Saturday, March 10, 2018

Portabella mushrooms, arugula, and bison pizza with garlic, rosemary and olive oil drizzle, with jurisdiction, contracts, arbitration recent decisions

Arbitration -- Employee severance payment -- Condition of approval -- Final judgment confirming payment of severance package awarded in arbitration is reversed and vacatur of order of dismissal is affirmed where trial court's final judgment confirming payment did not include the condition of approval set forth in the arbitration award -- Remand for trial court to enter final judgment in conformity with the award as made, including conditioning payment upon the required approval.  FLORIDA CAPITAL GROUP, INC., Appellant, vs. BART S. BISHOP, Appellee. 3rd District.

Appeals -- Order granting summary judgment was appealable where order contained language establishing finality -- Opposing party failed to meet burden of demonstrating existence of genuine issue of material fact.  CHARLES DAVIS, Appellant, v. BAY COUNTY JAIL, RICK ANGLIN, et al., Appellees. 1st District.

Attorney's fees -- Proposal for settlement -- Proposal for settlement was untimely where it was served later than forty-five days before the first day of the docket on which the case was set for trial -- Trial court erred in awarding attorney's fees pursuant to offer of judgment rule.  SCOTT B. MEYROWITZ, Appellant, v. ANDREW M. SCHWARTZ, P.A., Appellee. 4th District.

Contempt -- Direct criminal -- Trial court improperly classified defendant's failure to appear as direct contempt and failed to comply with procedural requirements for indirect contempt proceedings, including adequate notice, a reasonable time to prepare defense, and compulsory process for attendance of witnesses.  NICHOLAS P. SANDELIER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Contracts -- Settlement agreement -- Meeting of the minds -- Record contained competent substantial evidence to support trial court's determination that parties entered into enforceable agreement where plaintiff's counsel tendered offer to insurer, insurer accepted the offer and provided plaintiff with all requested documents, and insurer enclosed proposed release but stated in its letter that execution of the proposed release was not a condition of settlement or intended to constitute a counter-offer.  ANIBAL TOVAR, Appellant, v. JENNIKA RUSSELL, Appellee. 4th District.

Jurisdiction -- Non-residents -- Torts -- Action by airline against corporate entities that performed major repairs and alterations on engine which exploded shortly after take-off from Texas airport -- Trial court erred in denying motion to dismiss for lack of personal jurisdiction over foreign corporation where corporation filed two affidavits that created disputed issues of fact as to whether court could exercise specific personal jurisdiction over it -- Remand for evidentiary hearing -- Although plaintiff first alleged that defendant engaged in substantial and non-isolated business activities in state, it later withdrew its claim that defendant was subject to general jurisdiction of Florida courts, limiting plaintiff to its assertion that defendant committed tortious act within state -- Accordingly, if court concludes defendant did not commit tortious act within state, motion to dismiss must be granted.  ROLLS-ROYCE, PLC, a foreign profit corporation, Appellant, v. SPIRIT AIRLINES, INC., a Florida Corporation, ROLLS-ROYCE CORPORATION, a foreign corporation, ROLLS-ROYCE NORTH AMERICA, INC., a foreign profit corporation, IAE INTERNATIONAL AERO ENGINES AG, a foreign profit entity, PRATT & WHITNEY, a division of UNITED TECHNOLOGIES CORPORATION, a foreign profit corporation, Appellees. 4th District.

Limited liability companies -- Operating agreement -- Transfer of membership interest in LLC in violation of provision prohibiting transfer without consent of majority of members -- Non-member's transfer of his interest in an LLC which was a member of the LLC in question to another member did not violate prohibition against transfer of membership interest without notice, consent, and compliance with right of first offer provision -- Trial court erred in entering summary judgment for plaintiffs on their complaint claiming that transfer violated operating agreement and alleging breach of contract, breach of fiduciary duty, and specific performance -- Removal of party from Board of Management -- Trial court erred in construing operating agreement to permit the removal of a manager by 75% of managers rather than a vote of 60% of the members -- Under provisions of operating agreement member of LLC was permitted to bring direct action against other members for breach of agreement, and trial court erred in finding that action was required to be brought as a derivative action -- Notwithstanding erroneous construction of operating agreement, trial court properly entered judgment for defendants on counterclaims and third-party claims alleging breach of agreement, including claim arising out of removal of manager, as such claims were barred by business judgment rule.  FERK FAMILY, LP, Appellant, v. GAIL FRANK, etc., et al., Appellees. 3rd District.

