoughts on the Law and Images of Our Community

Editorial Note: These are only brief notes on cases I happen to have noticed. I don't try to cover every decision. If that's what you need, I recommend the weekly appellate case law blog from Carlton Fields, or the variety of updates put out by Manny Farach.

October 25, 2023

AFP 103 Corp. v. Common Wealth - on rehearing, the court limits to the specific facts its holding voiding parking easements that had been created while both the dominant and the servient parcel were under common ownership. Judge Miller offers a detailed dissent.

Costco v. Vargas - affirming sanctions where defense counsel coached a corporate representative witness to answer questions based on a document prepared by counsel that had not previously been disclosed.

Rivera v. Florida - in voir dire, defense counsel had been improperly prevented from asking jurors whether they were open to the defense theory of the case.

Greater Miami Expressway v. Miami-Dade County Expressway - FDOT was an indispensable party where it had sold only "operational control" of an expressway, not the expressway itself.

Heath v. Lee - family court should have considered evidence of violations of a marital settlement agreement in the form of interfering with communication as a potential basis to modify a custody order.

Potts v. Lewis - in a dispute between church members over whether one needed to "repent" for the alleged sin of unlicensed contracting, the court held that a stalking injunction could not stand because the behavior would not have caused a reasonable person substantial emotional distress.

October 20, 2023

Pickell v. Lennar - plaintiff who already recovered from contractor was not prevented by collateral estoppel from suing the builder who the contractor had promised to indemnify.

Roller v. Collins - the contingent beneficiaries of a trust did not have standing to sue, on behalf of the trust, a party who was co-liable for a debt paid with trust funds.

Normandy v, Bouayad - the First District declined to rehear en banc the appeal of a worker's compensation claimant who could not recover because he was shot by a third party over a matter not connected with his work. Competing dissents and concurrences offer a seminar on the proper relationship between en banc review and different panels of the same court of appeal.

October 18, 2023

CNN v. Black - a doctor could not pursue punitive damages in a libel case just because the media knew that the true statistics it offered would be challenged by experts as the incorrect measure to use in a story about death rates at a pediatric cardiac facility.

Miami Dade College v. Nader + Museu I, LLLP - competing attorney's fee judgments in two separate cases could be set off against one another.

Ramle v. Miami-Dade - the alleged assignee of rights to excess foreclosure sale proceeds failed to prove at trial that the assignor was an owner of the property.

October 13, 2023

Asset Recovery v. Wells Fargo - a party may only challenge distribution of surplus foreclosure sale funds for ten days after the clerk's notice of surplus funds.

October 12, 2023

Lowman v. FAA - rejecting a NEPA challenge to the expansion of the Lakeland airport to include a new Amazon terminal.

Noble v. Galle - in a globe-spanning dispute over the proceeds of a multi-million-dollar litigation settlement, a Florida district court exceeded its authority in issuing an injunction over funds already under the jurisdiction of a Colorado probate court.

October 11, 2023

Broes v. Hall County - rejects a strange conspiracy to maliciously prosecute claim filed by a domestic abuser against police who were gym buddies with his ex.

Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale - knocking down an inflated attorneys' fee claim in successful public interest litigation.

United States v. Pate - Timothy Pate aka Akenaten Ali aka heir to the kingdom of Morocco filed purported $15-30 million liens in an attempt to foil the IRS, but it got him nowhere.

CCP v. Manor at Harbour Island - a fascinating abuse of process case based on hyper-aggressive litigation and settlement negotiation strategies.

Weiss v. BI 27, LLC - sending to trial a long-standing family dispute involving mortgage priority, fraudulently induced deeds, and lis pendens based on a recorded instrument

October 6, 2023

Zhanadova v. Wal-Mart - affirming summary judgment in a slip-and-fall case where video evidence of the store's actual knowledge of a spill was pure speculation beyond an employee moving to clean it up some twenty seconds before the accident.

October 5, 2023

CSX v. General Mills - Georgia's "vouching in" statute would bind an absent defendant to the results of litigation it chose not to participate in, but did not prevent the participating defendant from a later opportunity to establish the absent defendant's liability.

Royal v. Royal - plaintiff was not limited to remedies in prior probate action where her claim was that she had been deceived into transferring assets into the probate estate that had, in fact, passed to her outside probate and not been devised in the probated will.

Cape Coral v. 924 Del Prado - borrower was barred by earlier settlement agreement from asserting statute of limitations defense to foreclosure action.

October 4, 2023

Citizens v. Salazar - remanding for new trial because lower court's denial of insurer's motion in limine caused insured to present improper damages evidence.

Hess v. PMG-S2 - affirming fee award against condo unit purchaser whose assignment to another entity deprived them of standing to sue the developer but did not vitiate the developer's right to fees under the contract.

Freeman v. Florida - defendant who stabbed her mother's friend in the neck failed to present a prima facie case for stand your ground immunity in her motion to dismiss.

East Coast Waffles v. Haselden - a cook who worked 17-hours at a Waffle House and whose back was injured when he asked his boss to crack his back in order to relieve pain was not entitled to workers compensation because the injury was not work-related.

Florida v. Berens - a processor unpaid by a hunter had a lien on the processed meat, but could not sell the meat because of FWC regulations.

Frehling v. Garcia - homeowners were not entitled to transfer their homestead exemption where they did not timely apply for the transfer.

Kadribasic v. Wal-Mart, Inc. - summary judgment against a worker who failed to follow her employer's mandated process for applying for FMLA leave.

October 2, 2023

Murray v. Archer - online activist who alleged retribution against him by various public officials has his complaint dismissed as a shotgun pleading.

Johnson v. Nocco - qualified immunity to an officer who is allowed to demand the identity of a passenger in a stopped vehicle without any suspicion of a crime (over a length dissent by Judge Wilson).

September 29, 2023

Regala v. McDonald - mixed results on a petition for certiorari to prevent interrogatories aimed at medical providers' incident investigation.

Mortgage Assets v. Kohlenberger - no live witness was required where foreclosing lender properly used business record affidavit process.

Blow v. Florida - affirming conviction of man who snuck into woman's apartment, impersonating her boyfriend, and assaulted her. (The defendant's name is actually Joe Blow).

Saito v. Moffett - rejecting a challenge to the authority of the state to issue a traffic ticket brought by "one of the sovereign people of the Republic State of Florida."

Weinman v. Warren - voiding a property transfer by a trustee made in breach of their fiduciary duty.

Deltona v. Noco - awarding disgorgement of profits in an outrageous case of willful trademark infringement.

September 28, 2023

United States v. Robinson - an injunction against intellectual property theft could not extend to criminal punihment of a non-party employee of a new entity set up by enjoined persons.

Doss v. Holder - pro se claims against various judges, police, and public figures based on his perjury prosecution arising out of foreclosure lawsuits are dismissed.

Doe v. New College - summary judgment against Title VII claims brought against college officials over their handling of a campus sexual assault.

Editorial note: I was an undergraduate at this school and was entertained at the court's explanation of our traditional themed parties in footnotes on page 14.

September 27, 2023

Inlet v. The Enclave - good faith legal theories to overcome a recording defect in HOA restrictions, including equitable estoppel and reformation, prevented a malicious prosecution claim.

Cole v. Plantation Palms - trial court erred in ignoring expert's report that established causation in subsidence case.

Synergy v. Homeowners - reversing fraud-on-the-court terminating sanctions based an ambiguous contradictions between testimony and discovery responses.

Federal Insurance v. Perlmutter - reversing leave to seek punitive damages in case stemming from surreptitious collection of DNA in civil litigation.

TBC v. Infinity - tenant did not have enough evidence of landlord's bad faith in attempting to re-let premises to avoid summary judgment.

Mantecon v. Florida - defense questioning opened the door to witness's otherwise improper opinion testimony that defendant had no reason to think he was shooting up a crowd of cars with his AR-15 in self-defense.

September 26, 2023

J.S. v. Florida - in a tragic case of a prank gone wrong, the state had not shown adequate cause to extend the detention of a juvenile because his "weapons" (a cup of water and a microwave) would be available to him upon release.

Edger v. McCabe - qualified immunity did not protect officers who threw an innocent mechanic in a church parking lot up against a car and arrested him after he declined to hand over his driver's license.

Neira v. Gualtieri - an excessive force claim could proceed to trial in a case where officers immediately grabbed a bystander who was rendering aid to a man injured in a bar fight and handled her so roughly that she needed shoulder surgery.

Norris v. Honeywell - partial summary judgment against most employees who claimed religious discrimination based on an employer's vaccine mandate.

Denson v. Kinney - officer had probable cause to arrest driver paused at a stop sign for not wearing his seatbelt, but excessive force claim could still proceed to trial.

Williams v. 3RD Home - summary judgment against shareholder derivative claim where plaintiff could not show that pre-suit demand to directors would have been futile.

September 22, 2023

Florida v. Victorino - the statute allowing for a death penalty recommendation with only eight jurors is purely procedural.

Royal United v. Royal - shareholder "deadlock" action.

TG United v. AADD - Rent paid into registry of court or defenses are waived in an eviction.

US v. Lewis - Rule 1006 summary exhibits.

Mason v. Hillsdale - Rule 11 warning in academic litigation of public interest.

Goldhoff v. Saunders - Trial findings of fact and conclusions of law with a beautiful description of the refreshing recollection rule with an unlawful secret recording.

Patel v. Social Security - Reversing finding of non-disability with mistakes in the record and failure to thoughtfully review medical testimony.

September 21, 2023

In League of Women Voters v. Florida, the Eleventh Circuit refused rehearing en banc in a case in which the panel decision reversed an injunction against provisions of Florida's voting laws that a District Court enjoined, after a two-week trial, finding that they had been passed with discriminatory intent.

Editorial note: In a 13-page dissent, Judge Wilson (joined by Judge Jill Pryor and Judge Jordan) argues that the panel decision improperly refused to defer to the District Court's findings of fact on the plaintiffs' statistical evidence and also that en banc rehearing was warranted by the significance of the case. In an 8-page rebuttal, Chief Judge Pryor (joined by Judges Grant and Brasher) call the dissent "histrionic" and the challenged statute "unremarkable, race-neutral policies" as to which legislators were "consistent in their messaging" that their intent was all about voter fraud. First, I dislike the word "histrionic" because its Latin root, shared with "hysteria," refers to a woman's reproductive organs and strikes my feminist ear as outmoded at best and downright sexist at worst. Second, I've read some heated dissents and this is not one of them - so use of the word "histrionic" is altogether too much protest. Third, there's an argument to be made that, under the trend of recent Supreme Court precedent, the District Court might have erred in this case - but that argument acknowledges that it would be a close call and certainly doesn't poo-poo this case with a "nothing to see here" tone that is, in my view, inappropriate to the importance of the subject matter and the strength of the points made by the dissent. 

September 20, 2023

Hoffman v. Delgado, the Middle District dismissed a civil rights suit filed by a plaintiff who "considers himself a photojournalist" and got into a fight with police ("Get off me cop! You're a piece of shit.") when they arrested him for videoing inside a government facility in a restricted area.

In Stuart Roofing v. Thomas, the Fourth District reversed a jury's damages award on a FDUTPA claim where the plaintiff's evidence showed only the amount required to repair a defective roof and did not include any evidence of the value of the roof in the defective condition, as required to prove "actual damages" under FDUTPA.

In Florida v. Bruening, the Fourth District held that descendants of a common great-grandparent are not heirs within the meaning of the intestate descent statute.

In Universal v. Navlin, the Fourth District reversed a trial court's decision to allow testimony from an expert based on unsupported "benchmark" data and based on a "guesstimated" percentage

In Flamingo South v. Flamingo Condo Assoc., the Third District held that a lawsuit challenging the legality of condominium association elections had to go through nonbinding arbitration before suit could be filed.

In Leonard v. Tony, the Eleventh Circuit tells the tragic story of a mental hospital patient's "suicide by cop," charging officers with plexiglass shards after their de-escalation attempts; but affirms the District Court's ruling that the officers were entitled to qualified immunity.

Editorial note: I'm generally sympathetic to arguments that qualified immunity is too broadly applied to excuse officers who resort to lethal force too quickly, but in this instance it seems, even to my skeptical eye, that these police did their best in a terrible situation.

September 15, 2023

In In re Jane Doe, the Fifth District reversed the denial of a minor's petition to obtain an abortion without parental consent, noting that Florida's six-week statutory abortion ban has not yet gone into effect.

In CPPB v. Taurus, the Sixth District held that generalized allegations of irreparable harm are not enough to support a writ of certiorari against an order denying dissolution of a lis pendens.

In Kuthiala v. Goldman, the Fifth District held that a party could recover fees under an offer of judgment where two counts were resolved in their favor on the merits, despite the remaining count being voluntarily dismissed without prejudice.

In Pirman v. South Pointe, the Second District held that a homeowner had standing to sue over an association citation, even though she had not yet paid the associated fine.

In MacDougald v. The Rays, the Second District reversed an order compelling arbitration, holding that the narrow arbitration clause did not encompass the disputes raised by the suit.

In Allaire v. Allaire, the Second District somewhat caustically disassembled an order denying reduction of alimony after the 60 year-old ex-husband's one-client upholstering business was devastated by COVID restrictions.

In Cape v. Och-Ziff, the Fifth District reversed denial of an unjust enrichment award, holding that a benefit could be direct even though it flowed through an intermediary

In Housman v. Housman, the Fifth District reversed a guardianship court's order freezing bank accounts that had failed to make adequate factual findings and failed to set a bond.

In Markuson v. State Farm, the Second District held that an insurer had no duty to accept a Cunningham agreement allowing an excess-judgment and exposing itself to a bad faith claim prior to a determination of liability against the insured.

In Mickles v. Oleksyk, the Middle District dealt with a fascinating case of breach of fiduciary duty in managing a student's 529 tuition plan.

Editorial note: unlike the plaintiff's own family, which persistently dead-named and mis-gendered her, the court commendably respected the plaintiff's gender transition.

September 13, 2023

In Chiquita v. Port Everglades, the Fourth District reversed an unjust enrichment award against a shipper because its off-loaders had not conferred a direct benefit on the shipper in its negotiations with another party over a lease.

In Peebles v. Grassmasters, the Third District held that, where a husband had proved he had a contract with a defendant, the wife who was not a party to the contract could not recover in equity against the defendant.

In Heritage v. Wellington, the Fourth District rejected an insurer's attempt to characterize its re-opened claim investigation under a single claim number as an entirely new and separate claim that was not yet ripe for appraisal.

In Haratz v. Dental Team, the Fourth District reversed dismissal of a member's claim against an LLC, holding that the member was allowed to generally allege waiver of conditions precedent to suit.

In Pinnacle v. Forde, the Fourth District reversed leave to add a punitive damages claim based on an apartment complex's alleged failure to fix a broken gate that allowed burglars to enter the complex and murder a resident.

In Kates v. Nocco, the Middle District granted summary judgment to the Pasco County Sherrif against civil rights claims that a family had been harassed because their son was labelled a "prolific offender" under the "Intelligence-Led Policing" program. Causation failed, because it turned out the son had never been listed in that program and was being pursued on outstanding arrest warrants under routine police procedure.

September 8, 2023

In Ossmann v. Meredith Corp., a local television weatherman will a long history of documented and admitted sexual harassment sued the station for racially discriminating against his because he is white. His evidence consisted of an internal form that included blanks for managers to fill in the names of potentially similarly-situated employees and that included a field for their race. The company's testimony was that it used this form to "ensure that the company was being equitable." There was no evidence that the company had ever dealt with another employee similarly accused. The Eleventh Circuit explained that this evidence failed "by a long shot" to prove that race was the cause of the plaintiff's termination. We then have a 23-page dissent from an Alabama District Court judge, sitting by designation, who tells us that the mere fact that the form "considered race" forces upon us "the next logical inference" that "changing race would affect" the decision - and hence, our white fellow must have been fired, not for telling co-workers about his dreams of sleeping with them or that they were "cock-blocking" him, but because of the widespread scourge of racism against that beleaguered and powerless minority... white men.

Editorial: in all honesty, I have considered our dissenting judge's race, his membership in the Federalist Society, and the identity, rhetoric, and behavior of the President who appointed him, in inferring certain conclusions about his likely train of thought on the case. I do not argue, as the weatherman did, that these things are "direct evidence" of bias. Nonetheless, I'm happy to defend my inferences. 

September 7, 2023

In United States v. Talley, the Eleventh Circuit weighed in on an issue that has split several Circuit courts, holding that the period of supervised release is not tolled during a period when a parolee has fled and is a fugitive.

In Miko v. Jones, the Eleventh Circuit upheld a default against a Georgia state representative whose testimony that he had not been properly served and was not aware of the lawsuit for three years was simply not credible in light of the fact the case had been reported in the news.

In Cabrera v. Commissioner, the Eleventh Circuit held that an administrative law judge had improperly discounted the opinions of a disability claimant's treating psychiatrist by cherry-picking general comments from medical records that did not actually contradict his opinions on the impact of her bipolar disorder on her ability to work.

In Damian v. Bucks of America, LLC, the Middle District ruled after a bench trial that the receiver of a defunct Ponzi scheme could not claw back most of the payments made to certain employees and officers who had given the company reasonably equivalent value and accepted their payments in good faith.

September 6, 2023

In Bath & Kitchen Boutique v. Little, the Third District issued a writ of certiorari quashing a discovery order that constituted "cat-out-of-the-bag" financial discovery in connection with a garnishment.

In King v. City First Mortgage, the Third District rejected a challenge to a foreclosure sale based on alleged RESPA defenses that went to the underlying merits, rather than any irregularity in the sale itself.

In Florida v. Williams, the Third District required prosecutors to disclose the identity of a confidential informant who was the only witness to the defendant's drug sale, despite the state's argument that the testimony of officer's who listened in on a hidden wire obviated the need for disclosure.

In Colby v. Centennial, the Third District rejected the argument that the trial court had lost jurisdiction to enter a damages award by entering a judgment that looked somewhat like a final judgment, but in fact disposed of only one claim in the case, leaving additional judicial labor.

In Godwin v. Michilini, the Second District held that the trial court should not have limited itself to the four corners of the complaint in analyzing a motion to dismiss under Florida's anti-SLAAP statute.

In Certified Motors v. Aventine Hill, the Second District held that a lease renewal option that was silent as to rent must be read to mean that rent will stay the same under the new term.

In Perlman v. Atlas, the Fourth District reversed a trial court, on due process grounds, that had entered a fee clawback order against successor counsel who had never been made a party to the case or participated in the relevant fee proceedings.

In Hirschenson v. Compu-Link, the Third District affirmed reformation of a Lady Bird deed that had mistakenly mixed up the words "grantor" and "grantee" in a way that would have made it nonsensical and would have defeated the apparent purpose of a reverse mortgage transaction of which it was a part.

In Denose v. Garcia, the Third District affirmed a trial court's denial of a motion to extend time to serve a complaint, even though the statute of limitations would bar the claim as a result.

In Ponn v. Metro Express, the Third District reminded us that appellants furnish only a partial transcript at their peril if it doesn't provide a sufficient record for review.

In AT&T Mobility v. Rigney, the Third District upheld a sanctions award against a plaintiff who maintained a "data throttling" claim despite an affidavit proving the plaintiff had never had an unlimited plan. The case includes a helpful distinction between the sanctionability of claims based on incorrect facts and claims not based on a good faith argument on the law.

In Iarussi v. LobbyTools, the First District held that a corporate officer could not recover her fees from her company where it sued her not because of her position, but because of alleged misuse of trade secrets, and where its claim had been voluntarily dismissed without prejudice, rather than adjudicated on the merits.

