Sunday, July 20, 2014

The ABA is selecting the best legal blogs for its 8th Annual Blawg 100. Please vote for our blog!

The American Bar Association is working on its annual list of the 100 best law related blogs.  To vote for the best legal blogs, you can click here
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ABA Deadline:  August 8, 2014.


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Saturday, July 5, 2014

The Persistent Legislative, Executive, and Corporate Attempts to Control the Judiciary

"Congress and the Executive Branches have long-attempted to wrest power from the courts. . . .Efforts to limit the jurisdiction of the courts and the judiciary well predate the 1830’s and continue with zeal today. . .Struggles to place issue-friendly judges on the bench and restrict judicial review of the legislative and executive branches are tactics still practiced today. The Supreme Court has described 'protecting the Executive’s discretion from the courts. . . . [as] fairly. . .said to be the theme of the legislation.'"  More

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Monday, June 30, 2014

Copyright infringement, insurance coverage, mortgage foreclosure limitations of actions, and farm-raised duck grilled with lavender honey



Copyrights -- Infringement -- Exclusive right to perform copyrighted work publicly -- Transmit Clause -- Seller of service that allows its subscribers to watch television programs over Internet at about same time as programs are broadcast over the air infringes copyright owners' exclusive right to perform their copyrighted work publicly -- Infringer “perform[s]” copyright owners' works “publicly” as those terms are defined in Transmit Clause of Copyright Act
AMERICAN BROADCASTING COMPANIES, INC., et al., Petitioners v. AEREO, INC., fka BAMBOOM LABS, INC. U.S. Supreme Court.

Forfeiture -- In rem civil forfeiture -- Seizure of substitute assets -- Seizure of bank accounts as substitute assets where no link is established between alleged criminal activity and bank accounts -- Section 932.703(5), Florida Statutes, does not authorize the seizure of substitute assets prior to a forfeiture hearing -- Statute is intended to be used once a forfeiture has been ordered
SATISH B. PATEL, Appellant, v. STATE OF FLORIDA, etc., Appellee. 5th District.

Insurance -- Fire -- Ordinance or law coverage endorsement -- Provision of ordinance or law endorsement which provided that insurer would not pay for increased cost of construction due to enforcement of ordinance or law unless repairs or replacement are made within two years after loss was a forfeiture provision, and was waived by insurer -- Insurer waived the provision by failing to bring the provision to insured's attention despite knowing that insured expected the entire claim to be paid and by continuing to adjust the entire claim after the two-year period expired
AXIS SURPLUS INSURANCE COMPANY f/k/a SHEFFIELD INSURANCE CORPORATION, Appellant/Cross-Appellee, v. CARIBBEAN BEACH CLUB ASSOCIATION, INC., Appellee/Cross-Appellant. 2nd District.

Mortgage foreclosure -- Limitation of actions -- Trial court properly dismissed complaint to cancel mortgages which alleged the statute of limitations had run on their enforcement since the time mortgagee had originally filed suit to foreclose for default, and during which time mortgagee voluntarily dismissed foreclosure complaint -- Each payment default that is less than five years old still creates a basis for a subsequent foreclosure action; hence, the note and mortgage remain a valid and enforceable lien -- Voluntary dismissal was not an adjudication on the merits and therefore will not support a claim of res judicata
EVERGRENE PARTNERS, INC., Appellant, v. CITIBANK, N.A., as Trustee, JPMORGAN CLEARING CORP., AS SUCCESSOR IN INTEREST TO BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION, JPMORGAN CHASE & CO., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellees. 4th District.

Mortgage foreclosure -- Standing -- Claim that mortgagee failed to prove standing due to an undated endorsement on the note -- Unavailable transcript -- Because a transcript of the proceedings is not available for review, and witnesses may well have testified at the non-jury trial that the note was acquired by mortgagee prior to institution of the suit, trial court is entitled to presumption of correctness in its entry of final judgment of foreclosure -- Civil procedure -- No merit to claim case was not properly set for trial as case was at issue and trial court provided proper notice of its sua sponte setting the case for trial -- Nothing in the record shows mortgagor objected to trial court's setting the case for trial; hence, even if meritorious, the issue was not preserved
WINSTON MUHAMMAD and JANET MUHAMMAD, Appellants, v. BAC HOME LOANS SERVICING, LP, Appellee. 4th District.

