A very big case recently came out of the Florida Supreme Court in the workers comp area of law. The case ruled that the statutory limits that were placed on the amount of attorney’s fees that could be awarded in Worker’s Comp cases is unconstitutional, because it violates the due process protections provided by both the Florida & U.S. Constitutions. The Florida Legislature attempted to link the award of attorney’s fees to the amount benefit that was obtained by the attorney representing the claimant. Here is a brief summary of the case.

The claimant, Marvin Castellanos, was injured during the course of his employment with New Door Company. Through the assistance of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because of Fla. Statute § 440.34 limits a claimant’s ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ attorney amounted to only $.53 per hour for 107.2 hours worth of work determined by the Judge of Compensation Claims (JCC) to be “reasonable and necessary” in litigating this complex case.

This statutory frame work would make it financial unfeasible for an attorney to assist a claimant in securing workers compensation benefits. Consequently, the court held that Fla. Statute § 440.34 is unconstitutional under both the Florida and United States Constitutions as a violation of due process protections. See art. I, § 9, Fla. Const.; U.S. Const. amend. XIV, § 1.

The justification for this holding lies in the fact that the courts have found that the right of a claimant to obtain a reasonable attorney’s fee when successful in securing benefits has been considered a critical feature of the workers’ compensation law since 1941. See Murray v. Mariner Health, 994 So. 2d 1051, 1057-58 (Fla. 2008). From its outset, the workers’ compensation law was designed to assure, as the current legislative statement of purpose provides, “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009).

Yet, while the Legislature has continued to enunciate this purpose, in reality, the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket.* (See Footnote below) Indeed, as this Court long ago observed, allowing a claimant to “engage competent legal assistance” actually “discourages the carrier from unnecessarily resisting claims” and encourages attorneys to undertake representation in non-frivolous claims, “realizing that a reasonable fee will be paid for [their] labor.” Ohio Cas. Grp. v. Parrish, 350 So. 2d 466, 470 (Fla. 1977).
The purpose of providing for a statutory mandated “reasonable attorney’s fee” award in Workers Compensation cases, was because often times the claimants were denied benefits and need the assistance of counsel to assist them with securing coverage for their injury.

Thus, in the case of Ohio Casualty Group, 350 So. 2d at 470 the Florida Supreme Court previously held that the award of “reasonable attorney’s fees” was “enacted to enable an injured employee who has not received an equitable compensation award to engage competent legal assistance and, in addition, to penalize a recalcitrant employer. If the services of an attorney become necessary, and the carrier is ordered to pay compensation, attorney’s fees must be assessed against the carrier so that the benefits awarded the employee will constitute a net recovery. Thus, in adding attorney’s fees to the injured worker’s compensation award, [the provision] discourages the carrier from unnecessarily resisting claims in an attempt to force a settlement upon an injured worker. In addition, if the worker has a meritorious case, an attorney will be inclined to represent him, realizing that a reasonable fee will be paid for his labor and not deducted from perhaps a modest benefit due the claimant. Conversely, if the attorney believes the claim is frivolous, he would be inclined to decline representation.”

* To name just a few of the ways in which the workers’ compensation system has become increasingly complex and difficult, if not impossible, for an injured worker to successfully navigate without the assistance of an attorney: (1) the elimination of the provision that the workers’ compensation law be liberally construed in favor of the injured worker, § 440.015, Fla. Stat.; (2) reductions in the duration of temporary benefits, § 440.15(2)(a), Fla. Stat.; (3) an extensive fraud and penalty provision, § 440.105, Fla. Stat.; (4) a heightened standard of “major contributing cause” that applies in a majority of cases rather than the less stringent “proximate cause” standard in civil cases, § 440.09(1), Fla. Stat.; (5) a heightened burden of proof of “clear and convincing evidence” in some types of cases, §§ 440.02(1), 440.09(1), Fla. Stat.; (6) the elimination of the “opt out” provision, §§ 440.015, 440.03, Fla. Stat.; and (7) the addition of an offer of settlement provision that allows only the employer, and not the claimant, to make an offer to settle, § 440.34(2), Fla. Stat.

The US Supreme Court ruled that Gay Marriage is legal throughout the United States in the case of Obergefell v. Hodges, Director of Ohio Department of State.

