2020 Cases and News

September Update

• Bryan J. Mazzola, David S. Kasdan, and Matthew T. Clark of our New York office secured denial and dismissal of a petition by a cooperative shareholder to compel production of books and records pertaining to his apartment, transfer (i.e. sale) of shares for his apartment, transfer of shares for other apartments, subleasing of apartments, and market valuations of apartments.  In dismissing and denying this petition, the Supreme Court, New York County found that the shareholder was not entitled to the subject books and records because his demand exceeded scope of Business Corporation Law § 624.  The Supreme Court further found that the shareholder had failed to establish a common law right of access to the subject books and records because the shareholder failed to make requisite showings that he was acting in good faith and that his demand was for a proper purpose.

• On December 9, 2020 the Florida Supreme Court will hear arguments in Suzuki Motor Corporation vs. Scott Winkler to address whether “Apex Doctrine” protections should be applied to the private sector. The Apex Doctrine is a legal premise whereby high level government officials may not be deposed unless and until the party seeking the deposition has shown the information is not available by other means. In Florida, the Apex Doctrine has not been applied to high level officers or directors in the private sector. If the court extends the doctrine to the private sector, there will be more protections to prevent the depositions of high level corporate officers and directors. Boyd Richards Appellate Partner, Elaine Walter, co-authored an amicus brief discussing that the Apex Doctrine should apply to both the public and private sector in Florida, as it is in the Federal courts. The brief was filed on behalf of the Florida Defense Lawyers Association. To view the Court’s online docket for Suzuki Motor Corporation vs. Scott Winkler click here.

• Kyle Berglin, a Partner in our Miami office, obtained a dismissal with prejudice on behalf of the City of Lake Worth Beach, Florida, in a lawsuit brought by a property owner alleging violations of the Florida and U.S. Constitutions related to the City’s enforcement of certain building codes and the imposition of fines for Plaintiff’s longstanding, repeat violations. In dismissing the Plaintiff’s amended complaint with prejudice, the Court held that the City’s code enforcement board acted in accordance with powers conferred to it by Florida statute and that the statutorily authorized fines, which had accrued over a period of six years, were not constitutionally excessive in violation of the Eighth Amendment or Article 17 of the Florida Constitution. See NOA Mgmt., Ltd. P’ship v. City of Lake Worth, No. 20-81146-CIV-SINGHAL, 2020 U.S. Dist. LEXIS 245344 (S.D. Fla. Dec. 29, 2020)

August Update

• On September 10, 2020 the Florida Supreme Court will hear arguments in Younkin v. Blackwelder to address whether the protections provided in Worley v. YMCA extend to defense law firms or, alternatively, whether those protections should be overruled. Presently, a plaintiff law firm that this not a party to the litigation is protected from having to disclose its financial relationship with experts that it retains for purposed of litigation, but defense firms are not, including those relationships with experts performing compulsory medical examinations under Florida Rule of Civil Procedure 1.360. Boyd Richards Appellate Partner, Elaine Walter, co-authored an amicus brief discussing the fact that lower courts’ interpretation of Worley, Boecher, and their progeny has created an uneven playing field in favor of plaintiffs and against defendants with an onerous burden placed on defense counsel, their clients, and their clients’ insurers with regard to production of documents, available discovery, and potential bias in the presentation of evidence to a jury. The brief was filed on behalf of the Florida Defense Lawyers Association. To view the Court’s online docket for Younkin v. Blackwelder click here.

• Joseph Riopelle, a Partner in our Tampa office, and Elaine Walters and Yvette Lavelle in the Firms Appellate Department recovered a substantial attorney’s fee award for their trial court and appellate defense of a Florida condominium association. The condominium association prevailed on a significant issue at the non-jury trial wherein the trial court ruled that a condominium association may permissively enforce its Declaration provisions when the language in the Declaration does not require mandatory enforcement and successfully defended the appeal of same. Plaintiffs then appealed the Final Judgment of Attorney’s Fees awarded after the Firms successful defense of the non-jury trial and appeal of same arguing that there was no basis for the attorney’s fee award under Florida Statute or the Declaration. The Firms Appellate Department also successfully defended the appeal of the Final Judgment of Attorney’s Fees in favor of the association, which was upheld based on a fee shifting provision in the association’s declaration and section 718.303, Florida Statutes.