In Monarch Claims v. Fleming, the First District held that a public insurance adjustor could not enforce a forum selection clause because its contract, which required that it be selected as arbitrator, violated the compensation limitations in Florida's insurance code.

In Fordham v. Georgia, the Eleventh Circuit rejected a claim to claw back restitution payments made by a fraudster who was given a pardon by President Trump.

In American General v. O.H.M., the Eleventh Circuit held that a life insurer had acted reasonably in declining to change beneficiaries where it responded in writing explaining deficiencies in the insured's request, provided a form to correct them, and the insured never responded.

In Ingram v. Warden, the Eleventh Circuit affirmed the conviction of a crack dealer who had kidnapped a client who had failed to pay for his crack, tied him to a bench, poured gasoline on him, and watched for 20 minutes as he burned to death. The defendant had initially agreed to plead guilty and testify against his co-conspirators, but they convinced him to withdraw his plea, telling him "nobody talks, everybody walks." Turned out, no one talked, but no one walked.

In United States v. Gaynor, the Middle District held that fines imposed by the IRS for failure to disclose foreign bank accounts were remedial, not punitive, and therefore did not abate on the death of the taxpayer.

September 5, 2023

In Varesis v. Landry, the Eleventh Circuit upheld a small jury verdict that had been appealed by a college athlete who sought more than half a million in damages after he got knocked-out cold in a brawl between the school's soccer team and its golf team.

In Security Walls v. NLRB, the Eleventh Circuit upheld an administrative ruling that a private security company protecting a NASA facility had unlawfully disciplined and fired a guard for protected labor-related collective action.

In Mashburn v. Alabama DOC, the Eleventh Circuit rejected the habeus conviction of a death row inmate who had brutally stabbed to death his own grandmother and step-grandfather in order to steal a handful of jewelry from their home.

In Zea v. City of Naples, the Middle District refused to dismiss most of an extraordinary case in with a developer sued the city alleging that its mayor had coordinated a city-wide vendetta to drive him out of business.

September 1, 2023

In Mango v. Mango, the Fifth District held that, when a trial court determines that no change of circumstances warrants a modification of alimony, it need not specifically address the factors that would be applied to determine the amount of any modification it could have decided to award.

Editorial note: the facts are curious - a wife who alleged a paycheck-to-paycheck married life that was nonetheless more luxurious than the lifestyle she now maintains for herself, despite a significant increase in income. It's an illustration of Tolstoy's observation that each unhappy family is unhappy in its own inque way.

In Collins v. Florida, the Fifth District held that a trial court may weigh record evidence in deciding to reject a motion for new trial based on recantation of testimony.

In Young v. Florida, the Sixth District held that the trial court erred by failing to conduct an appropriate Richardson hearing where a discovery violation by the prosecution came to light mid-trial, even though the defense did not request a Richardson hearing, but merely sought a mistrial.

In Wyrich v. Florida, the Second District reversed a sentencing decision that improperly relied on uncharged conduct described in the state's Pre-Sentencing Investigation.

In Turner v. Knight, the First District reversed a dismissal, holding that the trial court had gone beyond the four corners of the complaint to find that a parcel was not landlocked because it had a pre-existing easement other than the one it sought to establish.

In In re Watkins, the Eleventh Circuit affirmed the frivolity dismissal of a serial litigant's claim that his First Amendment rights were violated when the police threw him out of the library for calling the librarian a "f@ggot."

Editorial note: this rather unusual fellow seems to make a habit of using this homophobic epithet in public and then filing suit against anyone who calls him out for it. May all of his lawsuit fail until he gives up this antisocial nonsense.

In Commodores v. McClary, the Eleventh Circuit yet again addressed the long-running trademark litigation between former members of the band The Commodores, this time remanding to the trial court to see whether the Supreme Court's recent pronouncement that the Lanham Act cannot reach outside the United States might have fundamentally undercut earlier rulings in the case.

In Taylor v. Department of Highway Safety, the Eleventh Circuit rejected a claim for $3 trillion in damages based on a single letter telling the plaintiff that his driver's license was suspended.

In Adams v. Demopolis City School, the Eleventh Circuit felt constrained to affirm summary judgment for the defendant officials in the tragic case of a fourth grader who died by suicide after being relentlessly bullied by racist classmates. The court simply could not find that the school's ineffective anti-bullying "safety plan" met the "deliberate indifference" and "conscience-shocking" standards applicable to their civil rights claims.

In Krietner v. United States, the Middle District granted summary judgment against a car-crash plaintiff who made a poor tactical decision to try to settle without spending the money on the medical expert testimony legally required to prove causation of her soft tissue injuries.

August 31, 2023

In Jean v. Florida, the Sixth District held that police had illegally searched a locked fanny pack carried on the person of a suspect on a bicycle for whom they had an arrest warrant, because they had removed the fanny pack from the defendant's access and they had not offered evidence to support an inevitable discovery claim.

In Kawsar v. Alhamdi Group, the Fifth District reversed a lost profits award, although the argument had not initially been made in response to a summary judgment motion, holding that it had been preserved by a motion for rehearing, but certifying conflict on the preservation issue.

In O'Neal v. Allstate, the Eleventh Circuit upheld a civil contempt order against a serial abusive litigant whose testimony that he could not pay $6,500 in sanctions was not credible in light of his admitted assets, including a previous $75,000 settlement payment.

In United States v. Taylor, the Eleventh Circuit upheld the conviction of a 74 year-old crossing guard who sought sex from a 13 year-old student he encountered on her route to school.

In United States v. Pastran, the Eleventh Circuit upheld the conviction, the sentence, and computer restrictions included in a lifetime of supervised release against an uncle who had sexually assaulted three of his pre-teen nieces

In Paulk v. Benson, the Eleventh Circuit rejected a false arrest claim by an acquitted criminal defendant who alleged that police should not have relied on the reports of two men he had been in an altercation with and arrested him without hearing his side of the story.

In Nolen v. Fairshare, the Eleventh Circuit rejected an attempt by customers suing their timeshare company to pursue a second amended complaint that the district court had held improperly introduced new issues and theories of liability well after applicable deadlines.

In Bell v. Liberty National, the Eleventh Circuit upheld summary judgment against a hostile work environment claim where the employer took immediate and reasonable remedial measures.

In Payne v. Savannah College of Art and Design, the Eleventh Circuit sent to arbitration the race discrimination claim of a college's head fishing coach.

In Alcindor v. Dejoy, the Middle District granted summary judgment against the employment discrimination claim of a postal worker who repeatedly threatened co-workers, took unpermitted breaks, and failed to disclose when he was arrested for drug possession, instead fraudulently claiming FMLA leave.

Editorial note: this case is a remarkable example of exactly how difficult it can be to fire a federal employee.

August 30, 2023

In Shabtai v. Shabtai, the Third District recused a trial judge who urged settlement on the parties to a family restaurant management suit by telling them he had "never seen" clean business books and vaguely suggesting that failing to settle could land them in hot water with the IRS.

In Zakharova v. Innovative Technologies, the Third District reaffirmed that a trial court has the power to extend a notice of lis pendens even after it has expired.

In M.D.-P v. DCF, the Third District reversed a default judgment against a mother who failed to attend a Zoom hearing, but called her counsel shortly afterward to explain her absence.

In Ross v. Florida, the Fourth District reversed the civil commitment of a schizophrenic who ate dog food, holding that her mental illness alone did not justify commitment in the absence of a showing that she was a danger to herself or others.

In Suzmar v. First National Bank, the Third District dismissed a claim of negligent lending and an unjust enrichment claim based on a bank's charging the accounts of an LLC to obtain repayment of a $5.5 million loan it made to a woman whose claim of control of the LLC was contested by other members.

In 100 Lincoln v. Loancare, the Third District held that the language of the parties' loan documents clearly contemplated an award of default rate "interest on interest."

In US Bank v. Saunders, the Fourth District held that the trial court had exceeded its equitable powers by essentially rewriting the parties' loan modification agreement in the context of a foreclosure action.

In Francois v. JFK Medical, the Fourth District held that the business judgment rule applied to protect an employer from a worker's compensation retaliation claim.

In Reaction Rehab v. Fletcher, the Third District reversed an ultimate sanctions order based on discovery violations where the court's order failed to adequately address the Kozel factors that control such a sanction.

In Prado v. Florida, the Fourth District upheld a sexual battery conviction, holding that the trial court had not erred in allowed child hearsay testimony.

In Feldman v. Citizens, the Fourth District held that a directed verdict should have been entered in the insured's favor on the issue of when the covered loss occurred, which was when the ceiling feel in, even if the fall may have been caused by earlier water intrustion.

In Ward v. Florida, the Fourth District rejected a convict's claim that the trial court was bound by its oral slip-up in saying he was sentenced to 7.875 months, which it then quickly corrected on the record to 7.875 years.

In Red Door v. City of Fort Lauderdale, the Eleventh Circuit reversed summary judgment against the plaintiff's racial discrimination claim, holding that no similarly-situated comparitors were required, because this was not a selective enforcement claim, but a misapplication of the law case.

In Leitgeb v. Sark Wire, the Eleventh Circuit rejected an international civil rights violation claim brought under the Nuremberg Code by an employee who was fired for refusing to take a COVID test and who alleged that President Biden's speeches showed that his private employer had been forced by the government to give him a test that might well result in a chip or virus being impanted up his nose.

In Sos v. State Farm, the Eleventh Circuit rejected an insurer's attempts to prevent certification of a class action by "picking off" plaintiffs with payments on their claims and affirmed both certification and summary judgment for the plaintiffs, but rejected the attorney's fee award for failing to consider the correct market for legal services and using too high a multiplier. 

August 29, 2023

In FTC v. Nat'l Urological Group, the Eleventh Circuit upheld a $40 million contempt award for violating an injunction against false diet pill claims, holding that an intervening Supreme Court decision that would have prevented the original injunction did not affect the court's inherent contempt powers.

In United States v. Wiley, the Eleventh Circuit affirmed a trial court's decision to strike a juror who could not promise to follow the evidence and judge the defendant because of her Jehovah's witness faith.

In DCF v. M.H., the First District reversed denial of a petition to terminate parental rights, holding that actual harm need not be shown where a father's admitted child porn activities and willingness to sell his seven-year old child for sex clearly demonstrated prospective harm.

In Bahmann v. Wells Fargo, the Middle District dismissed an elderly scam victim's claims against her bank, holding that it did not owe her a fiduciary or statutory duty to protect her from third-party scammers.

In Zuniga v. City of Groveland, the Middle District dismissed a barbecue restaurant's claim of selective enforcement of a sign ordinance where it had not alleged that any similarly situated business had actually been treated differently.

August 28, 2023

In United States v. Curtin, the Eleventh Circuit upheld the conviction and sentence of a litigant who repeatedly threatened judges with violence, and a 24-page concurrence from Judge Newsom proposes "a better way of classifying and adjudicating sentencing related challenges" as either substantive or procedural.

In United States v. Wellon, the Eleventh Circuit upheld the revocation of supervised release of a prisoner whose drug trafficking sentence had been commuted by the President in 2019, but who was caught acting as the lookout in an almost farcical shoplifting effort stealing a saw from Home Depot.

In Baker v. JEA, the Eleventh Circuit rejected the racial discrimination claim of a serially insubordinate state employee who refused to revise "job goals" she had set for herself that "were so easily achievable that they amounted to the bare minimum required under [her] job description."

In Davis v. City of Apopka, the Eleventh Circuit affirms a final judgment against the false arrest claims of a man who shot his own son to death after an argument, was acquitted, and then sued the police alleging that they should have taken his self-defense claim at face value and not arrested him, but who asserted that his prosecution was really "driven by a deep-seated, bitter local youth football league and coaching rivalry" between himself and the chief of police.

Editorial note: the opinion gives a seminar on the need for court's to defer to officer's probable cause determinations and then grapples with the slippery question of whether Florida's Stand Your Ground statute has transformed the affirmative defense of self-defense into a positive element of the crime such that police must have positive evidence that the violence was not in self-defense before making an arrest.

August 25, 2023

In Bauerle v. Bauerle, the Fifth District reversed a prevailing party fee award, holding that the split result of the litigation had amounted to a tie, with no prevailing party.

In Harrington v. Kemp, the Second District sent a child support modification case back to the trial court so it would consider not just whether the children's needs had changed, but whether the parents' financial circumstances had changed.

In Johnston v. Fischer, the Fifth District held that certiorari was not available to review a trial court's nonfinal order denying a litigant's motion for final judgment under the Anti-SLAPP statute.

In Smith v. Healy, the Sixth District reversed a default judgment entered against a neighbor in a riparian dispute who had been served by publication.

In Goldstein v. UCF, the Sixth District rejected yet another student's breach of contract claims against a university over its COVID remote learning policies.

In McConico v. Morgan Mill, after ten years of litigation, the Sixth District reversed an injunction requiring a homeowner to mow her lawn, because her homeowner's association had an adequate remedy at law where its governing documents allowed it to mow the lawn and charge her for the work.

In Muhammad v. Jones, the Eleventh Circuit allowed a Religious Land Use and Institutionalized Persons Act claim to proceed where a prisoner claimed that his prison's refusal to provide his meals and medicine during Ramadan before "astronomical twilight" rather than dawn burdened his free exercise of religion.

In United States v. Tala, the Eleventh Circuit affirmed a step-father's conviction in a truly revolting case of child sexual abuse.

In United States v. Larson, the Eleventh Circuit upheld the conviction of a homeless man who police found along the road with stolen record albums and an illegal sawn-off shotgun.

In Sealey v. Warden, the Eleventh Circuit upheld the malice murder conviction of a man who "tortured a woman with a hot fireplace poker and then killed her and her husband with an axe."

In three separate cases involving Best Western, Choice Hotels, and Marriott, the Middle District dismissed claims under the Trafficking Victims Protection Reauthorization Act against national hotel brands, but denied dismissal of the same claims against local franchisees who were alleged to have directly benefitted from and permitted trafficking schemes.

August 24, 2023

In Tomlinson v. Florida, the Florida Supreme Court upheld the extortion conviction of a realtor who had demanded hundreds of thousands of dollars in secret payments in exchange for stopping his pursuit of an administrative complaint that threatened to derail the careers of competing realtors.

In United States v. Jones, the Eleventh Circuit rejected the appeal of a prisoner whose plea agreement contained an appeal waiver but who argued it was not voluntary in light of the sentencing court's statement that it had sentenced to life everyone it had seen convicted on similar child porn charges.

In Travellers v. H.E. Sutton, the Middle District granted summary judgment in favor of an insurer, holding that an exclusion did not render coverage "illusory" by excluding a claim arising out of an equine air transportation company's "aircraft versus tractor trailer accident case."

August 23, 2023

In Eger v. The Judges of the Twelfth Judicial Circuit, the Second District rejected the public defender's fight against an administrative order that allowed judges to modify the conditions of pretrial release for criminal defendants.

In Accident911 Help v. Direct General, the Third District held that a care provider and assignee of insurance benefits had to be permitted to intervene in a coverage action between the accident victim they had treated and her insurer.

In Meyer v. Florida, the Third District held that, although statutes downgrading an offense from felony to misdemeanor are generally applied retroactively, that is not so for defendants sentenced prior to the effective date of the statute.

In Quiceno v. Bedier, the Third District reversed a trial court order that had applied the "best interest of the child" standard to give shared custody to a divorcing husband who had raised the children but not established actual paternity.

In Rosenthal v. Equus, the Fourth District held that a homeowner's association's remedy for conversion of their paving stones was not the $3,000 they paid to replace them, but the $100 they were actually worth.

In Holley v. Erwin-Jenkins, the Second District held that the ex-wife was entitled to back child support from the ex-husband's estate despite years having passed because his unclean hands in falsely telling her he intended to leave a house to their son barred the estate's defense of laches.

In Fision Corp. v. Frueh, the Second District held that a loan agreement's silence on the form of repayment of a loan could not be construed to allow it to be paid back in company stock, rather than legal tender.

In Royal Carribean v. Ooi, the Third District held that a cruise line could not enforce a forum selection clause against injured passengers (who'd been burned by an erupting volcano on an excursion) that had included only its foreign parent company as a party.

In Levy v. Department of Health, the Second District declined to second guess an administrative decision refusing the modify the permanent terms of a settlement agreement that had restricted the practice of a physician's assistant who had been convicted for a pill mill operation in Texas.

In Belkova v. Deer Run, the Fourth District upheld the denial of a continuance to a litigant who had quite obviously engaged in bad faith serial delay.

In Carter v. Commissioner of Social Security, the Middle District held that an administrative law judge had erred in accepting the opinion of a physician who had merely reviewed medical records after the fact over the well-supported opinions of the claimant's long-time treating physicians.

In Fischer v. Rhoden, the Middle District rejected the civil rights action of an elderly prisoner who was handcuffed in the corner of a cafeteria, denied his meal, and racially taunted by officers after refusing to sit in a wet seat.

August 22, 2023

In Brooks v. Miller, the Eleventh Circuit explored the limits of the Scott doctrine, holding that a court may disregard summary judgment testimony that is "utterly discredited" by video evidence, holding that a police dashcam video supported summary judgment for the officer on false arrest and deliberate indifference to medical need claims, but was not sufficient to permit summary judgment on an excessive force count. Judge Jordan filed a concurring opinion with additional discussion of the risk of modern editing software being used to tamper with video evidence.

In United States v. Joins, the Eleventh Circuit held that police had probable cause for a warrantless search of a vehicle parked outside a trailer that they had a warrant to search and in which they had already found a kilo of meth.

In J.I. v. Barrow County School System, the Eleventh Circuit held that overwhelming record evidence showed that the plaintiff was not incapacitated enough to toll the statute of limitations on her Title IX claims against her former school.

August 18, 2023

In O'Neal v. Florida, the Second District affirms a murder conviction in a gruesome and well-publicized intra-family multiple murder. The facts are troubling reading, but, as the court points out: "despite the egregious and inflammatory facts involved in a tragedy such as this case, we must conduct that dispassionate review which our system of law requires..."

In Wiendle v. Wiendle, the Second District held that the ex-husband couldn't pursue punitive damages in a defamation case against his ex-wife over her petition for a domestic violence injunction where he had offered evidence of her malice, but no evidence that her domestic violence allegation wasn't true.

In Tampa v. Fredrick, the Second District allowed an injured cyclist to procede, despite the city's argument that it was immune from liability for decisions made in planning a bike lane between two lanes of auto traffic.

In Hason v. Hason, the Second District gives an erudite lesson in the limits of a trial court's inherent power to craft a remedy for direct civil contempt.

In Allison v. The Grande, the Second District makes clear that a trial de novo after a non-binding arbitration is a new trial of the entire controversy, not some limited appeal from the arbitral order.

In Dunston v. Duston, the Second District castigates a party for challenging their own stipulation on appeal: "based on the evidence before it, the court fully accepted that stipulation. Having stipulated to this reality - both in his answer and at trial - Father cannot backtrack from it on appeal."

In Longman v. Atlantic Coast, the Fifth District sent a lender back to try again. It had obtained a money judgment without foreclosing, then a foreclosure in which it didn't seek a deficiency judgment. When it tried to collect on the money judgment in another state, the court sent it back to Florida to get a deficiency judgment. It got one from the court in the money judgment court, but got reversed on appeal and sent back to file a new action for deficiency because the money judgment court no longer had procedural jurisdiction.

In Florida v. Wallin, the Second District held that officers didn't need to knock and announce where they walked up to a wide-open sliding glass door on a public walkway, saw the defendant toking a bong, and said "hey, Robb, sheriff's office, you've got a warrant."

