Monday, July 27, 2015

Attorney fees under 57.105, sham pleadings, commercial leases, and sauteed day lillies with fresh sage and organic goat cheese



Attorney's fees -- Appellate fees -- Claim or defense not supported by material facts or applicable law -- Attorney's fees assessed against appellant and its counsel because of frivolous claim in initial brief that appellee's counsel made misleading statements to trial court at hearing on motion to dismiss
ASPEN AIR CONDITIONING, INC., Appellant, vs. SAFECO INSURANCE COMPANY OF AMERICA, et al., Appellees. 3rd District.


Civil procedure -- Default -- Abuse of discretion to enter judicial default against defendants as sanction for failure by defendants and their counsel to respond to discovery, failure to appear at court-ordered mediation, and failure to appear for calendar call without considering factors enumerated in Kozel v. Ostendorf and making explicit findings on each factor -- Where counsel is involved in conduct to be sanctioned Kozel analysis is required before entering judicial default, and failure to do so is, by itself, basis for remand
DOROTHY CHAPPELLE, CALVIN JOHNSON and EVELYN WILLIAMS, Appellants, v. SOUTH FLORIDA GUARDIANSHIP PROGRAM, INC., Appellee. 4th District.


Civil procedure -- Sham pleadings -- Action by individual plaintiff against law firm claiming that law firm failed to give credit to plaintiff for $50,000 retainer against fee awarded to law firm as required by fee agreement -- Trial court erred in striking plaintiff's pleadings as a sham on the ground that because plaintiff had treated the $50,000 as a capital contribution to his company only the company had the right to bring the action -- Record does not show that pleadings were “undoubtedly false” or that pleadings were a “mere pretense set up in bad faith without color of fact” -- Torts -- Trial court also erred in dismissing tort claims of breach of fiduciary duty, conversion, and civil theft on basis of economic loss rule -- Economic loss rule is limited to product liability context
STUART N. BORNSTEIN, Appellant, v. IRA MARCUS, individually, IRA MARCUS, P.A., a Florida corporation, and GRANADA, LLC, a Florida limited liability company, Appellees. 4th District.


Contracts -- Commercial lease -- Eviction -- Error to grant summary judgment in favor of plaintiff on claim for eviction where there were genuine issues of material fact about occurrence of alleged defaults and lessor's correction of any defaults within terms of lease and whether alleged violations of lease were material; and where plaintiff failed to refute affirmative defenses, that plaintiff had failed to give requisite notice of breach and opportunity to cure and that eviction would cause inequitable forfeiture, or to establish that these defenses were legally insufficient
ATRIA GROUP, LLC, Appellant, v. ONE PROGRESS PLAZA, II, LLC, Appellee. 2nd District.


Dissolution of marriage -- Equitable distribution -- Stock shares -- Valuation -- Trial court erred in setting value for shares of stock to be transferred from husband to wife without hearing parties' full evidence regarding value and, instead, setting the value at the average between value placed on stock by husband and value placed on stock by wife -- Remand for further proceedings
MICHELLE TUCKER, Appellant, v. LEONARD TUCKER, Appellee. 4th District.


Insurance -- Business owners's policy -- Breach by insured of policy condition requiring insured to maintain burglary alarm system monitored by a security company and to notify insurer if it became aware of any suspension or impairment of the system -- In entering summary judgment finding that insured was entitled to recover for loss resulting from burglary even though insured had not maintained burglary alarm system monitored by security company because insurer was not prejudiced by the breach, trial court improperly focused solely on the fact that the burglary would not have been detected even if the alarm monitoring system had been maintained -- Because insured breached condition subsequent of notifying insurer of any suspension or impairment of monitored alarm system, issue to be determined by court is whether insurer was prejudiced by the lack of an opportunity to decide whether it would cancel the policy, keep the policy in place with an increase in premium, or waive the obligation to maintain the alarm monitoring contract
DEPOSITORS INSURANCE COMPANY, Appellant, v. CC&C OF LAKE MARY, LLC D/B/A THE BEACH SCENE, Appellee. 5th District.


Insurance -- Commercial general liability -- Coverage -- Declaratory judgment -- Appeals -- Partial final judgment in declaratory judgment action which determined insurer's duty to defend insured, but did not determine its duty of indemnification, is not a final appealable order or an appealable nonfinal order
FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, Appellant, v. PEACOCK'S EXCAVATING SERVICE, INC., ROYAL CORINTHIAN HOMES, INC., J.L. WALLACE, INC., and MATRIX CONCRETE SYSTEMS, INC., Appellees. 2nd District.


Torts -- Equitable subrogation -- Action by tortfeasor and its liability insurer against whom judgment has been entered finding tortfeasor liable in personal injury action, seeking equitable subrogation from medical providers who are allegedly responsible for a substantial portion of the damages in the underlying personal injury action -- Trial court erred in dismissing equitable subrogation action on the basis that tortfeasor and tortfeasor's insurer have not paid the entirety of injured party's damages -- Right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim's entire damages -- Question certified to Florida Supreme Court: Is a party that has had judgment entered against it entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied?
ALLSTATE INSURANCE COMPANY, ET AL., Appellants, v. BASIL THEODOTOU, M.D., ET AL., Appellees. 5th District.


