49 Fla. L. Weekly S137a IN RE: AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE. Supreme Court of Florida. Case No. SC2023-0962. May 23, 2024. Original Proceeding — Florida Rules of Civil Procedure. Counsel: Judson Lee Cohen, Chair, Civil Procedure Rules Committee, Miami Lakes, Landis V. Curry III, Past Chair, Civil Procedure Rules Committee, Tampa, Joshua […]
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Attorney’s fees — Prevailing party — Significant issues — Net judgment rule — Proposal for settlement — Joint proposal — Apportionment — Subcontractor’s action against contractor and its surety and project owner and its surety seeking damages for breach of contract, seeking to enforce liens against payment and transfer bonds, and alleging alternative quantum meruit claims against contractor and project owner — Successor judge erred in concluding that subcontractor was prevailing party in litigation because it recovered a money judgment — Significant issues in litigation concerned whether subcontracts were enforceable, and thus whether project owner could apply cross-default provisions to offset its damages against any amounts recovered by subcontractor; whether subcontractor was properly defaulted on one of the subcontracts at issue, and thus whether damages could be assessed against subcontractor for value of stairs constructed by replacement subcontractor; the reasonable value of the stairs; and whether subcontractor properly perfected its claims against transfer and payment bonds — Successor judge’s conclusion that defendants were unsuccessful in entirely avoiding payment to subcontractor ignored fact that defendants defeated most of subcontractor’s damages claims — Successor judge’s conclusion that enforceability of subcontracts was not a significant issue because that issue did not determine “the overall outcome of this action, nor the amount of damages the Court awarded” was contrary to predecessor trial judge’s finding in its merits judgment that “the primary dispute is over which contract controls” — Moreover, enforceability of subcontracts, and in turn the cross-default provisions, significantly impacted amounts ultimately recovered by subcontractor — Claims against bond — Section 713.29 governs award of attorney’s fees in action to enforce claim against bond, and significant issues test applies for purposes of determining prevailing party status — Sureties who successfully resisted enforcement of subcontractor’s lien against bonds prevailed on the only claims asserted against them and were not otherwise found liable to subcontractor for damages — Accordingly, successor judge erred in denying sureties attorney’s fees — Proposal for settlement — All defendants were entitled to award of attorney’s fees and costs pursuant to section 768.79 where amount awarded to subcontractor was at least 25% less than total proposal amount — Defendants were not required to apportion their offer under circumstances where subcontractor sought the same indistinguishable amount of damages from each defendant
49 Fla. L. Weekly D1028a LEMARTEC CORPORATION, et al., Appellants, v. EAST COAST METAL STRUCTURES CORP., Appellee. 4th District. Case No. 4D2023-0601. May 15, 2024. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Scott R. Kerner, Judge; L.T. Case No. 50-2017-CA-010645-XXXX-MB. Counsel: Joy Spillis Lundeen, Felix X. Rodriguez, and Kelly […]
Wrongful death — Landlord-tenant — Premises liability — Bodies of water — Duty of care — Action brought against owner and manager of apartment complex stemming from drowning of a tenant’s child in river adjacent to defendant’s property — Trial court did not err in granting summary judgment in favor of defendants based on determination that defendants had no duty to create a barrier between property and the river — Pursuant to body-of-water rule, absent an unusual, dangerous condition, an owner of a natural or artificial body of water has no duty to fence it — Exception to the body-of-water rule was inapplicable because the record does not demonstrate any evidence of a trap or unusual element of danger associated with the riverbank adjacent to the apartment complex that does not exist in similar rivers or on similar riverbanks — The slope leading down to the river, the river current, and the uneven ground along the river did not constitute traps or dangerous conditions that do not occur in similar bodies of water throughout the state — While section 83.51(2)(a)3 requires a landlord of a dwelling unit to make “reasonable provisions” for the clean and safe condition of common areas, “reasonable provisions” need only include fencing off a body of water if the particular circumstances create an unusual element of danger not presented by similar bodies of water
49 Fla. L. Weekly D1002a BARBARA FELICIANO, as personal representative of the Estate of Sthella Lopez Feliciano, a deceased minor, Appellant, v. RIVERTREE LANDINGS APARTMENTS, LLC, a Florida Limited Liability Company, and FIRST COMMUNITIES MANAGEMENT, INC., a Florida Corporation, Appellees. 2nd District. Case No. 2D2023-0561. May 10, 2024. Appeal from the Circuit Court for Hillsborough […]
Wrongful death — Damages — Loss of consortium — Surviving spouse — A spouse who married the decedent after the onset of the injury that caused the decedent’s death is a “surviving spouse” under section 768.21(2) — Survivorship under the statute is determined at the time of decedent’s death — The common law “marriage before injury” rule does not bar recovery under section 768.21(2) by a surviving spouse who married decedent after date of injury — Juries are not precluded from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2)
49 Fla. L. Weekly S123a JENNIFER RIPPLE, etc., Petitioner, v. CBS CORPORATION, et al., Respondents. Supreme Court of Florida. Case No. SC2022-0597. May 9, 2024. Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions. Fourth District – Case No. 4D2020-1939 (Broward County). Counsel: Mathew D. Gutierrez of […]
Contracts — Insurance — Settlement agreement — Enforcement — Trial court erred by granting defendants’ motion to enforce settlement agreement where plaintiff’s offer to settle expressly stated that it was contingent on defendant’s insurer’s verification that there were no other policies which may have provided coverage for underlying automobile accident, and an additional policy held by a codefendant was disclosed after acceptance of the settlement offer — Request to insurer for information on any known policies was an essential term of plaintiff’s offer to settle with which defendant’s insurer failed to comply
49 Fla. L. Weekly D924a PEDRO FUNDORA, etc., Appellant, v. ROBERTO DANGOND, et al., Appellees. 3rd District. Case No. 3D22-1749. L.T. Case No. 20-24948. May 1, 2024. An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge. Counsel: Warrior Law, P.A., and Liah C. Catanese, for appellant. Boyd Richards Parker & Colonnelli, P.L., […]