Tuesday, May 10, 2016

Contempt case unusual because judge bypassed Florida Bar, attorney says

A case like that of a Palm Beach County assistant public defender battling professional misconduct allegations is exceptionally rare but it’s not unheard of in more conventional channels, a Miami attorney said during a recent interview.

"The Ramsey matter seems odd at first blush," Dorothy Easley of the law firm Easley Appellate Practice in Miami said in an email interview with the Florida Record. "It is not unprecedented. And there are cases where appellate courts will also refer attorneys to the Florida Bar for litigation misconduct or lack of candor observed during an appeal. Attorneys are aware that any misconduct on their part may be referred to the Florida Bar to answer for. Attorneys also understand that contempt is one of the court mechanisms to compel respect for court orders and the judicial system." More.


Originally Posted in  FLORIDA RECORD, written by Karen Kidd, May 2, 2016
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Wednesday, April 6, 2016

Highly recognized Florida attorney has advice for women attorneys, life path and resilience

MIAMI – Easley Appellate Practice Managing Partner Dorothy F. Easley, recognized earlier this year by Rue Ratings for being in the top 1 percent of Best Attorneys in America, believes that female lawyers face more work-life balance issues than their male colleagues.. . .
Despite the challenges she faces as a female lawyer, Easley has great passion for her profession. 

'The legal profession is a noble profession that exists to speak for those who cannot speak and to protect them and their interests,' Easley said." More.

Originally Posted in  FLORIDA RECORD, written by Karen Kidd, April 4, 2016

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Tuesday, April 5, 2016

Contempt, limitation of actions, indemnity, and beef medallions with portobello mushroom-fresh rosemary sauce on a bed of cauliflower mash



Adoption -- Circuit court erred in entering order requiring adoption agency to conduct a diligent search for putative father of child placed with agency for adoption -- Adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date the mother signs her consent for adoption -- Agency is not required to conduct a diligent search for the putative father unless the mother has identified a potential father by the time she signs the consent for adoption -- Court's sua sponte questioning of mother as to identity of potential father five months after she had consented to termination of parental rights and adoption was a violation of mother's privacy rights

CHILDREN'S HOME SOCIETY OF FLORIDA, Appellant, v. V. D., IN RE: THE MATTER OF TERMINATION OF PARENTAL RIGHTS FOR THE PROPOSED ADOPTION OF A MINOR CHILD, Appellee. 1st District.



Appeals -- Belated appeal of order dismissing petition for writ of mandamus -- Court has no authority to grant belated appeal in civil proceeding

MORRIS FAIN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.





Civil procedure -- Relief from judgment -- Motion for relief from judgment on basis of fraud, misrepresentation, or other misconduct was untimely where it was brought more than one year after entry of judgment -- Motion for relief from judgment on basis that judgment was void fails where judgment was not void -- So long as court has jurisdiction over the subject matter and over defendant, a procedural defect occurring before entry of judgment does not render the judgment void

LIDIA E. CONTRERAS, Appellant, vs. NELSON E. MENDEZ, Appellee. 3rd District.



Civil procedure -- Summary judgment -- Notice of summary judgment evidence on which adverse party intends to rely -- Trial court properly interpreted rule 1.510 as requiring adverse party to file notice in response to a motion for summary judgment even if the evidence upon which it seeks to rely is already in the record -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court did not err in finding that insurer did not satisfy rule 1.510(c) by filing, during discovery, a doctor's affidavit stating affiant's conclusion that portions of treatment were not reasonable, related, or medically necessary, which was accompanied by notice stating insurer's intent to rely upon the affidavit “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code” -- Circuit court acting in its appellate capacity did not depart from essential requirements of law by affirming county court ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FIGLER FAMILY CHIROPRACTIC, P.A., A/A/O LINDA MANNERS, Respondent. 4th District.