Mortgage foreclosure -- Standing -- Where endorsement on note attached to complaint was different from endorsements on original note filed with court, genuine issue of material fact existed as to plaintiff's standing at inception of action -- Error to enter final judgment of foreclosure following summary judgment.  LESLINE RUSSELL, Appellant, v. BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING LP, Appellee. 4th District.

Torts -- Discovery -- Trade secrets -- Circuit court departed from essential requirements of law by ordering disclosure of trade secrets where party requesting the disclosure failed to present any evidence that production of privileged information was reasonably necessary.  NIAGARA INDUSTRIES, INC. and RHEEM SALES COMPANY, Petitioners, v. GIAQUINTO ELECTRIC LLC, a Florida Limited Liability Company, GUARDIAN AMERICAN PROPERTIES, LLC, f/k/a GUARDIAN AMERICAN RESIDENTIAL PROPERTIES OF BROWARD COUNTY, LLC, a Florida Limited Liability Company, H20 PLUMBING SERVICES, INC., a Florida Corporation, FUENMAYOR & LINDA ENTERPRISES, LLC, d/b/a ACE FLOOD & INSPECTIONS, LLC, a Florida Limited Liability Company, MARK BECKERMAN, individually, and SCOTT WESLEY FRANK, Sr., individually, Respondents. 4th District.Torts -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of resident's negligence claims against nursing home based on arbitration and limitation of liability agreement which contained express severability clause worded in such a way that the essence of the arbitration provision would survive the severance of any illegal arbitration provisions.  ANNE OBOLENSKY, Appellant, v. CHATSWORTH AT WELLINGTON GREEN, LLC d/b/a NUVISTA LIVING AT WELLINGTON GREEN, Appellee. 4th District.

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Sunday, January 14, 2018

Civil procedure, product liability, and dissolution of marriage, with wild boar and venison Swedish meatballs with lingonberries and curry cream sauce, wild baby red sorrel with bacon

After months of a very busy work schedule, followed by some time off for cooking, hiking, and winter gardening, the Appellate Gourmet's (c) Newsletters and Recent Decisions of Interest updates resume. We're back! Thank you for your patience. Enjoy.

Civil procedure -- Appeal from circuit court order denying petition for relief from order appointing receiver and motion for rehearing filed by entity that was served with process in underlying lawsuit and later served with post-judgment motion to establish equitable lien, but failed to put in any appearance until it sought relief from order at issue -- Arguments were waived by failure to contest the relief sought prior to issuance of final order.  PENNYMAC CORP., Appellant, v. OCEAN PLACE AT SILVER BEACH ASSOCIATION, INC., a Florida Not for Profit Corporation; and FPR FORCE, LLC, a Florida Limited Liability Company, Appellees. 4th District.

Civil procedure -- Relief from judgment -- Service of process -- Non-residents -- Defects -- Substitute service on Michigan-based defendant through the Florida Secretary of State under section 48.181(1) was insufficient where defendant provided sworn unrefuted testimony that he was not conducting business in Florida and was not avoiding service -- Final default judgment entered against defendant was void, and trial court should have granted motion to vacate the judgment -- Remand for vacation of both the judgment and default against defendant.  SILVIO COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Marital settlement agreement -- Enforcement -- Provision of MSA that “if the former husband continuously and timely exercises timesharing with minor child for a period of six consecutive months, the parties shall exercise equal timesharing” is ambiguous as to whether “period of 6 consecutive months” began immediately after entry of dissolution judgment or could apply to any six consecutive months after entry of dissolution judgment -- Hearing to consider extrinsic evidence of parties' intent is required.  JULIE WOHLBERG, Appellant, v. MICHAEL CONNER, Appellee. 4th District.

Dissolution of marriage -- Conflict within final judgment between amount of bridge-the-gap alimony needed by wife and amount actually awarded to be resolved on remand.  MICHELLE KHETARPAL, n/k/a MICHELLE BOOTH, Appellant, v. SUNIL KHETARPAL, REX & REX LIMITED, INC., a Florida corporation, and KHETARPAL HOLDINGS, LLC, Appellees. 4th District.

