Saturday, April 12, 2014

AIG ordered to pay injured lawyer $7M for insurer’s bad-faith conduct in lawyer's underlying accident case

"Blasting a major insurance company for what he called unfair settlement practices in an egregious case, a Massachusetts judge Tuesday ordered American International Group Inc. to pay at least $7 million to a lawyer hit by a bus making a left turn as a he crossed a street in Boston.
The award in the bad-faith case is in addition to $3.6 million paid in 2008 by AIG to Odin Anderson and his family for his injuries in the 1998 accident, the Boston Globe reports.
Lawyers representing AIG made up claimed facts in the personal injury litigation underlying the bad-faith suit and inappropriately coached the bus driver to change his story, said Associate Justice Brian A. Davis in his written opinion in the Middlesex Superior Court case. An argument that Anderson was partly responsible for the accident because he ran out onto the street between cars was based on “a wholly made-up fact," the judge wrote."  More.

Originally Posted Apr 11, 2014 1:10 PM CDT in ABA Law Journal
By Martha Neil

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

Tuesday, April 8, 2014

Fraudulent misrepresentation, child support, equitable distribution, and fire roasted chicken with garden cucumbers and basil-balsamic vinegar



Attorneys -- Discipline -- Bringing of frivolous action -- Knowingly disobeying court order to pay attorney's fees -- Presenting criminal charges solely to obtain an advantage in a civil matter -- Conduct prejudicial to administration of justice -- In light of attorney's conduct, disciplinary history, false statements to referee, and other aggravating factors, three-year suspension is appropriate discipline
THE FLORIDA BAR, Complainant, v. BRUCE EDWARD COMMITTE, Respondent. Supreme Court of Florida.

Child support -- It was an abuse of discretion for trial court to fail to set amount of child support obligation before applying amount of child's derivative social security disability benefit -- Court should have calculated monthly child support obligation, explicitly included that amount in final judgment, and only then applied derivative benefits to reduce or pay that obligation -- Nevertheless, court reached correct result because derivative benefits exceeded amount of child support obligation
DEPARTMENT OF REVENUE on behalf of BRENDA JOYCE JENKINS, Appellant, v. STACY NICOLE PORTER, Appellee. 2nd District.

Condominiums -- Right of access -- Trial court erred in entering summary judgment in favor of condominium association on its right to access owner's unit for pest control purposes -- There were genuine issues of material fact as to the reasonableness and necessity of the association's actions where the owner had lived in the unit for several years without pest service provided by the association and there was no evidence of a pest problem when the dispute arose -- Attorney's fees -- Judgment entered pursuant to aforementioned summary judgment is therefore reversed -- Contempt -- Contempt finding against owner for noncompliance with original final judgment is affirmed because the owner failed to appeal the original contempt finding, appealing only from the enforcement order, and because a contempt order may stand even if it is based on an erroneously entered order
JOYCE SMALL, Appellant, v. DEVON CONDOMINIUM B ASSOCIATION, INC., Appellee. 4th District.

Contempt -- Civil -- Where court found defendant in contempt for failing to file fact information sheet as required by court order, it was an abuse of discretion to impose a per diem fine as a coercive civil sanction without giving defendant a reasonable time to purge its contempt and without considering defendant's ability to pay the sanction
CREATIVE CHOICE HOMES, II, LTD., etc., Appellant, vs. KEYSTONE GUARD SERVICES, INC., Appellee. 3rd District.

Contracts -- Action for breach of contract for sale of business and foreclosure of mortgage on real property on which business is located -- Where concept of sale document did not include all essential elements of agreement, trial court erred in refusing to consider parol evidence of the actual terms of the sale -- Trial court erred in applying amount of overpayment on sale of stock in business as offset to amount due on mortgage where this offset was not requested -- Evidence -- Court should allow use of deposition transcripts for impeachment purposes
MARY ELLEN WRIGHT, Appellant, v. JOHN K. CZARIKI and KIMBERLY S. CZARIKI, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Ability to pay -- Final judgment of dissolution reversed because trial court failed to make necessary findings of fact to enable appellate review of the issue of husband's ability to pay
LARRY J. RUTAN, Appellant, v. VIRGINIA J. RUTAN, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Error to include in order reducing former husband's alimony obligation a provision for alimony obligation to automatically revert to premodification amounts conditioned solely upon the parties' relative income levels returning to what they were at time of 2000 final judgment of dissolution and a subsequent 2009 order denying a prior modification petition
JOHN A. ANDERSON, Appellant, v. JOAN C. ANDERSON, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of children -- Error to enter temporary order granting husband permission to have parties' minor children relocate with him to foreign state where there was no competent, substantial evidence which would support a finding that relocation was in children's best interest
SANDRA LEE ALBANESE, Appellant, v. MAXWELL ALBANESE, Appellee. 5th District.

