Saturday, May 9, 2015

Retired US Supreme Court Justice John Paul Stevens urges Compensation for Guantanamo Detainees

"Likening some Guantánamo Bay prisoners to Japanese-Americans who were detained during World War II, retired U.S. Supreme Court Justice John Paul Stevens is urging Congress to pay reparations for their time in confinement.
Speaking in Washington on May 4, Stevens also criticized the Supreme Court for its 2009 decision in Ashcroft v. Iqbal, which said top Bush administration officials could not be held liable for alleged mistreatment of a Pakistani “high interest” terrorism suspect. In that case, Stevens said that if suspect Javaid Iqbal’s allegations were true, “the federal government, rather than individual executives, should make him whole.”
According to the text of Stevens’ talk released by the high court, Stevens focused on the 57 Guantánamo detainees approved for transfer out of the facility by federal officials who agree they pose no significant security threat to the United States.
But because of strict congressional limits on how or where Guantánamo detainees can be released, Stevens said, they have not been let go.
“These onerous provisions have hindered the president’s ability to close Guantánamo, make no sense, and have no precedent in our history,” Stevens told the group Lawyers for Civil Justice. “Congress’ actions are even more irrational than the detention of Japanese-American citizens during World War II.”"


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Saturday, May 2, 2015

Deficiency judgments, lis pendens, child support, and cage free eggs over turnip greens, heirloom tomatoes, and manchego cheese



Appeals -- Timeliness -- Appellate court has no jurisdiction of appeal of trial court's denial of award of fees under wrongful act doctrine where notice of appeal was filed more than six months after final judgment -- Letter to court which reargued facts of case, raised rhetorical questions, and asked legal advice, did not constitute a motion for rehearing which would suspend rendition of final judgment
MILDRED M. RAYBURN, and BEVERLY MELTON, Trustee of the WILLIAM BURR RAYBURN TRUST, ETC. ET. AL., Appellants, v. WILLIAM C. BRIGHT and WILBERTA A. BRIGHT, ET AL., Appellees. 5th District.

Arbitration -- Contracts -- Settlement agreement -- Under terms of settlement agreement which ultimately provided for merger of two companies, disputes relating to pre-merger loans were subject to two-step process, which required that any dispute be submitted initially to accounting firm for evaluation using “generally accepted accounting principles, consistently applied, and past practices” as parameters and then, if a party disagreed with accounting firm's application of accounting principles or past practices, required that dispute be resolved through binding arbitration -- Trial court's order submitting case to accounting firm for a binding decision as an arbitrator was contrary to parties' settlement agreement -- Remand for entry of order submitting case to accounting firm and ordering arbitration in event that either party disputes resolution reached by accountants
ROBIN RESNICK, Appellant, v. J. WEINSTEIN AND SONS, INC., a Florida corporation, and ABRAHAM RESNICK, individually, Appellees. 4th District.

Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify defendant's counsel in action for breach of non-disclosure agreement where defendant's counsel had represented plaintiff in other non-disclosure agreement matters ten years earlier -- Trial court erred in denying motion for disqualification on grounds of the time that had passed since the prior representation of plaintiff and the circumstances of the non-disclosure agreement -- Attorney's representation of parties involved substantially related matters
ASI HOLDING COMPANY, INC., A FLORIDA CORPORATION D/B/A AMENITY SERVICES, INC., Petitioner, v. ROYAL BEACH & GOLF RESORTS, LLC, Respondent. 1st District.


Attorney's fees -- Prevailing party -- Action for unpaid wages -- Award of prevailing party attorney's fees in action for unpaid wages is discretionary rather than mandatory -- Trial court did not abuse discretion in denying award of attorney's fees to plaintiff in her action for unpaid bonuses where plaintiff prevailed on some of her claims, and defendant prevailed on other claims -- Award of costs to prevailing party in action for unpaid wages is also discretionary, and trial court did not abuse discretion by denying award of costs to plaintiff
FILOMENA RUFFA, Appellant, v. SAFTPAY, INC., Appellee. 3rd District.


Attorney's fees -- Proposal for settlement -- Proposal which clearly announced that it addressed any and all claims and causes of action resulting from accident giving rise to lawsuit brought by injured plaintiff against driver of vehicle and which included and described all relevant conditions of the proposal was unambiguous and sufficient to meet particularity requirements of statute and rule -- Proposal did not need to address spouse's separate and distinct loss of consortium claim -- Trial court erred in characterizing proposal as a joint proposal and in denying claims for attorney's fees based on finding that the proposal failed to state amount and terms attributable to each party -- Requiring that codefendant/owner of vehicle be dismissed was merely condition attached to acceptance of offer and did not render proposal joint or invalidate it in any other way
GLENN MILEY and KYLE MILEY, Appellants, v. MARTHA NASH, Appellee. 2nd District.

