ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

In this non-compete case, the trial court denied a motion for temporary injunction on the basis that the restrictive covenant did not survive the expiration of the employment agreement because the post-agreement employment relationship “was not formalized in a written document.”

The appellate court reversed, holding that the movant had established a substantial likelihood of success on the merits based upon a provision in the agreement that contemplated employment “in the absence of a written agreement.”

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

 

 

Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009)

In this case, a property owner sued a homeowner’s association for injunctive and declaratory relief seeking access to a landlocked lot of land, as well as for damages for an alleged tortious interference of the owner’s attempt to sell the lot.  The association successfully defended the case, and the trial court awarded attorneys’ fees based upon offers of judgment covering “all claims” – including non-economic claims – in the litigation.

The appellate court reversed, holding that the damages claim did not convert the case into “an action for damages” that would permit an attorneys’ fee award under s. 768.79:

each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims. Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute.

 

Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009)

Quality Roof Svc’s v. Intervest National Bank, 34 Fla. L. Wkly. D2205 (Fla. 4th DCA October 28, 2009)

In this foreclosure action, Quality Roof Services (QRS) was named as a co-defendant based on a properly recorded construction lien.  QRS timely answered the Complaint, but did not assert any affirmative defenses or raise any cross-claims. The property owner consented to the foreclosure and the case was set for a final summary judgment hearing.  Without filing any affidavits or presenting any record evidence to challenge summary judgment, QRS moved, two weeks prior to the summary judgment hearing, to amend its answer and assert an affirmative defense of unclean hands.

The Fourth DCA held that the amendment should be allowed, reasoning that (1) Fla. R. Civ. Pro. 1.190(e) requires the court to allow amendments when necessary to further justice; (2) the court should be especially liberal in permitting amendments sought at or before summary judgment, citing Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003); (3) an amendment should be allowed unless there is substantial prejudice to the non-moving party, the moving party has abused its right to amend, or the amendment would be futile; and, addressing whether the proposed amendment at issue would be futile, (4) an amendment is not futile unless it fails to state a cause of action, citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

ROBERT WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center vs. A AVENTURA CHIROPRACTIC CARE CENTER, INC. ET AL, 34 Fla. L. Wkly D2186b (3d DCA Oct. 21, 2009)

In this case, a defendant filed a motion in 2007 to set aside a default judgment that had been entered and recorded in 1993.  He claimed that he never received pleadings in the case or the judgments themselves.  The appellate court affirmed the trial court’s finding that excusable neglect had not been established, because the appellant “advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990.”

ROBERT WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center vs. A AVENTURA CHIROPRACTIC CARE CENTER, INC. ET AL, 34 Fla. L. Wkly D2186b (3d DCA Oct. 21, 2009)

Florida Rule of Civil Procedure 1.540

State Farm Fire and Casualty Co. v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009)

In this car accident case involving insurance coverage, two plaintiffs in separate companion cases moved for summary judgment against the insurer.  The trial court held hearings on the first plaintiff’s motion and granted it.  As for the second plaintiff, the court granted the motion a week later, but without holding a separate hearing.  The appellate court reversed, holding that “[a] trial court’s failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard.”

State Farm Fire and Casualty Company v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009)