Dissolution of marriage -- Child support -- Modification -- Evidence -- Where only basis for modification pled by former husband was son's reaching majority and graduating from high school, general magistrate erred in awarding relief on basis of parties' changed circumstances, as this relief was not requested -- Magistrate erred in substituting her own experience for former wife's sworn testimony regarding former wife's income from working at a nail salon -- Magistrate erred by taking judicial notice of documents not introduced into evidence without giving reasonable notice to parties -- Trial court erred in striking former wife's amended exceptions to magistrate's report as untimely where original exceptions were timely filed -- Because magistrate's report was clearly erroneous and not supported by competent evidence, trial court erred in adopting the report
DEBRA GLAISTER, Appellant, v. RALPH GLAISTER, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Error to credit husband for full value of contributions toward upkeep of certain home during pendency of divorce, rather than for one-half of the monies expended -- Error to fail to credit wife with one-half of money she spent to maintain property during pendency of divorce -- Wife is entitled to half the 401(k) benefits forfeited to husband from accounts of three employees who were terminated from husband's medical practice prior to date dissolution petition was filed -- Error to fail to credit husband with half of the marital funds wife used during pendency of dissolution to pay her attorney's fees -- Child support -- Final judgment to include month, day, and year that reduction or elimination of child support will become effective -- Trial court erred in ordering parties to split cost of child's uncovered medical expenses 50/50, rather than requiring payment on pro rata basis -- Wife should not be required to pay any part of child's medical expenses that would be covered by insurance but for husband's unilateral decision not to submit expenses for payment by the insurance carrier
VALERIE K. FAIRCHILD, Appellant/Cross-Appellee, v. PATRICK G. FAIRCHILD, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Equitable distribution -- Military retirement benefits -- Trial court's Order for Division of Military Retirement Pay is reversed because, in allowing wife to receive payments based on pension benefits earned by husband after dissolution, it calculates wife's portion of husband's pension in a manner different from what parties orally agreed to and incorporates a coverture fraction contrary to Florida law
JEFFREY FRITZ, Appellant, v. TERRI FRITZ, Appellee. 2nd District.

Mortgage foreclosure -- Dismissal -- Failure to prosecute -- Record activity -- Motion to amend complaint was a sufficient filing to avoid dismissal for failure to prosecute
DEUTSCHE BANK NATIONAL TRUST CO., Appellant, v. MARK CHRISTIAN GOMBERT, AS CO-TRUSTEE OF THE CHRISTIAN W. GOMBERT FAMILY TRUST DATED JANUARY 23, 2001, GREGORY DEAN GOMBERT AS CO-TRUSTEE OF THE CHRISTIAN W. GOMBERT FAMILY TRUST DATED JANUARY 23, 2001, CHRISTY CHRISTINE GOMBERT a/k/a CHRISTY C. GOMBERT, RUSSELL W. GOMBERT, PAUL JASON GOMBERT, TAMMY D. GOMBERT AND ERIC STEPHEN GOMBERT, et al., Appellees. 1st District.

Mortgage foreclosure -- Error to enter final judgment of foreclosure while counterclaim remained pending
JACQUELINE KUSHNER and LARRY J. KUSHNER, Appellants, v. WYNDSONG ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee. 4th District.

Mortgage foreclosure -- Trial court erred in granting summary judgment to bank because an issue of material fact existed as to when the bank took possession of the note -- Argument that the note followed the mortgage when the mortgage was assigned to bank is flawed because the mortgage follows assignment of the note
JOSEPHINE BRISTOL, Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN TRUST 2006 FF15, Appellee. 4th District.

Torts -- Fraudulent misrepresentation -- Action by plaintiff who jointly purchased real property with defendant, alleging that defendant, who made mortgage payments for four years, ceased making mortgage payments after four years, and executed quitclaim deed to plaintiff, falsely represented his marital status to plaintiff -- Even if defendant did make a false statement regarding his marital status, it was not material to the written documents obligating plaintiff to pay the mortgage and conferring a property interest in the property in plaintiff -- Further, facts adduced at final hearing did not establish any financial injury to plaintiff resulting from her reliance on defendant's marital status -- Breach of contract action based on defendant's oral agreement to make mortgage payments would be barred by statute of frauds provisions barring lawsuits upon promises to pay another's debt and agreements not to be performed within one year, and plaintiff could not avoid statute of frauds by couching claim in terms of the tort of fraudulent misrepresentation -- Judgment for plaintiff reversed
MARC COHEN, Appellant, v. DONNA B. CORBITT, Appellee. 1st District.

