In Dorcely v. State of Florida Department of Business and Professional Regulation, 34 Fla. L. Weekly D2436 (Fla. 4DCA 2009), the Florida Fourth District Court of Appeal held that a claimant making a claim against the Florida Real Estate Recovery Fund for a licensed real estate broker’s fraud must make that claim within two years of the time that the alleged fraud took place or was reasonably discovered. Florida Statute 475.482 – 475.486 provides a basis for a claimant to recover his or her damages when defrauded by a Florida licensed real estate broker. The Act has a clear two-year statute of limitations. In this case, the claimant improperly filed a claim within two-years of obtaining a final judgment against the real estate broker and not within two-years of the fraudulent act itself.
Injury case based on Laser Hair Removal requires Malpractice Presuit Notice
Dr. Navarro’s Vein Centre of the Palm Beach, Inc. v. Miller, 34 Fla. L. Weekly D2395 (Fla. 4DCA 2009), the Fourth District Court of Appeal held that laser hair removal service is a medical procedure because it must be performed by a medical doctor or a non-physician supervised by a medical doctor. Accordingly, a patient that claimed she was injured by a laser hair removal procedure must comply with the malpractice presuit requirements of Florida Statute 766.106(2) before filing a lawsuit or risk having the lawsuit dismissed.
Proposal for Settlement not Applicable to a Case for Damages and Declaratory Relief
In Palm Beach Polo Holdings Inc. v. Equestrian Club Estates Property Owners Association, 34 Fla. L. Weekly D2394 (Fla. 4DCA 2009), the Florida Fourth District Court of Appeal ruled that a proposal for settlement made pursuant to Florida Statue 768.79 and Rule 1.442 was not applicable to those cases involving both a claim for damages and declaratory relief. In this case, the Plaintiff made a claim for damages under a theory of tortious interference and also sought a declaratory judgment as to its right to access for certain property. The Defendant filed a proposal for settlement that was intended to resolve all claims in the case. In so holding, the Fourth District reasoned that the proposal for settlement statute only applies to claims for damages and therefore could not apply to any claim for declaratory relief. As such, even if the Plaintiff was to accept the proposal for settlement, the case would still go on as to the claims for declaratory relief which defeats the purpose of the proposal for settlement which is to promote the early termination of litigation. Because the proposal for settlement addressed a complaint that included non-damage claims, it does not comply with the statute and is therefore invalid.
Florida Homestead Exemption Applies to Insurance Claim Proceeds for Homestead Property
In Quiroga v. Citizens Property Insurance Corporation, 35 Fla. L. Weekly D767a (Fla. 3DCA 2010), the Florida Third District Court of Appeal invalidated an attorney’s charging lien for unpaid legal fees that was asserted against the collected proceeds of an insurance claim for a former client. In short, the attorney’s were able to collect monies from an insurance company for unpaid damages to the former client’s home. After collecting those proceeds, the former client fired the attorneys and refused to pay any legal fees while claiming that the law firm could not deduct such fees from the insurance proceeds because they were homestead protected. The Third District agreed with the former client holding that the homestead exemption that applies to homestead property also applies to the insurance proceeds for the protected homestead property and a client could not waive such an exemption even by entering into a fee agreement with a lawyer.
Joint Proposal for Settlement is Invalid if it Requires Both Parties to Accept
In Attorney’s Title Insurance Fund v. Gorka, SC08-1899 (Fla. 2010), the Florida Supreme Court invalidated a joint proposal for settlement made pursuant to Florida Statute 768.79 which required the mutual acceptance of the proposal by all parties. The Florida Supreme Court found that for a proposal for settlement to be enforceable under Florida law, each party to whom the proposal for settlement is made must be allowed to independently evaluate and accept the offer. In this case, neither party to the joint proposal for settlement could independently evaluate or accept the offer because it demanded the mutual acceptance of the offer by both of the parties. In this instance, even if one party wanted to accept the proposal for settlement, they would be prevented from doing so if the other party refused to also accept the offer. As such, each party to this joint proposal for settlement lacked the independent control to settle the case and this did not promote the interests of settling cases that ordinarily should be settled.
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Why you should think about hiring a Miami Lawyer for your Florida legal issue
Patrick Russell, Esq., to be Speaker at Legal Seminar
Sterling Education Services employs Patrick Russell, Esq., as a speaker for the seminar “Drafting and Enforcing Commercial Leases”.
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Voluntary Dismissal entitles Defendant to Attorney’s Fees as Prevailing Party
In Alhambra Homeowners Association Inc. v. Asad, 2006 WL 3613693 (Fla. 4DCA),opinion filed December 13, 2006, the Fourth District Court of Appeal held that a Homeowner’s Association that voluntarily dismissed a lawsuit against a Homeowner for noncompliance with Association Rules was liable for the Homeowner’s attorney’s fees. The general rule is that when a Plaintiff voluntarily dismisses an action, the Defendant is the prevailing party within the meaning of a statutory or contractual provision that awards attorney’s fess to the prevailing party. This rule applies notwithstanding the fact that the Homeowner’s Association refiled the lawsuit and ultimately prevailed under the same claims.
This decision conflicts with the Third District Court of Appeals decision of Simmons v. Schimmel, 476 So.2d 1342 (Fla. 3DCA 1985), which holds that the voluntary dismissal of a complaint does not imply that the Defendant was the prevailing party as one must look beyond the dismissal to see if the dismissal represents an end or finality based on the merits.
Russell Law Offices hires new Associate
Russell Law Offices is pleased to announce the hiring of Kasper Sorensen, Esq., as a new first-year associate.
Patrick Russell, Esq., interviewed by Miami Herald
Miami Herald seeks input of Patrick Russell, Esq., for news story concerning the fraudulent sale of constructions permits from the Miami-Dade County Building and Zoning Department.
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