Effective Teleservices, Inc. Et Al. v. Smith, 34 Fla. L. Weekly D1692b (Fla. 4th DCA Aug. 19, 2009)

In this case, appellee received an attorneys’ fee judgment based upon a sanction award for discovery violations by appellants.  The award, however, reflected an hourly rate that exceeded the rate actually billed to the client.  The court found this to be error and reversed.

Effective Teleservices, Inc. et al. v. Smith, 34 Fla. L. Weekly D1692b (Fla. 4th DCA Aug. 19, 2009)

1.525 Motions For Costs and Attorneys Fees

Lake Charleston Maintenance Assoc., Inc. v. Farrell, 34 Fla. L. Weekly D1565 (Fla. 4th DCA Aug. 5, 2009)

At trial, it was reversible error for court to involuntary dismiss lawsuit following close of Plaintiff’s case-in-chief.  The Court should have considered parol evidence in determining whether Plaintiff, a Homeowners Association, had established prima facie case of violation of Association’s architectural restrictions.  The Fourth DCA found that the trial court improperly limited its review to the meeting minutes in determining whether the Association had met its burden of proof.  At issue was whether the members of the Association’s Design Review Board had been properly appointed.

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SALINAS v. ORLANDO MEDINA et al., 34 Fla. L. Wkly D1582a (Fla. 3d DCA August 5, 2009)

In this construction contract case, plaintiff’s counsel stated in open court, before jury selection, that he would voluntarily dismiss the case without prejudice.  He stated further that he would file a written dismissal thereafter.  The defendants then filed a motion for fees and costs.  The plaintiff never filed the written dismissal, but instead filed a motion for relief from the voluntary dismissal.  The court denied the motion.  The plaintiff appealed.  The Third District held that the oral dismissal was ineffective under Rule 1.420(a)(1) because it was not made “during trial.”  The court, however, affirmed because “Plaintiff cannot obtain the benefit he sought — a postponement of trial — while failing to file the required document he assured opposing counsel and the court he would file.”  The court therefore in essence found that the plaintiff was estopped from obtaining relief from the dismissal.

SALINAS v. ORLANDO MEDINA et al., 34 Fla. L. Wkly D1582a (Fla. 3d DCA August 5, 2009)

Strategic Empowerment v. South Dade Realty, Inc., 34 Fla. L. Wkly 1557 (Fla. 3d DCA July 29, 2009)

An unsworn complaint, a lis pendens signed by counsel alone, and an answer and affirmative defenses filed by the defendant, “did not satisfy even the most rudimentary of conditions for entry of a mandatory injunction without notice to the adverse party” pursuant to Fla. R. Civ. Pro. 1.610 and We’re Assocs. VI Ltd. P’ship v. Curzon Dev. Corp., 738 So.2d 440, 442 (Fla. 4th DCA 1999).  In this commercial real estate case, the court treated Strategic Empowerment’s request for an interlocutory order dissolving a lis pendens as a request for an injunction subject to the requirements of Rule 1.610.

Jorge Manzano et al. v. Franco Nicoletti et al., 34 Fla. L. Wkly D1435b (Fla. 3d DCA July 15, 2009)

In this breach of contract case, plaintiffs filed a motion to take the prisoner-defendant’s deposition.  Plaintiffs tried to appear telephonically at the hearing on their motion but failed to do so.  At the hearing, the trial court reviewed the complaint and dismissed it sua sponte for failure to state a cause of action.  The appellate court accepted defendants’ confession of error and reversed, holding that where a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond in writing or at a hearing.

Jorge Manzano et al. v. Franco Nicoletti et al., 34 Fla. L. Wkly D1435b (Fla. 3d DCA July 15, 2009)

Florida Rule of Civil Procedure 1.380

SONSON v. HEARN, 34 Fla. L. Weekly D1469 (Fla. 4th DCA July 29, 2009)

4th DCA overturned trial court’s dismissal of case as sanction for Plaintiffs’ failure to attend own deposition where record lacked sufficient evidence that Plaintiff, rather than Plaintiff’s attorney, was responsible for failure to appear.  Court found that the trial judge should have performed additional six part analysis for sanctions where the attorney, and not the client, is responsible for the non-compliance pursuant to Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).

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RICHARD PARISI v. MICHAEL MIRANDA, individually, and on behalf of ISLAND SHORE HOMES, INC., 34 Fla. L. Wkly D1476a (Fla. 4th DCA July 22, 2009)

In this case, a shareholder received a jury verdict awarding him damages individually.  After entry of the verdict, defendants filed a motion for new trial and judgment notwithstanding the verdict (JNOV) because the shareholder’s expert valued the stock as of the incorrect date.  The trial court denied the motion because, among other reasons, defendants had not moved for a directed verdict at the close of the evidence.  The appellate court affirmed the portion of the order denying a JNOV, but reversed the portion of the order denying a new trial.  The court held that the verdict was contrary to the manifest weight of the evidence, and while the absence of a directed verdict motion barred a JNOV, it did not bar a new trial.