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


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


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


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


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


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

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

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

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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.

Monday, February 1, 2016

Wrongful death, new trials, appellee sanctions, and Bison with Kale, Rosemary, and Purple potatoes with Lemon Thyme

Appeals -- Sanctions -- Maintenance of indefensible position in trial court and on appeal -- Rare circumstance in which appellee may be sanctioned -- Appellee complying with none of court deadlines -- Appellee directed to show cause why appellant's attorney's fees should not be assessed against appellee
HSBC Bank USA, N.A., Appellant, vs. BISCAYNE POINT CONDOMINIUM ASSOCIATION, Appellee. 3rd District.

Child custody -- Timesharing -- Error to modify timesharing by restricting contact to one time per week in a supervised setting without identifying what steps parent must take in order to reestablish unsupervised timesharing
IEHUDA TZYNDER, Appellant, vs. KEREN EDELSBURG, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Mortgage foreclosure -- Standing -- Substituted plaintiff -- Trial court erred in granting summary judgment in favor of new plaintiff, to whom mortgage had been assigned, substituted for predecessor plaintiff on same day as hearing on motion for summary judgment, because the assignment from the predecessor plaintiff, which was not in the evidentiary record, leaves standing as an issue of material fact not conclusively established by the pleadings or other summary judgment evidence -- An order of substitution does not create standing -- No merit to successor plaintiff's argument that, because the assignment was a recorded document, the trial court could properly take judicial note of it -- Even if judicially noticed, plaintiff cannot rely on it for standing because it was not served at least 20 days before the hearing on summary judgment
GREGORY SANDEFUR, Appellant, v. RVS CAPITAL, LLC, a Florida limited liability company, RIO VISTA SALOON, LLC, a Florida limited liability company, and DAVID ZWICK, Appellees. 4th District.

Contracts -- Construction -- Arbitration -- Determination of arbitrability of breach of contract claim -- By incorporating into contract the Construction Industry Rules of the American Arbitration Association, which make the issue of arbitrability subject to arbitration, parties sufficiently evidenced intent to have arbitrators, not a court, hear and decide the issue of arbitrability
GLASSWALL, LLC, Appellant, vs. MONADNOCK CONSTRUCTION, INC., et al., Appellees. 3rd District.

Contracts -- Fraud in the inducement -- Economic loss rule -- Claim that defendant fraudulently induced plaintiff to join auto-racing team by misrepresenting that defendant was fully funded and did not need plaintiff's money in order to run the team -- Because defendant's fraudulent representations were of a present fact, the fraudulent misrepresentation claim did not merge with plaintiff's breach of contract claim, and was not barred by economic loss rule -- Trial court erred in granting defendant's motion for judgment notwithstanding verdict for plaintiff on fraudulent inducement claim -- Attorneys -- Trial court did not abuse discretion by denying out-of-state attorney's motion to appear pro hac vice on the basis that granting of motion would adversely impact the administration of justice and disrupt the proceedings
PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and TOMMY CONSTANTINE, a/k/a THOMAS CONSTANTINE, individually, Appellees. 4th District.

Costs -- Section 57.105 does not provide mechanism for recovering costs

Creditors' rights -- Execution of consent judgment -- Motion to stay writ of execution and vacate levy on debtors' personal residence on ground that residence was debtors' homestead -- Trial court denied debtors due process when it refused to hear debtors' homestead exemption objection -- Objection was raised in emergency motion to stay and was therefore before the trial court at the time of hearing; counsel for debtors told court that he had argument pertaining to emergency motion to stay that did not pertain to issues in the motion to vacate consent judgment, but trial court erroneously determined that motion to stay did not contain any argument separate from arguments raised in motion to vacate consent judgment; and counsel clearly informed court in a timely motion for rehearing that separate homestead objection remained unresolved -- Remand for further proceedings