Mortgage foreclosure -- Standing -- Civil procedure -- Substituted plaintiff -- Trial court properly held that, pursuant to rule 1.260, party substituted as plaintiff acquired the standing of the original plaintiff, and established its standing at the time of judgment by presenting a copy of the original note endorsed in blank.  LUTHER EDWARD SPICER and CLARA JEAN MAY, Appellants, v. OCWEN LOAN SERVICING, LLC, RIVERWALK OF THE PALM BEACHES HOMEOWNERS ASSOCIATION, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for RESOURCE FUNDING GROUP, LLC., Appellees. 4th District.

Mortgage foreclosure -- Trial court erred in entering summary judgment in favor of plaintiff where defendant sufficiently pleaded affirmative defense that plaintiff failed to comply with federal housing regulations incorporated into mortgage, including defendant's right to face-to-face interview at least 30 days before commencement of foreclosure, and plaintiff conceded that it failed to refute defense.  DANIEL N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee. 4th District.

Public records -- Counties -- Exemptions -- Trade secrets -- Trial court correctly determined, after in camera inspection, that aggregate number of airport pick-ups by transportation service company and sums of money paid by company to county as airport usage fee pursuant to license agreement between company and county did not constitute trade secret information which was exempt from public disclosure.  RASIER-DC, LLC, Appellant, v. B&L SERVICE, INC., a Florida corporation and BROWARD COUNTY, FLORIDA, a Political Subdivision, Appellees. 4th District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Plaintiff to be permitted on remand to seek leave from court to add claims for punitive damages on negligence and strict liability counts.  PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants, v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER, Appellee. 4th District.

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Monday, October 30, 2017

Civil rights, contracts, equitable distribution, trespass, and bison meatballs, tomatoes and fresh rosemary over herbed pasta and olives

Appeals -- Extension of time to file initial, answer, or reply brief -- Agreed notice – Procedure.  ADMINISTRATIVE ORDER 17-2. 1st District.

Arbitration -- Waiver -- Active participation in litigation -- Dispute arising out of partnership agreement containing arbitration clause -- By pursuing relief in trial court based upon partnership agreement, plaintiff waived its right to compel arbitration of defendant's counterclaims, which were also based upon the partnership agreement -- Plaintiff's argument that amended complaint was solely based on breaches of employment agreement and employee handbook, neither of which contained arbitration clause, is incorrect.  JORDAN L. CHAIKIN, Appellant, v. PARKER WAICHMAN LLP, a Florida limited liability partnership; and JERROLD S. PARKER, individually, Appellees. 2nd District.

Attorney's fees -- Because record is devoid of evidence supporting award of attorney's fees, award is properly reversed without remand for taking additional evidence.  B and H Miracle, LLC, a Florida limited liability company; FRANCIS L. BAKER, an individual and JAMES E. HOLLIS, SR., an individual, Appellants, v. WELLS FARGO BANK, N.A., a national banking association f/k/a WACHOVIA BANK, N.A., a national banking association, Appellee. 1st District.

Attorney's fees -- Proposal for settlement -- Trial court erred in denying motion for attorney's fees on ground that proposals for settlement failed to apportion settlement amount to each defendant -- Sufficient apportionment was set forth where plaintiff sent identical proposals for settlement to two defendants indicating the total settlement amount sought, and each proposal contained a footnote clarifying the total amount sought and indicating that if each of the two defendants accepted and tendered the full settlement amount to the plaintiff, the plaintiff would return half of the amount to each of the defendants.  GOLISTING.COM, INC., d/b/a PALM BEACH PREMIER REAL ESTATE, a Florida corporation, Appellant, v. JOHN PAPERA, individually, and CHRISTINE PAPERA, individually, Appellees. 4th District.

Contracts -- Unjust enrichment -- Claim for unjust enrichment cannot be pursued where there is an express contract concerning the same subject matter.  BRENDA WILLIAMS, et al., Appellants, vs. MARYE JOHNSON, et al., Appellees. 3rd District.