Contracts -- Asset purchase agreement -- Sale of insurance agency -- Unjust enrichment -- Conversion -- Trial court should have directed verdict on seller's claim for unjust enrichment against buyers where there was express agreement between seller and buyers -- Individual defendant could not be held personally liable for breach of agreement by buyers' agency where evidence did not establish that she personally benefitted beyond the amount awarded for buyers' agency's breach of contract or that she benefitted separate and apart from the agency -- Trial court should have granted defendants' motion for judgment notwithstanding verdict on conversion claim where jury awarded finite amount of damages for defendants' breach of contract, and there was no evidence that seller sustained any additional damages as result of conversion of other assets

VALERIE FULTON, FULTON INSURANCE AGENCY, INC., and DEAN C. FULTON, Appellants, v. JUDITH BRANCATO, Appellee. 4th District.





Contracts -- Settlement agreement -- Where, in plaintiff's action against bank for breach of employment agreement, fraud, negligent misrepresentation, and declaratory and injunctive relief, parties reached settlement agreement for certain payments to be made to plaintiff, with proposed payments to be submitted to federal regulatory entities for approval of payment terms within six months, the payment terms of the agreement were not enforceable when regulatory approval was not received within six months -- Trial court erred in granting defendants' motion to enforce settlement agreement upon finding that the six-month period in the agreement referred to a period of non-litigation rather than an expiration date of the agreement

DANIEL T. HESTER, an individual, Appellant, v. FLORIDA CAPITAL GROUP, INC., a Florida corporation; CHARLES E. HUGHES, an individual; and J. MALCOLM JONES, JR., an individual, Appellees. 2nd District.





Creditors' rights -- Fraudulent transfers -- Limitation of actions -- For purpose of Florida Uniform Fraudulent Transfer Act's provision that a claim of fraudulent transfer is extinguished unless brought within 4 years after the transfer was made or, if later, within 1 year after the transfer was or could reasonably have been discovered, the one-year savings clause is triggered by a creditor's discovery of the transfer rather than by the creditor's discovery of the facts showing the transfer to have been fraudulent -- Statute is a statute of repose which is not subject to an assertion of equitable estoppel

NATIONAL AUTO SERVICE CENTERS, INC., a Florida corporation; NATIONAL AUTO PROPERTIES, INC., a Florida corporation; LEONARD D. LEVIN, individually; CAROL LEVIN, individually; DURANT HOLDINGS, LLC; and BEDFORD INVESTMENTS, LLC, Appellants, v. F/R 550, LLC, a Florida limited liability company; and F/R 3329, LLC, a Florida limited liability company, Appellees. 2nd District.





Criminal law -- Contempt -- Jurors -- Competent substantial evidence supports convictions for contempt by juror who, during voir dire, concealed and failed to disclose his ex-wife's DUI arrest and, against the instructions of the trial court that jurors not conduct their own investigations, conducted a drinking experiment on himself to test the impairment effects of alcohol

DENNIS DeMARTIN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.





Criminal law -- Discovery -- Appeals -- Certiorari -- Where defense had issued subpoenas duces tecum to various third parties without permission of trial court and without notifying state of its intent to issue the subpoenas, and state, upon discovering that the subpoenas had been issued, filed a motion to compel production of all evidence produced pursuant to the illegal subpoenas, state is not entitled to writ of certiorari to have appellate court quash trial court order finding that state was not entitled to copies of all documents provided pursuant to the subpoenas, but only to those documents which were intended to be used at any hearing or trial -- State is not entitled to issuance of writ of certiorari because state has failed to demonstrate irreparable harm

THE STATE OF FLORIDA, Petitioner, vs. WESLEY FOLEY, Respondent. 3rd District.





Criminal law -- First degree murder -- Evidence -- Hearsay -- Trial court erred when it admitted into evidence an audio recording of statement made to police by person who implicated defendant in crime -- Admission of testimony violated right to confrontation of witnesses where statement was testimonial in nature and witness was not available or subject to prior cross-examination -- Trial court was within its discretion in finding that witness's refusal to testify rendered him an unavailable witness -- Fact that defendant had opportunity to cross-examine witness during pretrial discovery deposition does not satisfy cross-examination requirement of Crawford v. Washington -- Error not harmless

HECTOR JOSUE VAZQUEZ PADILLA, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.



