Monthly Archives: April 2010

Addison v. City of Tampa, 35 Fla. L. Wkly D762 (Fla. 2d DCA April 7, 2010)

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In this class action, the Plaintiff sued the City of Tampa over the constitutionality of the City’s Occupational License Tax. The Plaintiff then attempted to certify a plaintiffs class of all persons subject to the tax and a defendants class of all municipalities in Florida imposing the tax.  The Trial Court certified each class and the municipalities appealed arguing that Florida’s home venue privilege required any action to be brought in each municipalities local court.  The Second DCA agreed and dismissed all members of the class outside of Hillsborough County.

On remand, the remaining four defendants moved to decertify the class for lack of numerosity.  The trial court granted the motion to decertify and the Second DCA upheld the decision finding that four members did not satisfy the numerosity requirements of Rule 1.220(a)(1), Fla. R. Civ. Pro.
See also the companion case Addison v. City of Tampa, 35 Fla. L. Wkly D761 (Fla. 2d DCA April 7, 2010) for information on the home rule venue privilege.

Toledo v. Publix Supermarkets Inc., 35 Fla. L. Wkly D747 (Fla. 4th DCA March 31, 2010)

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In this slip and fall case before the 4th DCA on a writ of certiorari, the 4th DCA overturned trial courts Order compelling the Plaintiff’s attorney from a previous lawsuit to produce his entire case file for an in camera inspection.  The 4th DCA found that, per Rule 1.280(b)(1), Fla. R. Civ. Pro., inspection of the attorney client privileged docs was improper without establishing through other discovery that privileged docs sought were (1) relevant and (2) could not be obtained through other means.

Toledo v. Publix Supermarkets Inc., 35 Fla. L. Wkly D747 (Fla. 4th DCA March 31, 2010)

Attorneys’ Title Insurance Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)

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The Florida Supreme Court found that a joint offer of settlement cannot be conditioned on the mutual consent of all joint offerees.  The case came before the Court after Attorneys’ Title served an offer of judgment on Plaintiffs Gorka and Larson.  The offer was conditioned on the Plaintiffs mutual acceptance and neither party could independently accept the offer.  The Fla. Sup. Ct. concluded that such mutual proposals are invalid since neither party can exercise independent control over the decision to end litigation.

The case discusses the requirements for a proposal or offer of judgment pursuant to Fla. R. Civ. Pro. 1.442 and Section 768.79, Fla. Stat. and has an interesting discussion about the effect of the OJ statute:

The expected result of the attorneys’ fee sanction was
to reduce litigation costs and conserve judicial resources by encouraging the
settlement of legal actions. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210,
218 (Fla. 2003). The effect, however, has been in sharp contrast to the
intended outcome because the statute and rule have seemingly increased
litigation as parties dispute the respective validity and enforceability of
these offers. See, e.g., Security Professionals, Inc. v. Segall, 685 So.
2d 1381, 1384 (Fla. 4th DCA 1997) (“We regret that this case is just one more
example of the offer of judgment statute causing a proliferation of litigation,
rather than fostering its primary goal to “terminate all claims, end disputes,
and obviate the need for further intervention of the judicial process.”")

Attorneys’ Title Insurance Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)

Neiman v. Naseer, 35 Fla. L. Wkly D625 (Fla. 4th DCA Mar. 17, 2010)

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In this appeal of a contempt Order, Naseer obtained a final judgment in a civil lawsuit in the amount of $530,000.  Following entry of judgment, and at the request of Nasser, the Court entered an Order requiring Neiman to appear before a special magistrate for examination into his property and assets.  In response, Neiman, who was living in the country of Panama, asked for a stay claiming that his health prevented him from travelling, which the Court granted.  One year having past, Nasser again requested an examination of Neiman and Neiman moved for a stay based on his health, which was denied.  Neiman then failed to appear for examination.

Naseer then moved for a finding of contempt of court and presented evidence that Neiman had recently traveled outside of Panama and that he claimed a net worth in excess of $7 million.  The Court granted the motion for contempt finding that Neiman willfully violated the Court’s previous Order and imposed a $2,000 per day fine for each day Nasser failed to appear and ordered that a warrant be issued for Neiman’s arrest.  The Order provided that Neiman was to remain in jail until he appeared before the Court and “fully [paid] all fines and attorneys’ fees and costs then accrued.”
The Fourth DCA struck the incarceration provisions of the Order finding that an order requiring an individual to be incarcerated for contempt must state with particularity the exact amount that will purge the contempt and open the jail house doors.  Citing Alves v. Barnett Mortgage Co., 688 So.2d 459 (Fla. 4th DCA 1997).