Jason Baruch: November 2009 Archives

In this non-compete case, the trial court denied a motion for temporary injunction on the basis that the restrictive covenant did not survive the expiration of the employment agreement because the post-agreement employment relationship "was not formalized in a written document."

The appellate court reversed, holding that the movant had established a substantial likelihood of success on the merits based upon a provision in the agreement that contemplated employment "in the absence of a written agreement."

ST. JOHNS INVESTMENT MANAGEMENT CO. v. DAVID T. ALBANEZE, 34 Fla. L. Weekly D2354a (1st DCA Nov. 13, 2009)

In this case, a property owner sued a homeowner's association for injunctive and declaratory relief seeking access to a landlocked lot of land, as well as for damages for an alleged tortious interference of the owner's attempt to sell the lot.  The association successfully defended the case, and the trial court awarded attorneys' fees based upon offers of judgment covering "all claims" - including non-economic claims - in the litigation.

The appellate court reversed, holding that the damages claim did not convert the case into "an action for damages" that would permit an attorneys' fee award under s. 768.79:

each offer of settlement filed was general, such that it applied to all claims contained within the complaint which, of course, included both a claim for damages and non-economic claims. Strict construction of the statute leads to the conclusion that when an action seeks non-monetary relief, such as a pure declaration of rights or injunctive relief, then the fact that it also seeks damages does not bring it within the offer of judgment statute.

 

Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009)

In this case, a defendant filed a motion in 2007 to set aside a default judgment that had been entered and recorded in 1993.  He claimed that he never received pleadings in the case or the judgments themselves.  The appellate court affirmed the trial court's finding that excusable neglect had not been established, because the appellant "advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990."

ROBERT WHITNEY, D.C. d/b/a 127th Street Intracoastal Chiropractic Center vs. A AVENTURA CHIROPRACTIC CARE CENTER, INC. ET AL, 34 Fla. L. Wkly D2186b (3d DCA Oct. 21, 2009)

In this car accident case involving insurance coverage, two plaintiffs in separate companion cases moved for summary judgment against the insurer.  The trial court held hearings on the first plaintiff's motion and granted it.  As for the second plaintiff, the court granted the motion a week later, but without holding a separate hearing.  The appellate court reversed, holding that "[a] trial court's failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard."

State Farm Fire and Casualty Company v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009)