Criminal law -- Meritless pro se filings -- Clerk of Court directed to reject any future pleadings or other requests for relief submitted by defendant unless such filings are signed by a member in good standing of The Florida Bar -- Clerk of Court directed to forward certified copy of opinion to Department of Corrections institution or facility where defendant is incarcerated

OTIS D. BLAXTON, Petitioner, vs. STATE OF FLORIDA, Respondent. Supreme Court of Florida.





Dissolution of marriage -- Child custody -- Although trial court's factual findings supported provision that husband would have sole parental responsibility for decisions relating to children's education and medical care, final judgment failed to include specific finding that shared parental responsibility would be detrimental to children

DENISE COLLINS, Appellant, v. DWAYNE COLLINS, SR., Appellee. 5th District.





Dissolution of marriage -- Child support -- Trial court erred in ordering that parties be equally responsible for payment of all non-covered medical expenses for children where this allocation conflicts with allocation of parties' relative financial responsibility for child support -- As general rule, if non-covered medical expenses are ordered to be separately paid, absent some logically established rationale in the final judgment to the contrary, they must be allocated in the same percentage as the child support allocation

KELLY M. DEMMI, Former Wife, Appellant, v. MARK S. DEMMI, Former Husband, Appellee. 1st District.





Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Prenuptial agreement -- Error to include as marital asset in equitable distribution scheme the portion of value of former husband's premarital home attributable to appreciation and contribution of marital funds to pay down home equity line of credit and mortgage where prenuptial agreement provided that husband would be entitled to any and all equity in premarital home and that wife would not be entitled to any interest in home unless granted such interest in a formal written instrument -- Child custody -- Parenting plan -- Error to fail to incorporate into amended final judgment the amended parenting plan that trial court ordered on rehearing from original final judgment -- Interrelated issue of attorney's fees may be revisited on remand

ANTHONY FELICE, Appellant, v. MELISSA FELICE, Appellee. 2nd District.





Dissolution of marriage -- Modification of parenting plan -- Service of process -- Error to deny motion to quash service of process and to set aside order granting former wife's motion to modify timesharing and child support on the basis that former husband's counsel's general appearance constituted a waiver of service -- Attorney's filing of general notice of appearance in order to conduct a review of trial court files in case did not constitute a waiver of service of process -- An after-the-fact general appearance does not waive a defect in the service of process related to a supplemental modification petition

MANUEL E. SALINAS, Appellant, vs. KRISTIN N. PASCARIELLO, Appellee. 3rd District.





Employer-employee relations -- Civil rights -- Claims alleging wrongful retaliatory termination of employment under Florida Whistleblower Act and Florida Civil Rights Act -- Trial court properly entered summary judgment for defendant upon determining that plaintiff cannot establish that the grounds for his termination were causally linked to protected activity, and that employer evidenced a pretextual reason for his termination

ELADIO GONZALEZ, Appellant, vs. NORTHWINGS ACCESSORIES CORP., etc., Appellee. 3rd District.





Injunctions -- Dating violence -- Error to enter injunction against dating violence where there was insufficient evidence of reasonable cause to believe that petitioner was in imminent danger of another act of dating violence

VICTOR NUILA, Appellant, v. CRYSTAL STOLP, Appellee. 5th District.





Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous notice to insured of insurer's intent to determine reasonableness by reference to Medicare fee schedules -- Language of policy endorsement stating that amounts payable “shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise contained in the law, including but not limited to, all fee schedules” gave insureds and their respective medical care providers legally sufficient notice of insured's election to use Medicare fee schedules

ALLSTATE INDEMNITY COMPANY, Appellant, v. MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC, as assignee of Ilene Chavez, Appellee. 2nd District.