In Martin v. Quick SpA, the Eleventh Circuit allowed the owner of a 63-foot yacht to pursue the manufacturer that had assured him their gyroscopic stabilizers wouldn't overheat if installed inside the engine room.

In McGraw v. Banko, an elected official was barred by the governor from taking her seat when it turned out she didn't live in her district, despite election officials' earlier assurance that she did; she sought the rarely-seen writ of quo warranto against the governor, but her case became moot when the district was redrawn, she fell within it, and she won election again.

In Vazquez-Klecha v. Bickerstaff, a fellow took a rifle shot at the truck of his sister and her boyfriend and the boyfriend killed him with his 9mm pistol. Somehow, the trial court granted summary judgment to the sister on a negligence claim, decided a trial was needed for the boyfriend, then certified this as a partial final judgment for immediate appeal. The Eleventh Circuit sent it back for trial on jurisdictional grounds without addressing the merits of the summary judgment.

In Grupo Unidos v. Autoridad, the Eleventh Circuit refused to set aside, on the basis of alleged non-discloure of potential conflicts by arbitrators, a multi-billion dollar arbitral award arising out of reconstruction delays on the Panama Canal where the appellant "presented nothing that comes near the high threshold required for vacatur."

The prisoner sues for nominal damages for a civil rights violation because he was served a peanut butter and jelly sandwich after telling someone (maybe or maybe not one of the defendants) that he was allergic. The Middle District allows this one in Martinson v. Petrillo.

"Imagine the following" begins the Middle District opinion in Raithatha v. Bahama Bay, "you are out for a leisurely stroll...instead of going around the pressure washer through the parking lot or changing the course of your stroll, you walk straight through the hoses and cones, tripping." The court grants summary judgment before finally explaining the inexplicable with its observation that the plaintiffs are "residents of London, England." (Pictures! The opinion has pictures of the scene!).

In Turner v. Wright, it looks like the lawyer accidentally filed a state court complaint in the Middle District, which promptly bounced it. Oops.

August 17, 2023

In United States v. Gladden, the Eleventh Circuit spins us the tale of a fraudulent compounding pharmacy that filled prescriptions to its own employees for "as much as $20,000 for a single tube of compounded cream."

In United States v. 84Partners, LLC, the Eleventh Circuit affirmed the dismissal of a qui tam action brought by a welder who had himself participated in a scheme to supply defectively welded fittings for use on nuclear submarines - the claim failed because he couldn't allege that a request for payment had ever actually been presented for a defective fitting.

In Williamson v. Alabama Department of Mental Health and Mental Retardation (ed.: yes, it is actually called that), the Eleventh Circuit rejected First Amendment claims from a security employee who violated the department policy against political activity

In United States v. Bird, the Eleventh Circuit upheld the structuring conviction of a doctor who ran a pill mill and then invested his profits in real estate, which he attempted to pay for using 38 separate cash deposits under $10,000 each. At one point, a lawyer whose trust account he was depositing into specifically told him to stop and reported the deposits (good on him).

In Kova v. Sabin, the Middle District refused an ex parte temporary injunction against a departed broker setting up shop using his former employer's trade secrets, holding that there hadn't been a showing of why notice to the other side was impracticable.

In Southern-Owners Insurance v. Meares Plumbing, the Middle District held that an insurer's mold injury exclusion excused it from defending its insured in a suit that alleged only mold injury.

In Chambliss v. Brevard County Sheriff's Office, the Middle District declined to dismiss an excessive force claim by a fellow who "wiggled" away from an officer's attempt to reach into his pockets and was thrown to the ground and hit in the back of the head with the officer's prosthetic limb for his trouble. (There are even pictures in the opinion!).

Burton v. Espino is the rare prisoner's medical deliberate indifference claim that gets by a motion to dismiss - after officers beat the prisoner, the medical staff repeatedly refused treatment, saying "Think about that next time you write a grievance, get out of here!"

August 16, 2023

In United States v. Caldwell, the Eleventh Circuit tells the captivating story of a crime spree and criminal prosecution of the members of a nationwide gang known as the "Gangster Disciples," including a series of robberies and murders green-lit by Donald "Smurf" Glass, who led the "Hate Committee" of enforcers for the Georgia "deck" of the well-organized gang. The Eleventh Circuit held, among other things, that the trial court was well within its discretion rejecting the defendants' request to show the jury venire a video on implicit racial bias that had been produced by a federal court in Washington state.

In Odyessey Mfg. v. Olin Corp., the Middle District entered a temporary injunction requiring a bleach manufacturer to supply the promised quantities to a supplier for municipal water treatment plants. The manufacturer appeared to be trying to short the supplier in favor of higher paying customers to maximize its profits, despite the likelihood that its action might result in "boil water" orders across the state.

In Sims v. BMW, the Middle District offers a 29-page master class in personal jurisdiction in holding that Florida's long-arm statute reaches BMW's German parent company in a case where a Takata airbag "shot metal shrapnel into [plaintiff's] face and body." An important jurisdictional contact turned out to be "that BMW AG's Chairman of the Board of Management personally advertised the company's products at a prominent sports car racing events in Florida by waving a green flag to start a racing event."

In Normandy Insurance v. Bouayad, the First District reversed a worker's compensation award to a rental car clerk who was shot on the job because he failed, in light of evidence that a personal dispute might have triggered the shooting, to carry his burden to show the injury was causally related to work. Judge Kelsey delivered a blistering 14-page dissent arguing that it would "defeat the purpose of the workers' compensation statutes" to "shit the question of work-relatedness to a third-party assailant's motive and intent."

In Whitlow v. Tallahassee Memorial, the First District affirmed summary judgment against a slip and fall plaintiff, but not before delivering an absolute seminar on the history of the relationship between the constitutional right to a jury trial and procedural mechanisms like summary judgment.

In Haskin v. Haskin, a majority and dissenting opinion spar over the meaning of a 1969 divorce settlement agreement, with the Third District ultimately holding that it forbade a father from ever disinheriting the children of his first marriage.

In HNTB v. Milstead, the Third District held that a private company retained to help the DOT pick up traffic cones at a work site could not be held liable for negligent supervision in a case where a worker fell off the tailgate of a pickup truck, hit his head and died.

In People's Trust v. Banks, the Third District held that rust and age that caused pipes to burst were forces of nature within the meaning and coverage of an insurance policy.

In Young v. Kopchak, the Fourth District reversed summary judgment and teed up for trial a defamation claim brought by a funeral director over Facebook posts alleging he was fired for being unprofessional.

In Long v. Kropke, the Fourth District held that allegations that a person made a habit of driving fast through the neighborhood wasn't sufficient to support a punitive damages claim after they got into an accident.

In Sentry v. Captiva Lakes, the Third District held that the trial court exceeded its jurisdiction by denying agreed-upon fees to an insured's public adjustor in proceedings the adjustor had long been excluded from.

In Cordero v. Cordero, the Third District held that a party's lawyer who was also a witness had to be disqualified as trial counsel, but could otherwise participate in the proceeding.

In Hakim v. Hakim, the Third District upheld a trial court order that the husband produce his mental health records because he had affirmatively requested relief based on his mental health.

August 15, 2023

In United States v. Grant, the Eleventh Circuit upheld the 21-year prison sentence of a felon convicted of possessing fifteen boxes of AK-47 ammunition, which was found in a black backpack officers had seen the defendant carrying in a closet he admitted was his alone, and even his wife wouldn't testify the bullets were hers.

In Laufer v. Arpan, LLC, the Eleventh Circuit tartly rebuked the parties for not informing the court that the case had become moot 15 months before it had issued its earlier decision: "We aren't happy about being left in the dark for so long; we expect more from litigants and, in particular, their lawyers."

In Wiand v. Adamek, the Middle District granted summary judgment to the receiver in an action to claw back profits from the insiders of a Ponzi scheme

Editorial note: Burt Wiand has acted as receiver in so many of these actions that the court's opinion cites two unrelated decisions with his named in the case styles. This is never a good omen if you are a defendant.

In Bell v. Progressive, the Middle District denied an insurer's motion for summary judgment in a bad faith claim where medical records showed surgery would likely be necessary, but the carrier offered less than $13,000 to resolve the claim and didn't make another offer, despite invitations from the injured parties' counsel to do so, until well after their policy limits offer was off the table.

In Sweet v. Muniz, the Middle District dismissed a claim by prisoners against the chief justice of the Florida Supreme Court alleging negligent supervision of defense counsel provided under the Capital Collateral Regional Counsel program.

August 14, 2023

In Doe v. Rollins, the Eleventh Circuit upheld a trial verdict against a student who alleged that the college had discriminated against him because of his gender in investigating a sexual misconduct claim against him by another student. Much of the court's interesting and detailed discussion focused on the trial court's decision to exclude the testimony of a history professor who the plaintiff wanted to testify that the school's procedures evidenced bias based on comparing them with a lot of other cases he had read about.

In Emergency Recovery, Inc. v. Hufnagle, the Eleventh Circuit held that the district court had not erred or defied its earlier mandate when it ruled that the plaintiff could have a voluntary dismissal in the face of summary judgment and would be liable for fees and costs only in the event it later refiled the case.

In Granzoti v. SEC, the Eleventh Circuit held that the SEC must only give a reward to a whistleblower whose tip actually leads to an enforcement action, not anyone whose tip could have.

In Rodriguez v. United States, the Eleventh Circuit rejected a prisoner's ineffective assistance claim, detailing the record and repeatedly complementing counsel's performance in attempting to defend a pretty hopeless drug trafficking case.

In Willis v. Royal Caribbean, the Eleventh Circuit affirmed summary judgment in favor of a cruise line, holding that a plaintiff's non-readily observable neck injury required expert medical testimony on causation in order to proceed.

August 11, 2023

If you're on probation as a sex offender, your probation order can properly forbid you from dressing up as Santa Claus, the Easter Bunny, or a clown and offering candy to children (what the heck did this guy do?), but that doesn't allow your probation officer to forbid you from wearing a "devil" Halloween costume at a work party for adults.  Wells v. Florida.

In DJB Rentals v. Largo, a property owner was fined more than half a million dollars over code violations. Nevertheless, he waived his as-applied constitutional excessive fines claim by not pressing it when the fines were imposed, as opposed to when the city later sought to foreclose the lien.

In Cook v. Florida Peninsula Insurance, the Fifth District allowed a punitive damages claim where the insurer omitted critical policy language from its denial letter, then continued to rely on the tainted coverage position throughout litigation.

In St. Johns v. Cece, the Fifth District held that an HOA could not seek a permitting do-over after it based its case on reports describing the water management system that should have been built, rather than the system that actually had been built.

In Jada v. Harrison, the Fifth District reminds trial judges that, even though a recusal motion may be unfounded, commenting on its merits in a denial order creates independent grounds for recusal.

In Thomas v. St. Vincent's, the Fifth District reversed a trial court's dismissal of a "typical slip and fall" case that treated it instead as a medical malpractice case that had not gone through pre-suit requirements.

In Beckford v. Beckford, the Second District reminds us that no one who has been convicted of a felony can be appointed as a guardian in state court.

In Jones v. Vitazen Botanicals, the Eleventh Circuit holds that a trademark license unpoliced can ripen into a naked license and trademark abandonment.

United States v. Weaver tells the awful story of a schizophrenic teenager being pistol-whipped by her mother's abusive boyfriend.

The Eleventh Circuit's opinion in United States v. Moore turns a story of criminal domestic abuse into a learning opportunity with footnote 2: "The transcript records that the testimony was that Moore had said 'hoe,' but we doubt that the proclivity he had expressed was for assaulting a particular type of garden tool. Hoe appears to be an alternative spelling of the derogatory and misogynistic term 'ho.'"

Wyatt v. Nocco rejects a prisoner's constitutional claims based on "moldy food" served on "dirty trays from a 'cockroach infested kitchen'" because it "fails to allege conduct that is both widespread and more than gross negligence."

Editorial note: get it? "Gross" negligence?

August 10, 2023

The Eleventh Circuit bounced a putative class action against Robinhood over meme stocks in In re January 2021 Short Squeeze Trading Litigation.

August 9, 2023

In DOH v. Leafly, the First District says that marijuana dispensaries can continue to use an online ordering platform.

In Malone v. Malone, one spouse's report to the Air Force that the other spouse was abusive could not support a domestic violence injunction.

In Citizens v. James, the Third District reversed a prejudgment interest award where the carrier did not deny the claim and paid policy benefits, such that suit wasn't necessary.

In Rodriguez v. Responsive Auto, the Third District once again reminds Floridian's that they're bound by their contracts, even when they don't read or understand them.

In Mawardi v. Cohen, the Fourth District held that the family that leant its neighbors hundreds of thousands to save them from ruin had not undertaken a fiduciary duty in so doing.

In Geico v. Stein, the Fourth District held that an insurer's due process rights had been violated when it was lead to believe that it did not need to participate in collateral proceedings in order to protect itself from a fee award.

August 8, 2023

In Christmas v. Nabors, the Eleventh Circuit holds that the mere possibility of prison officials requiring a prisoner's legal mail to be scanned into a device with a memory chip is a sufficient chill on free speech to implicate the First Amendment.

August 7, 2023

In Clowdus v. American Airlines, it sounds like the flight attendant was being unnecessarily dramatic in accusing an inattentive passenger ("you hit me!") and refusing to fly until the passenger was removed from the plane. Nevertheless, the Eleventh Circuit allows the passenger no recovery of airline miles and no defamation claim.

August 4, 2023

In Bainbridge v. Governor, the Eleventh Circuit holds that a Florida agency can't, without explicit rule making, flip flop yet again on whether out-of-state alcohol shipment regulations apply only to vintners or also to liquor distributors.

In Cedant v. United States, the Eleventh Circuit distinguishes between experts retained for the purpose of testifying (who must make more extensive discovery disclosures under the civil rules) from experts who encountered the case as fact witnesses (like treating physicians), who need only make less extensive disclosures unless the trial court chooses to require more.

In Simpson v. Florida, Judge Soud offers a rousing 44-page concurrence explaining why "proper constitutional analysis can only legitimately be founded upon the firmest of bedrock - a vast foundation of immovable and unchanging stone that is hewn only by the text of the Constitution itself."

In Dessberg v. Sarasota Harbor, the Second District scolded a lawyer who had sought a default even though they knew the other side was represented and intended to defend the case.

In Moore v. Wagner, the Second District reversed summary judgment in a lease dispute because whether the lease had been presented was a fact issue for trial.

August 2, 2023

In Skanska v. Bagelheads, Inc., the Eleventh Circuit applies the creaky, ancient, and ill-designed maritime Limitation Act to the destruction of the Pensacola Bridge by 28 break-away construction barges during Hurricane Sally.

In Bartholomew v. Stephanie, the First District says that a colorful neighbor feud doesn't justify a stalking injunction.

In Bydalek v. Saenze, the buyer was allowed to cancel its contract without penalty, even though the date for closing had past, because it hadn't been timely provided with condominium documents.

In Manheimer v. FP&L, the Third District held that a punitive damages claim couldn't be premised on a power company learning that a deep underground line had accidentally crossed outside its easement and not immediately moving the line.

In Inspired Capital, LLC v. Howell, the Third District reminds us that we get one shot to prove damages.

In Dobal v. Villas at South Beach, the Third District held that retaliatory bad faith conduct can support an individual claim against condo association board members.

You will never find good cause for a DUI investigation after a speeding stop described as well as the Fourth District does in Florida v. Velasco.

In Rhythm & Hues v. Nature's Lawn Care, the Fourth District holds that, although an express contract usually bars an implied contract claim, that is not so where a subcontractor agrees directly with an owner for "extras."

Tendering policy limits before suit saved an insurer from a fee award in Citizens v. Vazquez, from the Fourth District.

In Scott v. Florida, the Fourth District concludes that Florida's state constitution does not offer more free speech protection than the First Amendment.

July 31, 2023

Read this case if you want a nice, warm, fuzzy feeling about how a good, conscientious lawyer can come to be really seen and appreciated by a very human judge. Freeman v. Social Sec. (MD).

Held that a boat mechanic on a cocaine drug run doesn't get a sentence reduction for being a minor participant. The lesson: always push for the biggest cut. US v. Osuna-Osorio (11th).

Tells the story of the government changing its mind and taking over a qui tam action against a convicted medical fraudster. US v. Carver (11th).

For purposes of sentencing enhancement, possession of a precursor chemical, even "with reasonable cause to believe it will be used to manufacture, is not itself 'manufacturing.'" US v. Miles (11th). 

Grants a Florida prisoner a religious exemption to grow his beard longer than a half inch. Sims v. DOC (11th).

In yet another student action against a school over their covid remote-learning evolution, this case affirms summary judgment in the school's favor. Dixon v. U Miami (11th).

Strong medical indifference claim against prison, but dismissed as to warden because of careful written response.  Murray v. Carlton (MD).

Annoyed federal judge: "The upshot of his pleading is that I mistakenly pinned the dates of two diagnoses, but he doesn't say how that conceiveably changes the result." Claimant: "the Social Security system if hopelessly flawed and plagued with fraud." Clements v. Social Sec. (MD).

Open and shut final money judgment and injunction in theft of copyrighted photograph case. Prepared Food Photos v. Life Renu (MD).

State public policy and unconscionability aren't a defense to compelling international arbitration. Dak v. Independent (MD).

If there's a valid breach of policy claim, there's no need to dismiss a declaratory judgment count for redundancy. United Church v. Lexington Insurance (MD).

Balancing the equities when deciding not to seize and sell UCC collateral pre-judgment. Chase v. Inova (MD).

July 28, 2023

Administrative Order No. 2023-022 on service and comfort animals in Pinellas and Pasco Courts.

Just before serving a subpoena on him, officers see the suspect give his phone to his lawyers, who stash it and are arrested. This one is a good example of a qualified immunity analysis that I think most Americans would have no problem with. Garcia v. Casey, 11th.

Jury could find white creamy liquid the size of a dinner plate leaked from a cooler, so it's gotta go to trial. If you have photographs authenticated by an employee whose deposition testimony says she's sure the liquid came from the cooler, you're going to get the trial. Gonzalez v. Wal-Mart 11th.

Ain't passed the bar, but I know a little bit. Educators could use this one to explain to Americans what their rights are when they're confronted by police. Head v. Bernard, MD.

Burden of proof for FMLA interference. Herren v. La Petite Academy, 11th.

Law on striking affirmative defenses. Local Access v. Peerless, MD.

No stay of wage claim against supervisors just because the employer files bankruptcy. Sawicki v. Hyde Park Cafe, MD.

Ineffective assistance of counsel in communicating a mid-trial plea. Washington v. Alabama, 11th.

Primer on sex offenses and probation law. De la Rosa v. Florida, 2d DCA.

July 27, 2023

In re Code for Resolving Professionalism Referrals, FSC. Lawyers should share a lot of this information with their clients right at the beginning of an engagement so they know what to expect from their attorney and how to behave in court.

Reversing termination of prisoner's parental rights. CF Father of BF v DCF, 5th DCA.

Video of furtive movements, officers shoot the suspect, turns out to be a gun in the bag. English v. Gainesville, 11th.

Trade secrets case affirming plaintiff's verdict. Highland Consulting Group v. Soule, 11th. 

Pro se litigant accuses Inspector General of "nonchalant attitude."  Joseph v. IG, MD.

