Kimberly Kanoff Berman

Obtained an affirmance by the Fifth District Court of Appeal for the firm’s client in an appeal of a nonfinal order denying plaintiff’s motion to disqualify counsel. Plaintiff’s counsel moved to disqualify our firm and defense counsel for their communications with a post-incident treating physician employee/agent of the client’s owner during the course of a premises liability lawsuit. Our client argued there was no conflict of interest and no violation of the patient-physician privilege to communicate with a post-incident treating physician, who was also an employee/agent of our client. The trial court agreed and denied the motion, and the Fifth District affirmed the denial of the nonfinal order on appeal and granted our client’s motion for appellate attorney’s fees on a provisional basis. Figueroa v. OHRI, LLC, 5D22-1894 (Fla. 5th DCA Jan. 16, 2024).

Succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a venue order obtained by our client, a school board member. Plaintiff/Petitioner/Appellant, a convicted felon had run for a seat on a school board before his rights had been restored and won the election but refused to be sworn in with the other newly elected board members. Since he failed to qualify and refused to accept the seat within thirty days, the Governor issued an executive order that declared a vacancy and appointed our client to the school board instead. The Plaintiff filed a writ of quo warranto and a declaratory judgment action in Broward County urging the trial court to void the executive order and order that the Plaintiff take and hold the office of the school board immediately. The Governor and our client moved to transfer the case to Leon County based on the home venue privilege. The trial court granted the motion, and the Fourth District affirmed the nonfinal order on appeal. Velez v. DeSantis, 2023 WL 8636899 (Fla. 4th DCA Dec. 14, 2023).

Succeeded in obtaining a per curiam affirmance by the Sixth District Court of Appeal of a motion for summary judgment entered in favor of a rental manager. In granting summary judgment, the trial court found that the rental manager, which did not own the premises, did not owe the Plaintiff a non-delegable duty and had no duty to maintain the exterior of the premises pursuant to the owner agreement with the homeowner. The trial court also found that the guest failed to establish any genuine issue as to any material fact regarding an insufficiency or issue with the operation of the lighting of the porch on the property which would give rise to a breach of any possible duty. The Court also provisionally granted the rental manager attorney’s fees upon the determination of the trial court at the conclusion of the case, pursuant to a proposal for settlement.  Janice Dillard v. VHC Hospitality LLC d/b/a Vacation Home Collection, Luciana Pinto, and Terra Resort Villa Homeowners Association Inc., No. 6D23-1256 (Fla. 6th DCA May 16, 2023).  

Obtained an affirmance by the Third District Court of Appeal of a nonfinal order dissolving a temporary injunction initially entered against a multi-condominium association following the erroneous entry of a temporary injunction. Three unit owners contended the Association improperly passed a special assessment to be used toward reconstruction of one of the buildings following a fire. The unit owners obtained a preliminary injunction invalidating the special assessment, halting construction, and mandating the Association convene a membership meeting and community-wide vote. The Association swiftly moved to dissolve the injunction, which the trial court granted, recognizing that it committed clear legal error and a misapprehension of the facts when it entered the injunction. In affirming the order below, Judge Miller commended the trial judge for acknowledging its error and found there was a sufficient basis in law and fact for the dissolution and that allowing the injunction to stand would have been incompatible with equity principles. The Court also granted the Association entitlement to a conditional award of appellate attorney’s fees should it prevail below. Lecorps v. Star Lakes Association, Inc., No. 3D21-2195 (Fla. 3d DCA May 25, 2022).

Obtained an affirmance by the First District Court of Appeal of a termination of parental rights judgment entered against a father who refused to acknowledge he was the father and instead wanted to wait 5 years until he was released from prison to establish paternity and have a relationship with the child. Kimberly served as pro bono counsel for the statewide Guardian ad Litem program to represent the interests of the child as part of the Defending Best Interests Project. In affirming the order below, Judge Tanenbaum gave an in-depth analysis for the least restrictive means prong in TPR cases. P.B., Natural Father of J.C.T., Minor Child v. Fla. Dep’t of Children & Families & Guardian ad Litem for J.C.T., No. 1D21-3420 (Fla. 1st DCA March 29, 2022).

Obtained an affirmance by the Fifth District Court of Appeal of a final summary judgment in a premises liability action arising from a slip and fall in the bathroom of a renter’s own residential unit. The trial court ruled that there were no genuine issues of material fact as to actual or constructive notice concerning the transitory foreign substance found or negligent maintenance of the bathroom.  The Fifth District agreed and affirmed. Foreman v. Grep Southeast, LLC & Sabal Club Holdings, LLC, LLC , No. 5D21-1724 (Fla. 5th DCA March 22, 2022). 