Insurance -- Sinkhole claims -- Multi-building condominium property -- Insured prevailing in action against insurer -- Costs -- Trial court abused its discretion in including reimbursement for public adjuster and property management fees in taxable costs, as property management fees and public adjuster fees were not litigation costs -- Trial court erred in awarding as taxable cost various expenses and fees incurred in appraisal process where policy required insured to pay its own appraiser and bear equal share of umpire and other appraisal expenses -- Attorney's fees -- Multiplier -- Error to apply contingency risk multiplier where fee agreement guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and evidence showed that attorney had been paid under the contract -- Trial court erred by limiting recovery of attorney's fees and prejudgment interest to only one building where suit encompassed other buildings in condominium complex

CITIZENS PROPERTY INSURANCE CORP., Appellant/Cross-Appellee, v. RIVER OAKS CONDOMINIUM II ASSOCIATION, INC., a/k/a RIVER OAKS II CONDO ASSOCIATION, INC., Appellee/Cross-Appellant. 2nd District.







Torts -- Indemnity -- Indemnity provision in agreement between automobile distributor and carrier of automobiles, which included the words “in whole or in part,” did not contain clear and unequivocal terms providing that carrier would indemnify distributor for distributor's own acts of negligence where parties were held jointly liable for the underlying personal injury -- Trial court erred in granting summary judgment finding that language in agreement was sufficiently unequivocal to require carrier to indemnify distributor for distributor's own negligence

ATC LOGISTICS CORPORATION, A/K/A ATC LOGISTICS, INC., Appellant, v. SOUTHEAST TOYOTA DISTRIBUTORS, LLC, et al. Appellees. 1st District.





Wrongful death -- Medical malpractice -- Limitation of actions -- No error in dismissing complaint as time-barred where plaintiff alleged in her presuit notice of intent to initiate litigation that the family and estate of decedent discovered defendants' negligence on the date of decedent's death, a date which was more than two years prior to date complaint was filed -- Plaintiff was bound by statement in notice of intent -- No merit to plaintiff's contention that complaint was timely filed because she not only served her first notice of intent one day prior to expiration of limitations period, but also petitioned for extensions of the limitations period -- Ninety-day period during which statute of limitations is tolled following service of notice of intent commences on date notice is received, rather than date notice is mailed -- Because none of defendants received notice of intent until after statute of limitations expired, plaintiff could not revive it by filing petition for extension of limitations period

GINA MARIE BOVE, as Personal Representative of the Estate of Anthony Bove, deceased, Appellant, v. NAPLES HMA, LLC, d/b/a PHYSICIANS REGIONAL MEDICAL CENTER-PINE RI


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Saturday, March 26, 2016

Full-time female lawyers earn 77 percent of male lawyer pay

"Median pay for full-time female lawyers was 77.4 percent of the pay earned by their male counterparts, according to data for 2014 released earlier this month by the U.S. Census Bureau.
In all law-related jobs, median pay for female workers in 2014 was 51.6 percent of the pay received by male workers, according to the data."  More.



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Thursday, March 3, 2016

Nationally Recognized Author of Federal Appeals Treatise Honored for Expertise and Leadership


Dorothy F. Easley, board certified by The Florida Bar in appellate practice, has been recognized in Rue Ratings' Best Attorneys of America (top 1%), again in Florida Super Lawyers, and again in The South Florida Legal Guide as a top tier appellate lawyer for leadership and excellence in the practice of appellate law.  More.

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Tuesday, March 1, 2016

Attorney fees, child custody, and grass fed corned beef, purple cabbage, and fresh thyme over a bed of sweet potatoes and rosemary




Attorney's fees -- Appellate -- Prevailing party -- Relief from judgment -- Error to deny rule 1.540(b)(5) motion for relief from judgment for prevailing party appellate attorney's fees where the judgment was predicated on district court's affirmance of the trial court's merits judgment, but the district court's opinion was subsequently quashed by the Florida Supreme Court -- Failure to seek review of initial appellate fee judgment or to move to stay district court's mandate pending review by supreme court did not preclude party from seeking relief from trial court's fee judgment via rule 1.540(b)(5) -- Once district court vacated its award of prevailing party attorney's fees upon remand from supreme court's decision, there was no legal basis for trial court to deny second motion to vacate since opposing party was no longer the prevailing party
TRAVELERS COMMERCIAL INSURANCE COMPANY, AN AFFILIATE OF TRAVELERS INSURANCE CO., AND TRAVELERS CASUALTY AND SURETY COMPANY, Appellants, v. CRYSTAL MARIE HARRINGTON, Appellee. 1st District.