Civil procedure -- Dismissal -- Two-dismissal rule -- Under two-dismissal rule, which provides that a notice of voluntary dismissal operates as an adjudication on the merits when served by a plaintiff who has previously dismissed the action, a notice of voluntary dismissal does not operate as an adjudication on the merits when it is preceded by an “agreed order” granting a defense motion to dismiss the case with leave to amend
CYPRESS FAIRWAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. CYPRESS MADISON OWNERSHIP CO., ETC., ET AL., Appellees. 5th District.

Civil procedure -- Discovery -- Deposition of opposing counsel -- Order compelling litigant's in-house attorney, who is not the attorney of record but is directly involved in the litigation, to be deposed, is quashed because respondents failed to satisfy case law requirements for taking deposition of opposing counsel
ELLER-I.T.O. STEVEDORING COMPANY, L.L.C., Petitioner, v. LAZARO PANDOLFO and OLGA ALVAREZ a/k/a Olga Alvarez Sarria, Respondents. 3rd District.

Civil procedure -- New trial -- Abuse of discretion to grant defendant a new trial on the basis of cumulative unfair surprise where defendant either declined court offered continuance, or failed to request continuance, after each incident of claimed unfair surprise
RUVIM LONDON, Appellant/Cross-Appellee, v. VLADIMIR DUBROVIN, et. al., Appellees/Cross-Appellants. 3rd District.

Dissolution of marriage -- Attorney's fees -- Error to award attorney's fees to wife without making requisite written findings on husband's ability to pay and basis for specific payment plan imposed by court -- Judgment contained requisite findings on reasonableness of hours expended and hourly rate -- Husband cannot argue that trial court failed to make findings to support requirement that husband secure life insurance policy where husband agreed to purchase $100,000 life insurance policy and included such a provision in his proposed final judgment
CHRIS BECKSTROM, Appellant, v. JULIE BECKSTROM, Appellee. 4th District.

Dissolution of marriage -- Child support -- Modification -- Appeal from supplemental final judgment that modified husband's timesharing and child support based primarily on his relocation to foreign state -- Trial court abused its discretion in denying husband's requests for continuance based on late disclosure of wife's financial affidavit the day before final hearing -- Under controlling rule, requirement to provide financial affidavit in supplemental proceedings cannot be waived by parties; and in any event, there was no evidence of record that husband waived requirement -- Husband was prejudiced by late filing where he was unable to procure his own expert to review the alleged permanent decrease in income reflected in wife's affidavit -- Trial court erred in awarding retroactive support in absence of evidence that husband had ability to pay the amount ordered during the time period at issue -- No merit to husband's argument that trial court erred in including children's private school tuition as component on child support guidelines worksheets -- New hearing required on issue of child support
BRIAN K. GILROY, Appellant, v. PATRICIA A. GILROY, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Errors regarding amount of debt and tax liability
MARGARET LEVITT, Appellant, v. ADAM LEVITT, Appellee. 5th District.

Injunctions -- Demolition of building by city -- Portion of injunction finding that city did not give proper notice of proposed demolition proceeding affirmed -- Error to enjoin city from demolishing building until pending foreclosure action is concluded -- Injunction erroneously fails to specify reasons for its entry, and there is no record support for injunction that prevents city's exercise of its right to demolish property once property owners have received proper notice
CITY OF MIAMI, Appellant, v. JP MORGAN CHASE BANK NATIONAL BANK, et. al., Appellees. 3rd District.


Injunctions -- Repeat violence -- No error in denying motion to dissolve injunction where motion challenged merits of injunction rather than alleging change in circumstances since injunction was entered
ALFRED WASHINGTON, Appellant, v. THELMA S. WASHINGTON, Appellee. 1st District.

Landlord-tenant -- Guarantors -- Summary judgment granted in favor of tenant and guarantors reversed as to guarantors because the motion only sought relief on behalf of tenant -- Appeals -- Jurisdiction -- Remainder of appeal dismissed because it is not an appealable partial final judgment
KENDALL COMMERCIAL ASSOCIATES, LLC, etc., Appellant, v. DRAKES, LLC, et. al., Appellees. 3rd District.