Obtained an affirmance in the Fourth District Court of Appeal of a final dismissal order of third party claims for tortious interference with an advantageous business relationship, civil conspiracy to commit tortious interference with a contract, aiding and abetting tortious interference with a contract, and vicarious liability, against a law firm and its lawyers who filed the underlying lawsuit against the appellant. Jallali v. Zhou, 4D20-5 (Fla. 4th DCA April 22, 2021).

Obtained an affirmance of a final summary judgment by the First District Court of Appeal in a slip and fall case. The appellant argued that a restaurant/bar owner should have warned a patron about the bar stool being a dangerous condition and of the slippery dance floor, but presented no evidence that the owner was in a superior condition than the appellant. The Court rejected the appellant’s arguments and affirmed the final judgment in favor of the owner. Aljuni v. Blackfinn Jax, LLC, No. 1D20-946 (Fla. 1st DCA April 20, 2021). 

Succeeded in obtaining an affirmance in the Fifth District Court of Appeal of a final dismissal order of a wrongful death products liability action. The Estate had filed the lawsuit two years after the statute of limitations expired, and claimed the limitations period was tolled due to the alleged adverse interest of the child’s mother who had been abused by the deceased prior to the accident on an agricultural production site. The trial court dismissed the case with prejudice after giving the Estate five attempts to amend. The Fifth District affirmed the dismissal and dispensed with oral argument that same day.  Rude v. Morbark, Inc., Case No. 5D20-976 (Fla. 5th DCA April 20, 2021).

Succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final judgment entered in favor of an insurance carrier in a case involving an alleged assignment of benefits for a water loss. The county court granted final summary judgment in favor of the insurer, finding the plaintiff lacked standing to sue. The case sat in limbo in the circuit court appellate division and then was transferred to the Fourth District Court of Appeal after the jurisdictional changes took place. Four months later, the Fourth District issued a written opinion citing to one of the cases that the insurance carrier relied on in its Answer Brief.  Empire v. United Property & Casualty Company, No. 4D21-65 (Fla. 4th DCA April 14, 2021). 

Obtained a dismissal by the Fourth District Court of Appeal of an appeal of an order denying emergency relief in our  client’s action to foreclose a claim of lien and for damages and breach of contract against a former unit owner. The appellant attempted to revive an untimely appeal of a prior order by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of that most recent order. The Fourth District dismissed the appeal and granted the association its motion for entitlement to appellate attorney’s fees. Sawyers v. Lakeside Manor North Association, No. 4D21-225 (Fla. 4th DCA April 7, 2021).

Obtained an affirmance by the Fourth District Court of Appeal of the dismissal with prejudice of a listing real estate agent and his broker, in an alleged negligence and fraud case. The Fourth District rejected the plaintiffs’ arguments that the trial court abused its discretion in dismissing their pleadings due to their attorney’s conduct and detailed how the plaintiff’s attorney dropped the ball in litigating the case, in a separate opinion reversing the plaintiffs’ attorney’s contempt conviction. Arnoul v. Perlstein, No. 4D20-67 (Fla. 4th DCA Feb. 3, 2021).

Obtained an affirmance by the Second District Court of Appeal of a directed verdict entered at trial in an action to hold a welfare agency vicariously liable for an alleged assault and battery by an employee who was terminated for forgery of the victim’s signature. The Second District rejected the plaintiff’s arguments, and affirmed the final judgment in favor of the defendant.  Fields v. The Devereux Foundation, Inc., No. 2D19-2947 (Fla. 2d DCA Jan. 6, 2021).  

Obtained an affirmance by the First District Court of Appeal of a defense verdict obtained for client, an owner of a commercial retail center and parking lot, in a negligent security action. A chef was taking garbage outside a restaurant, when he was shot and killed. The Estate sued the owner of the building and the parking lot as well as defendants involved in the development, design, and maintenance of the retail center.  The jury returned a defense verdict in favor of all defendants. The Estate appealed, arguing that the trial court abused its discretion in excluding subsequent remedial measure evidence of the installation of lighting, signs, and cameras in the parking lot after the shooting.  The First District rejected the Estate’s argument, and affirmed the final judgments in favor of the defendants.  Rowe v. Rowin, No. 1D19-2637 (Fla. 1st DCA Nov. 25, 2020). 