The US Supreme Court slip opinion is here:

Has your Homeowner’s Association taken away your access to the community gate? A new trend among some community associations is to take away or deactivate members gate access clicker or card if they fall behind on their regular assessments/dues. This appears to be a violation of Florida law. Specifically, Florida Statute 720.305(3) clearly addresses the issue with respect to Homeowner’s Associations, stating in relevant part,

(3) If a member is more than 90 days delinquent in paying a monetary obligation due to the association, the association may suspend the rights of the member, or the member’s tenant, guest, or invitee, to use common areas and facilities until the monetary obligation is paid in full. This subsection does not apply to that portion of common areas used to provide access or utility services to the parcel. Suspension does not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection.

Thus, there does not appear to be any wiggle room/ambiguity in the law. If the Association encumbers or impairs access they are in violation of the law. If you are confronted with this situation, please contact the law office of David C. Levine, P.A., so that we can discuss the specifics of your situation and see how we may be able to help you with resolving this problem.

On October 1, 2014, the Fourth District Court of Appeals of Florida issued an Opinion in the case of Ann Freiday v. One West Bank, FSB.  In this case the Plaintiff One West Bank, FSB filed a Verified Foreclosure Complaint against the Defendant, Ann Freiday.  In the Verified Complaint, the plaintiff alleges that, “all conditions precedent to the acceleration of the note and foreclosure of the mortgage have occurred or have been performed, waived or excused.”  Subsequently, One West filed a Motion for Summary Final Judgment, with an affidavit of indebtedness attached to the motion.  A copy of a default letter was also attached to the motion.

Ms. Freiday Answer raised numerous Affirmative Defenses, including a failure by One West Bank, FSB to comply with a condition precedent.  The Trial Court granted One West Bank’s Motion for Summary Final Judgment.  This judgment was entered despite the fact that, “Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.”  Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th  DCA 2009)(quoting Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995)).

The appeals court noted that they’ve previously held that, “[m]erely attaching documents which are ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”  Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So. 3d 1093, 1094 (Fla. 4th  DCA 2012) (quoting Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th  DCA 1997)).  The court went on to further note that, “in Finnegan, the bank filed a Motion for Summary Judgment and later filed copies of unsworn default letters that had allegedly been sent to the homeowner.  This court reversed the entry of summary judgment, and held that the trial court should not have considered the unsworn letters as evidence.  It further observed that the affidavit filed by the bank in support of this motion failed to address whether the bank complied with conditions precedent.  Id. At 1094; see Bryson v. Branch Banking & TrustCo., 75 So. 3d 783, 786 (Fla. 2d DCA 2011) (reversing summary judgment of foreclosure when the bank filed ‘unauthenticated copies of default letters,’ and noting that the default letters were not ‘self-authenticating because extrinsic evidence to establish its truthfulness is still required.”   Thus the court held that, “because the default letter was not competent evidence, the trial court should not have relied on the default letter when considering OneWest’s motion for summary judgment.

Freiday v One West Bank – Summary Judgment & Failure to Prove Condition Precedent

A Condition Precedent is a concept of contract law that can be applied in foreclosure defense as a potential affirmative defense.  Black’s Law Dictionary defines a Condition Precedent as, “An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.  If the condition does not occur and is not excused, the promised performance need not be rendered.  The most common condition contemplated by the this phrase is the immediate or unconditional duty of performance.   Most standard FHA Mortgages include a standard paragraph 22 provision which contains a Condition Precedent, which can be utilized by home owner’s as a Affirmative Defense to a Foreclosure Complaint.  There standard mortgage paragraph 22 requires that the lender shall give the homeowner 30 days written notice of the default prior to acceleration of the loan.  Most standard mortgage paragraph 22 read,

Acceleration; Remedies.  Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise).  The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.  The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.  If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.  Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

Acceleration; Remedies.  Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise).  The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.  The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.  If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.  Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

If you are confronted with foreclosure you should consult with an attorney to determine if this affirmative defense is applicable to your case and can be utilized to defend against the foreclosure.  You only have twenty (20) days after being served with foreclosure complaint to file a response or you could have a clerk’s default entered against you which dramatically limit your ability to defend the law suit.

There is a meeting on the City of Fort Lauderdale – Beach CRA Master Plan Implementation this coming Monday, October 27, 2014 at 7:00 at the Beach Community Center located at:  3351 N.E. 33rd Avenue (Corner of A1A  &  Oakland Park Blvd.)  The link below provides details regarding exactly what they are planning.

http://www.fortlauderdale.gov/beach-cra/mp_implementation.htm