July 26, 2023

The Eleventh Circuit gives us an example of a case of "f around and find out" in Blake v. Orange County Sheriff's Office. Blake lost his excessive force claim against four officers on summary judgment. Apparently, after arresting Blake for armed robbery and transporting him to questioning, he "urinated in the corner of the room, acted rude and belligerent" started "leaning into officers' faces while yelling and swinging his elbows," and ultimated told offers "you gonna have to use your gun tonight." So they dragged him out of the room by his feed and secured his legs with "hobbles," whereupon they ceased using force. All of this was on video. Summary judgment affirmed.

The lesson of the reversal of summary judgment and remand for trial in Carter v. Blue House is that, if your entire case revolves around a dispute over whether the contractor did or did not actually build the wall and dumpster, it might be good to submit some basic photographs showing whether the wall and dumpster are or are not built.

If you "waive" your right to court-appointed counsel in a parental rights case, the waiver has to be knowing and voluntary. But if you "forfeit" your right, it can be against your will. That's what happened in the Fourth District case KR v. DCF, when the client became "extremely aggressive" would "get up in [counsel's] face" and say "I'm not going to do anything you tell me to do because I don't have to."

In Goulding v. Goulding, the Second District reversed a family court order's award of attorney's fees where the trial court entered, almost verbatim, a husband's proposed order containing numerous factual, legal, and mathematical errors. But, in the category of "what in the world is going on here?" - the court was troubled by the fact that the trial judge's only apparent contribution to the proposed order was to add the statement, unsupported by any evidence, that wife was now "living with her paramour."

Editorial note: what in the world was going on here? 

In 701 Palafaox, LLC v. Scuba Shack, Inc., the First District held that the plaintiff could not base a punitive damages claim on a neighboring construction project's knowledge that driving its pilings might caused damage to plaintiff's property.

The Third District, in Shoma v. Gables, gives a seminar on the difference between a shareholder's direct and derivative actions under Delaware corporate law.

Narvaez confessed to killing his girlfriend and was convicted. In Narvaez v. Florida, the Third District denies him post-trial DNA testing of the knife because there is no way that the testing could result in reversal of his conviction.

In Kyte v. Discover Bank, the defendant discovered that, following voluntary dismissal of its collection action, the cardholder was entitled to recover costs and attorney's fees under the company's purportedly one-way fee shifting provision.

Editorial note: Florida law that automatically converts these unfair provisions into mutual fee shifting provisions, on a "good for the goose, good for the gander" public policy basis, is truly a beautiful thing.

In a paternity suit, the mother demonstrated the child's basic needs cost $700 per month, and the father's income was about $74,000 per month. For some reason, though, the trial court awarded far less than child support guidelines based on the modest actual needs of the child. The Second District, in TTL v. FAL, reversed because the modest means of a custodial parent, which necessarily result in lower spending on the child, cannot justify departing from the guidelines because the other parent is wealthy. Moreover, the "father's choice not to participate in the child's life does not support a reduction in his child support obligation."

The Third District reminds us that, although there must be at least some corroboration, hearsay is admissible in a revocation proceeding, to prove a probation violation. Gallardo v. Florida.

In Murphy v. Florida, the Second District held that a trial court's own opinion on the likelihood of rehabilitation cannot overcome unrebutted expert testimony that a juvenile has, in fact, been rehabilitated.

In RR Restoration v. Empire Indemnity, the Middle District ruled that an insured was still entitled to try to prove its "actual cash value" claim, even though its failure to actually complete repairs barred its "replacement cost value" claim.

July 25, 2023

The Eleventh Circuit opens its opinion in Finch v. EMI with a line good enough to open a novel: "There's a lot of history to this case, but only a small part of it matters." In this copyright dispute between songwriters, only the missed statute of limitations mattered.

In Sabal Trail v. 3.921 Acres of Land, the Eleventh Circuit follows, as it must, a recent prior panel decision holding that, where a federal statute delegates Fifth Amendment eminent domain powers to a private actor, the rule of decision for recovering attorney's fees nonetheless comes from state law. Judge Grant concurs in the result, because the prior panel decision is binding under court rules, but nonetheless writes an opinion cogently explaining why the prior panel got it wrong.

Editorial note: I'm no expert on this, but the concurrence persuaded me. 

There are judicial opinions that give me pride in the rule of law because they demonstrate our courts responding to even the most frivolous and vexatious litigants with calm, patient, objective consideration far beyond what they could expect from many other governments. Two of these are today's opinions in Daker v. Almond, where the Eleventh Circuit denies a vexatious prisoner litigants claim that court reporters violated his Constitutional rights by not sending him the original tape recordings of his trial; and Pluvoise v. PHH Mortgage, in which the Middle District gives its second kind lesson in federal pleading, and a chance at a third amendment, to a fellow who wants the federal court to stop his mortgage lender's state foreclosure, cancel the debt, give him a free house, and $2 million in damages to boot.

In Davis v. Orange County, the Middle District dismisses the complaint of a fireman who alleged retaliatory termination resulting from his refusal of a direct order that he issue warnings to other firefighters about compliance with the department's Covid policy.

July 24, 2023

DCF v. J.J., from the Fifth District, tells the story of a remarkable family law case in which the trial judge questioned child witnesses but refused to accept their answers as evidence, then "conducted Father's entire direct examination and rested Father's case, thereby essentially acting as his attorney." Needless to say, the trial court's order was reversed and the case sent back to a different judge.

In Drazen v. Pinto, the Eleventh Circuit holds that receiving a single text message violating the TCPA creates a sufficiently concrete injury to confer standing on a class action plaintiff.

Editorial note: this issue is likely to generate conflict between circuits and, ultimately, a very interesting Supreme Court opinion that will be critically important to consumer advocates and class actions lawyers on both sides of the v.

If you read nothing else today, read Judge Carlos Mendoza's order to show cause as to why attorney Roderick Ford should not be sanctioned for unprofessional conduct. Aside from a nice collection of quotes and citations on various professionalism issues, it has a roundup of almost unbelievable quotes from Ford's own writings. But one: the court's denial of his motion would "effectuate a ‘badge or incident of slavery.’" Rembert v. Dunmar Estates.

In O'Shea v. OMI Holdings, the Eleventh Circuit affirmed dismissal of a fired executive's claim that his "phantom stock" compensation package should have entitled him to actual ownership of part of the company, when "even a cursory inquiry via internet search would have tipped off O'Shea that phantom stock is (like its name sounds) not actual stock and the employment agreement didn't offer him ownership." 

In Stutler v. Coca-Cola, the Eleventh Circuit reversed summary judgment, holding that the slip-and-fall victim had produced sufficient evidence to create a fact issue as to whether the puddle she slipped on in Target had leaked from a Coke display cooler.

In Rush v. Meininger, an appeal from bankruptcy court, the Middle District held that the appellant did not have standing to sue the bankruptcy trustee.

The Middle District rejected a prisoner's request for a restraining order to get him transferred to a prison psych ward because of his mental health caused him to "cut himself... severely 25 times." Lamm v. Dixon.

In Collaboration v. Hertz, the Middle District denied a motion to dismiss a counterclaim alleging that a computer consultant bungled its work so badly that 80% of the code had to be re-written.

The Middle District affirmed the Social Security Administrations conclusion that a claimant could still perform light work despite "obesity, fibromyalgia, rheumatoid arthritis, degenerative disc disease of the lumbar and cervical spine, neuropathy, tendonitis, and major depressive disorder." Giles v. Commissioner of Social Security.

July 21, 2023

Taylor v. Nicholson-Williams, Inc., tells a story of deceit by a developer and real estate brokers as good as anything in Glengary Glenross. Read it for the facts alone. In the opinion, the Fifth District reverses a defense summary judgment, holding that the oral representations clause in the contract did not bind the brokers who did not sign it, and that statutory fair dealing duties applied to the brokers even though it was a commercial transaction.

In Crocker v. Crocker, the Fifth District held that a husband's disability benefits were non-marital assets, despite some language characterizing them as retirement benefits.

The Sixth District reversed a defense summary judgment in RX Imaging v. Irving Radiology, finding an issue of fact for trial as to whether the parties had modified their written contract.

In Environmental Protection Commission of Hillsborough County v. Mercedez, the Eleventh Circuit affirmed dismissal of the county's suit over post-sale software updates to deisel emission's control systems, because the complaint failed to allege facts plausibly showing that the updates themselves constituted "tampering" under the applicable code.

The Eleventh Circuit allowed a union president to pursue claims against the employer who fired him for not clocking out while attending a telephonic hearing on another employee's case. Lhoist v. NLRB.

"Cates was unhappy that CoolSculpting maximized the fat he wanted to minimize." Nevertheless, the Eleventh Circuit affirmed dismissal of his claims because the device warnings were adequate and the device was not defective. Cates v. Zeltiq.

July 20, 2023

The sheriff's policy of holding DUI suspects for eight hours even after a breathalyzer objectively clears them violates the law; nevertheless, the trial court violated the law by not following the Eleventh Circuit's mandate directing a trial (not a second summary judgment) on remand, and by issuing an injunction without notice that this relief would be considered at the hearing. Barnett v. Macarthur.

United States v. Fike tells the disturbing story of a prisoner whose mental illness caused the delusion that a teenager on the internet was in love with him, whereupon he sent her obscene materials in the mail - here, the Eleventh Circuit affirmed an order revoking his supervised release and sending him back to prison based on drug use that could interfere with his mental health medications.

In United States v. Felipe, the Eleventh Circuit confirmed that a person who allows their name to be used as a front in a Medicare fraud scheme may be entitled to a downward adjustment in sentencing for having a "minor role" in the scheme.

Melendez v. Dixon is a 63-page Middle District order granting in part some of the defendants' motions for summary judgment in a case brought by a prisoner who was held in solitary confinement for a very long time indeed.

In Pop v. Lulifama.com, the Middle District dismissed a class action complaint that alleged an overpriced swimwear company had illegally advertised its products by paying Instagram influencers to pretend to give them positive organic reviews.

In Lingard v. Holiday Inn Club, the Middle District dismissed parts of a class action complaint alleging that a timeshare financing company unlawfully markets to young military servicemembers.

July 19, 2023

In a scholarly and closely-reasoned opinion, the First District held that a neighborhood deed covenant forbidding parking on a street that had been dedicated in fee simple to the public, did not run with the land to bind a successor owner because it did not "touch and involve" the land, using the newer phrase emphasized in the significant decision in the Hayslip case. Huck v. Kenmare Commons Homes.

A commercial tenant sought to exercise its right of first refusal, but the landlord wouldn't tell it the terms of its contract with the third-party purchaser. As a result, the Fourth District held, in The Blind Monk, LLC v. USO Norge Whitney, LLC, the tenant did not have to prove that it was ready, willing, and able to perform on the same terms.

In Hyatt v. Zimmerman, after a final divorce judgment, the husband identified a previously undiscovered trust, with the wife as sole beneficiary, that held mortgages on the marital home. The Fourth District held that, even though the trial court did not have personal jurisdiction over the trustee, it had authority to order the wife to terminate the trust and satisfy the mortgages.

When Jesse Cruz was a 15 year-old gang member, he and a 19 year-old accomplice lured a "snitch" into an orange grove and beat and stabbed him to death. Florida Statutes give a juvenile the right to apply for re-sentencing after serving 25 years. The trial court denied Cruz's petition, giving "great weight" to the fact that Cruz's 19 year-old accomplice would never have an opportunity to have his life sentence reduced. The Second District reversed, holding that the statute doesn't permit that factor to be considered at all, because the statute focuses on the offender's progress, not an accomplice's situation. Cruz v. Florida

In Universal Property v. Gonzalez-Perez, the Third District reversed a verdict and held that a homeowner's policy that covered only the insured's "residence" did not cover the property once it was rented out.

In O'Brien v. Florida, the Fourth District opens with "this appeal turns on one word: preservation." Every lawyer should re-read this case before every jury trial to remind them how not to fail to preserve three separate issues for appeal.

The petitioner wanted parole after breaking into a residence near the University of Miami, then "repeatedly sexually battered the two victims at knifepoint, forced them to perform sexual acts upon one another, threatened to kill them, and then robbed them." The First District says no. Swain v. Florida Commission on Offender Review.

In Cioffi v. Mikowitz, the Fourth District affirmed summary judgment against a defamation claim based on a report to police, where there was no evidence that the statements were both false and made with express malice, as required to overcome the qualified privilege for such reports.

The Middle District dismissed a racial discrimination in employment claim in Beard v. Thousand Trails, because the plaintiff's administrative complaint to the EEOC had never mentioned race as the basis for the alleged retaliation.

If you ever need an outline of the standards applied to a motion to recuse a federal trial court judge, look to the Middle District opinion in Saito v. Lewis.

July 18, 2023

The Middle District declined to dismiss a sexual harassment complaint arising out of the public defender's office in Riddle v. Butterfield, because the repeated vulgar remarks based on sex and race, physical touching, and delayed remedial action, sufficed to state a claim.

In Helm v. Duval County School Board, the Middle District granted judgment on the pleadings to the defendant in a putative class action over school mask mandates, because a section 1983 civil rights claim cannot be used to vindicate state constitutional rights.

July 17, 2023

In Green v. Finkelstein, a candidate for public defender spoke out against her boss, the current public defender, and was fired in response, but the Eleventh Circuit held that the candidate could not maintain a First Amendment retaliation claim because the criticisms were likely to frustrate the employer's mission.

D'Anna got a $2 million Connecticut judgment against her ex-boyfriend after he gave her a laptop stuffed with spyware, but a GPS tracker in her car, and set up cameras to surveil her bed and shower. In Welsh v. Martinez, the Middle District concludes that a Connecticut contempt order stemming from his efforts to evade the judgment is entitled to full faith and credit as a final order, despite the fact that a Connecticut court could still modify it.

July 14, 2023

In Marlowe v. St. Augustine, the Fifth District engages with a fascinating riparian rights case where the parties traced ownership of waterfront property all the way back to Spanish land grants prior to the United States's acquisition of Florida, holding that a private owner could dispute ownership against the city and could dispute riparian rights with a non-abutting neighbor.

The Fifth District held, in Micalleff v. Florida, that the trial court denied an attorney due process by failing to hear her explanation before holding her in direct criminal contempt for repeated lateness at proceedings.

At the time Guzman appealed his conviction, his appellate counsel failed to make an argument that would have resulted in reversal under the law as it stood at that time. But since then, the law changed. The Eleventh Circuit holds that Guzman cannot obtain habeas relief now, because his ineffective assistance of counsel claim is measured by the law as it stands now - a sort of incorporation of harmless error analysis. Guzman v. Dept of Corrections.

In Larry v. City of Mobile, the Eleventh Circuit affirmed summary judgment and held that the trial court was within its discretion to exclude a witness statement that the plaintiff had failed to timely disclose.

In Taylor v. Leadpoint, the Middle District held that a call from a telemarketers counts as a solicitation under the Telephone Consumer Protection Act even if the consumer doesn't answer the call.

July 13, 2023

In Williams v. Williams, the Fifth District held that, where a husband had answered a divorce petition and admitted the marriage was irretrievably broken prior to being adjudicated completely incapacitated, the trial court should vacate its stay of the divorce proceeding and allow the wife to seek alimony.

When the opinion opens with "defendant Edward Walker, a pimp, transported three women from Connecticut to Miami, Florida for his prostition business..." you get the feeling the conviction will be affirmed. Sure enough, the Eleventh Circuit gives us United States v. Walker.

In Continental Casualty v. Winder Laboratories, the Eleventh Circuit held, under Georgia law, that a reservation of rights letter could not create a right to claw back fees where the policy itself did not include such a right.

Shots rang out at a gathering, police chased a suspect, shot an innocent bystander instead, then cuffed the innocent bystander to his hospital bed. The Middle District denied the city's motion to dismiss the bystander's false imprisonment claim. Reed v. Echevarria.

July 12, 2023

In VBK Santoshi v. Chicago Title, the Second District affirmed summary judgment for a title insurer under the "no loss" provision of its policy where the city had nullified the signage lease that was alleged to constitute a title defect.

The Fourth District would have affirmed denial of the motion to recuse the trial judge in Manuel v. Estate of Lapulapu, if the judge hadn't chosen to write a lengthy order to refute the motion's allegations. The court certified the question: to what extent can a trial judge write using the narrow "clarifying the record" exception in this circumstance?

In Progressive v. Lloyd's, the Second District denied cert because the trial judge had conducted in camera review, made the necessary findings, and used a confidentiality order before requiring disclosure of trade secrets in discovery.

The Second District held that the local action rule did not apply to a construction dispute that sought only a fixed sum in damages and a declaration about a subcontractor's lien rights, but did not seek imposition of the lien itself. Schultz v. Icon.

In B.P. v. DCF, the Second District reversed denial of a reunification motion because the trial court failed to make the necessary findings of fact.

The Fourth District, in Evans v. Diaz, reversed an order finding a settlement had been reached where there was no evidence the client had actually authorized the lawyer to settle.

In Benitez v. Lawson, the Third District affirmed a defense summary judgment in a negligence case against a shipper, where the customer had taken over handling of the shipment before it injured a worker.

The Second District rejected a borrower's assertion that a lender had not sufficiently proven assignment of a note and mortgage in Warren v. HMC.

In Wheeler v. Fort Lauderdale, the Fourth District reversed a trial judgment, holding that a whistleblower had failed to provide the written, signed complaint required by the statute.

The Fourth District rejected an entrapment defense by a cocaine trafficker who alleged that a confidential informant lured him into buying a kilo of cocaine by promising they were "sole mates [sic]." Medina v. Florida.

The Eleventh Circuit affirmed summary judgment for an employment practices insurer on the basis of late notice of a claim in PMTD v. Houston Casualty.

Rosana posted on social media that Eduardo had sexually assaulted her, so Eduardo sued her for defamation, but later voluntarily dismissed. So Rosana sued Eduardo for malicious prosecution. The Eleventh Circuit upheld summary judgment for Eduardo when Rosana failed to present any evidence to prove the truth of her original allegation. Nassar v. Nassar.

In United States v. Jackson, the Eleventh Circuit rejected a prisoner's claim that his miscommunications with his counsel were due to counsel's use of legal jargon, as opposed to the prisoner being combative.

The Middle District granted summary judgment against a Fair Credit Reporting Act claim in Bolich v. Nelnet, because the student loan lender did not have to remove accurate reporting of late payments just because it later granted the borrower forbearance

July 11, 2023

Wiegand v. Royal Caribbean tells the tragic story of a toddler who fell to her death when her grandfather picked her up at the open window of a cruise ship's pool deck and then lost his hold on her. The trial court entered summary judgment for the cruise company on various bases that the Eleventh Circuit rejected here.

In Green-Cooper v. Brinker International, the Eleventh Circuit approved a class action damages model allowing "averaging" of damages across class members where some class members clearly suffered no such damages. Judge Branch dissents.

Editorial note: in my view, Judge Branch is right.

A tree-trimming crew's noisy mulcher startles a horse, who bolts, overturning its carriage and injuring its driver. Is the crew "any other person" entitled to protection under Georgia's equine activities statute? No, says the Eleventh Circuit, because that term is the last in a list of terms related to the equine activity itself, not random unrelated persons. Fahey v. Kolcun Tree Care.

The Middle District offers a fraudulent transfer analysis in denying a motion to dismiss a dispute between two pizza box companies. Pratt v. Porter.

Editorial note: you'll be astonished at how much money is in the pizza box business and intrigued to learn of the annual pizza industry convention in Vegas.

July 10, 2023

The Eleventh Circuit's decision in Perkins v. United States affirms the fraud conviction of a "sovereign citizen on steroids" who schemed "to ensnarl the proceedings against him through obstructionist and disruptive behaviors" including feigning schizophrenia and refusing to leave his cell to attend trial. Sovereign citizen antics are often entertaining, and the district court's patient attempts to afford due process in this case are well worth reading.