Limitation of actions -- Amended complaint -- Relation back -- Trial court erred in granting substituted defendant's motion for summary judgment on ground that statute of limitations had run where mistake in naming proper defendant was merely a misnomer, all the parties knew which entity the plaintiff intended to sue, and there was substantial identity of interest between the original defendant and substituted defendant -- Moreover, incorrectly named defendant engaged in extensive discovery and did not reveal that it was not the proper defendant until after statute of limitations had run -- Plaintiff not at fault for failing to inquire further after original defendant made conclusory statement in its first affirmative defense that it was “not a proper party to this action,” an assertion which was legally insufficient and inconsistent with its conduct in engaging in discovery
PAUL MAY, individually and as legal guardian of Jean May, Appellant, v. HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center; FRANCISCO ESPARZA, M.D.; DAVID DIVITA, M.D.; and PINNACLE MEDICAL GROUP, P.A., Appellees. 2nd District.

Mortgage foreclosure -- Deficiency -- Action at law by mortgagee to recover damages for breach of note after mortgagee had included prayer for deficiency judgment in foreclosure complaint and trial court reserved jurisdiction in foreclosure judgment to enter deficiency judgment -- Trial court did not err in entering judgment for damages on note after consolidating the action at law and the foreclosure action
ROBERT G. REID, Appellant, v. COMPASS BANK, Appellee. 1st District.

Mortgage foreclosure -- Jury trial -- Where lender brought promissory note count against defendants in conjunction with mortgage foreclosure suit, defendants were not entitled to jury trial on promissory note action -- Legal remedy on promissory note in this context is deficiency judgment, and foreclosure courts are explicitly granted authority to enter this remedy -- Moreover, mortgage at issue contained jury trial waiver for any action related to mortgage or note -- Argument that plaintiff was not entitled to enforce jury trial waiver because it was not party to original contract is without merit, as plaintiff was holder of note and mortgage by virtue of an endorsement
TRENDA KINNEY f/k/a TRENDA BOUTIN and PETER KINNEY, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., et al., Appellees. 4th District.



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Wednesday, April 22, 2015

Child support, imputed income, attorney fees, and grilled grassfed sirlion, rosemary, garlic, and brussel sprouts sauteed in walnut oil



Child support -- Modification -- Administrative support order -- Trial court fundamentally erred when it reduced father's monthly child support obligations without notice or hearing

DEPARTMENT OF REVENUE, o/b/o Loretta Sermon, Cherral Smith, and Yata Frichelle Canty, Appellant, v. GEORGE BAKER, Appellee. 2nd District.


Civil procedure -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law in compelling production of attorney-client privileged documents on basis that documents were relevant and contained information that could not reasonably be obtained from another source -- Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent's showing of relevance and necessity
FLORIDA POWER & LIGHT COMPANY, Petitioner, v. MARK W. HICKS, Respondent. 4th District.



Contracts -- Attorneys -- Fees -- Dispute between trial attorneys and appellate attorneys regarding amount of fees due to appellate attorneys pursuant to “trial support agreement” for appellate attorneys to help trial attorneys steer clear of reversible error during course of trial -- Under contract provision which entitled appellate attorneys to two and one-half percent of gross recovery if case was settled after appellate attorneys were requested to take any action in preparation of a response to or drafting a motion for new trial, appellate attorneys were entitled to two and one-half percent of the gross recovery where judgment against defendants in case was appealed, appellate court affirmed judgment with the exception of a setoff amount that should have been deducted from judgment, and defendants then agreed to pay the judgment minus the setoff and obtain a satisfaction of the judgment -- In ruling that the fee belonged to trial attorneys, trial court erroneously reasoned that the word “settled” means voluntary resolution of the dispute between the parties via a settlement agreement, and that a trial and its attendant verdict and judgment does not equate to a settlement agreement -- Within context of entire agreement, the word “settled” means the resolution of the lawsuit by final decision or payment or satisfaction of the judgment previously rendered -- Trial court also erred in finding that appellate attorneys materially breached the agreement by advancing an interpretation that differed from trial attorneys' interpretation
BURLINGTON & ROCKENBACH, P.A., ETC., Appellant, v. LAW OFFICES OF E. CLAY PARKER, ETC., ET AL., Appellees. 5th District.