Real property -- Bert J. Harris, Jr., Private Property Rights Protection Act -- Settlement agreement -- Trial court was without jurisdiction to review and approve settlement agreement which was entered into more than four years after property owners had filed suit seeking compensation under Bert Harris Act -- Settlement agreement did not comply with presuit settlement timeline set forth in statute, and presuit settlement procedures were not available to parties at time they entered into agreement
COLLIER COUNTY, a political subdivision of the State of Florida, Appellant, v. FRANCIS D. HUSSEY, JR., and MARY P. HUSSEY, husband and wife; WINCHESTER LAKES CORPORATION; THE HONORABLE RICK SCOTT, Governor of the State of Florida; and FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY; FLORIDA WILDLIFE FEDERATION; and COLLIER COUNTY AUDUBON SOCIETY, INC., Appellees. 2nd District.



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Wednesday, June 25, 2014

Contracts, liquidated damages, summary judgment, and bison pot roast with rosemary, root vegetables, and purple potatoes



Contracts -- Limitation of actions -- Equitable estoppel -- Action by owner of unit in commercial condominium against condominium association, alleging that association failed to pay for damage to plaintiff's unit caused by hurricane -- Doctrine of equitable estoppel did not preclude consideration of defendant's statute of limitations defense where nothing in defendant's conduct prevented plaintiff from timely asserting claims -- Because plaintiff had all information necessary to file action at time cause of action accrued, and plaintiff was not deprived of ability to bring suit prior to running of statute of limitations, equitable tolling doctrine is inapplicable -- Trial court erred in refusing to consider defendant's statute of limitations affirmative defense
OLEAN MEDICAL CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellant, v. ALI A. AZIMA, Trustee of that certain Living Trust Agreement dated April 17, 2006, Appellee. 2nd District.


Contracts -- Shareholder agreement -- Jurisdiction -- Non-residents -- Error to deny non-resident defendant's motion to dismiss action alleging she breached an agreement that required her to perform duties in Florida when she failed to provide certain information which she was required to share with other shareholders -- Where language of contract did not explicitly require defendant to perform any act in Florida whatsoever, defendant's alleged breach was not of an act that was “required by the contract to be performed in this state,” and long-arm jurisdiction cannot be properly invoked over her under section 48.193(1)(g) -- Undisputed evidence did not support finding of general jurisdiction under section 48.193(2) -- Defendant had not been Florida resident since 1974, owned no property in Florida, and traveled to Florida only irregularly to visit friends -- Status as director of Florida corporation, filing of annual reports, or service as trustee in now-defunct Florida trust were insufficient to establish general personal jurisdiction -- Mere fact that defendant previously availed herself of Florida courts is insufficient where there was no information regarding defendant's choice of Florida as forum, including whether Florida was mandatory or permissive or whether defendant purposefully availed herself of Florida's privileges and protections -- Plaintiffs have not provided any legal authority to support claim that defendant's employment of Florida counsel to assist her in execution of contract was sufficient to invoke general jurisdiction over defendant
DEBORAH R. OLSON, Appellant, v. DANIEL ROBBIE and TIMOTHY H. ROBBIE, Appellees. 4th District.


Dissolution of marriage -- Alimony -- Modification -- Trial court properly dismissed with prejudice husband's petition to terminate or modify alimony obligation on grounds the wife's needs had decreased, because the marital settlement agreement unambiguously limited the ability to modify alimony to situations involving the deterioration of the husband's health or business, conditions not raised in husband's petition
ROBERT F. ELBAUM, Appellant, v. DENISE J. ELBAUM, Appellee. 4th District.


Dissolution of marriage -- Attorney's fees -- Trial court erred in awarding wife attorney's fees without specific findings as to number of hours expended by wife's attorney and whether those hours are reasonable
ROBERT MITCHELL, Appellant, v. CYNTHIA Y. MITCHELL, Appellee. 1st District.


Dissolution of marriage -- Child custody -- Relocation of child -- No error in denying mother's motion for temporary order permitting relocation of child to another county or in granting father's emergency motion for return of child -- Order did not change parenting plan, but instead required mother to return child to county, consistent with previously ordered parenting plan
MELISSA KERSHAW, Appellant, v. VICTOR KERSHAW, Appellee. 4th District.


Dissolution of marriage -- Marital debts -- Where terms of marital settlement agreement clearly and unambiguously required husband to assume wife's credit card debt for certain cards and balances, it was error to enter order requiring wife to pay credit card debt before husband would be required to reimburse her
SHARON R. WHITE n/k/a SHARON R. BUNN, Appellant, v. STEPHEN F. WHITE, Appellee. 4th District.