The Eleventh Circuit affirmed judgment against a doctor whose disability policy was rescinded by his insurer when they discovered that the state medical board was trying to revoke his license for his activities prescribing narcotics to his patients. Metropolitan Life v. Liebowitz.

In In re Watkins, the Eleventh Circuit reversed a district court's screening dismissal of a serial litigant's discrimination claim based on an unexplained 90 day suspension of his public library privileges.

In Watkins v. Azael, the Eleventh Circuit held that a prison guard's threat to rape an inmate was not sufficiently established as a constitutional violation to overcome the guard's qualified immunity to a civil rights suit.

In Tomko v. United States, the Middle District dismissed a pro se breach of contract case that sought $200 billion in damages based on "unending harassment of a dangerous, extreme, and toxic nature from a government investigation that has resulted in significant work and mental health issues" - stemming, somehow, from an alleged written contract between the FBI and former President Trump.

Editorial note: although sometimes annoyed as a taxpayer, as a lawyer, I really respect and appreciate the due process that our federal courts take pains to give to even the most outlandish claims.

The Middle District held, in Pearson v. Scottsdale Insurance, that Florida's pre-suit notice statute could apply retroactively to a plaintiff suing on a policy issued prior to the statute, and that the trial court had no jurisdiction to award fees, whether or not the "no fees" penalty in the statute could be retroactively applied.

Editorial note: Judge Merryday also gives us footnote 2, explaining how a "mind inclined to conceptual clarity" draws the distinction between "true retroactivity" and "quasi-retroactivity."

In Shed v. University of South Florida, the Middle District dismissed all but one of multiple claims by a PhD student who alleged discrimination and retaliation against university officials who cut his funding and eventually dismissed him from the program.

July 7, 2023

Hillsborough's property appraiser has gone to war to try to collect taxes from businesses that are leasing land from state entities. In Hillsborough County Aviation Authority v. Henriquez, he loses against fueling and mechanical shops at the airport, but in Gulf Marine v. Henriquez, he wins against a for-profit shipyard at the Port of Tampa. Both cases involve a pretty specific tax statute that appears to conflict with the constitutional judge-made "governmental-governmental purpose" (as opposed to "governmental-proprietary") test. How do the two cases come out differently? Read 47 pages of analysis between these two opinions and you tell me.

"On a hot day," the Eleventh Circuit tells us, "there's nothing better than a cool, refreshing waterslide ride (except maybe following that up with some ice cream." Campbell v. Universal then reverses summary judgment against a person who was removed from a waterslide because they had only one hand. The court rejected the theory that compliance with various state laws and regulations could be allowed to trump the protections of the Americans with Disabilities Act.

In Taylor v. Palmer, the Eleventh Circuit gave qualified immunity to a town mayor who blocked a frequent critic from the city's Facebook page, holding that it wasn't clearly established, even now, that this was a constitutional violation.

Apparently, the Shelby GT350 Mustang wasn't really "track ready," as Ford had advertised, and the Eleventh Circuit has partially affirmed certification of a class of plaintiffs who intend to prove it. Tershakovec v. Ford.

In United States v. West, the Eleventh Circuit affirmed a convict's sentence - of note is the court's respectful use of the transgender convict's preferred name and pronouns.

The Eleventh Circuit affirmed summary judgment in favor of a commercial property insurer in Chabad v. Scottsdale, interpreting an exclusion and an exception to the exclusion using Florida contract law principles. 

For a detailed analysis of entrapment defenses and just how far a defendant can go in talking dirty to an undercover cop pretending to be a fourteen year-old, the Second District gives us Florida v. Panebianco.

In Randolph Farms v. Otto, the Second District held that a dispute over a dock license that was, by its terms, not appurtenant to a condominium unit, did not need to be arbitrated under the Condominium Act prior to suit.

The Fifth District affirmed a trial court's order on attorneys' fees in a partition action in Casiano v. Casiano, because the appellant failed to provide a transcript that would have showed how the lower court had considered equitable issues.

In Pio v. Simon Capital, the Second District affirms summary judgment against a slip-and-fall plaintiff who walked through a landscaped area and fell in a hole, rather than use the pavement all around.

In Baute v. Crenshaw, the Sixth District granted certiorari to quash a trial court order that stayed one case pending a party's payment of costs under a not-yet-issued order in unrelated litigation.

The Fifth District reversed a family court's order requiring a father to refrain from drinking and to attend AA meetings in Tucker v. Tucker.

In Sapp v. Marcum, the Middle District grants summary judgment against the civil rights claim of a person who pointed a gun at police officers and was shot in response.

In Garvey v. Dept of Labor, the Middle District dismissed the employment discrimination claim of a 27-year employee of the department over seven widely different incidents.

July 6, 2023

In University of Florida Board of Trustees v. Carmody, a trial court denied a medical provider's motion to dismiss a malpractice action based on its allegation that the plaintiff's proposed expert was unqualified to satisfy statutory pre-suit requirements. The provider sought a writ certiorari, but the First District said that remedy wasn't available, certifying conflict with the Second and Fifth Districts. The Florida Supreme Court held that the First District was correct that certiorari isn't the appropriate remedy, but because the statute clearly intended to make this an appealable issue, the court also issued an amendment to the interlocutory appeal rule to make it so.

The Eleventh Circuit affirmed denial of a recusal motion in Postell v. City of Cordele Georgia, noting the plaintiff's strange theory that, if the judge were to grant his sanctions motion against the ACLU in an unrelated case, it might "lose a substantial amount of money and so would Judge Gerdner's sister Stacey Abrams."

In Warbird Adentures v. FAA, the Eleventh Circuit upheld the FAA's decision to fine a company that sold flight training in antique military planes classified by regulations as "limited category civil aircraft."

In Melendez v. Dixon, the Middle District issued a thorough order on cross-motions to exclude and limit expert testimony in the case of a prisoner who alleges his mental health was damaged by prolonged solitary confinement.

A domestic violence suspect refused police commands and broke away from an officer's attempt to handcuff him, was tackled by another officer, and broke his hip. After a thorough excessive force analysis, the Middle District dismissed the suspect's claims. Scott v. City of Cape Coral.

In Kukorinis v. Walmart, the Middle District denied most of a motion to dismiss a class action complaint alleging that Walmart engages in various schemes to overcharge customers for sell-by-weight products.

July 5, 2023

In Atrium Medical v. MSP, a trial court granted summary judgment to the plaintiff in a pure bill of discovery, but declined to enter an appealable final judgment, pending actual production of the documents. The Third District granted mandamus, holding that meaningful review of a judgment granting a pure bill of discovery can only happen before production of the documents.

In WB's Septic v. Tucker, the First District held that, although it is possible to prove that a non-owner acted as agent for an owner for purposes of imposing a construction lien, the plaintiff in this case had failed to do so.

In Palmore v. Estrada, the Middle District dismissed a prisoner's civil rights claim because a slip-and-fall doesn't amount to the Eighth Amendment violation.

July 3, 2023

In Signor v. Safeco, the Eleventh Circuit affirmed summary judgment for an auto insurer, holding that its method of calculating actual value under the policy, and its refusal to pay dealer fees incurred in buying a replacement vehicle, complied with Florida statutes.

The Middle District denied a nurse's motion to dismiss a prisoner's civil rights action in Harris v. Singletary, where the prisoner alleged that, in retaliation for a complaint he had filed against her, the nurse physically assaulted him the next time he was placed under her care.

In Valdez v. Cummings, the Middle District dismissed a prisoner's civil rights claim where, if proven, it would have the effect of undoing an earlier criminal conviction, holding that a successful habeas petition was a precondition to such a suit. 

June 30, 2023

In Capallo v. Rivera, the Second District affirms a textbook example of a proper denial of summary judgment, followed by a bench trial to construe an easement, using extrinsic evidence, where it was ambiguous as to the intended use

Perry's ex-wife sought child support, so he cooked up a scheme to hide his assets with his girlfriend in properties held in her name alone. When they broke up, he sued trying to get his money out of the properties. On unclean hands and in pari delicto grounds, neither the trial court nor the Second District would hear a bit of it. Perry v. Turner

The Second District reversed summary judgment in Ballard v. Bank of America, for the trial court's failure to explain the reasons for its order, offering an illustration of how the tricks and traps of preserving this issue for appeal in the absence of a transcript.

SFR Services took an assignment of benefits from a homeowner whose roof they fixed after hurricane Irma. The property insurer won at trial because SFR's claim was fraudulently inflated. SFR appealed, arguing that the fraud provision in the policy did not apply to SFR, as an assignee. The Sixth District rejected the argument in SFR Services v. Tower Hill.

In Frazier v. Panera, LLC, the Fifth District reversed summary judgment because there was a trial issue of whether a weighted base without a sign in it was open and obvious to the customer who fell over it.

The Fifth District held that a police offer's sworn testimony that he was off-duty and on his way home in a cruiser authorized for personal use at the time of the car crash with the plaintiff was sufficient to get the city summary judgment on sovereign immunity grounds. Winter Park v. Veigle

In Vyas v. Polsinelli, the Middle District offers a thorough Daubert and summary judgment analysis in a legal malpractice suit alleging that a cryptocurrency trader's massive fraud would have been discovered earlier if counsel had raised appropriate concerns about the flow of funds within the company.

Strike 3 Holdings v. John Doe, from the Middle District, shows how you obtain a subpoena to identify the owner of an IP address in a civil claim for copyright infringement.

June 29, 2023

In 2013, a couple were brutally stabbed to death on their houseboat and the perpetrator made off with $80,000 worth of their jewelry. He was convicted and sentenced to death. In Figueroa-Sanabria v. Florida, the Florida Supreme Court affirmed the conviction, but reversed the death sentence and remanded for a new penalty phase because the trial court improperly made the defendant choose between representing himself or having court-appointed counsel ordered to present mitigation evidence against the defendant's wishes ("he did not want his friends and family to 'beg for life' to the jury on his behalf.").

In Tsuji v. Fleet, the Florida Supreme Court resolved a certified District Court conflict and held that section 733.710(1), Florida Statutes, acts as a statute of repose to absolutely bar negligence claims against a deceased defendant three years after their death, even where the plaintiff had timely sued the decedent's insurer.

The Eleventh Circuit, in United States v. Magluta, related the astonishing exploits of a drug kingpin who repeatedly evaded law enforcement, escaped from captivity, secured acquittals by bribing jurors, had multiple witnesses murdered, and ran his cartel from behind bars by having fake paralegals meet with him and bring him messages and Xanax. The court then affirmed denial of his request for compassionate release, which was based on a laundry-list of mental health complaints and alleged Eighth Amendment violations stemming from prolonged solitary confinement in a supermax prison.

June 28, 2023

Russell v. Hasset is an important decision in the ongoing war between homeowners and tax assessors investigating the validity of homestead exemptions. The Third District held that the constitutional 10% cap on annual assessment increases applies even when a homestead exemption is retroactively revoked. It also reversed and remanded for a trial to allow the taxpayer to challenge whether the revocation was proper for each tax year, not just the first year when the information supplied was provided and the exemption later automatically renewed.

In Daniel's Tree Service v. National Core Services, the Fourth District reversed a trial court's rather strained interpretation of a pretty obvious liquidated damages provision and remanded for trial on whether actual damages were ascertainable and the liquidated damages disproportionate.

The Fourth District reversed a jury verdict against a homeowner's insurer, holding that the insured failed to present any evidence that a ceiling collapse was actually caused by a covered risk. Universal Property v. Caboverde.

In People's Trust v. Kidwell Group, the Fourth District reversed a jury verdict against a homeowner's insurer, holding that an unnecessary and unused $3,500 engineering report was not part of the "repair and replacement" coverage for a new roof.

The Third District held that a trial court had denied an insurer due process when, after noticing only a case management conference, it granted the insured's ore tenus motion to compel appraisal, which was essentially the same relief sought in the complaint, as to which there was an outstanding motion to dismiss. First Community v. Adjei.

The First District reversed a jury verdict in an employment discrimination case in DCF v. Askew, because an employee who was given a choice to resign or be fired had not shown, under the circumstances, a constructive discharge.

In Employers Insurance v. Pool, the Eleventh Circuit affirmed dismissal of an insurer's declaratory action on coverage because it overlapped with a factual dispute in the underlying tort suit as to whether the driver had the insured's permission to use the vehicle.

The Eleventh Circuit construed an insurance company in favor of coverage, holding that a building's "water tower" was covered "machinery" and not a "structure or building" within the meaning of a policy exclusion, where those terms were undefined. Ever need to use the rule of construction "noscitur a scoiis" (a word is known by the company it keeps)? Then Southern-Owners v. Waterhouse is your case.

The Middle District bounced a prisoner's civil rights claim on PLRA initial review in Smith v. Baptiste, where a prisoner swallowed a razor blade, but doctors reviewed his x-ray and sent him back to his cell to pass it naturally, rather than undertake some other unspecified medical procedure.

June 27, 2023

The Eleventh Circuit reversed and remanded a jury verdict in Harbin v. Roundpoint Mortgage. An employee of the lender mistakenly told the borrower that a foreclosure sale had been postponed pending a workout, but the sale went ahead anyway, so the borrower sued. The trial court erred by instructing the jury to consider only the employee's knowledge, but the issue was what the lender itself knew, not just the one employee.

In Fernandez v. Freedom Health, after an astonishing series of failures to comply with court orders granting extensions, the Eleventh Circuit killed this case, ultimately holding that Fernandez failed to timely appeal an order that neither he, nor the trial court, realized had become a final judgment.

The Eleventh Circuit tells us right at the beginning of its 22-page opinion in Scott v. Miami Dade County, that "we write only for the parties, so we assume their familiarity with the facts." And they weren't kidding. What can be pieced together from a sentence here and there is that Scott was assaulted in jail and sued on a failure-to-protect theory. A jury found against him and the court affirms, offering a dense and helpful collection of citations that walk through the entirety of a claim like this.

Want a fascinating lesson in how federal courts analyze whether a vessel is "stateless" for purposes of maritime jurisdiction? The Eleventh Circuit has you covered with United States v. Cabeza. The boat was filled with cocaine, so it's no wonder that none of the seamen onboard stepped up to claim he was the vessel's "master," as the Maritime Drug Law Enforcement Act calls a captain.

United States v. Gunn involves one of the most heinous acts of child sex trafficking (by both parents!) that you will ever see. It affirms the conviction (and life sentence) of this monster against a Brady violation challenge.

June 26, 2023

The Fifth District issued a writ of certiorari to quash an order that committed a murder defendant to a psychiatric facility in DCF v. Tetley, because the experts opined that restoration of the defendant's capacity to stand trial was not likely in the foreseeable future.

In Jackson v. Wells Fargo, the Eleventh Circuit affirmed that a borrower's RESPA suit that sought to undo a state court foreclosure judgment was barred by the Rooker-Feldman doctrine.

The Eleventh Circuit affirmed summary judgment in favor of a railroad in Ohl v. CSX Railroad, where a teenager trespassing down the middle of the tracks with noise cancelling headphones in lost his legs to a 17.8 million pound train.

In A.P. v. Fayette County School Board, the Eleventh Circuit upheld summary judgment against a student who claimed that her school violated Title IX by disciplining her for engaging in a consensual sex act with another student that she had initially reported as an assault.

June 23, 2023

In a messy dispute between neighbors over the mangled construction of a joint dock on the lake behind their properties, the Sixth District reversed a trial court's order allowing destruction of the dock during the pendency of litigation. Smith v. Babcock.

In Thomas v. Florida, the Second District reversed a battery conviction where the arresting officer, who was not present during the fight, was erroneously allowed to testify to their opinion of who was the initial aggressor

The Second District held in Goknar v. Gaknar, that a court cannot award, as a sanction, attorneys' fees for proving attorneys' fees without providing clear notice prior to the evidentiary hearing.

The Fifth District affirmed denial of a motion to seek punitive damages in Lord v. Fednat, because the plaintiff's proffer that a property insurer did not have separate claim guidelines related to specific types of losses was insufficient to show a "general business practice" of bad faith claims handling.

In Fletcher v. Bennett, the Second District held that a trial court cannot substatially reduce a fee award to counsel for a court-appointed guardian without affording an evidentiary hearing.

The Second District reversed the extension of a domestic violence restraining order in Kaye v. Wilson, holding that the victim had not offered sufficient evidence that a reasonable person would suffer substantial emotional distress.

Editorial note: what's described in the opinion seems like stalking and would certainly distress me - so, perhaps I'm not a reasonable person...

In Greenspire Global v. Sarasota Green, the Second District held that a plaintiff's affidavit asserting that the defendant's conduct was intentional was an insufficient proffer to support adding a punitive damages claim. The case offers a helpful attack on affidavits purporting to be supported by "personal knowledge, information, and belief."

The plaintiff made a civil theft demand on their business partner for over $97,000. The defendant promptly sent their lawyer's trust account check. The plaintiff's lawyer failed to tell the plaintiff about the payment, leading the plaintiff to makes a series of demands for a new payment that the defendant's lawyer tried to comply with. Under these unique (and entertaining) facts, the Sixth District estopped the plaintiff to challenge whether the trust account check "complied" with the cash form of payment required by the demand. Hannah v. Malk Holdings.

Although it deplored a public official's having falsified 18 investigatory reports, the Sixth District reversed a corruption conviction in Jones v. Florida, for insufficient evidence that the motive was securing a "benefit."

The Eleventh Circuit held, in Benning v. Georgia Department of Corrections, that a prisoner has First Amendment liberty interests in their outgoing emails, and a Fourteenth Amendment due process right to contest a prison's secret decision to intercept them and prevent their delivery.

In Travelers v. Ocean Reef, the Eleventh Circuit affirmed summary judgment against the insurer of a $2 million yacht sunk by Hurricane Irma, offering interesting analysis of burdens of proof under Florida's "anti-technical statute," and the border between lay and expert testimony by captains who disputed what should have been done with the boat in the face of impending storm.

Want a mind-numbingly complex discussion of crafting remedies for constitutional uniformity violations in the context of taxes and fees in bankrupcty court? The Eleventh Circuit offers you In re Mosaic Management.

The officer miscalculated the end-date of probation and so obtained a false arrest warrant that resulted in a month in jail for a non-existent probation violation. A constitutional due process problem, yes, but not one well-established enough to deprive the officer of qualified immunity, according to the Eleventh Circuit. Hilmo v. Jackson

June 22, 2023

The Sixth Circuit held, in Avatar v. Gundel, that a developer could not require members of a homeowner's association to pay a potentially unlimited fee, representing "pure profit," to a private club owned by the developer, over which the association had no control. Both a concurrence and a dissent engage in spirited statutory interpretation of Chapter 720, Florida's homeowner's association law.

In Thomas v. Broward County Sheriff's Office, the Eleventh Circuit affirmed a jury verdict in favor of a helicopter rescue pilot who'd been discriminated against based on his military service, and also held that once the parties agreed to submit the issue of willfulness to the jury, the trial court could not treat the jury's finding as merely advisory.

The Eleventh Circuit held in Martin v. Chancellor for the Board of Regents of the University System of Georgia, that university officials had qualified immunity from the civil rights claim of a speaker who had been asked, under a Georgia statute regulating contracts with the state, to sign an agreement that they would not boycott Israel.

In Warren v. DeSantis, the Florida Supreme Court denied a writ of quo warranto to the Hillsborough State's Attorney who was dismissed by the governor, holding that he had waited too long to seek the writ.