Contracts -- Lease of commercial property -- Action by landlord against tenant after tenant terminated lease and vacated property because of an allegedly illegal drainage of storm water from property -- Trial court properly entered judgment for landlord after court made no finding that there were any illegal conditions on property -- Tenant is not entitled to terminate lease based on theory of constructive eviction unless premises are unsafe, unfit, or unsuitable for occupancy for purposes for which they were leased -- Damages -- Damages were not subject to limitation pursuant to early termination clause in addendum to lease where tenant did not give notice of its intention to vacate property within period specified by clause -- Where landlord leased property to another tenant at a lower rate after tenant's vacation of property, tenant is liable for rent plus sales and property taxes and insurance not paid by the new tenant for remaining term of the lease

GRIFFIN INDUSTRIES, LLC, a foreign limited liability company, Appellant, v. DIXIE SOUTHLAND CORPORATION, a Florida corporation, Appellee. 4th District.


Contracts -- Profit participation agreements -- Dispute arising out of agreements whereby parties purchased commercial shopping center properties and subsequently entered into preliminary profit participation agreements to establish rights and responsibilities for the completion of the purchase, and post-closing profit participation agreements which provided that each participant would receive portion of net cash flow and net proceeds, after reimbursement of owner's outstanding capital, including compounded return on investment -- Fraud -- Plaintiffs' action against defendants for fraud and breach of contract based on defendants' having misrepresented, in preliminary PPAs, that they would not receive portion of brokerage commission was not extinguished by merger clause in subsequent PPAs -- Existence of merger clause does not prevent cause of action for fraud -- Moreover, merger clause was limited to those representations relating to participation interests and did not cover representations with respect to commissions paid at closing of sales of property -- Further, preliminary PPAs stated that they were controlling instruments until closing, and once closing took place, there was no reason to include representation of “no commission” in PPAs -- Accounting -- Declaratory judgment -- No error in concluding that counterclaimants were entitled to accounting to determine net cash flow and whether distributions were owing from respective shopping centers -- Trial court did not abuse its discretion in determining that counterclaim-defendants were not responsible for further accounting at their expense but that, instead, were to furnish financial records on properties to counterclaimants at their request to complete an updated accounting, should they so desire -- No abuse of discretion in requiring that accounting of net proceeds be made upon refinancing or sale of property -- Trial court did not err in concluding that there was no obligation, either express or implied, on part of counterclaim-defendant to furnish financial information to counterclaimants for purpose of determining whether counterclaimants would make an offer to purchase property -- Moreover, trial court properly found that claim to an accounting to enable counterclaimants to create an advantageous offer to purchase properties based on 1995 prices was not raised in pleadings
HARRY HAHAMOVITCH, HHH DEVELOPMENT GROUP, INC., HHH FINANCIAL CORPORATION, INC., SOUTH SQUARE DEVELOPMENT, INC. and PLAZA LA MER, INC., Appellants, v. DELRAY PROPERTY INVESTMENTS, INC., SOSQ PROPERTY INVESTMENTS, INC., HATIM HASHWANI and ROBERT GEISERMAN, Appellees. 4th District.


Costs -- Defendant was denied due process when costs were assessed against it without a written motion for costs and without providing defendant an opportunity to be heard

MEDICAL SPECIALISTS OF TAMPA BAY, LLC, Appellant, v. DAVID KELLY, Appellee. 2nd District.


Creditors' rights -- Garnishment -- Service of process on garnishee LLC was defective where writ of garnishment was served on an hourly employee who is not an officer or manager, who does not supervise other personnel, who does not have any direct client contact, and who is not the registered agent for service of process -- There is no merit to contention that employee was a business agent authorized to accept service of process -- Trial court erred in denying motion to quash service of process
MORGAN STANLEY SMITH BARNEY, LLC, Appellant, v. GIBRALTAR PRIVATE BANK & TRUST CO., Appellee. 3rd District.


Dissolution of marriage -- Imputed income -- Evidence supported finding that husband was voluntarily unemployed -- Amount of income imputed to husband was unsupported by specific findings regarding husband's occupational qualifications and prevailing earning levels for similar positions within relevant community -- Child support -- No error in failing to decrease amount of child support proportionately as each child reaches majority -- Child support guidelines do not require that reduction be made on proportionate basis -- Error to require husband to maintain life insurance as security for child support without making findings of fact regarding necessity, cost, and availability of life insurance -- Equitable distribution plan to be corrected to eliminate improper double-counting of 529 College Savings Plan, which was added to husband's assets as an independent asset and also included in another account awarded to husband

GLENN ROBERT BROGA, Appellant, v. LINDA MARIE BROGA, Appellee. 1st District.