Dissolution of marriage -- Appeals -- Issues either not preserved for appellate review or expressly waived -- Absence of statutory findings in written judgment -- Adoption of former wife's proposed final judgment.  SCOTT A. BROCK, FORMER HUSBAND, Appellant, v. CAROLYN ANN BROCK, FORMER WIFE, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Trial court did not err in modifying timesharing by awarding primary residence and majority timesharing to former husband -- Trial court was not required to set forth specific steps by which former wife might reestablish majority timesharing -- Conflict certified.  RACHEL D. DUKES, F/K/A RACHEL D. GRIFFIN, FORMER WIFE, Appellant, v. TIMOTHY R. GRIFFIN, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Income -- Imputed income -- Trial court erred in imputing $80,000 of income to former husband on assumption he could secure a job as a corporate pilot where there was no evidence that there are any corporate pilot positions available in area for which former husband is qualified and that would work with equal timesharing plan -- Attorney's fees -- Trial court's award of attorney's fees to former wife for first appeal and all post-remand proceedings is reversed where award was based on imputed income decision which is reversed -- Further, trial court failed to make findings of fact distinguishing between costs of litigation attributable to improper vexatious litigation and costs that would have been incurred absent any such inappropriate litigiousness, and failed to determine whether former husband had ability to pay fee award.  GLENN ROBERT BROGA, Former Husband, Appellant, v. LINDA MARIE BROGA, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court erred in awarding former husband a dollar-for-dollar credit for contributions he made to mortgage encumbering former wife's premarital duplex -- Credit awarded should be based upon the amount by which the use of marital funds to pay down the mortgage reduced the indebtedness on the property.  BRIDGETT BETTS, Appellant, v. RICKY BETTS, Appellee. 2nd District.

Paternity -- Disestablishment -- Trial court erred in denying father's petition to disestablish paternity based on newly discovered evidence in form of recent DNA test showing that he was not child's biological father on ground that court could not disestablish paternity unless another putative father was willing to “step in” and establish paternity.  L.G., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 4th District.

Torts -- Civil rights -- Trial court abused its discretion by dismissing with prejudice counts asserting claims against assistant state attorneys in their individual capacities for tortious interference with a business relationship and Fourth Amendment violations after determining that amendment of claims would be futile -- Moreover, allegations against ASAs in individual capacities fall within Florida's limited waiver of sovereign immunity, and face of complaint did not otherwise conclusively establish that ASAs were entitled either to sovereign immunity or qualified immunity -- Remand with instructions to afford plaintiff opportunity to amend these counts to clearly identify particular defendant to which plaintiff attributes a particular improper act.  CHRISTINA PAYLAN, Appellant, v. DARRELL DIRKS, CHRISTINE BROWN, and MARK OBER, Appellees. 2nd District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Torts -- Real property -- Trespass -- Trial court erred in entering judgment for civil trespass damages where none of defendants occupied subject property without authority, and plaintiff had no interest in property sufficient to support a trespass claim -- Defendant became equitable owner of property when defendant and plaintiff entered into contract for purchase and sale of the property, and that ownership continued notwithstanding defective execution of warranty deed -- Damages -- Proper measure of damages for trespass is the value of the loss of use and enjoyment of or the injury to the land trespassed upon.  RANDALL GUNNING, individually, CASTLE CONSULTING I LTD., INC., a Florida corporation; and RIVER OF LIFE INTERNATIONAL OUTREACH CENTER, INC., a Florida corporation, Appellants, v. EQUESTLEADER.COM, INC., a Virginia corporation; and DONALD PIERCE, individually and president of Equestleader.Com, Inc., Appellees. 2nd District.

Wrongful death -- Product liability -- Tobacco -- Fraudulent concealment -- Jury instructions -- Trial court abused its discretion in giving requested special instruction related to claim for fraudulent concealment, which stated that plaintiff need not provide direct evidence of plaintiff's reliance on any specific statement by defendant or defendant's co-conspirators and that reliance could be inferred if evidence as a whole supported such an inference -- Issue was adequately covered by standard instruction on inferences, and proposed instruction was potentially confusing -- Moreover, instruction was requested on sole basis that it was necessary to prevent defendant from making certain closing arguments, which was not proper basis for request -- Reversal not required -- Prejudice to defendant was not apparent from record where jury instruction on causation permitted jury to find causation under either a reliance theory or an omission/concealment theory, or both, and the special instruction only impacted the reliance theory.  R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. COLETTE S. O'HARA, as Personal Representative for the Estate of GARRY L. O'HARA, Appellee. 1st District.

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