The Florida Supreme Court also adopted minor changes to the Florida Bar Rules on lawyer advertising. In re: Amendments to Rules Regulating the Florida Bar - Subchapter 4-7 Information About Legal Services

June 21, 2023

The Fourth District held in Seven Kings v. Marina Grande, that a parking easement was not severable from the dominant estate, so that the holder of the dominant estate could not assign a portion of the easement to a neighbor that did not own any portion of the dominant lot.

In Bank of New York Mellon v. Kardok, the Fourth District held that a borrower's circumstantial evidence of a possible intervening note holder was insufficient to rebut a bank's direct evidence that it had been assigned the note by the original lender.

The Fourth District reversed a summary judgment based on the trial court's failure to meet the specificity requirements of the new summary judgment rule, where the court failed to even set out the elements of the cause of action in its discussion. Brown v. Regan.

In Napleton's North Palm Auto Park v. Agosto, the Fourth District reversed leave to seek punitive damages where the plaintiff's proffer failed to show that local managers were "managing agents" of the corporation for purposes of a punitive damages award.

In AJM v. Florida, the Fifth District denied a habeas petition from a juvenile who objected to his civil detention for threatening a mass school shooting on social media.

The Fourth District reversed a temporary injunction in Pyrinova v. Doyle, where the trial court order failed to specify the reasons for the injunction and failed to require a bond.

In Nadell v. Hursey, a bunch of guys on a fishing boat got into a hair-pulling fistfight over one of them attempting to set up a date - in a later civil suit, the trial court denied a pre-trial motion for stand your ground immunity. The Third District certified to the Supreme Court the question of whether a writ of prohibition is an available remedy to review such a non-final order.

The First District, in Ortiz v. Department of Corrections, affirmed the firing of a prison guard who used medical marijuana, holding that although possession under state law was legal, it remained a felony under federal law, disqualifying the guard from possessing a firearm, as his job required.

In Storey Mountain v. Freestone Enterprise, the First District held that the holder of a writ of execution must make a factual showing of necessity under the circumstances in order for a trial court to appoint an equitable receiver for the judgment debtor.

The Third District reversed summary judgment in Castro v. Citizens, holding that a property insurer could not establish the presumption of late notice where a homeowner explained that she was delayed over two years in discovering hurricane damage because her tenant failed to tell her about it.

In Allison v. Allison, the Second District held that the burden to show voluntary unemployment rests with the party making that claim, even where the motion for modification is made by the allegedly underemployed spouse.

The Fourth District issued a new opinion on rehearing in Thayer v. Hawthorn, coming to the same conclusion as its April 12 opinion, that a spouse had not waived her homestead rights by conveying the property to herself and her husband as tenants in common.

Editorial note: it would really be helpful if courts would explain what they've changed in their new opinion so that we don't have to go back and compare them word-for-word when they come to the same conclusion as the initial opinion. (I read them both so that you don't have to. There was a tiny revision to one sentence in the recitation of facts, but the main change was to remand for trial, rather than for entry of summary judgment, because factual and legal issues remained on the question of whether the entirety of the property could remain homestead after its annexation into the city of Jupiter).

In Savoy v. American Platinum, the Fourth District reversed a summary judgment because the bare-bones affidavit of a corporate representative failed to aver personal knowledge, explain the affiant's duties, or how they had confirmed mailing of letters and emails it attached.

In Florida v. McNeela, the Second District reversed the suppression of child pornography evidence found on the defendant's computer, holding that a tip from Microsoft was akin to a citizen informant tip and is presumptively valid to support the issuance of a search warrant

In King v. King, the Fourth District reversed a divorce court order for failure to exercise independent decision-making, despite the absence of a transcript, where the trial court entered, verbatim, the husband's proposed order, including two paragraphs that conflicted with each other.

June 20, 2023

In American Builders v. Southern-Owners, the Eleventh Circuit affirmed a bad faith verdict in a subrogation dispute between an insurer that tendered its policy limits after investigation and another insurer that "sat on its thumbs" after a worker fell from a roof and was paralyzed.

The Middle District offers an interesting discussion of the "cat's paw" theory of employment discrimination, in which a decisionmaker follows the recommendation of a biased non-decisionmaker without independent investigation. Rohttis v. School District of Lee County.

In Morancy v. Salomon, the Middle District tells us that valid service of process at a "virtual office" must be supported by an affidavit stating this was "the only address discoverable through the public records," not that it was "the only address known after reasonable investigation."

June 16, 2023

In Petzold v. Castro, the Second District granted certiorari to quash a trial court order that concluded all privilege had been waived when an innocuous communication between lawyer and client was inadvertantly included in a string of emails attached to a filing.

The Second District overturned the foreclosure of an HOA lien for failure to follow the lien procedures in the governing documents in Desch v. South Fork.

In Wilmington Savings v. Charm-B, Inc., the Second District held that an unbroken chain of custody established a lender's standing to foreclose, despite not being able to pinpoint exactly when a promissory note was lost.

The Sixth District held that the statute of limitations barred a mortgage foreclosure where the lender had obtained a judgment on a note, which did not "decelerate" the mortgage obligation in the same way as the dismissal of a previous foreclosure would have. Maki v. NCP Bayou

Editorial note: a foreclosure barred by the statute of limitations is a rare bird indeed since Bartram. This may draw some attention.

June 15, 2023

In Coates v. R.J. Reynolds Tobacco, the Florida Supreme Court held that a party need not prevail in order to be entitled to recover its attorneys' fees under an offer of judgment.

The Middle District dismissed a securities class action against a medical device company over off-label uses of its technology. Hattaway v. Apyx Medical.

June 14, 2023

In Morales v. Iqbal, the Fourth District sent a specific performance action back to the trial court for a determination of whether the sale of the property had rendered that remedy impossible.

The Fourth District provides an excellent discussion of intervening causation in a multi-car accident case. Serrano v. Dickinson.

In Shojaee v. Duarte-Viera, the Third District issues a writ of cert because the trial court should have conducted an evidentiary hearing before ordering production of a non-party's financial and divorce records, where the pleadings did not make clear the relevance of those materials.

The First District shows why it's tricky to serve process on your ex in a business divorce case. Retherford v. Kirkland.

In DeSanto v. Grahn, the Fourth District reversed authorization to seek punitive damages in an action against a disbarred attorney

The Fourth District affirmed summary judgment in favor of a rental truck company that was sued for making a false police report when he failed to return the truck after his credit card was declined. Roberson v. Enterprise Leasing.

In the tragic case of Taylor v. Florida, the First District upholds the aggravated manslaughter by culpable negligence conviction of a mother who co-slept with her baby while crashing from meth, with a detailed analysis distinguishing similar cases.

A certified class is suing the power company over hurricane outages. Notice discovery is being taken. For some reason the trial court engages in extensive discussion of its own damages model, including a presumption against the veracity of detailed testimony about small items in a refrigerator. The Third District issues a writ of prohibition recusing the trial judge in FP&L v. Velez

In the Sixth District, a concurrence in Ringelstein v. Naples Courtyard takes to task the improper closing argument of trial counsel - and is careful to note this was NOT the same fellow as appellate counsel.

Editorial note: Anyone have a transcript? Follow-up: there's a 60-page excerpt of the transcript in the trial record - I've seen worse.

The First District holds, in Silve v. Castle Key Insurance, that a property insurer waived its right to compel appraisal by participating in discovery and essentially conceding coverage in active litigation. 

Editorial note: Read this one.

June 13, 2023

The Sixth District agreed with the Polk County Sheriff that a risk protection order should have been issued against a high school student who showed up to school "armed with a handgun and enough ammunition to conduct a mass shooting." On what basis the trial court rejected the Sheriff's request is less than clear from the opinion. Polk County Sheriff's Office v. TJB.

The Eleventh Circuit rejected the employment discrimination claim of a VA police officer who was fired based on a psychological evaluation for having shot himself through the finger after fooling around with his weapon while driving. Baldwin v. Secretary of Veterans Affairs.

In Sapp v. Marcum, the Middle District granted a Daubert motion to exclude the testimony of a purported expert on police use of force who was set to testify on issues of law and apply a bunch of incorrect or non-existent legal standards.

The Middle District granted terminating sanctions in an exhaustive 43-page order in Ray v. Bridgestone when a pro se plaintiff literally failed to show up to trial of his own claim after a cascade of misconduct.

June 12, 2023

The Eleventh Circuit excoriated the Consumer Financial Protection Bureau for discovery misconduct during an agency representative deposition in CFPB v. Brown.

In Amnay v. Select Portfolio Servicing, Inc., the Eleventh Circuit refused to read a mortgage modification agreement as if it were a conveyance.

The Fifth District rejected an attempt to recall a public official based on a specious allegation that a teleconference-available public meeting had been held behind closed doors in violation of the Sunshine Act. Burton v. Oates.

In Nieves v. Florida, the Sixth District rejected an ineffective assistance of counsel claim, with Judge Cohen dissenting because counsel failed to object to a legally incorrect jury instruction and to the admission of evidence of uncharged collateral crime.

The Sixth District reversed a conviction for possession of a firearm by a felon, holding the evidence was insufficient to show the defendant knew that a gun was under the seat when he borrowed his father's truck. Little v. Florida.

Editorial note: No, not Omar Little, but I appreciate you for thinking of it.

June 9, 2023

You love to see a dissent and a majority opinion that go out of their way to say nice things about each other. In Grovehurst v. Stone Crest, the Sixth District did a deep dive into interpreting a sophisticated master-planned community development's documents. We usually think of a document as ambiguous when two parties could reasonably read it to mean two different things. Yet here, the majority tells us that "the parties agree that the operative documents are unambiguous, but they have diametrically opposed views on those documents' meaning." So, the two parties read it two different ways. The majority and the dissent also read it two different ways. Yet, the main thing they agree on is that it's not ambiguous. *head scratcher*

Editorial note: since both opinions seemed somewhat persuasive, I had to be a nerd and go find the entire declaration and read it. Having done so, I officially throw my lot in with the majority opinion. 

In Wells Fargo v. Avers, the trial court denied a motion claiming excess proceeds from a foreclosure sale, finding the motion was a nullity because it was too early. In three pages, the Second District reverses, holding that (1) it wasn't a nullity, (2) even if it had been, the defect was cured by an affidavit filed at the right time, and (3) the trial court was applying the wrong statute anyway.

You know things won't turn out pretty when the Fifth District opens its opinion in Pender v. Florida with "Pender was sitting in his Tahoe SUV with a firearm when he was approached by a man whom he knew to be dating his estranged wife." After shooting the guy in the jaw and chucking his gun in a lake, Pender was convicted of attempted murder and tampering with evidence for tossing the gun. The court reversed the tampering conviction under the corpus delicti doctrine, which requires the state to provide substantial evidence to establish the crime before a confession can be used as evidence. The requirement is specific to the offense, so the substantial evidence that he shot the guy and drove away with the gun couldn't stand in as evidence that he threw it out with the specific intent to foil the prosecution.

In Meeks v. Strickland, the Sixth District firmly enforced the short, but clear, provision in the FAR/BAR form real estate contract that mandates pre-suit mediation.

In Clarke v. Global, the parties' settlement agreement required global to pay $60,000 over time and included a $40,000 penalty if they didn't. After paying $47,649, they stopped, Clarke moved to enforce the settlement agreement, but the court gave Global another 30 days to pay before it would be obliged to also pay the penalty. The Sixth District reversed, reminding courts that they're not free to rewrite an unambiguous contract. "It was the trial court's apparent attempt to ameliorate the harshness of the result in this case that led it astray."

During an administrative hearing, counsel for the real estate licensing commission tells to "never reinstate a license that has been revoked, ever, the statute says what it says, and let a court tell you that you were wrong." "They were wrong," says the Sixth District in Luft v. DBPR. Note: the majority opinion is clearly right as to the statute and it was probably a good idea to give the commission guidance, but Judge Nardella's dissent makes a persuasive argument that the commission's denial should have been upheld anyway on the actual evidence presented to them.

Beauchamp v. Beauchamp, out of the Sixth District, shows us the pros and cons of mental health expert testimony in a divorce action. On the one hand, the former wife may have enjoyed hearing her expert implicitly blame the former husband by opining "that she would find 'anxiety relief' after the dissolution." On the other hand, it lost her a permanent alimony award because the court found she might get better.

In First Acceptance v. At Home Auto Glass, the Sixth District held that an insurer could demand an appraisal process over the cost of repair, not just the extent of damages. Context: this auto glass company was billing $2,477.03 for a windshield replacement that was worth $333.29 in the open market.

The Second District called into question the language used by the Florida Commission on Human Relations in its right-to-sue letters in Reddick v. USF, holding that the letter denied an employment discrimination plaintiff's due process rights by failing to properly inform her of the mutual exclusivity of administrative hearings and civil actions.

June 8, 2023

What is it about foreclosure defense that seems to twist some lawyers into anti-capitalist zealots who see grand conspiracies in the ordinary application of settled law? In Florida Bar v. Jacobs, the Florida Supreme Court issued a 91-day rehabilitative suspension to one fellow who said stuff like this in filed briefs: "This is a biblical, spiritual journey for me. I have faith I will be protected because I am acting so clearly within the law and this Honorable Court is not."

"This is a case about square pegs and round holes. Or it could be about how, to a hammer, everything looks like a nail." So said the Eleventh Circuit in introducing us to Shelly Milgrim, whose employee racked up $30,000 in fraudulent charges on Milgrim's credit. The employee was convicted because she didn't have actual authority to do it. So Milgrim sued under the Fair Credit Reporting Act, alleging that the credit card company had failed to conduct a reasonable investigation of her dispute. But, the court pointed out, an investigation isn't unreasonable just because you dispute the result, and the company's conclusion that the employee had apparent authority isn't undermined by a conviction based solely on the absence of actual authority. Milgram v. Chase Bank.

Pliego lost his state court divorce case. He appealed and lost that too. So he made a federal case out of it, alleging a civil rights violation against the state court judge. The Middle District dismissed because the judge has absolute immunity unless there is "a clear absence of all jurisdiction," and because the Rooker-Feldman doctrine prevented the court from essentially revisiting the result of the state court proceeding. Pliego v. Smith.

In Howell v. Perez-Lugo, the Middle District dismissed a prisoner's Eighth Amendment case because the Constitution isn't implicated by one doctor giving you Dulcolax, when you'd prefer the Metamucil and Linzess that another doctor had prescribed.

The Middle District granted summary judgment to a nursing home in an employment discrimination case, Walker v. 777 Ninth Street. After a careful McDonnell Douglas burden-shifting analysis, the court found no actual evidence that Walker's firing was caused by any animus. Just because the plaintiff and her co-workers "believe it was," based on "pure speculation," won't get the case to trial.

June 7, 2023

Great facts and quality law came together in Florida v. Walker at the First District. The defendant slapped his fraternity brother, as he was required by frat rules to do, after the victim was nominated for the "scumbag of the week" award. But Walker slapped him so hard that he hit his head on the floor, lost a tooth, and fractured his skull. Walker moved to suppress evidence of the severity of the injuries as more prejudicial than probative and the trial court granted the motion. The state sought a writ of certiorari because if they lost the trial because of the lack of this evidence, they would have no remedy on appeal. After a skilled discussion of the appellate court's broad discretion on such a writ, Judge Tanenbaum concluded that "one or more members of this panel may have done the weighing differently... but we all agree there was no error so egregious or consequential that could justify our extraordinary intervention in an ongoing criminal proceeding."

A sphinxlike opinion from the Third District in Gonzalez v. Santana. The court reversed, holding that "the parties' dueling summary judgment submissions are incapable of resolution under the applicable 'old' Florida summary judgment standard." Then, without explaining what the fact issue was, the court cited three cases involving "sharply conflicting affidavits." Is the court suggesting that sharply conflicting affidavits on a material issue would somehow not prevent summary judgment under the new rule? 

Courts often praise effective advocacy from counsel, but we rarely see the converse as bluntly as the Fourth District delivered it today in Douglas v. Douglas: "The parties did not argue their position well in the trial court or before this Court." Ouch. I'll leave out mention of the names of the lawyers who earned this rebuke.

In 41 Acquisition v. Haff, the Third District denied fee-shifting under a sloppy provision that was "missing a verb" and failed to clearly say whether fees were recoverable for moving to set aside the settlement agreement, as opposed to moving to enforce it. Drafters: do better.

The Third District enforced an insurance policy's examination under oath provision as a precondition to any recovery in Infinity Auto Insurance Company v. Miami Open MRI.

In Florida v. Acevedo, the Fourth District reversed suppression of blood-alcohol evidence alleged not to have been voluntarily given because the police are allowed to tell you that if you don't consent, they'll just get a warrant, so long as they have actual probable cause sufficient to obtain the warrant.

The Fourth District remanded a motor vehicle death case to allow a trial court to consider sentence-mitigation evidence that, although the defendant was driving illegally without a license, the accident was nevertheless the fault of the victim, the other driver. Coto v. Florida.

The Eleventh Circuit reversed the dismissal of a Section 1983 civil rights claim in Duncan v. City of Sandy Springs. Introducing a wild set of facts, the court says "March 13, 2017, began as a normal day for Yolanda Duncan... Things took an unexpected turn when a Sandy Springs police officer approached her leaving the gym." The officer apparently screamed at her in a way that alarmed bystanders into an attempt to intervene, then arrested her on bogus charges so roughly that the county jail refused to accept her and sent her to the hospital instead.

In Allied World v. Travelers Property, the Eleventh Circuit carefully applied Florida's concurrent cause doctrine to an insurance dispute in which a water pressure test and a design defect caused damage.

The Eleventh Circuit affirmed that Amazon does not have an enforceable duty to provide "rapid delivery" to its prime customers in Marquez v. Amazon.com, Inc.

A tenant gets evicted and later arrested, and from jail, literally makes a federal case out of the eviction. The Middle District pre-screens it out in Williams v. Professional Marketing.

Middle District Judge Covington released a 40-page masterpiece in Macuhealth v. Vision Elements, dramatically narrowing the issues for trial in an unfair competition case. The facts were complex, but the court treated them in detail. The legal framework was intricate, but the opinion was methodical. The only thing left is a trial on actual injury to the competitor.

Not to be outdone, Judge Sansone gives us Harbor Breeze v. City of Holmes Beach, finding a noise ordinance void for vagueness. The Clark family likes to have people over, cook out, and have the football game on real loud at their beach house. The City visits them regularly about it and cited them. They made a federal case out of it, and the Court begins by carefully analyzing some interesting standing and abstention issues. In the first part of its vagueness inquiry, the court concludes that the ordinance's use of the "reasonable person" standard adequately apprises a citizen of what's prohibited: "reasonableness itself is not the most acutely defined standard. But 'condemned to the use of words, we can never expect mathematical certainty from our language.'" But the second part of the inquiry, whether the ordinance gives enough guidance to law enforcement" does, in a sense, require mathematical certainty: objective testing of decibels at particular distances was not required, and officers were left to "rely upon an ill-defined, open-ended group of parameters to parse whether a particular noise is an unreasonable noise disturbance."

June 6, 2023

The Middle District footnoted a practice pointer in Hausburg v. McDonough: don't try to "incorporate all pleadings" into your brief, it's "improper as this practice foists upon the Court the burden of sifting through irrelevant materials..." The court will ignore whatever's not actually in your brief.

June 5, 2023

In Ghee v. Comcast, the 11th Circuit rejected a pro se litigant's allegation that a federal magistrate judge had conspired to violate his civil rights because "his allegations hinge on the assumption that attorneys who are members of the same state bar mingle privately and collude against certain litigants. But absent specific facts, we cannot infer a conspiracy from mandatory bar membership."