Dissolution of marriage -- Income -- Attorney's fees -- Trial court abused discretion by imputing income equal to minimum wage for a forty-hour workweek to former wife, without considering her pay from Army Reserves, while including in husband's income his pension and disability benefits in addition to a full-time imputed minimum wage -- It was improper to consider former husband's secondary sources of income while ignoring former wife's -- It was error to award former wife attorney's fees where no evidence supported the reasonableness of the fee award -- On remand, trial court to conduct evidentiary hearing on reasonableness of fees
ROGER HARRIS, Appellant, v. MARY L. HARRIS, Appellee. 5th District.


Injunctions -- Repeat violence -- Modification -- Where respondent was incarcerated and properly brought to trial court's attention his desire to appear telephonically for hearing, and trial court noted that respondent was to appear telephonically but failed to issue order directed to Department of Corrections requiring respondent to appear telephonically at specified time and date, trial court erred in denying motion for modification of injunction when respondent failed to appear telephonically on date of hearing -- Remand for further proceedings
JERRY W. HAVENNER, Appellant, v. DEBORA HUTCHINSON, Appellee. 1st District.

Injunctions -- Stalking -- Cyberstalking -- Error to enter final judgment of injunction for protection against stalking where evidence did not establish two incidents of stalking -- Single blog posting disclosing petitioner's involvement in affair with respondent's husband not sufficient to support injunction
MELISSA LEACH, Appellant, v. TARA MICHELLE KERSEY, Appellee. 2nd District.


Mandamus -- Criminal law -- Parole -- Challenge to continued suspension of presumptive parole release date by Commission on Offender Review -- Permitting sentencing court to raise objections to petitioner's release on parole pursuant to section 947.1745(6) did not violate ex post facto clauses of state and federal constitutions, although statute was not in existence at time petitioner was convicted
WILLIAM INMON, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.


Name change -- Petition for name change was facially insufficient where petitioner, a state prisoner, admitted that his civil rights were suspended -- Claim that denial of petition substantially burdens exercise of religion, in violation of federal Religious Land Use and Institutionalized Persons Act, is without merit -- RLUIPA does not apply to claim brought under state statute that applies to all persons petitioning for name change, not merely those incarcerated within correctional institution
JESSE C. HARRELL a/k/a JESSE CLEVELAND HUNTER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


Torts -- Automobile accident -- Attorney's fees -- Proposal for settlement -- Proposal for settlement by one plaintiff which would resolve loss of consortium claim of offering plaintiff's husband in addition to claim of offering plaintiff was a joint proposal, and was invalid because it did not apportion the amount between the plaintiffs
VALERIE AUDIFFRED, Petitioner, v. THOMAS B. ARNOLD, Respondent. Supreme Court of Florida.


Torts -- Automobile accident -- Rear-end collision -- Damages -- Mental anguish and financial hardship -- Trial court erred in allowing evidence regarding mental anguish plaintiff suffered from defendant's desire to leave accident scene, a minor auto collision, defendant's failure to apologize to plaintiff, and defendant's delay in admitting negligence until just prior to trial and in admitting evidence of plaintiff's financial problems following accident -- Error cannot be considered harmless under new standard announced by supreme court in Special v. West Boca Medical Center where plaintiff cannot prove that there is no reasonable possibility that error complained of contributed to verdict in which jury awarded over $1 million in damages to plaintiff whom testimony revealed had pre-existing symptoms similar to those he claimed in instant case -- Damages -- Set-off -- Collateral source -- Unemployment compensation benefits are not specifically listed in collateral source statute and cannot be interpreted as a collateral source under any of its provisions -- Trial court erred in setting off those benefits from final judgment
YEINSON TORRES HURTADO and VIVIANA HURTADO ESCOBAR, Appellants, v. NIGEL DESOUZA, Appellee. 4th District.


Torts -- Dismissal -- Appeal from written order denying motion to dismiss without differentiating between grounds for dismissal asserted in motion, which sought dismissal for failure to state cause of action and for lack of personal jurisdiction -- Error to deny motion to dismiss without affording parties opportunity for full hearing on merits of defendant's jurisdictional objection
BLOGWIRE HUNGARY SZELLEMI ALKOTáST HASZNOSíTó, KFT, a/k/a GAWKER MEDIA, Appellant, v. TERRY GENE BOLLEA, p/k/a HULK HOGAN; HEATHER CLEM; GAWKER MEDIA, LLC, a/k/a GAWKER MEDIA; NICK DENTON; A.J. DAULERIO; and GAWKER MEDIA GROUP, INC., a/k/a GAWKER MEDIA, Appellees. 2nd District.


