Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, and personal injury litigation.  This article covers the weeks of December 21-31, 2015.  Click here to learn more about Scott Edwards’ appellate law services.

First Amendment, Zoning Ordinances Buehrle v. City of Key West (11th. Cir. Dec. 29, 2015): A tattoo artist challenged a Key West ordinance banning tattoo parlors in the historic district. Key West won summary judgment at the trial court level, successfully arguing that tattoo parlors are inconsistent with the historical character of the district, and have a negative impact on tourism if inebriated tourists get tattoos that they later regret. The Eleventh Circuit reversed because the only “evidence” presented by the city of the impact of tattoo parlors on tourism were the lyrics to the Jimmy Buffett song “Margaritaville.” The Eleventh Circuit noted that the lyrics were open to interpretation, as the song’s narrator states that the tattoo “is a real beauty.”

Pain and Suffering Damages Ortega v. Belony (Fla. 3d DCA Dec. 30, 2015): Pain and suffering damages are difficult to calculate and have no set standard of measurement; therefore, such damages are awarded purely at the discretion of the jury. Because pain and suffering awards are intangible and “attempt to measure that which is immeasurable,” a pain and suffering verdict is presumed correct if it is supported by the evidence. In this case, the plaintiff suffered a neck injury in an auto accident. Extensive evidence was presented at trial that the plaintiff successfully recovered from the injuries received in the accident. Therefore, the trial court erred in granting additur because the verdict was supported by the evidence, and there was no showing that the jury was improperly influenced by prejudice, passion, or corruption.

Prevailing Party Attorney’s Fees in Insurance Litigation Citizens Property Ins. Corp. v. Pulloquinga (Fla. 3d DCA Dec. 30, 2015): Following years of contentious litigation, including over 20 depositions taken statewide and multiple summary judgment hearings, the insurer ultimately agreed to pay the insured its full policy limits. The Third DCA affirmed an attorney’s fee multiplier of 1.5 because the case involved unusual issues (including allegations of arson and insurance fraud), and because the evidence showed that the fee multiplier was necessary in order to obtain competent counsel.

Standing Thriving Investments v. Chao (Fla. 3d DCA Dec. 23, 2015): A third party purchased a property at a judicial foreclosure sale. The purchaser later discovered that the property might be subject to a superior mortgage than the one foreclosed. Thus, the purchaser moved to set aside the final judgment upon which the foreclosure sale was based. The trial court ruled that the purchaser did not have standing to vacate the judgment because it was not a party to the foreclosure action, and thus was a stranger to the proceedings. The appellate court likewise dismissed the purchaser’s appeal, because a non-party is a stranger to the record, and does not have standing to bring an appeal.

Contempt, Sanctions, Attorney Alcohol Use Edge-Gougen v. State (Fla. 1st DCA Dec. 28, 2015): An attorney, believing that she was off of work for the rest of the day, drank alcohol at lunch. The attorney later learned that a client had a plea hearing that day, which she attended. The attorney did not behave in an intoxicated matter, did not disrupt proceedings, and was prepared to argue the hearing. Nonetheless, the trial court held her in direct criminal contempt because courtroom witnesses smelled alcohol on her breath. The First DCA reversed the contempt conviction, holding that under the unique facts of this case there was no evidence of contemptuous conduct, and that the trial court made due process errors in arresting the attorney for contempt and compelling a breathalyzer test.

State Court Proceedings After Removal to Federal Court Musa v. Wells Fargo (Fla. 1st DCA Dec. 31, 2015): If a party removes a case to Federal court, the state court is deprived of all jurisdiction in the case, and cannot proceed unless the Federal court enters a remand order. Any state court proceedings after removal are void ab initio.  The state court cannot proceed even if it is obvious that the petition for removal is defective.


Statute of Frauds New Dirt, Inc. v. Harrison (Fla. 5th DCA Dec. 31, 2015): If an oral contract does not fix a definite time for performance, and there is nothing in the terms of the contract showing that performance could not take place within one year, the statute of frauds defense is not available.

Attorney’s Fees City of Miami Beach v. Deutzman (Fla. 3d DCA Dec. 23, 2015) Attorneys’ fees cannot be awarded as a matter of equity. Rather, they can only be awarded when expressly provided for by statute, rule, or contract, or as a sanction.
EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, and insurance law.  He can be reached at scott@scottjedwards.com or 561-331-0779.

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