What’s New

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At BRPC we know that the law is not static, it is an ever changing landscape that requires constant vigilance. We recognize the importance of following statutory amendments and staying up to date on state and federal case law. It truly can mean the difference between a win and a loss, we like to win.

WHAT’S NEW

 

 

March 23, 2017: The firm obtained summary judgment for its client on a Brazilian manufacturer’s claim for $3,500,000 in lost profits arising from our client’s alleged failure to timely complete engineering and software work on a fleet management communication system for commercial vehicles.

March 22, 2017: James K. Parker, Esq. and Yvette Lavelle, Esq. successfully defended a Homeowners Association against a multiple count declaratory relief action brought by a homeowner alleging that the Board of Directors of his Homeowners Association violated the Association’s governing documents and Florida Statutes when they went forward with scaling back/postponing portions of a Member approved funding of a multi-million dollar Renovation Project without submitting those modified portions to the Members for Re-vote. The Homeowner further alleged that the Association had mandatory Statutory Reserves or in the alternative its governing documents created mandatory reserves. After trial the Trial Court entered Final Judgment in favor of the Homeowners Association on all counts finding that: 1.) The Board of the Homeowners Association had the authority to move forward with constructing the improvements and material alterations upon approval by a majority of the Membership and did not have to obtain a second re-vote when certain elements of the Renovation Project were scaled back/postponed; 2.) The Board’s actions were reasonable and within the Board’s business judgment; and 3.) The Homeowner’s Association does not have mandatory statutory reserves pursuant to Florida Statute Section 720.303(6) or pursuant to the Homeowner’s Associations governing documents, rather, the Homeowner’s Association has non-statutory voluntary reserves.

February 9, 2017: Debrincat v. Fischer No.: SC15-1477

Richard and Jason Debrincat filed the original civil proceeding against a group of defendants. Stephen Fischer was later added as a party defendant, but the Debrincats subsequently dropped Fischer from the underlying proceeding. Fischer then brought an action against the Debrincats for malicious prosecution. The Debrincats moved for summary judgment, arguing that the litigation privilege afforded them immunity for their conduct of joining Fischer as a defendant in the underlying lawsuit. The trial court granted summary judgment and entered a final judgment for the Debrincats. The Fourth District reversed, holding that the litigation privilege cannot be applied to bar the filing of a malicious prosecution claim. The Supreme Court of Florida approved the Fourth District Court of Appeal’s decision, holding that the litigation privilege does not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil suit.

January 12, 2017: Florida Fourth District Court of Appeal Unanimously Affirms Summary Judgment in Favor of the Firm’s Client

In Brecker v. Delaire Country Club, Inc., 2017 Fla. App. LEXIS 259 (Fla. 4th DCA 2017), the Florida Fourth District Court of Appeal issued a unanimous ruling affirming the summary judgment entered in favor of the firm’s client Delaire Country Club, Inc.  The Plaintiffs, members of the Country Club, brought suit challenging the results of a membership vote which approved a $4.2 million enhancement project for three of its golf courses.  The project consisted of grass replacement in the fairways and rough, resurfacing and relocating cart paths and curbs, creation of new practice greens, reshaping and dredging of several lakes and renovations and extensions to the driving range complex.  The Plaintiffs argued that the procedures used to validate the vote did not comply with the Country Club’s governing documents, and that the Country Club unlawfully prevented certain membership classes from voting on the project, thus rendering the results invalid.  The firm’s lawyers successfully established that the Country Club correctly interpreted and applied its governing documents pertaining to the proper voting method and the membership classes eligible to vote on the project.  The trial court therefore granted the firm’s motion for summary judgment and ruled that the vote had been validly conducted. On appeal, the Fourth District agreed with the trial court’s conclusions and awarded the Country Club attorneys’ fees and costs.  Partners Kyle T. Berglin, Esq. and Frank Colonnelli, Jr., Esq. represented Delaire Country Club, Inc.

January 9, 2017: Embroidme.com, Inc. v. Travelers Property Casualty Co. of America, 2017 U.S. App. LEXIS 368 (11th Cir. 2017)

An insured was sued and incurred over $400,000 in legal fees before notifying its liability carrier and tendering the defense of the lawsuit to its carrier. The liability carrier, upon notification, picked up the defense of its insured but refused to reimburse the insured for the pre-tender legal fees the insured incurred. The court found that Florida’s Claims Administration Statute (Section 627.426 Fla. Stat.) “does not apply to prevent Travelers [insurer] from enforcing a provision of the liability insurance policy that excludes EmbroidMe [insured] from obtaining reimbursement for attorney’s fees it chose to incur prior to requesting Travelers to defend and indemnify it in its pending litigation.” Also important in the holding of Embroidme.com, Inc., the court made the distinction that the Insurer relied on an exclusion, not a coverage defense, in its refusal to pay the insured’s pre-tender legal expenses and thus, the Claims Administration Statute did not control.