Torts -- Negligent hiring and retention -- Attorney's fees -- Proposal for settlement -- Joint proposal for settlement by two defendants was invalid where it did not apportion the amount attributable to each offeror -- It was error to award attorney's fees to defendant pursuant to offer of judgment statute
ANCEL PRATT, JR., Petitioner, v. MICHAEL C. WEISS, D.O., et al., Respondents. Supreme Court of Florida.

Torts -- Workers' compensation immunity -- Action by subcontractor's employee against defendant that rented scissor lifts to other subcontractors on project -- Because defendant was not a subcontractor, it was error to grant summary judgment for defendant on the basis of horizontal immunity under workers' compensation law
WILSON CICERON and ROSIE CICERON, his wife, Appellants, v. SUNBELT RENTALS, INC., Appellee. 4th District.


Trusts -- Reformation of revocable trust -- Trust is subject to reformation to correct draftsman's error in failing to include schedule of beneficial interests -- Trial court erred in finding that trust was never created and was void ab initio because there were no definite beneficiaries of the purported trust -- Trust was valid and subject to reformation where it clearly designated settlor as beneficiary during her lifetime -- Although, in absence of reformation, failure of trust to designate any remainder beneficiaries would result in merger so that successor trustee would hold trust assets upon a resulting trust for the benefit of decedent's estate, that does not mean that reformation to supply names of remainder beneficiaries is unavailable -- Reformation of a trust is available to avoid what would otherwise result in a merger
DENISE L. MEGIEL-ROLLO, Individually and as Trustee of the P.M. REVOCABLE TRUST dated July 29, 1997, Appellant, v. SHARON J. MEGIEL, ROBERT MICHAEL MEGIEL, DANIEL MEGIEL, and ANDREA MEGIEL, Appellees. 2nd District.



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Sunday, March 22, 2015

Injunctions, voluntary dismissal, product liability, and spinach-rosemary gnocchi over glazed onions, tomatoes, and garlic



Injunctions -- Domestic violence -- Error to enter final judgment of injunction for protection against domestic violence where petitioner failed to present sufficient evidence that she was victim of domestic violence or was in imminent danger of becoming victim of domestic violence
AMY HAIR, Appellant, v. CAMMY HAIR, Appellee. 4th District.

Injunctions -- Repeat violence -- Amended final injunction against repeat violence was unsupported by competent, substantial evidence of any overt act on respondent's part that indicated an ability to carry out any of her alleged threats against petitioner or that justified belief that violence was imminent
SHERRY CORRIE, Appellant, v. DAVID LEE KEUL, Appellee. 1st District.

Name change -- Error to summarily dismiss facially sufficient amended petition for name change on ground that name change was being sought for fraudulent purpose without holding evidentiary hearing
THE NAME CHANGE OF: JAMES PATRIC WAGES, JR., Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Real property -- Partition by sale -- Where court had entered judgment providing for a private sale of property based on stipulation of parties, with a deadline for parties to negotiate a private sale, it was error to thereafter impose an earlier deadline by which parties were to submit their highest bids to one another, thereby creating a forced buyout between the parties -- Postjudgment order altered provisions of partition judgment by imposing an expedited bidding scheme that was neither stipulated to by parties nor authorized by statute governing actions for partition
MARY ANN MARKS, Appellant, v. STEFAN V. STEIN, as Personal Representative of the Estate of Janet C. Stein, Deceased, Appellee. 2nd District.

Torts -- Automobile accident -- Limitation of actions -- Amended complaint -- Relation back -- Trial court did not err in denying plaintiff's motion to amend complaint to substitute wife of defendant for defendant, filed after original defendant filed a motion for summary judgment with supporting affidavits establishing that wife was sole owner of vehicle involved in crash and that wife was driving vehicle at time of crash -- Trial court correctly determined that amended complaint was barred by statute of limitations and did not relate back to date of original complaint -- “Identity of interest” exception to general rule that amendment adding new party does not relate back to original complaint does not apply, as suit against one spouse is separate and distinct from suit against the other spouse -- Each spouse has own legal rights and obligations, and Florida law is clear that one spouse is not responsible for the torts of the other
SYLVIA A. RUSS, Appellant, v. CAROLYN WILLIAMS, Appellee. 1st District.