The Eleventh Circuit offered an interesting discussion of a jury's freedom to depart from the parties' damages models and award a number between the two, even where the jury's reasoning in doing so is not immediately clear. Am Grand Court Lakes, LLC v. Rockhill Insurance.

In Ramirez v. The Paradise Shops, the Eleventh Circuit reversed the dismissal of a former employee's negligence claim based on a data breach, noting that district courts should not impose too high a specificity requirement in cases where "a plaintiff may know only what the company has disclosed in its notice of a data breach."

The Middle District issued a 23-page doozy today in WhereverTV, Inc. v. Comcast. A patent case over alleged infringment of a patent on Xfinity streaming services technology, this one involved a 6-day jury trial, Markman hearings and construction of patent terms by three different judges, and ultimately, a judgment in favor of Comcast as a matter of law. 

June 2, 2023

The Sixth District, in Pelleschi v. Pocci, allowed a fraudulent transfer claim to proceed against a trust because the trust had failed to establish that it was the owner of the property and that the property was homestead at the time of the transfer.

In Wener Enterprises v. Mendez, the Fifth District allowed an amendment to add a punitive damages claim where a group of employees of one logistics company spent months on "project satellite," a plan to leave their company en masse for a competitor and take key clients with them. The competitor's executives had presented the project to their board as a way to essentially acquire a competing office without paying the competitor, and actually set a legal reserve to cover anticipated litigation.

Colbert v. Flordia involved the Fifth District's affirmance of denial of a petition for a writ of prohibition to stop a prosecution where the defendant was denied self-defense immunity. In a concurrence, Judge Makar wrote to emphasize that writs of prohibition should not be denied on untimeliness grounds unless there is an unexplained, unreasonable delay that prejudices a party.

In Salyer v. Tower Hill Select, the Fifth District confirmed that an owner does not lose standing to sue a property insurer by assigning only a limited portion of their rights to a contractor.

In Barbuto v. Miami Herald, the Eleventh Circuit affirmed denial of a motion for default judgment because it was within the trial court's discretion to do so where a related defamation suit against another party had already been dismissed with prejudiced based on the fair and neutral reporting privilege.

The Middle District, in Gulfpoint Construction v. Westfield Insurance, granted summary judgment to a property insurer where the insured conducted an emergency post-hurricane repair but failed to give notice of the claim for another two years. In a footnote, the court noted that even the insured must have known that its notice argument was "a lark, as its language... conjures images of throwing spaghetti at a wall to see what sticks."

In Silk Way v. Intrepid Aerospace, the Middle District denied a motion to dismiss, both because of the movants failure to conduct a good faith conference before filing, and because a federal contract complaint need not attach the contract at issue, so long as facts alleged support the existence of the contract and a breach.

The Southern District provided a couple of federal practice tips in In re Petrus Advisers. First, raising an issue in a footnote in an objection to a magistrate's report and recommendation is not enough to get you de novo review - you'll be stuck with review for clear error. Second, the mere use of the word "all" in a discovery request doesn't make it objectionable: "appropriately limited subpoena requests frequently include the word 'all.' What matters is what follows after that word."

June 1, 2023

The Florida Supreme Court ruled, in Alahad v. Florida, that abuse of discretion is the proper standard of review of a court's ruling on a motion to supress eyewitness identification evidence.

In IPS Avon Park Corp v. Kinder Morgan, Inc., the Eleventh Circuit affirmed summary judgment in a contract dispute, holding that the language "notice to proceed with construction of the Expansion of the Project" was plainly too narrow to encompass notices to proceed only with general work on the project, as opposed to proceeding with construction itself.

In Wright v. McCarthy, the Middle District screened out a convict's civil rights claim alleging that a sheriff defamed him by calling him a pedophile on national television, holding that the complaint failed to allege any additional "constitutional injury" beyond mere defamation.

May 31, 2023

In American Automobile Ins. Co. v. FDH Infrastructure Services, LLC, the Third District held that an insurer's subgrogation claims against a design firm based on its assessment of the ability of an existing tower to support a new antenna were subject to the four-year statute of limitations for construction claims, not the two-year professional malpractice statute.

The Third District affirmed a trial court's denial of an injunction in McCormick Properties v. SoMi Homes, holding that the defendant's landscaping of a publicly-dedicated swale area was not inconsistent with the dedication in the recorded plat.

In Miami v. Robinson, the Third District held that sovereign immunity applied the "going and coming" rule to bar an automobile tort claim based on a city employee's accident which occurred on the way to work and while off duty, and that it is a plaintiff's initial burden to show waiver of sovereign immunity, such that it was not an affirmative defense that could be eliminated by sanction's striking the city's pleadings.

In Grove Harbour Marina v. Grove Bay, the Third District reversed summary judgment based on ambiguity in a contract that did not clearly describe what improvements one party agreed to make to the other's property.

The Fourth District reversed summary judgment in Fuentes v. Luxury Outdoor Design, holding that a court must still examine the record to determine if summary judgment is warranted, even where no opposition is filed.

In Positano Place v. Empire Indemnity, the 11th Circuit held that a trial court order compelling a property insurance appraisal process is an interlocutory order not immediately appealable.

May 26, 2023

In SFR v. Tower Hill, the Sixth District ruled that, under the particular language of its policy, a homeowner's insurer bore the initial burden to prove the amount of depreciation for purposes of calculating a loss. Also, Judge Cohen writes a concurrence emphasizing that the "broad evidence rule" applies to homeowner's in such cases.

Apparently, in some car injury cases, Morgan and Morgan asks members of the jury venire lots of questions about whether they're biased against that firm. Check out Smith v. Lyles.

Editorial note: I'm biased against them, but only because they sued me one time.

The Sixth District reversed summary judgment in Bensen v. Privilege Underwriters, holding that timely notice under the policy was a fact issue, even though the claim for hurricane roof damage was reported two years after the hurricane - the question is, whether under all the circumstances, a reasonable insured would have realized they had a claim.

In St Marks v Boles, the Fifth District reminded us that a bond is usually required when a court denies a motion to dissolve a temporary injunction.

A gay employee of a Bible translation company sued for employment discrimination and the Middle District denied the company's motion to dismiss in Ratliff v. Wycliffe Associates.

May 25, 2023

In Sackett v. EPA, the US Supreme Court held that the Clean Water Act's use of the term "waters of the United States" is limited to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ ” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection" and that "the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”   

The US Supreme Court held in Tyler v Hennepin County, that a taxpayer could assert a takings claim against a county that sold the taxpayer's property at auction to recover back taxes, but did not provide a process for the taxpayer to recover the excess proceeds over and above the tax debt.

In Sliney v. Florida, the Florida Supreme Court rejected a death row inmate's claim the the Eighth Amendment prohibits executing a person whose crime was committed when they were younger than 22.

The Eleventh Circuit reversed summary judgment, holding that the "community rate" for medical services was a fact issue, based on hospital receipts showing what they had been paid by those other than the defendant insurance company. North Shore v. Cigna

In Taig v. City of Vero Beach, the Eleventh Circuit rejected a Section 1983 civil rights claim from a person who was surveilled as part of the city's investigation into human trafficking at a massage spa.

Editorial note: the court says "During the 30 days that the officers monitored the video feed, the officers saw 145 customers enter massage rooms, and 142 of those customers participated in sex acts with a masseuse." One wonders what on Earth the other three customers were thinking when they went into this place.

May 24, 2023

Stand your ground law cases are always interesting. In Burns v. Florida, the Fourth District held that the law applied to protect a person who retrieved a gun and openly chambered a round on their front lawn after a crew of workers refused to leave the property and menaced the person's dog with a chainsaw. The trial court's ruling otherwise would have meant that "the 'castle' our law entitled him to protect was relegated to a defenseless dungeon."

You wouldn't think that criminal defense counsel's refusal to send the client their entire file constitutes a crime against humanity. The Eleventh Circuit agreed. Peers v. Brown.

The Third District reversed a dismissal based on the statute of frauds in Gomez v. Gomez, holding that the statute did not apply to the plaintiff's equitable and unjust enrichment claims.

In National Equity v. Imperial Fund, the Fourth District held that the trial court in a foreclosure was required to determine claims to surplus funds remaining after sale, and departed from the essential requirements of law by staying the action pending a resolution of the dispute that was not being sought in any other forum.

In Fleming v. Florida, the First District offered a helpful critique of the common voir dire technique of setting up a "gotcha" to "manufacture" a for-cause challenge by asking whether a prospective juror would want to take the stand and testify if they were innocent - saying yes to this question is not enough.

The First District decided that Amendment 13, banning betting on dog races, cannot support a takings claim, because it does leave economically viable uses of a plaintiff's property. D'Arcy v. Florida Gaming Control Commissions.

The Second District addressed fee shifting under an offer of judgment in Gladding v. Daher and gave the best opening to a probate opinion that I've seen this year: "Pondering his own mortality, Addie Bundren's father observed that 'the reason for living was to get ready to stay dead a long time.' William Faulkner, As I Lay Dying (1930). Wilfred Desrosiers, a West Virgina coal mine owner and patriarch of the Desrosiers family, ignored this admonition. So, after he died intestate in 1997, family peace collapsed for his lack of planning."

In State Farm v. Central Therapy Center, the Third District warned that it might not be the best idea to wait seven years before moving to amend your pleadings and add nine new affirmative defenses - they upheld the trial court's denial of the motion.

The Third District affirmed a trial court's denial of prejudgment interest in Hawks Nest Condominium v. Westchester, upholding an award of fees and costs because a property insurer's delayed response required the insured to file a petition to compel appraisal, but that prejudgment interest should not be awarded because the insurer never actually denied the claim.

In a sad case involving a minor forced to act as a drug mule, Williams v. Florida, the Fourth District addressed the burdens of proof applicable when a human trafficking victim moves to expunge their criminal record.

The Fourth District retroactively applied amended Rule 1.530 in Tucker v. LNV, holding that the defendant's failure to move for rehearing barred an appeal based on the trial court's alleged failure to make the on-record fact findings required by the summary judgment rule.

In Wolf v. Habashy, the Fourth District held that a "system gone awry" (prior counsel's failure to properly set up his e-filing portal) constituted excuseable neglect sufficient to vacate a default judgment.

The Eleventh Circuit offered a roadmap to developing a sufficient record for review of a prisoner's claim that prison discipline procedures violated their due process right. Warnock v. Brook.

In Beasley v. O'Rielly Auto Parts, the Eleventh Circuit took a detailed look at reasonable accommodations for a hearing-impaired employee under the ADA.

May 23, 2023

In Statewide Guardian ad Litem v. JB, Judge Tanenbaum, concurring, offered a thoroughly-researched and scholarly discussion of certiorari jurisdiction in the context of so-called "procedural" rights.

In Africa Growth Corp. v. Republic of Angola, the Eleventh Circuit granted immunity to Angola under the Foreign Sovereign Immunity Act after it expropriated tens of millions of dollars of a private company's assets and then breached its agreement to settle the claim for $47.5 million.

May 22, 2023

The Southern District spent an admirably patient 44-pages dealing with one fellow's unhappiness with his yacht in Horowitz v. Allied Marine, Inc. and a comparatively terse 17 pages on fire damage to Bryan and Beathea's vessel in Great Lakes Insurance SE v. Crabtree

The Southern District also did a 59-page deep dive into motions in limine and Daubert motions against damages experts in an unfair competition context in ADT, LLC v. Vivint Smart Home, Inc.

May 21, 2023

In Mager v. Katz, the Southern District offered a discussion of remand for failure to establish the jurisdictional amount after removal on diversity grounds.

May 19, 2023

The Fifth DCA delivered an interesting real property case in Babcock v. Golden Acres South, LLC - owner sues tenant for unlawful detainer in county court; tenant counterclaims, asserting an equitable interest in the property - county court loses jurisdiction to the circuit court, because ejectment is now the form of action.

Curet v. Ulta Salon is an employment retaliation action from the Middle District. Good discussion of the various burdens on a motion for JNOV. The claimant failed to introduce adequate evidence at trial because "could have" evidence is not "did" evidence.

Plaintiff sues under the Lanham Act for false advertising and seeks both legal relief in the form of money damages and equitable relief in the form of disgorgement of profits. Two weeks before a jury trial, shortly after a partial summary judgment, the plaintiff drops the money damages claims and moves for a bench trial. Although this might have been gamesmanship, the Southern District okayed it in Bluegreen Vacations v. Timeshare Lawyers.

Want to bend your mind around tricky appellate jurisdiction issues? The Sixth DCA's opinion in Shassian v. Riverwalk Park has you covered.

Guy gets three years for assaulting police who asked him to move his car off the beach. State withholds statements of his in discovery, surprises him on the stand, objects to efforts to show they weren't his statements, then brings it up in closing. Fifth DCA reverses in Tyson v. Florida because a Richardson hearing was required to determine if the discovery violation prejudiced the defense.

In Lazaroff v. Meek, a personal injury trial resulting in a defense verdict, the Fifth DCA reversed the granting of a new on the basis of supposedly improper arguments on the plaintiff's age and Medicare.

An interesting corporate law case involving non-binding arbitration, a board voting to dismiss a CEO's lawsuit, a derivative action, and a motion to set aside a final judgment: the Second DCA opinion in WLT Software v. Brooks.

The county fired the building contractor on the new fire station and was sued for breach of contract. The Fifth DCA granted a writ of certiorari to quash the denial of a motion to dismiss for failure to exhaust administrative remedies. Seminole County v. APM Construction.

In enforcing a contractual venue provision, the Second DCA reminded us the the convenience of counsel doesn't factor in to the decision and witnesses can appear remotely. Pocock v. Pocock.

The Fifth DCA gives a nice roadmap of a divorce trial in Brutus v. Brutus, and reminds us that a ruling from the bench at trial trumps a later inconsistent written judgment.

Finally, the Eleventh Circuit gives a fascinating 38-page analysis of how to determine if a convict is too intellectually deficient to be put to death for murder. Smith v. Alabama.

May 18, 2023

In Thompson v. Regions Security Services, Inc., the Eleventh Circuit ruled in favor of a Fair Labor Standard Act plaintiff who alleged that his employer set an artifically low "regular rate" of pay in order to avoid paying him overtime.

The Eleventh Circuit held, in Ruiz v. US Attorney General, that an immigrant seeking cancellation of removal may allege "extreme cruelty" by a spouse that consists of mental and emotional abuse, not just physical abuse.

Applying Florida law, the Eleventh Circuit, in Global Network Management, Ltd. v. CenturyLink Latin American Solution, LLC, allowed a claim arising out of the theft of 1,380 memory cards, allegedly by a group of third-party contractors, to proceed based on an implied bailment theory.

The Middle District enforced a forum selection clause in a franchise agreement in Kava Culture Franchise Group Corp. v. DAR-JKTA Enterprises LLC, holding that a general allegation of fraud in connection with a contract is not enough to invalidate a clear forum selection clause.

May 17, 2023

In Vereit Real Estate, LP v. Fitness International, LLC, the Third reversed a summary judgment order that had ruled that a commercial tenant was relieved of its rent obligations by a force majeure clause in its lease for the period of time that COVID-19 orders kept the tenant's business closed.

In Ozyesilpinar v. Reach PLC, the Third affirmed dismissal of a defamation claim based on news organizations publishing screenshots a name-calling match between an owner and a short-term tenant and characterizing them as a "racist tirade."

In Larkins v. Mendez, the Third held that a signature card reflecting an account as a joint asset with rights of survivorship creates only a rebuttable presumption that may be overcome by clear and convincing evidence that it was intended to be a convenience account.

In Testa v. Town of Jupiter Island, the Fourth certified a question of great public importance to the Florida Supreme Court: whether cities must re-advertise a proposed ordinance if its adoption is postponed from the meeting that was initially advertised.

Editorial note: this case is very important to municipalities around the state, because the earlier merits opinion invalidating an ordinance on this basis threatens the validity of an unknowable number of ordinances around the state, since it was apparently inconsistent with the usual practice.

In Saunders v. The Baseball Factory, Inc., a youth baseball umpire sued a tournament sponsor after a player punched him in the face - the Fourth affirmed dismissal, holding that merely sponsoring the tournament didn't create a duty to protect the umpire without additional specific risk factors.

May 16, 2023

The Middle District provided a handy discussion of the federal proportionality and motion to compel fees standards in McArevey v. SFM, LLC.

May 15, 2023

In a dispute over "shows on cruise ships," Poet Theatricals Marine, LLC v. Celebrity Cruises, Inc., the Eleventh Circuit affirmed remand of a state law unjust enrichment claim, holding that it was not completely preempted by federal copyright law.

In Woods v. Reeve, the Southern District provided an extensive application of qualified immunity in the context of a deadly shootout between a SWAT team executing a search warrant and the drug suspects inside a home.

May 12, 2023

The Sixth, in Lancheros v. Burke, a car accident case, reminded us that "directed verdicts in negligence cases are rarely appropriate," that causation should have been left for the jury to decide, even where the defendant's expert conceded that the accident could have caused some injury, and that trial courts should withhold ruling on a motion for directed verdict until after the jury returns a verdict, since that may moot the issue. 

In Reese v. Reese, the Sixth gave a detailed and helpful application of various statutory burdens of proof in a divorce action.

In Halsey v. Hoffman, the Second granted cert to quash the trial court's denial of a motion to dismiss, concluding that the statutory pre-suit requirements for a medical malpractice action apply to a suit arising out of medical care, where the action is for defamation based on a doctor's entry in a medical record that a patient symptoms were feigned.

In Sahid v. Miller, the Fifth reminded litigants that they must object, move for rehearing, or request leave to amend in order to preserve error for appeal from even an obviously erroneous dismissal with prejudice.

In Bluegreen Vacations Unlimited, Inc. v. Timeshare Lawyers, P.A., the Southern District denied a motion for rehearing and gave a helpful practice tip: incorporating a bunch of arguments by reference to your previous summary judgment motion pretty much gives away that you're not raising any new issues that are proper for rehearing.

May 11, 2023

In Birmingham v. RoFx.net, the Southern District reminded us that federal courts are serious about their independent duty to carefully analyze Rule 23's requirements before certifying a class - you would think that when your Ukranian fraudster defendants are all defaulted, they file no response to your motion, and you have an AmLaw 100 firm representing you, you'd probably get your class certified. In this instance, you would be wrong, because you haven't analyzed your conflict of laws issues implicated by your requested "global" class.

May 10, 2023

In Fitness International, LLC v. 93 FLRPT, LLC, the Second held that neither its lease nor common law provided for an abatement of rent for a lessee whose business was impaired by COVID-19 restrictions.

In Westpark Preserve Homeowner's Assoc., Inc. v. Pulte Home Corp., the Second held that, where a builder owns property on which it makes improvements, the section 95.11(3)(c) statute of repose runs from the issuance of the certificate of occupancy, not from the sale of the property to the next owner.

In Wells Fargo v. Meininger, the Second reversed a $17,000 attorneys' fee award to the bankruptcy estate of the Stopa Law Firm, which had been entered without actual time records, an affidavit, or attorney testimony.

In Davis v. Florida, the Second held that it was fundamental error for a trial court to allow an officer to testify, in succession, that one witness seemed credible, while another was uncooperative, implicitly implying the jury should not credit the second witness's testimony.

The Third reversed class certification in Pet Supermarket, Inc. v. Eldridge, holding that Florida's standing requirements were not satisfied, either by the allegation of a bare TCPA statutory violation, or an analogy to the tort of intrusion on seclusion, on the basis of a retailer's text messages.