July Update

• On October 8, 2020, the Florida Supreme Court will hear arguments in Wilsonart, LLC v. Lopez on whether it should adopt a summary judgment standard in line with that used by the Federal Court System. Boyd Richards Appellate Partner, Elaine Walter, co-authored an amicus brief in support of the Court adopting what is commonly known as the Celotex Trilogy standard for the State Court System. The brief, filed on behalf of the Florida Defense Lawyers Association for which Ms. Walter is a Director, also points out that the adoption of the Celotex Trilogy will substantially effect the litigation of insurance bad faith claims in Florida. This point is so, because many, if not a majority, of bad faith cases are litigated in federal court. Adopting the Celotex Trilogy will help bring Florida and federal cases in conformity with one another in bad faith jurisprudence. The Florida Supreme Court has designated the case as “High Profile.” To view the Court’s online docket for Wilsonart, LLC v. Lopez click here.

• As Businesses Open Amid COVID-19, How Should Condominium and Homeowners’ Associations Boards Handle Safety and Health of Their Communities?
  By: Jake Marcus, Esq.

• William Peters, a Partner in our Fort Lauderdale office, recently obtained summary judgment in favor of a statewide towing company that was sued by a customer alleging that she was injured while exiting the tow truck. Mr. Peters pointed to the Plaintiff’s inability to describe any vehicle defects or actions of the driver which caused her to fall. The Court held that the mere occurrence of a fall does not equate to negligence on the part of the vehicle owner.

June Update

• New York Attorney, David Kasdan, has joined the Community Association Institute (“CAI”) Task Force exploring issues that arise from short term rentals in community associations and the impact of the Covid-19 crisis on short term rental activity. The task force, in support of the CAI mission to educate and offer resources to its 40,000 members, will publish a paper providing guidance to homeowner volunteers who govern communities and the professionals who support them.

May Update

• THE INTERSECTION OF FAMILY LAW AND INSURANCE CLAIMS IN THE AGE OF COVID-19

By: Katherine Coba, Esq. and Dolly Hernandez, Esq.

• Maria Dalmanieras from the Miami office successfully obtained a summary judgment for her client, a road contractor, in a wrongful death lawsuit resulting from an auto accident.  Plaintiff claimed that the decedent’s auto accident resulted from the client’s failure to  place proper signage on the roadway to warn the decedent of an upcoming construction zone as well as a failure to properly maintain the roadway, which caused her to drive through the construction zone that ultimately resulted in her death after her vehicle landed upside down in a canal.  The trial court granted the client a summary judgment finding that the Plaintiff failed to prove the client had any such duty to warn or maintain the roadway.  Further, because the driver had passed away, there was no evidence as to why she left the roadway, which resulted in Plaintiff’s inability to prove causation.

March Update

• Sally Seltzer, a Partner in our Miami office, successfully defended her client in a recent mediation where the client, a nonprofit community based care provider, was sued for the wrongful death of a pedestrian when the provider’s driver hit the pedestrian when she was walking across the street in the early evening hours. In response to a demand of $2,526,438.84, Ms. Seltzer utilized Florida Statute 409.993(3)(a) which limits recovery of noneconomic and economic damages to mitigate the damages available to the survivors under Florida’s Wrongful Death Statute, argued that a wrongful death claim is a single claim despite the number of survivors, and therefore only a single limit under the agency’s insurance policy was available.  Further, she developed a theory of comparative fault against the pedestrian and the family members bringing the claim. The case ultimately settled for a number significantly lower than the demand.

• Kyle Berglin and Justin DiBiasio, Attorneys in our Miami office prevailed in Circuit Court at the Motion to Dismiss stage against a homeowner suing an association for breach of contract.  Allegedly, the association had breached the provisions of recently amended governing documents by not permitting the owner to rent his lot multiple times per year.  However, in addition to asserting claims based on a specious reading of the declaration, the claimant failed to meet statutory pre-suit mediation requirements.  The suit was dismissed, and the claimant agreed to a walk-away settlement rather than challenging that ruling on appeal. 

February Update

• Miami Attorney, Sally Seltzer, will be participating in the 2020 Florida Defense Lawyer Association’s Liability Claims Conference in Orlando Florida (June 4th and 5th). “Improving Culture in the Legal Profession – An Interactive Conversation about Successful Strategies.”

January Update

• New York Attorney, Bryan Mazzola, obtained dismissals on two different defense cases in the Supreme Court of the State of New York at the end of 2019 and beginning of January. This resulted in favorable outcomes for both clients.