48 Fla. L. Weekly D47a PUBLIX SUPER MARKETS, INC., Appellant, v. SIERRA ALFORD, Appellee. 5th District. Case No. 5D21-2612. L.T. Case No. 2019-CA-036338-X. December 30, 2022. Appeal from the Circuit Court for Brevard County, Dale Curtis Jacobus, Judge. Counsel: Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Appellant. Brian J. Read More »
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Attorney’s fees — Prevailing party — Voluntary dismissal with prejudice of second amended complaint following acceptance of proposal for settlement which specifically stated that defendant’s claim for attorney’s fees and costs as set forth in an earlier motion would survive the plaintiff’s acceptance of the proposal — Trial court abused its discretion when it denied defendant’s renewed motion for attorney’s fees and costs based on its interpretation of attorney’s fees “carve-out” provision as limiting court’s consideration of prevailing party status to the circumstances existing on the date defendant served that earlier motion to tax fees and costs and preventing it from considering what happened in litigation after that date
48 Fla. L. Weekly D54a STEVEN CASTO, Appellant, v. FIRST COAST CARDIOVASCULAR INSTITUTE, P.A., Appellee. 1st District. Case No. 1D21-3506. December 30, 2022. On appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge. Counsel: M. Scott Thomas of Burr & Forman LLP, Jacksonville, for Appellant. Rebecca B. Creed and Dimitrios A. Peteves Read More »
Disabilities — Discrimination — Americans with Disabilities Act — Rehabilitation Act — School boards — Access to public schools — Reasonable accommodation — Injunctions — Appeal from denial of temporary restraining order and preliminary injunction entered in action against school superintendent, individual members of school board, and school district in action brought in the wake of COVID-19 pandemic by students with respiratory disabilities, who claim that school district’s refusal to provide reasonable accommodations for access to in-person schooling constituted a violation of Title II of ADA and Section 504 of Rehabilitation Act — Mootness — Action was not rendered moot by update in Center for Disease Control’s guidelines relating to mandatory masking — Live controversy remained where prayer for relief in students’ motion for preliminary injunction and temporary restraining order asked court to “[o]rder Defendants to develop and implement policies, practices, procedures, and protocols for a multilayered COVID-19 mitigation strategy that follows CDC guidelines for COVID-19 Prevention in K-12 Schools and maintain consistency with the CDC guidelines in the event of subsequent changes, so that Plaintiffs can attend in-person school” — Although CDC guidelines have changed, defendants’ policies remain at odds with the current guidelines — Likelihood of success on the merits — District court erred by misconstruing students’ argument as a right to education “generally,” despite record clearly establishing that students were alleging denial of access to “in-person” education, which is a specific “service, program, or activity” provided to all students by the district — On remand, district court must analyze whether virtual schooling provided by the district is a reasonable accommodation for in-person schooling and, if not, must consider whether the multi-layered approach to COVID-19 precautions sought by students constitutes reasonable accommodation — Unjustified isolation — Because Supreme Court has held that “unjustified isolation” is “properly regarded as discrimination based on disability,” district court must analyze students’ likelihood of success on the merits under this theory
29 Fla. L. Weekly Fed. C2006a L.E., By and through their parent and next friend, Sara Cavorley, B.B., A minor, by and through their parent and next friend, Elizabeth Baird, A.Z., A minor, by and through their parent and next friend, Jessica Zeigler, C.S., A minor, by and through their parent and next friend, Tarasha Read More »
Disabilities — Discrimination — Americans with Disabilities Act — Rehabilitation Act — School boards — Access to public schools — Reasonable accommodation — Injunctions — Appeal from denial of temporary restraining order and preliminary injunction entered in action against school superintendent, individual members of school board, and school district in action brought in the wake of COVID-19 pandemic by students with respiratory disabilities, who claim that school district’s refusal to provide reasonable accommodations for access to in-person schooling constituted a violation of Title II of ADA and Section 504 of Rehabilitation Act — Mootness — Action was not rendered moot by update in Center for Disease Control’s guidelines relating to mandatory masking — Live controversy remained where prayer for relief in students’ motion for preliminary injunction and temporary restraining order asked court to “[o]rder Defendants to develop and implement policies, practices, procedures, and protocols for a multilayered COVID-19 mitigation strategy that follows CDC guidelines for COVID-19 Prevention in K-12 Schools and maintain consistency with the CDC guidelines in the event of subsequent changes, so that Plaintiffs can attend in-person school” — Although CDC guidelines have changed, defendants’ policies remain at odds with the current guidelines — Likelihood of success on the merits — District court erred by misconstruing students’ argument as a right to education “generally,” despite record clearly establishing that students were alleging denial of access to “in-person” education, which is a specific “service, program, or activity” provided to all students by the district — On remand, district court must analyze whether virtual schooling provided by the district is a reasonable accommodation for in-person schooling and, if not, must consider whether the multi-layered approach to COVID-19 precautions sought by students constitutes reasonable accommodation — Unjustified isolation — Because Supreme Court has held that “unjustified isolation” is “properly regarded as discrimination based on disability,” district court must analyze students’ likelihood of success on the merits under this theory
29 Fla. L. Weekly Fed. C2006a L.E., By and through their parent and next friend, Sara Cavorley, B.B., A minor, by and through their parent and next friend, Elizabeth Baird, A.Z., A minor, by and through their parent and next friend, Jessica Zeigler, C.S., A minor, by and through their parent and next friend, Tarasha Read More »
Attorney’s fees — Prevailing party — Voluntary dismissal — Where all counts in complaint involved the same facts and the same parties, trial court’s order dismissing one of multiple counts was not a final order and did not dispose of the action for either party — Plaintiff’s subsequent notice of voluntary dismissal disposed of the action as to both parties and triggered 30-day time frame for filing motion for attorney’s fees — Trial court erred in reversing its initial award of fees to defendant after concluding that motion should have been filed within 30 days of court’s non-final dismissal order
48 Fla. L. Weekly D96c SARA WARD, Appellant, v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN, Appellee. 4th District. Case No. 4D22-5. January 4, 2023. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Paige Gillman Kilbane, Judge; L.T. Case No. 502019CA003353. Counsel: Jennifer S. Carroll Read More »