Dissolution of marriage -- Equitable distribution -- Trial court exceeded scope of appellate mandate by revaluing assets and liabilities, including revisiting issue of value of former husband's dental practice, and by reducing duration of alimony award -- Trial court did not exceed scope of remand by considering evidence regarding former husband's current income, which was relevant to amount of alimony and issue of whether husband could be compelled to pay for minor child's private school tuition -- Remand with instructions to split net proceeds, if any, from sale of marital home and redistribute remaining assets and liabilities in original equitable distribution schedule without revaluing them; and to reinstate ten-year duration of alimony from date of original final judgment -- Appellate court declines to revisit prior ruling that trial court erred in failing to partition marital home where arguments former wife raised on this issue could have been advanced in motion for rehearing in earlier appeal -- Imputed income -- Competent substantial evidence supported amount of income imputed to former wife -- Attorney's fees to be reconsidered on remand in light of appellate court's reversal of trial court's decision to revalue assets -- Alimony credit -- Appeal from award of alimony credit to husband is premature where trial court determined entitlement but did not determine amount of credit -- Private school tuition -- Competent substantial evidence supported trial court's finding that former husband did not have ability to pay child's private school expenses
MARIANNE K. BRENNAN, Appellant, v. DANIEL JOSEPH BRENNAN, Appellee. 4th District.

Dissolution of marriage -- Marital home -- Error to include in final judgment language specifying that former wife must refinance or sell marital home within 18 months without addressing each party's financial responsibilities prior to sale of home and consequences should former wife fail to sell or refinance home within allotted time frame -- With respect to provision assigning value to home and specifying that each party was to receive half of that assigned value in the event that the home was sold, although actual sale price might vary from the assigned value, former husband is entitled to equal share of the actual refinancing value or sale price of home -- Equitable distribution -- Various errors in calculation of equitable distribution in final judgment to be corrected
KEITH A. JONES, Appellant, v. LESLIE D. JONES, Appellee. 5th District.

Dissolution of marriage -- Settlement agreement -- Enforcement -- Estates -- Motion to enforce marital settlement agreement insofar as it addressed disposition of three parcels in the Cayman Islands owned by husband and wife as joint tenancy with rights of survivorship, filed by personal representative of former husband, who died four years after divorce -- Trial court erred in ordering former wife to whom properties passed upon death of former husband either to sell properties or to purchase former husband's interest in them -- Under both unambiguous provisions of former husband's will, which was executed at time husband instituted dissolution proceedings, and Cayman Islands law, disputed parcels became former wife's sole property when former husband died -- Although marital settlement agreement stated that parties would try to sell Cayman Island properties “within a reasonable time” and provided that either party could buy out the other party's interest at any time, it did not require that parties would be forced to sell property immediately if one did not buy out the other -- Error to grant estate's motion to enforce final judgment and marital settlement agreement against former wife -- Order prohibiting former wife from dissipating, encumbering, transferring, or selling these properties to be vacated on remand
DIANE MARIE EBANKS, Appellant, v. CURTIS EBANKS, as Personal Representative of the Estate of Arthur Ebanks, Appellee. 2nd District.

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce portions of its adjusters' claims files to medical provider in first-party non-bad-faith cases

Insurance -- Uninsured motorist -- Argument -- Insurer entitled to new trial based on cumulative effect of statements by plaintiff's counsel pointing out that plaintiff had done the right thing all along and that insurer had refused to pay the debt it owed to plaintiff, counsel's use of PowerPoint slide visible to jury that emphasized the insurer's responsibility, and an instruction by the trial court which also focused on insurer's liability rather than on the issue of actual damages attributable to the accident
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MICHAEL D. GOLD and GINA GOLD, individually and as husband and wife, Appellees. 4th District.

Judges -- Disqualification -- Motion to disqualify judge was legally sufficient to extent it relied upon specific campaign-related issues, including fact that at least one of opposing party's counsel was playing significant role in judge's current, ongoing reelection campaign -- Prohibition granted
ERIC RIVERA, Petitioner, v. JOSHUA BOSQUE, Respondent. 5th District.

Jurisdiction -- Non-residents -- Contracts -- Failure to pay on contract requiring payment in Florida is sufficient to satisfy Florida's long-arm statute conferring jurisdiction over breach of contract actions -- Minimum contacts -- Where neither amended complaint nor testimony at hearing on jurisdiction showed that any act beyond repayment of promissory note was required to be performed in Florida, defendant did not have sufficient minimum contacts with state to support assertion of personal jurisdiction -- Remand with directions to dismiss without prejudice to refiling complaint in appropriate forum

