Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 09/09/2014
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2014-10
September 9, 2014
Florida Supreme Court
9/5/14
The Florida Supreme Court declined to take case regarding same sex marriage and divorce as one of great public importance.
The Florida Supreme Court declined jurisdiction on a case regarding same sex marriage and divorce. The Second District certified that the trial court had passed upon a question of great importance requiring immediate resolution by the Supreme Court. Referring to the dissent in the second District opinion, the Court determined that the issue had not ripened as one of great public importance.
SC14-1664
First District Court of Appeal
James v. Leigh 1D14-7999/5/14
The litigation privilege protected attorney from defamation claims by his former law firm.
Plaintiffs, former partner and law firm to the Defendant, filed a complaint for defamation and breach of no-disparagement agreement against the Defendant because the Defendant had made derogatory comments about them in his own divorce proceedings. The issue before the Court was whether the litigation privilege applied to the comments. The trial court found for the Defendant.
In its review, the First District required that the statements had only “some relation” to the litigation at hand. Also the Court determined that the attorney did not waive the litigation privilege by signing a non-disparagement agreement.
1D14-799
Fourth District Court of Appeal
Pomeranz & Landsman Corporation v. Miami Marlins Baseball Club 4D14-1237
8/13/14
The trial court did not have jurisdiction to hear motion for sanctions because Plaintiff had already voluntarily dismissed the case.
The trial court lacked jurisdiction to hear motion for sanction because the motion was filed after the petitioner voluntarily dismissed the case. The Fourth District explained, “If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant’s request for sanctions under 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney’s fees under that provision if appropriate, regardless of the plaintiff’s subsequent dismissal.”
4D14-1237
United States District Court, Northern District of Florida
Brenner v. Scott 14-107
8/21/14
The Court ruled that Florida’s ban on same sex marriage was unconstitutional.
The district court found that the Florida Constitution provision and Florida statutes which ban same-sex marriage violate the Equal Protection and Due Process Clause of the United States Constitution. The court said that Florida was not free to ignore the laws of other states.
14-107
Cassidy v. Florida Office of Insurance Regulation 14-213
7/9/14
For litigation purposes, Department of Financial Services and Office of Insurance Regulation are separate entities.
Cassidy, an employee, was terminated by the Office of Insurance Regulation. He sued both the Office of Insurance Regulation and the Department of Financial Services as related agencies. The Department of Financial Services filed a motion to dismiss asserting that it neither hired for fired the Plaintiff. The Court granted the motion to dismiss saying that even though they were part of the same hierarchy, the two entities acted independently in hiring and terminating employees.
14-213
United States District Court, Southern District of Florida
Kulawitz v. Friedman 12-24368
5/29/14
Defendants were required to participate in the Joint Scheduling Report even though they were convinced that the complaint had no basis.
Defendants refused to participate in a Joint Scheduling Report because they were confident that the complaint was baseless and they did not want to spend money unnecessarily. The Plaintiff then filed a Motion to Compel a Joint Scheduling Report. The district court granted the motion saying, “There is no provision under Local Rule 16.1 that obviates the need to file a joint scheduling report when one party believes it has filed a dispositive motion that will be granted.”
12-24368
Carbonell v. Weistein Pinson & Riley 14-20273
5/30/14
Defendants' statements in their pleading in action to collect on student debts tended to mislead the least sophisticated user.
Carbonell incurred student loans and allegedly defaulted on them. The Defendant in this federal case brought suit against Carbonell in state court in Miami Dade to collect on her debts. In their complaint the law firm Defendant said that Plaintiff had thirty days to respond. Plaintiff claimed that these statements were misleading in violation of the Fair Debt Collections Practices Act. Defendant law firm claimed to have affirmative defense but the Court said that they were simply denials to Plaintiff’s complaint and, therefore, the Plaintiff could proceed with her motion for judgment on the pleadings. The Court noted that the test for misleading statements was an objective one as to whether the language in question has a tendency to mislead the least sophisticated user. After reviewing the facts the Court granted Plaintiff’s motion.
14-20273
12th Judicial Circuit in and for Sarasota County
Barfield v. City of Sarasota 2014 CA 001758
5/5/14
Officer notes that were uncirculated were not public records.
The Plaintiff sued under Florida public records law to get access to research notes written by a Sarasota police officer. Officer Stiff of the Sarasota Police Department had travel around Florida observing homeless/drug treatment centers. He shared some of his notes at a Sarasota City Commission meeting. He had some notes that he did not share and that had not been circulated. The Plaintiff argued that since the officer had made the notes for city business and had used them at the meeting, they were subject to public records law. The Court found that the notes were note in their entirety a public record just because a portion of them were disseminated.
The court went on to say that he unread and un-received portion of the notes are not public record.
2014 CA 001758
See Florida Law Weekly Supplement or contact Betsy Stupski for copy of the opinion.