The Fourth allowed the Palm Beach Post to move forward with its efforts to obtain the grand jury records from Jeffrey Epstein's 2006 state charges, holding, in CA Florida Holdings, LLC v. Aronberg, that courts have inherent authority under Florida Statutes section 905.27 to release grand jury records.

In Grnja v. People's Trust Ins. Co., the Fourth held that a property insurer does not waive its right to compel appraisal by sending a notice of the insured's right to mediation too early, as opposed to too late.

In Wright v. Regions Bank, the Fourth held that 19 days was not an undue delay in moving to set aside a default judgment and that accidentally filing an answer under the wrong case number was excusable neglect.

May 5, 2023

The Sixth addressed an appellate "jurisdictional quirk" in Bowers v. Orange County, holding that there had been no appealable final judgment where at least one count at issue had been settled, but had not actually been dismissed by order or stipulation. 

In Roberts v. Florida, the state obtained an order allowing it to subpoena a motorist's medical records to support a DUI investigation, but failed to present testimony or evidence at the hearing to establish the nexus between the protected records and its investigation - the Sixth issued a writ of cert to quash the order, holding that an evidentiary showing was required.

In Naples Motorcoach Resort Homeowners Assoc., Inc. v. JG&M Properties, LLC, the Sixth held that a violation of the unlicensed real estate broker statute, section 475.01(1)(a) could not constitute a precidate for a Florida Deceptive and Unfair Trade Practices Act claim under section 720.3075(5).

The Sixth held, in Fiddlesticks Country Club, Inc. v. Shaw, that an amendment provision in a country club's bylaws allowed a special assessment, as against members' claims that they had a vested right not to be charged.

In the termination of parental rights case Statewide Guardian Ad Litem Office v. TV, the trial court grew frustrated with the GAL's office's reluctance to allow its record custodian to be subpoenaed and ruled that, in future cases, if the GAL refused such a subpoena, the court would rule that it waived its authenticity objections to the records saught - on appeal, the second said this was a "concerning" order, suggesting it would not stand up on appeal, but declined to issue a writ of cert or prohibition because no such sanction had actually been entered in the case.

In KJH v. Florida, the Fifth reminded us that a criminal restitution award cannot include wages lost by a victim who takes time off to testify against the accused.

Editorial note: yep, that's the law, but c'mon, man!

In Southern-Owners Ins. Co. v. Maronda Homes, Inc., the Eleventh Circuit held that a state law attorney's fee claim cannot be decided once a federal court concludes that it lacks subject matter jurisdiction, following a 29 year-old published opinion over a 15 year-old unpublished opinion, and declining to revisit the issue because of any substantial change in state law in the interim.

In considering a Daubert motion in Thelen v. Somatics, LLC, in which a depressed patient alleged that Electro-Convulsion Therapy had permanently damaged his brain, the Middle District provided a concise and helpful summary of proving causation in a medical products liability case: "general causation, i.e., whether the drug or other product can cause the injury in question, is typically established by expert testimony based on evidence such as the association between the product and injury shown in epidemiological studies, the strength and nature of the association, and the biological plausibility of a causal relationship. Specific causation, i.e., whether the product did in fact cause the plaintiff’s injury, is typically established by expert testimony employing a technique known as differential etiology by which the expert first rules in possible causes of the patient’s condition, and then rules out other potential causes, leading to a conclusion that the remaining possible cause more likely than not was the actual cause." (cleaned up)

In Dvoinik v. Rolff, plaintiffs who had sued the Republic of Austria alleged that defendants had been hired by Austria to intimidate and deceive them into dropping their claims, but the Middle District dismissed because the Foreign Agents Registration Act, under which they sued, doesn't create a private cause of action.

In the "not a surprise" category, United States v. Munson tells us that if you're caught on tape selling heroin and fentanyl, you're a flight risk and a danger to the community and are unlikely to be ought on bail pending trial.

May 4, 2023

Editorial note: May the Fourth be with you!

In Florida Bar v. Rush, the Florida Supreme Court suspended a lawyer for three years after they went pretty wildly astray from their client's instructions in trying to negotiate the settlement of an eminent domain case. The facts in this one are just jaw-dropping.

May 3, 2023

In Beckett-Morales v. Scheuer, the Second delved into a dispute between neighbors over whether a fence complied with their neighborhood's use restrictions.

The Third, in In Re: The Estate of Amparo Berenice Buechele, reversed a sanctions award based on the trial court's inherent authority and remanded for an evidentiary hearing, as required by Moakley v. Smallwood.

In Rosenberg v. US Bank, NA, the Third affirmed summary judgment that a judgment debtor had fraudulently transferred an asset to a trust - the case is one of over 47 reported decisions in the bank's "long and winding efforts to collect debts" owed by its borrower in litigation that "has resembled a tennis match, bouncing back and forth between various forums in multiple jurisdictions."

The Third issued Rodney Shands v. City of Marathon, a detailed exploration of the "cryptic and convoluted nature of contemporary regulatory takings jurisprudence."

In Cole v. Universal Property & Casulaty Ins. Co., the Fourth ruled that the 2021 amendments to Florida Statutes section 627.70152 requiring a presuit notice of intent to litigate do apply retroactively to policies issued before the statute's effective date.

The Fourth reminded us that a contract with an adequate merger clause will bar an action for alleged fraudulent inducement based on inconsistent pre-contract statements in Funderdome, LLC v. Woolbright Development, Inc., in which a commercial tenant sued a leasing agent for allegedly misrepresenting the adequacy of parking.

May 2, 2023

The Eleventh Circuit affirmed summary judgment against a "chronic nuisance" hotel that sued the city on First and Fourteenth Amendment claims in Mata Chorwadi, Inc. v. City of Boynton Beach.

The Middle District of Florida decided to let a condominium owner proceed with a Fair Debt Collection Practices Act against their conominium association in O'Driscoll v. Arbor Grove Condo. Assn., Inc. This saga began after several incidents of "problematic behavior" in the condominium's common areas. The association sued the owner, seeking an injunction against him and alleging "obnoxious behavior, rude, name calling, especially homophobic slurs at unit owners... damage to common elements, vandalism... yelling at other owners... constantly disturbing the peace... extremely foul language." The association fined the owner, then its management company sent a letter demanding the fine, as well as "attorney's fees, per manager," the language that apparently triggered the FDCP suit.

The Southern District offered a concise and helpful summary of how to apply the Daubert standard for expert witness testimony in Hughes v. Wal-Mart Stores East, LP.

April 28, 2023

In Hudkins v. Hudkins, the Fifth provided a lengthy and interesting discussion of a trial court's authority when dealing with joint assets in the context of a guardianship.

In Florida Farm Bureau v. Worrell, a sad and bizarre case, an "intoxicated and apparently injured" person wandered onto a homeowner's property, broke into their shed, and "left behind blood and what seemed to be feces." The person was later found dead of a blunt-trauma injury outside a neighboring home. The homeowners spent $4,103.85 on an accident restoration and cleaning company and their property insurer denied their claim. The trial court awarded summary judgment to the homeowner and the Fifth affirmed because blood and feces were covered, despite the policy's pollution exclusion.

Editorial note: strictly speaking, the holding applied only to blood and the doodoo was mere dicta, because the "fecal matter, at most, is a concurrent cause of loss." We therefore must continue to wonder whether poop falls within the pollution exclusion of a homeowner's policy.

In Ivey v. Ivey, the Sixth denied certiorari, holding that post-judgment remedies would be available on a trial court's order requiring a party to post a lis pendens bond.

April 27, 2023

The Florida Supreme Court today made an important follow-up revision in In re: Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530, on the topic of requiring motions for rehearing, in response to comments it received after its last revision in 2022. Now, instead of requiring a motion for rehearing before appeal in order to challenge the "sufficiency of a trial court's findings in the final judgment," a motion for rehearing must be filed prior to appealing ANY order if the appeal will assert  a "failure of the trial court to make required findings of fact." The court made "clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court's order."

Editorial note: this is a helpful clarification - we had seen much confusion among practitioners, even in the short time the previous version of the amended rule was in place, as to what kinds of challenges to factfinding needed to be included in a motion for rehearing.

April 26, 2023 

The Second issued Eckerd Youth Alternatives, Inc. v. The Devereux Foundation, Inc., with a helpful discussion on invoking an indemnity provision in a private contract.

In MYI Int'l, LLC v. Blue Ocean Miami, Inc., the Third granted certiorari to quash a discovery order that had been entered without adequate notice and required a document production "vast in breadth and irrelevant to the issues."

In Carnevale v. Rogenia Trading, Inc., a party moved to recuse two successive trial judges based on their social media postings. The Third did not recuse the second judge, who "made the best of a messy situation," because a successive recusal motion requires a part to demonstrate actual bias.

Similarly, in Viera v. Viera, the Third upheld denial of four separate recusal motions filed against the same judge by a party representing themself in their own divorce.

Editorial note: don't move to recuse a judge if you can possibly avoid it; certainly don't move to recuse the same judge four times in a row; and, for your own good, don't try to represent yourself in a divorce.

The Third reversed the dismissal of a $750 small claims court case in MVP Plumbing, Inc. v. Citizens

Editorial note: do we think maybe the appeal cost more than it would have to just pay the claim?

In Hein v. Florida Atlantic University, the Fourth upheld the dismissal, on sovereign immunity grounds, of a suit brought by students who alleged that the university had breached a contract with them by imposing certain COVID pandemic restrictions.

The Fourth reversed summary judgment entered early in a theft of trade secrets case, Patient Depot, LLC v. Acadia Enterprises, Inc., holding that even if many of the documents were not secret, their compilation might nonetheless have constituted a trade secret.

April 21, 2023

The Fifth offered a helpful overview and application of Florida's new summary judgment standard in reversing a summary judgment entered in Olsen v. First Team Ford.

April 19, 2023 

The Third, in Sorhegui v. Park East Home Owners Assoc., told a pro se litigant that you cannot recuse a judge because a party's counsel threw them a judicial fundraiser.

Editorial note: in over 20 years of practice, I don't recall ever moving to recuse a judge and I hope I never have to. When a motion like that gets filed, it's never a good sign about how the case is going.

In Saenz v. Saenz, the Third reminded family law courts and practitioners that it's a due process violation to modify a parenting plan if that relief is not properly raised in the motion being heard.

Editorial note: these are always tough cases, because due process is a fundamental concern, but family law courts are naturally also very concerned about the best interests of the children, even if the issue isn't squarely before the court.

The Third discussed forum non conveniens and transfer of venue in Zoberg v. Hu.

In United Automobile Ins. Co. v. Path Medical, LLC, the Third reminded us that you can recover, as costs, the attorney's fees charged by your attorney's fees expert for your motion to recover attorney's fee.

The Fourth issued a lengthy opinion, in Spanakos v. Hawk Systems, Inc., affirming a $1.2 million attorney's fee award based on a proposal for settlement.

In Hollywood Park Apartments South, LLC v. City of Hollywood, the Fourth upheld most of an order upholding a municipal ordinance against a constitutional challenge and allowing the city to collect $110,000 in past due water charges over a four-year period during which a water meter was defective.

In Fries v. Anderson, the Fourth parsed a 61-page motion for rehearing, which it denied entirely, other than to excoriate counsel for misrepresenting the holding of a case, which "exceeds the bounds of zealous advocacy." In an understated sentence that may or may not have dripped with irony, the court reminded all of us that "it is the practice of this court to read the cases cited in briefs and motions."

The Fourth, in Bernstein v. Bernstein, held that a $1.25 million waterfront home purchased prior to marriage, with non-marital funds, and titled solely in one spouse's name, had nonetheless become a marital asset because it housed the family and was treated as a marital asset for 22 years.

April 14, 2023

The Middle District entered partial summary judgment on punitive damages issues in the Multi-District Litigation over Chinese drywall in Judge v. Knauf Gips KG.

April 12, 2023

This was a busy day for Florida's courts. The Fourth issued Thayer v. Hawthorn, holding that an owner did not waive their homestead rights by deeding the property to themself and their spouse as part of an estate plan. I like opinions like this one, because homestead rights are important to a lot of Floridians and so I generally think they should be easier to claim and harder to waive.

Editorial note: where it doesn't create ambiguity, I try to use gender-neutral pronouns. If gender isn't directly relevant to what's being said, why mention it? For those who say "they" is a plural pronoun, I say this: all words are made up - it's going to be alright.

In Citizens Prop. Ins. Corp. v. Hernandez, the Fourth reversed a JNOV, despite the trial court's concern that a property insurer's counsel had swayed a jury with improper argument of fraud on the part of the homeowner.

The Fourth also provided helpful discussions of contempt orders in Decuis v. Decius, and stays in light of related litigation in another state in Toth v. Toth .

In City of New Port Richey v. Lamko, the Second allowed bystanders injured in a high speed police chase to overcome the city's sovereign immunity defense because the officers' actions create a foreseeable zone of risk.

Editorial note: without commenting on this particular decision, I must say that the concept of "foreseeable zone of risk" seems to me too often used to let weak tort claims defeat potentially meritorious motions to dismiss. You could "indict a ham sandwich" with "foreseeable zone of risk."

In Jones v. Reid, the Third reversed a trial court's final judgment that had summarily evicted Section 8 tenants, despite their unadjudicated answer and defenses alleging retaliatory eviction

The Third also reminded trial courts, in GEICO v. Simply Health Care, Inc., that they abuse their discretion if they refuse to permit amended pleadings, even on the eve of summary judgment, so long as the amendment is not legally futile, part of a delaying tactic, or occurs after protracted discovery.

In Mason v. Mason, the First held that a motion under Family Law Rule 12.540 to set aside an 11 year-old judgment because of fraud in a financial affidavit was timely because "no time limit" means what it says - but it did certify the question to the Florida Supreme Court. 

In Northshore Holdings, LLC v. Walton County, the First addressed constitutional standing requirements in a suit by waterfront property owners alleging that the doctrine of customary use allowing the public to use the beach constituted a taking.

In a suit over a sewer lift station, the First extensively discussed sovereign immunity in Emerald Coast Utilities Authority v. Thomas Home Corporation.

Editorial note: don't give your company those initials unless you want a court to call you THC throughout its opinion.

April 6, 2023

In Furst v. Rebholz, the Florida Supreme Court held that giving a tenant exclusive use of a portion of your homestead by renting a room, you may lose at least a portion of your homestead tax exemption.

April 5, 2023

The First and Fourth issued opinions today. In Weisblat v. Feldman, the Fourth held that a property owner can convert a joint tenancy into a tenancy in common without using the old formality of a so-called "straw man" conveyance. I think this is a good result, because doing away with old formalities that no longer serve a purpose is helpful - it makes it easier for everyone to understand and comply with the law. 

In Johnson v. Bank of America, the First affirmed the creation of an equitable lien to prevent unjust enrichment. Sometimes, equitable liens are the only way to fairly manage different interests in real property. I like to see our Circuit Courts get them right and our District Courts affirm them. But let me disclose my own bias on this one: I've worked with counsel for one of the parties and enjoy seeing them do well.

April 3, 2023

In Vertex Development, LLC v. Pinellas County, the Middle District granted summary judgment to a company that sought to build a cell tower disguised as a 120 cross on church property in Largo, after public comments had caused the zoning board to deny them a permit.

March 24, 2023

Florida's House Bill 837 went into effect today. This is the tort reform law you've been hearing about. It makes mostly moderate technical changes to various insurance laws that proponents argue will help discourage weak lawsuits by levelling the playing field on attorney's fees and allegations of insurance bad faith. Opponents say it's a gift to insurance companies. It remains to be seen whether this will help with legitimate concerns about both insurer solvency and the protection of insureds. 

March 17, 2023

In Hogg v. Villages of Bloomingdale Homeowners Assoc., Inc., the Second held that actions to reform a written instrument are subject to a five-year statute of limitations.

March 15, 2023

In S and A Property Investment Services, LLC v. Garcia, the Third held that the tax increase cap on real property is lost when spouses who are tenants by the entirities transfer ownership of non-homestead property to an LLC they own.

The Third held in Parisi v. Kingston that a power of attorney executed outside the United States must strictly comply with the requirement of two subscribing witnesses in order to be validly used to convey real property.

In Sage v. Pahlavi, the Third held that a reference to a defect in the sellers' property disclosure form barred the buyer's fraudulent nondisclosure claim under Johnson v. Davis.

The Fourth held, in Destiny Fulfilled Outreach Ministries, Inc. v. Investments SWK, LLC, that the commercial eviction statute does not, by itself, create a basis for an attorneys' fee award.

In Dimauro v. Martin, the Fourth held that the mutuality of remedy requirement for contract formation does not require each party to have identical remedies against the other.

February 22, 2023

The Third District issued Clear 2 Close Title, LLC v. Zap Capital, Inc. today, ruling that an assistant neglecting to give a manager legal papers was excusable neglect that justified setting aside a default judgment against the company. We should want legal cases decided on the merits, not on mere technicalities, so I generally like to see this kind of outcome. I may be biased on this case, though, because one of the parties is a title agency and I've worked with a lot of them. 

In Unlimited Turf, LLC v. CP Global Consulting, the Third reminded trial courts that, to dismiss for fraud on the court, there must be an evidentiary hearing and specific findings of fact supported by clear and convincing evidence.

The Third also issued AFP 103 Corp. v. Common Wealth Trust Services, LLC, which I won't comment on at the moment, but you should read. This one will be much-discussed by condominium lawyers and the title insurance industry. If you're a lawyer, now would be a good time to join RPPTL - you're in the title industry, now would be a good time to join the FLTA.

Editorial note: I'll try to remember to disclose when I may be biased. It's only fair - these are my personal opinions, not legal opinions.

February 15, 2023

The First, Third, and Fourth Districts issued opinions today. In Sutton v. Wilmington Trust, N.A., the Third said any equitable factor can support setting aside a foreclosure sale. I'm of two minds when this happens: on the one hand, important transactions like foreclosure sales should be reliable and final whenever possible, because it's good for business; on the other hand, I'm generally a fan of courts using their equitable powers when appropriate, because fairness is good for everyone. 

In Risman v. Seaside Villas Condominium Assoc., the Third considered a condominium declaration provision that gave the association "conclusive" power to decide some disputed issues - interesting stuff. 

The Fourth issued a lengthy and fascinating new opinion on rehearing in Citizens For Responsible Development, Inc. v. The City of Dania Beach, addressing questions of legal standing to challenge zoning ordinances and development agreements - we should all read this one. 

Finally, in Shamieh v. HCB Financial Corp., the First District used a nice turn of phrase in sorting out a settlement agreement between the parties: Judge Tannenbaum, concurring, said the court ought to conduct an "equitable true-up" in this type of situation. The law is made of language and I love to see it used well.

Editorial note: most of these notes relate to Florida's courts, so unless I say otherwise, I'm talking about Florida's District Courts of Appeal

February 3, 2023

The Sixth, in CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, held that an attorney need not testify in support of their own fees motion if they have a fee expert and their invoices are in evidence.

January 12, 2023

The Eleventh Circuit released a fascinating opinion today in FCOA, LLC v. Foremost Title & Escrow Services, LLC, a case in which a national insurance conglomerate sued a Florida law firm's affiliated title agency for trademark infringement

Note: I don't even attempt to cover every Florida appellate court decision. If that's what you need, I recommend the excellent weekly appellate case law blog put out by my former colleagues in the appellate practice group of Carlton Fields. Nor do I restrict my discussion to brief, but fully informative, summaries of cases that are interesting primarily to real property litigators. If you're looking for that, you might try getting ahold of the weekly updates put out by this excellent lawyer.

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