Attorney's fees -- Award of fees pursuant to section 57.105 following dismissal of complaint with prejudice must be reversed in light of appellate court's reversal of the order of dismissal
THE LAKE HAMILTON LAKESHORE OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, on behalf of its Members, Appellant, v. WAYNE L. NEIDLINGER, d/b/a Captain Fred's Airboat Nature Tours; and LAKE HAMILTON COMMERCE & STORAGE CENTER, INC., a Florida corporation, Appellees. 2nd District.



Child custody -- Parenting plan -- Modification -- As constituted, parenting plan set out in final judgment of modification failed to comply with statutory requirements and, accordingly, is legally insufficient -- Remand for trial court to enter more complete plan that complies with statute
PATRICIA MAGDZIAK, Appellant, v. JAMIE SULLIVAN, Appellee. 5th District.



Dissolution of marriage -- Trial court erred in denying husband's motion for reconsideration of order determining temporary needs and child custody issues where order was entered after an evidentiary hearing at which husband's counsel was not present due to a calendaring error
STEVEN WORTMAN, Appellant, v. CHRISTY WORTMAN, Appellee. 1st District.


Employer-employee relations -- Whistleblowers -- Complaint sufficiently alleged causal connection between employee's objection to or refusal to participate in employer's illegal activity, policy, or practice and adverse employment action -- Civil rights -- Age discrimination -- Allegations that defendant was over 40 years of age, that he was employer's oldest engineer at time of termination, that new hires were generally 10-20 years younger, that he was qualified to do job for which he was rejected, and that boss had told him several months before his termination that he didn't “want any of those slow old guys around here any more” were sufficient to withstand motion to dismiss
VAUGHN USHER, Appellant, v. NIPRO DIABETES SYSTEMS, INC., and NIPRO MEDICAL CORPORATION, Appellees. 4th District.


Jurisdiction -- Service of process -- Defects -- Non-final order determining that motion to quash service was moot affirmed -- Before trial court rules on pending motion to quash re-service of process, it must determine validity of original service of process
JOSEPH MICELI and MARIA MICELI, Appellants, v. BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Appellee. 4th District.


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Thursday, February 11, 2016

Easley recognized in Rue Ratings' Best Attorneys of America

Congratulations to Easley Appellate Practice's supervising attorney, Dorothy F. Easley, for being recognized in Rue Ratings' Best Attorneys of America, regarded as "one of the most celebrated and respected groups of attorneys in the country.  Membership is extremely selective, carefully screened and limited to the most qualified and accomplished attorneys in the United States.  With these high standards, less than one percent (1%) of the attorneys of America have been invited to be a member of Rue Ratings' Best Attorneys of America." More. We applaud Ms. Easley's recognition for her accomplishments in appellate practice.

Monday, February 8, 2016

Successful Federal Appeals: a Practical Guide for Busy Lawyers now in hardcopy

Because of the high interest and demand, the 2015 treatise on Successful Federal Appeals: a Practical Guide for Busy Lawyers (2d ed. 2015) is now available in hard copy. This is the second edition, with updated, expanded chapters of a one-of-a-kind federal appellate treatise. The treatise uniquely draws upon decades of a board certified appellate expert’s actual appellate experience and expertise, to help attorneys find the right rules and the pertinent law that they need for effective appellate briefing in all the federal circuit courts of appeals. If handling a federal appeal, from the U.S. Court of Appeals for the First Circuit through the Eleventh Circuit, this book helps.