Torts -- Legal malpractice -- Arbitration -- Jurisdiction -- Where plaintiff served notice of voluntary dismissal of one of defendants after that defendant had filed motion to compel arbitration, trial court was without jurisdiction to order that defendant to proceed with arbitration -- Notice of voluntary dismissal terminated trial court's jurisdiction over party
ESTATE OF GENEVIEVE A. WILLIAMS, Appellant, v. KEVIN F. JURSINSKI, P.A.; and JAMES HARWOOD, P.A.; and JAMES HARWOOD, Appellees. 2nd District.

Torts -- Product liability -- Bicycle -- Negligent failure to warn -- Proximate cause -- Injuries suffered when an object got caught in the front wheel of plaintiff's bicycle, causing the wheel to suddenly stop when the object hit the front carbon fiber forks of the bicycle, resulting in plaintiff falling forward onto the handlebars -- Defendant manufacturer's failure to place a warning on the bicycle alerting plaintiff to the potential of carbon fiber to crack and possibly fail when damaged was not the proximate cause of injuries suffered by plaintiff -- Proximate cause was road debris getting caught in front spokes, causing wheel to suddenly stop -- Trial court erred in denying defendant's motion for directed verdict on claim of negligent failure to warn
TREK BICYCLE CORPORATION, etc., Appellant, vs. ANTONIO MIGUELEZ, Appellee. 3rd District.

Torts -- Product liability -- Tobacco -- Trial court did not err in denying defendant's motion for directed verdict as to plaintiff's membership in Engle class -- Expert and lay evidence was sufficient to prove that plaintiff was addicted to cigarettes -- Argument -- Where defendant, in opening statement and during closing argument, informed jury that it was not disputing any of Engle findings, but denied the existence of conspiracy to conceal, the fifth Engle finding, it was not reversible error for plaintiff's counsel to rebut such arguments in closing and rebuttal arguments -- Comments did not deny defendant its right to a fair trial -- Trial court did not abuse discretion in denying defendant's motion for new trial
R.J. REYNOLDS TOBACCO COMPANY, Appellant, vs. RALPH BALLARD, et al., Appellees. 3rd District.




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Monday, February 16, 2015

Child support, paternity testing, and artisan hummus with garlic, parsley, and chili powder on homemade, toasted-sunflower bread



Attorneys -- Discipline -- Failure to act with reasonable diligence and promptness in representing a client -- Conduct that is prejudicial to the administration of justice -- Referee's findings that, in responding to a notice of resentencing hearing by filing a “Motion to Continue Resentencing Hearing and Notice of Unavailability” to attend without indicating whether the state agreed to the continuance, submitting a copy directly to the presiding judge, or setting the motion for a hearing, and then choosing simply not to attend the hearing when it occurred as scheduled, attorney was guilty of violating Bar Rules, are approved -- Recommended punishment of public reprimand is disapproved in favor of public reprimand and ten days' suspension -- No merit to attorney's argument centered on the claim that the judge improperly scheduled the hearing -- Hearing had not been continued and attorney was required to appear on his client's behalf
THE FLORIDA BAR, Complainant, vs. DANIEL MARK COHEN, Respondent. Supreme Court of Florida.

Attorney's fees -- Appellate -- Frivolous appeal of trial court order imposing sanctions for fraud on court
JOHANNA FADDIS, Appellant, vs. THE CITY OF HOMESTEAD, et al., Appellees. 3rd District.

Child support -- Paternity testing -- It was a departure from the essential requirements of law to require parties to submit to paternity testing in a proceeding to establish child support obligation where father did not place child's paternity in controversy and good cause for paternity testing was not established
FLORIDA DEPARTMENT OF REVENUE by and on behalf of CIARA GAIL CORBITT, Petitioner, v. KYLE PATRICK ALLETAG, Respondent. 1st District.