Municipal corporations -- Trial court erred in dismissing complaint for declaratory and injunctive relief seeking to void city's alleged ultra vires act of confirming parking credits that served to reduce a building's parking space obligation -- It was error to dismiss complaint on ground that Design Review Board determined that building qualified for an allowance of parking space credits, that city granted a parking variance, and that plaintiff's action is procedurally barred because plaintiff failed to timely challenge City Planning Department's administrative determination contained in Design Review Board resolution -- Findings made by trial court in granting motion to dismiss complaint are not supported by allegations of complaint -- Dismissal cannot be affirmed on basis of res judicata or collateral estoppel, as there has not been a prior determination on the merits -- There is no merit to claim that separation of powers bars complaint because it attempts to challenge an executive act of city -- Plaintiff is not requesting that city perform a discretionary act, but, rather, alleged that city engaged in an ultra vires act

Torts -- Assignment of claims -- Action by plaintiff against his residential tenant, alleging that tenant was negligent in connection with a fire that damaged plaintiff's property -- Trial court did not err in entering summary judgment for defendant on basis that plaintiff, in mortgage, had assigned rights to recover for property damage to mortgagee
JORGE ARTILES, Appellant, vs. YURISBEL PINO, et al., Appellees. 3rd District.

Torts -- Cruise ships -- Jurisdiction -- Forum non conveniens -- Two class action suits against cruise line by U.S. and non-U.S. passengers on Italian-flagged cruise ship which ran aground in Italy -- Trial court did not err in dismissing one action for forum non conveniens upon finding that Italy is an available and adequate forum, that private interest and public interest factors favor trial in Italy, and that plaintiffs can reinstate their suit in Italy without undue inconvenience or prejudice -- In failing to dismiss U.S. plaintiffs in other action court did not conduct a proper private interest analysis when it failed to consider the necessary evidence required to prove and disprove each element of plaintiffs' cause of action
DENISE ABEID-SABA, et al., Appellants/Appellees/Cross-Appellees, vs. CARNIVAL CORP., CARNIVAL PLC, COSTA CROCIERE, S.p.A., COSTA CRUISE LINES, INC., and JOSEPH FARCUS ARCHITECT, P.A., Appellees/Appellants/Cross-Appellants. 3rd District.

Torts -- Evidence -- Action against automobile dealer that sold truck with lift kit installed to initial purchaser and automobile dealer who subsequently sold truck to plaintiff, who was injured when truck's steering and suspension failed, resulting in truck flipping over -- Trial court did not err in striking affidavit of plaintiff's expert witness, filed after defendants had filed motion for summary judgment, which expressed opinion that dealer who sold truck to plaintiff failed to take action which could have prevented accident where witness's prior deposition testimony stated that he had no opinion regarding the conduct of defendants -- Witness's affidavit was inconsistent with his earlier deposition testimony without any explanation for the inconsistency -- Trial court did not abuse discretion by applying rule that a litigant, when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony -- Trial court did not err in entering summary judgment for defendants where there was no evidence that truck was defective when sold by initial seller and no evidence that second seller of truck had a duty to inspect the truck for latent defects
SHAUN LESNIK, Appellant, v. DUVAL FORD, LLC, a Florida corporation and BURKINS CHEVROLET, INC., a Florida corporation, Appellees. 1st District.

Wrongful death -- Medical malpractice -- New trial -- Plaintiff suffered prejudice where, shortly before trial, defendant amended Fabre defense to include other physicians as non-party defendants and then withdrew the Fabre defense on the last day of trial -- Events created situation in which plaintiff presented case premised on fact that jury would apportion fault between defendant and Fabre defendants, only to have jury to decide case on an all-or-nothing basis -- Trial court abused discretion in denying plaintiff's motion for new trial
JEFFREY M. EDWARDS, as Personal Representative of the Estate of MARY EDWARDS, deceased, for and on behalf of lawful survivors/claimants; JEFFREY M. EDWARDS, surviving spouse; JEFFREY M. EDWARDS, JR., surviving minor child; CARL A. EDWARDS, surviving minor child; and MATTHEW T. EDWARDS, surviving minor child, Appellants, v. JEFFREY ROSEN, M.D.; FLORIDA HEART ASSOCIATES, P.L.; SHAHEEN FARUQUE, M.D.; INPATIENT CONSULTANTS OF FLORIDA, INC.; IMTIAZ AHMAD, M.D.; ALLERGY, SLEEP AND LUNG CARE, P.A.; and LEE MEMORIAL HEALTH SYSTEM, Appellees. 2nd District.

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