Torts -- Legal malpractice -- Dismissal -- Error to dismiss complaint with prejudice on ground of plaintiff's failure to amend complaint within time granted by court where order did not specify that failure to file amended complaint within that time would result in dismissal with prejudice
DARYL L. MERL, Appellant, vs. JEFFREY S. WEINER, P.A., etc., et al., Appellees. 3rd District.


The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

Saturday, April 5, 2014

Estate dispute caused by ‘E-Z Legal Form’ is a ‘cautionary tale,’ says Florida Supreme Court Justice


"Ann Aldrich used an “E-Z Legal Form” when she made out her will in 2004, a decision that proved to be a good choice for two nieces who cited the document’s lack of a residuary clause.
In a decision issued last week, the Florida Supreme Court ruled for the nieces, though they weren’t mentioned in the will. The court said money acquired by Aldrich after the will was made out should be distributed under the laws of intestacy, which govern distribution of property for those who die without a will. The reason: The E-Z form did not have a residuary clause providing for the disposition of property not listed in the document. FlascBlog: The Florida Supreme Court Blog reports on the opinion (PDF).
Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’ …"  More.

Originally Posted in the ABA Journal Apr 3, 2014 11:34 AM CDT
By Debra Cassens Weiss


The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

Sunday, March 16, 2014

Child custody, service of process, venue, and oak grilled salmon-radicchio-shallot melange



Attorneys -- It was an abuse of discretion to impose monetary sanctions against plaintiff's attorney for his violation of a confidentiality agreement by disclosing defendants' financial institutions without finding that the violation was intentional -- Trial court properly denied attorney's motion for relief from sanction order on basis of settlement agreement in a separate case where settlement agreement related solely to that separate case
GARY W. ROBERTS, Appellant, v. ALFRED O. BONATI, M.D.; GULF COAST ORTHOPEDIC CENTER -- ALFRED O. BONATI, M.D., P.A.; MEDICAL DEVELOPMENT CORPORATION OF PASCO COUNTY, d/b/a THE BONATI INSTITUTE; JAMES S. ST. LOUIS, D.O.; PATRICIA SHAW-CAILLOUET; and ALLEN CAILLOUET, Appellees. 2nd District.


Civil procedure -- Pro se filings -- Prohibition -- Appeals -- Certiorari -- Arguments in support of petitioner's claim that circuit court departed from essential requirements of law in barring petitioner from future pro se filings are without merit -- Certiorari denied
KEVIN M. OWENS, Petitioner, v. MIKE FORTE, VILLAGE INVESTMENTS, INC., and CYPRESS PARK GARDEN HOMES CONDOMINIUM ASSOCIATION, Respondents. 2nd District.


Civil procedure -- Service of process -- No error in setting aside prior default judgment and deciding to dismiss lawsuit with respect to some defendants for failure to perfect service within time frame specified by procedural rule -- Error to find that plaintiff failed to serve five defendants during required time frame where requested proof of service was filed before court issued its final order
ANTONIO WARD, Appellant, v. MICHAEL D. CREWS, Secretary, Florida Department of Corrections, Appellee. 1st District.


Dissolution of marriage -- Child custody -- Attorney's fees -- Error to award wife fees incurred in litigation of child custody dispute where marital settlement agreement ratified by trial court during pendency of dispute explicitly provided that each party would be responsible for own attorney's fees
JOANNIS SAPICAS SALISELE, Appellant, v. NAMIVIA SAPICAS, Appellee. 3rd District.


Dissolution of marriage -- Child custody -- Husband waived challenge to portion of final judgment naming former wife “the Majority 100% Time-Sharing parent” by failing to raise issue in his first direct appeal of dissolution judgment -- Child support -- Arrearage -- Record does not support trial court's findings regarding amount of former husband's child support arrearages -- Remand for recalculation
MAHMOUD NASSIROU, Former Husband, Appellant, v. NELLIE BORBA NASSIROU, Former Wife, Appellee. 1st District.


Dissolution of marriage -- Child custody -- Visitation -- Jurisdiction -- Adult disabled son -- Circuit court lost subject matter jurisdiction under Chapter 61 for purposes of custody and visitation of parties' disabled son when son reached age of majority -- Accordingly, order finding that former husband could exercise visitation with adult son, with certain conditions, and directing former wife to accompany son or pay an airline representative or nurse to do so is void
SUSAN HARDMAN, FORMER WIFE, Appellant, v. HARRY KOSLOWSKI, FORMER HUSBAND, Appellee. 1st District.