The Fifth District Court of Appeal affirmed the final judgment entered in favor of a hospital and three of its trauma/critical care physicians, where the Plaintiff’s sole expert on liability and causation was a retired internal medicine physician, and the trial court found that the Plaintiff’s expert lacked the requisite qualifications under Florida law to render opinions against the hospital and its three specialist physicians.  Pisano v. Orlando Health, Inc. d/b/a Orlando Regional Medical Center, 5D19-524 (Fla. 5th DCA 2019).

The First District Court of Appeal affirmed final judgment entered in favor of the Association in a dispute over the use of a condominium unit as a full-service restaurant.  Fehrman v. Gateway Commons II Condominium Association, Inc., 1D17-4555 (Fla. 1st DCA 2018). 

The Fifth District Court of Appeal affirmed final summary judgment entered in favor of the insurer in a claim for post-arbitration interest and bad faith, stemming from an underlying uninsured motorist claim.  Huffman v. Commerce West Ins. Co., No. 5D16-4692 (Fla. 5th DCA 2018).

The Fourth District Court of Appeal affirmed the trial court's finding of defense and indemnity and an award of attorney's fees to a contractor.  Blok Builders, LLC v. Katryniok, No. 4D16-1811 (Fla. 4th DCA 2018).

The Third District Court of Appeal reversed and remanded an adverse final judgment entered against the insurer in an uninsured motorist case. The Court found that the insurer was either entitled to a summary judgment or a directed verdict because coverage was a legal and not a factual question, and the insurer was entitled to judgment as a matter of law. Zurich American Insurance Company v. Cernogorsky, No. 3D16-689 (Fla. 3d DCA 2017).

The Southern District Court of Florida, acting in its appellate capacity, affirmed a bankruptcy court's order denying a motion to reopen the case for action effecting discharge of debtor.  Verdecia v. Valentine, No. 17-CV-60723-WPD (S.D. Fla. 2017).

The Third District Court of Appeal affirmed the trial court's denial of a non-final order granting the defendants' motion to transfer venue based on forum nonconveniens in an aviation case.  Theobald v. Piper Aircraft, Inc., No. 3D16-1504 (Fla. 3d DCA 2016).

The Fourth District Court of Appeal reversed in part an adverse final judgment entered in favor of an insurance agent, finding that the contract between the agent and the agency was divisible so that the statute of limitations for each commission began to run when a comission was received by the agency.  Access Ins. Planners, Inc. v. Gee, No. 4D14-1883, 4D14-2706 (Fla. 4th DCA 2015).

The Fourth District Court of Appeal affirmed the entry of summary judgment in favor of a shopping center owner who was sued after a motorcycle patron was injured in an accident on the roadway outside of the shopping center. Ball v. Black, No. 4D14-276 (Fla. 4th DCA 2015).

The Second District Court of Appeal denied the plaintiff's petition for certiorari challenging the trial court's discovery order on attorney-client privilege issues in a bad faith case. Mabie v. Universal Underwriters Ins. Co., No. 2D14-847 (Fla. 2d DCA 2014).

The Eleventh Circuit Court of Appeals affirmed a final summary judgment entered in favor of an excess carrier, finding that its insured breached the policy by failing to notify the excess insurer of the occurrence, claim, and suit until almost four years after the occurrence and claim and several months after final judgment was entered against the insured. American Guarantee & Liability Insurance Co. v. Simon Roofting & Sheet Metal Corp., No. 13-11685 (11^th Cir. 2014).

The Third District Court of Appeal affirmed the trial court's entry of post-trial directed verdict in favor of a cruise line in a slip in fall case, where the plaintiff failed to prove negligence. Deutsch v. Celebrity Cruises, Inc., No. 3D12-1710 (Fla. 3d DCA 2013).

The Third District Court of Appeal affirmed a final summary judgment entered in favor of a spa servicer on a cruise ship. The trial court found that the spa did not have a legal duty to the cruise patron to provide CPR or defibrillation after a patron collapsed while exercising on a treadmill in the cruise ship's gym. Amaran v. Royal Carribean Cruises, Ltd., (Fla. 3d DCA 2013).

The Third District Court of Appeal reversed the trial court's order denying the spa operator's motion to dimiss based on a contractual forum selection clause.  Steiner Transocean Limited v. Efremova, No. 3D12-2390 (Fla. 3d DCA 2013).