October 20, 2016: Florida Supreme Court Quashes First District Court of Appeal Decisions Requiring Language of Florida Rule of Civil Procedure 1.442 (c)(2)(F) Be Strictly Construed

In Kuhajda v. Borden Dairy Co. of Al., LLC, SC15-1682, the Florida Supreme Court issued a decision holding that Florida Rule of Civil Procedure 1.442 (c)(2)(F)’s provision requiring a proposal for settlement state “whether attorney’s fees are part of the legal claim” is procedural and “totally irrelevant” to enforcement when the complaint does not seek attorneys’ fees. The Supreme Court’s decision approves the Fourth District decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003), and quashes two First District Court of Appeal decisions: Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015), and Colvin v. Clements & Ashmore, P.A., 182 So.2d 924 (Fla. 1st DCA 2016).

Florida Rule of Civil Procedure 1.442 and section 768.79 Florida Statutes, govern service of proposals for settlement in Florida, and provide a means to obtain attorneys’ fees but, given their punitive effect, must be “strictly construed.” The Florida Supreme Court in Kuhajda, explained that rule is the procedural framework implementing the statute and, therefore, provisions which do not implement a substantive requirement of the statute need not be strictly construed. Therefore, when attorneys’ fees are not sought by a party in their pleadings, it is no longer necessary to include the language of Rule 1.442 (C)(2)(F), providing a proposal “state whether attorney’s fees are part of the legal claim. It is a logical ruling, but one that is significant given the overarching mantra that Rule 1.442 must be “strictly construed.”

 

October 17, 2016: BRPC Proves Plaintiff’s Fraud On The Court Obtaining Dismissal Of All Claims And Final Judgment In Favor Of BRPC’s Clients

BRPC successfully defended its clients in an auto negligence case obtaining a Final Order of Dismissal on BRPC’s Motion to Dismiss for Fraud Upon the Court. Plaintiff brought a negligence suit against BRPC’s clients seeking to recover damages for personal injuries. In deposition Plaintiff provided sworn testimony that that she has a permanent limp which required her to use a cane at all times when she walked, that she needed a cane or handrail to walk up and down steps otherwise she was unable to do it, that she was unable to carry large boxes, heavy or bulky items, and that she cannot walk straight because her leg moves out to the left. BRPC produced video surveillance evidence in direct conflict with this testimony and successfully showed that Plaintiff failed to testify truthfully in a manner than was more than a mistake, neglect, or inadvertence. The Court found that BRPC, on behalf of its’ clients had proven, clearly and convincingly, that Plaintiff implemented a deliberate scheme calculated to subvert the judicial process, warranting dismissal and final judgment in favor of BRPC’s clients.

April 2016: The Eleventh Circuit Makes Clear Employer’s Do Not Have To Allow Employees To Remain on Light Duty Status in Perpetuity or Create a New Job for Them

In Frazier-White, the Eleventh Circuit held that an employer did not discriminate (hence, the plaintiff failed under prong (3) set forth above) under the ADA or the Florida Civil Rights Act by failing to provide a reasonable accommodation where the employee proposed two accommodations: to allow the employee “an indefinite extension of her light-duty status and reassignment to some other, unspecified position.” Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th Cir. 2016). Because of the nature of the plaintiff’s medical condition in Frazier-White v. Gee, the plaintiff did not know and did not suggest a time frame for when she was able to return to her full-duty position. The court found that such an indefinite extension was unreasonable as a matter of law as the ADA is intended to cover people who perform the essential functions of their jobs “presently or in the immediate future.” Wood v. Green, 323 F. 3d 1309, 1314 (11th Cir. 2003). The Eleventh Circuit made clear in Frazier-White v. Gee that while employers are required to make reasonable accommodations under the ADA when doing so they do not, as a matter of law, have to allow an employee to remain on light duty status in perpetuity or create a new job for them. Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016).

August 24, 2016: The Fourth District Court of Appeals of Florida Withdraws Opinion Granting Appellate Attorney’s Fees In Lawsuit Alleging Violation of FDUPTA AND FCCPA And Substitutes With Opinion Denying Appellate Attorney’s Fees

The Fourth District Court of Appeal withdrew its initial Opinion Granting Appellate Attorney’s Fees in a lawsuit involving claims brought against the defendants alleging violation of the Florida Deceptive and Unfair Trade Practice Act §§ 501.201-.213, Florida Statutes (2014)(“FDUPTA”) and the Florida Consumer Collection Practices Act (“FCCPA”) and substituted with an Opinion denying appellate attorney’s fees. The Fourth District Court of Appeal aligned with the First District Court of Appeals in Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 270 (Fla. 1st DCA 1985)(“In summary, we hold that to recover attorney’s fees a must (1) recover judgment on the chapter 501, part II claim, and (2) recover a net judgment in the entire case.” Because Appellant Banner prevailed solely on his FCCPA claim but did not prevail on his FDUPTA claim the Court found that under the Heidel approach Banner was not entitled to appellate attorney’s fees because he did not prevail on the entire case and a section 501.205 recovery requires that a party recover a net judgment in the entire case not just the FDIPTA claim or another theory of liability.

The Court made clear that “The goal of consumer protection statutes like FDUPTA and FCCPA is to deter various types of anti-consumer conduct. To allow attorney’s fees where a plaintiff does not prevail under one consumer protection statute-but obtains judgment under a different consumer law or a common law cause of action-would discourage consumers from using statutes designed for their own protection.”

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