Dissolution of marriage -- Modification of judgment -- Military retirement -- Where marital settlement agreement incorporated into final judgment provided that former wife was entitled to 27.5 percent of former husband's military pension which had accrued during eleven-year marriage, and judgment awarded former wife 27.5 percent of former husband's disposable retired pay upon his retirement from military service, with court retaining jurisdiction to reconsider the percentage of retired pay due to former wife should former husband retire before completing twenty years of service, court had jurisdiction to consider former husband's petition to establish that former wife was entitled only to 27.5 percent of the amount of pension available after twenty years of service, although former husband retired after thirty years of service -- Court improperly dismissed former husband's petition as an untimely motion to modify judgment -- Former husband's petition was not an attempt to modify judgment, but was, instead, an attempt to enforce terms of judgment as he understood them
JEFFREY INGRAM, Appellant, v. SHELLY INGRAM, Appellee. 2nd District.

Injunctions -- Contracts -- Employment -- Noncompetition covenants -- Trial court erred in denying former employer's request for temporary injunction to enforce restrictive covenants in employment agreements on ground that former employer's failure to pay certain bonuses due under the agreements constituted a prior breach that rendered the agreements, and thus the restrictive covenants, unenforceable -- Each agreement expressly provided that each restrictive covenant was independent of any other covenant or provision of the agreement and that the existence of any claim or cause of action by the employee against the employer would not constitute a defense to the enforcement by the employer of any other covenant -- Trial court did not err in concluding that cessation of business by original corporate employer did not render restrictive covenants unenforceable by corporation's affiliate where employment agreements expressly provided that its affiliates were deemed to be third-party beneficiaries under agreements with right to seek enforcement of the agreements
RICHLAND TOWERS, INC., a Florida corporation; and RICHLAND TOWERS, LLC, a Florida limited liability company, Appellants/Cross-Appellees, v. DAVID DENTON, individually; DALE A. WEST, individually; and TALL TOWER VENTURES, LLC, a Florida limited liability company, Appellees/Cross-Appellants. 2nd District.


Mortgage foreclosure -- Error to dismiss second amended foreclosure complaint based on plaintiff's failure to prove that its loan servicer had authority to verify the foreclosure complaint at that stage of the litigation -- Plain language of rule does not require servicer to file evidence with the foreclosure complaint proving that it had authority to verify the complaint
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE8, Appellant, v. ROBERT PLAGEMAN and MARY PLAGEMAN, Appellees. 2nd District.


Mortgage foreclosure -- Service of process -- Defect in defendant's proper legal name was not sufficient to vitiate process served where defendant admitted that personal service was made on her and that she was the mortgagor on the mortgage sought to be foreclosed -- Appeal from order granting substitution of parties, which court treats as motion to amend to correct defendant's name, is dismissed, as order is non-final, non-appealable order
SUZANA POPESCU, Appellant, v. JP MORGAN CHASE BANK, NA, Appellee. 4th District.


Public records -- Attorney's fees -- Where transit authority delayed in producing requested public records, trial court erred in denying award of attorney's fees and costs to requesting party on basis that authority's failure to furnish records before suit was filed was not willful -- Proper question before court on request for attorney's fees and costs was whether authority unlawfully refused to produce records, not whether any such refusal was willful -- Unlawful refusal includes not only affirmative refusal to produce records, but also unjustified delay in producing them -- Trial court must determine whether the delay was justified under the facts -- If the delay was not justifiable, the delay constitutes unlawful refusal
STEWART LILKER, Appellant, v. SUWANNEE VALLEY TRANSIT AUTHORITY and GWENDOLYN PRA, Administrator, in her official capacity as the Suwannee Valley Transit Authority's Custodian of Records, Appellees. 1st District.


Torts -- Civil procedure -- Summary judgment -- Discovery pending -- Entry of summary judgment in favor of defendant was premature where plaintiff's counsel was still seeking to depose witness whose identity was not revealed by defendant until defendant filed its motion for summary judgment -- Although non-moving party cannot thwart summary judgment hearing by initiating discovery after motion for summary judgment is filed and hearing scheduled, it did not appear in instant case that pending discovery was scheduled to thwart summary judgment hearing
DORA HARPER, Appellant, v. WAL-MART STORES EAST, L.P., Appellee. 5th District.


Venue -- Where settlement agreement, which had settled foreclosure action by mortgagor assigning to mortgagee 50 percent of the net proceeds awarded for damages in mortgagor's action against its insurance carrier in Miami-Dade County, contained mandatory venue selection provision requiring any litigation between mortgagor and mortgagee to be tried in Osceola County, trial court erred in denying motion to enforce the venue selection provision
EVERBANK, a Federal Savings Bank, Appellant, v. ATLANTIC HOSPITALITY OF FLORIDA, LLC, EAST COAST PUBLIC ADJUSTERS, INC., EAST COAST APPRAISERS, LLC and MINTZ TRUPPMAN, P.A., Appellees. 3rd District.


The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.