Dissolution of marriage -- Trial court erred in including in order on wife's motion for temporary relief a requirement that parties comply with “Notice to Litigation Parties with Minor Children,” which concerned husband's financial affairs and the minor child, including contact, parenting, and other aspects of his relationship with the child, where issue of compliance with Notice was not mentioned in wife's motion or at hearings on her motion -- Husband's due process rights were violated when court mandated compliance with Notice without notice to husband
JEFFREY S. GROVE, Appellant, v. KAREN B. GROVE, Appellee. 2nd District.


Garnishment -- Interest in limited liability company -- Trial court erred in entering writ of garnishment upon debtor's interest in a limited liability company -- Statute provides that a charging order is sole and exclusive remedy by which judgment creditor may satisfy a judgment from judgment debtor's interest in or distributions of LLC
DARLENE A. YOUNG, Appellant, v. LESLIE COUTURE LEVY and WEAR IT'S AT, LLC, Appellees. 4th District.


Injunctions -- Order enjoining resident of subdivision from using roads within subdivision to transport or deliver equipment, material, or personnel to improve adjacent property was deficient for failure to specify the reasons for entry of the injunction -- Order granting temporary injunction reversed and remanded for further proceedings
JOHN McCUE and McCUE HOLDINGS, LLC, Appellants, v. HERITAGE FARMS PROPERTY ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. 2nd District.


Landlord-tenant -- Contracts -- Leases -- Early termination fee -- Liquidated damages -- When a tenant and landlord execute an addendum choosing remedy of liquidated damages or early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease, which does not make provision for the remedy, as part of the same transaction -- Trial court erred in concluding that addendum is unenforceable if lease does not include a similar provision
RAISSA WILSON, Appellant, v. WILLIAM TERWILLINGER, Appellee. 5th District.


Negotiable instruments -- Promissory notes -- Civil procedure -- Summary judgment -- Supporting affidavit -- Best evidence rule -- Plaintiff's failure to file original note at least 20 days before summary judgment hearing in action on promissory note was not fatal to application for summary judgment -- Best evidence rule applies to proceedings wherein evidence is introduced, and a summary judgment hearing is not such a proceeding -- Even assuming best evidence rule applies in summary judgment context, presentment of original note at or before the hearing satisfies the rule -- Although original note must be surrendered before judgment may be entered unless it is properly established that instrument is lost or destroyed, it is not necessary that original note be attached to affidavit in support of summary judgment in order to satisfy surrender requirement so long as it is surrendered to court before judgment is entered on note
SIA-MACK ALAVI AND VALERIE ALAVI, Appellants, v. FRANCISCO A. GARCIA, Appellee. 5th District.


Partnerships -- Corporations -- Dissolution -- Trial court did not err in dissolving partnership which leased a medical office building from a corporation owned by the same parties who own the partnership upon finding that the partners have engaged in conduct which has made it not practical to carry on the business of the partnership -- Court erred in failing to also dissolve the corporation which owned the property where the shareholders are unable to break a corporate deadlock, and absent such a break, the property would continue to decline, resulting in the frustration of the purpose of the corporation
GWENDOLYN FERNANDEZ, SHELDON BARNES, et al., Appellants/Cross-Appellees, vs. BASIL YATES, M.D., PA., BASIL M. YATES, M.D., INDIVIDUALLY AND AS SHAREHOLDER IN DABAMA, INC., KATHLEEN YATES, DEBORAH TRAVIS AND SUSANNE TRAVIS FOR THE TRAVIS FAMILY, Appellees/Cross-Appellants. 3rd District.


Torts -- Contracts -- Evidence -- Settlement agreement -- In action by Airport District against construction management contractor alleging negligence and contract claims arising out of installation of improper-sized sand in stormwater retention pond, it was error to admit evidence of District's settlement with another defendant -- Settlement agreement was not an improper Mary Carter-style agreement where the settling defendant did not agree to remain a party to the trial -- Airport District's appeal was not rendered moot because it failed to appeal judgment on defendant's counterclaim
PANAMA CITY-BAY COUNTY AIRPORT AND INDUSTRIAL DISTRICT, Appellant/Cross-Appellee, v. KELLOGG BROWN & ROOT SERVICES, INC., Appellee/Cross-Appellant. 1st District.


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