Civil procedure -- Discovery -- Non-party accountant -- Accountant-client privilege -- Production of documents from accountant without first determining their privileged status through in camera review -- Where objection is made to issuance of subpoena duces tecum to accountant, deposition is no longer the only method available to obtain production of documents -- Court can rule on objections, and has discretion to fashion a process to deal with production of documents -- Petition for writ of certiorari seeking to prevent production of privileged documents is denied as moot, as court has provided a method for protection of privileged documents
VALERIE A. LYONS INDIVIDUALLY AND AS CO-TRUSTEE AND BENEFICIARY OF THE RICHARD C. LYONS AND NORMA W. LYONS 1998 DYNASTY TRUST; NORMA W. LYONS INDIVIDUALLY AND AS MANAGING PARTNER AND THE GENERAL PARTNER(S) OF LYONS FAMILY LIMITED PARTNERSHIP; and LYONS FAMILY LIMITED PARTNERSHIP, Petitioners, v. SANFORD D. LYONS INDIVIDUALLY AND AS CO-TRUSTEE OF THE RICHARD C. LYONS AND NORMA W. LYONS 1998 DYNASTY TRUST; TIMOTHY R. LYONS INDIVIDUALLY AND AS PURPORTED CO- TRUSTEE OF THE RICHARD C. LYONS AND NORMA W. LYONS 1998 DYNASTY TRUST; THE RICHARD C. LYONS AND NORMA W. LYONS 1998 DYNASTY TRUST; DOROTHY A. LYONS-HEFFNER; JOHN C. LYONS; and JOHN C. LYONS AND CAROL ANN WILLIAMS LYONS AS CO-TRUSTEES OF THE JOHN C. LYONS TRUST SEPTEMBER 2, 1988, Respondents. 4th District.

Contempt -- Dissolution of marriage -- Failure to pay family support arrearages -- Competent, substantial evidence supported trial court's findings that former husband failed to make support payments as required despite apparent ability to do so -- Record does not disclose calculations and evidence establishing commencement of arrearages, total unpaid balance, and computation of purge amount, and amount awarded exceeded the amount calculable on the record before appellate court and the amount recoverable based on former wife's pleadings -- Remand for further proceedings to substantiate net amount of any arrearage and purge requirement and to provide specific evidence supporting finding that former husband has present ability to pay purge amount
PATRICK WINTON, Appellant, vs. CANDICE SAFFER, Appellee. 3rd District.

Contracts -- Construction -- Third-party complaint by contractor who had been sued for defective construction of home against subcontractor, alleging that subcontractor had breached oral contract with contractor to install interior drywall in home by failing to properly install drywall -- Although one paragraph of complaint stated that subcontractor “performed its drywall work pursuant to the oral agreement,” other paragraphs sufficiently alleged that subcontractor breached contract by failing to properly install drywall -- Error to dismiss complaint with prejudice
RAY COUDRIET BUILDERS, INC., Appellant, v. R.K. EDWARDS, INC., et al., Appellees. 5th District.

Dissolution of marriage -- Alimony -- Modification -- Marital settlement agreement -- Trial court erred in ruling that mere presence of male tenant in former wife's residence amounted to “cohabitation with a male” within meaning of parties' marital settlement agreement, which provided for termination of alimony obligation in event wife cohabited with a male -- Finding of cohabitation requires more than mere presence of another person under payee spouse's roof -- Remand with instructions to enter amended order denying former husband's supplemental petition on the merits, to vacate finding that husband's obligation to pay alimony and to maintain life insurance as security for alimony terminated automatically on date male tenant began living in wife's house, and to vacate portion of order directing wife to repay alimony payments received after male became tenant -- Competent, substantial evidence supported trial court's findings that former wife was not engaged in a “supportive relationship” within meaning of statute and that there was no substantial, permanent change in circumstances of the parties that would support a reduction or termination of alimony obligation
DARLENE D. ATKINSON, Appellant/Cross-Appellee, v. RONALD L. ATKINSON, Appellee/Cross-Appellant. 2nd District.

Dissolution of marriage -- Child custody -- Modification -- Trial court abused discretion by transferring custody of children to former wife where former wife failed to plead and prove substantial change in circumstances since last custody determination -- It was also improper to modify custody at a hearing that was not noticed for a modification proceeding
JEROME L. BAKER, Appellant, v. SABRINA J. BAKER A/K/A SABRINA GRAY, Appellee. 5th District.

Dissolution of marriage -- Child custody -- Trial court did not err in finding that modification of timesharing was warranted by change in circumstances and best interest of children -- Child support -- Income -- In calculating mother's child support obligation, trial court improperly factored in father's payment of alimony where father failed to make the alimony payments -- Alimony -- Imputed income -- In denying former husband's request to modify alimony, trial court improperly imputed income to former husband without delineating the basis for the imputed income
ELIZABETH CHAMBERLAIN, Appellant, v. JOHN DOUGLAS EISINGER, Appellee. 4th District.




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