Torts -- Jurisdiction -- Service of process -- Substitute service at private mailbox was not effective where plaintiff failed to demonstrate that the private mailbox was the only address for defendant discoverable through public records -- Although plaintiff unsuccessfully attempted to serve defendant at other addresses, that is insufficient to invoke service under section 48.031(6), Florida Statutes -- Trial court erred in denying defendant's motion to quash service of process and vacate default judgment
TAMAS TIBOR KRISZTIAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., as Subrogee of RENEE M. FIORE, Appellee. 4th District.


Torts -- Nursing homes -- Arbitration -- Validity of arbitration agreement -- Where nursing home admissions director told patient, who was alert and lying in bed with her husband standing nearby, that she was there with admission documents, including arbitration agreement, that needed to be signed, and patient responded that she wanted her husband to review and sign the documents, it was error to find that husband was not authorized to sign the arbitration agreement and that his signature did not bind the patient -- Husband had apparent authority to sign agreement on behalf of the patient -- Error to deny nursing home's motion to compel arbitration
FI-EVERGREEN WOODS, LLC, ET AL., Appellants, v. THE ESTATE OF MAY L. ROBINSON, ETC., Appellee. 5th District.


Wrongful death -- Medical malpractice -- Presuit requirements -- Statutory amendments which allow for presuit ex parte interviews between potential defendants and potential claimants' treating health care providers, and require potential claimants to sign a written waiver of federal privacy protection concerning relevant medical information prior to instigating a medical malpractice lawsuit, are constitutional and are not preempted by Health Insurance Portability Accountability Act -- Amendments do not violate separation of powers doctrine by intruding upon Florida Supreme Court's procedural rule-making power -- Amendments do not constitute a special law -- Amendments do not burden right of access to courts -- Amendments do not violate right to privacy
EMMA GAYLE WEAVER, individually, and as Personal Representative of the Estate of THOMAS E. WEAVER, deceased, Appellant, v. STEPHEN C. MYERS, M.D., WEST FLORIDA SPECIALTY PHYSICIANS, LLC d/b/a WEST FLORIDA CARDIOVASCULAR AND THORACIC SURGERY and d/b/a and a/k/a WEST FLORIDA MEDICAL GROUP, and WEST FLORIDA REGIONAL MEDICAL CENTER, INC. d/b/a WEST FLORIDA HOSPITAL, Appellees. 1st District.


Wrongful death -- Nursing homes -- Jury trial -- Denial -- Appeals -- Certiorari -- Order striking request for jury trial based on express waiver in nursing facility residency agreement is not reviewable by certiorari
TRICIA ANN WALTER, as Personal Representative of the Estate of Norine C. Walter, Petitioner, v. SUNRISE SENIOR LIVING SERVICES, INC., d/b/a BRIGHTON GARDENS OF TAMPA; JAI LARMAN; and CARLA RUSSO, Respondents. 2nd District.




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Saturday, June 13, 2015

Surprise Bills for Many Under Health Law Out-of-network charges often aren’t flagged before treatment, consumers say; states tightening laws

Stephanie Armour of the Wall Street Journal reports June 11, 2015
"Many consumers with health coverage through the Affordable Care Act are facing unexpected medical bills that in some cases greatly exceed the law’s caps on out-of-pocket expenses.
The law’s limits don’t apply to charges from out-of-network providers, and many insurance plans sold on ACA exchanges have limited networks—amplifying the risk of surprise bills...
When Arturo Paramo, a 50-year-old construction worker, experienced chest pains last year, he was admitted to St. Francis Hospital in Bartlett, Tenn., after a doctor sent him there following an electrocardiogram. His wife, Bainey, said they weren’t told the hospital in suburban Memphis didn’t accept her family plan. They got a $22,945 bill—above the ACA’s $12,700 cap for a family plan in 2014—in the mail....The couple appealed the charge, which the hospital reduced to $600—but only after the bill had been sent to a collections agency, which Ms. Paramo worries will hurt the family’s credit rating....
More states are passing laws that aim to halt unexpected out-of-network bills. Under California legislation approved this month, consumers who go to an in-network facility but are treated by an out-of-network provider there only have to pay what they would have been charged if the provider participated in their plan.
A New York law providing a number of out-of-network safeguards went into effect in April, and legislation has been introduced in Texas....More than half of Americans say making sure health plans have sufficient networks to provide a wide choice of doctors and hospitals should be a top health-care priority for the president and Congress, according to an April poll by the foundation....Anthem Blue Cross of California, Cigna Corp. and Blue Shield of California are facing lawsuits filed in 2014 by beneficiaries who say they were misled about the size of the networks when obtaining coverage on the state’s ACA exchange. The insurers either declined to comment or didn’t respond to an email seeking comment...." More.


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Sunday, May 31, 2015

Contracts, imputed income, and grilled shrimp on avocado with basil pesto dollops



Contracts -- Statute of frauds -- Oral agreement not to be performed within one year of the making of the agreement -- Terminable-at-will oral agreement to purchase lottery tickets and to equally share in the proceeds of any winning lottery ticket is outside statute of frauds, and is enforceable, because agreement could have been performed within one year
HOWARD BROWNING, Petitioner, v. LYNN ANNE POIRIER, Respondent. Supreme Court of Florida.

Deceptive and unfair trade practices -- Sovereign immunity -- Florida State Lottery -- Action against Florida Lottery based on its refusal to pay $500,000 prize where ticket, which initially appeared to be a winning ticket, was on closer inspection a “misprint” which was not a winner and was not able to be validated through the Lottery's system -- No merit to any of plaintiff's several claims -- Although sovereign immunity has been waived for breach of contract claims against the state and its agencies, it has not been waived for the unfair and deceptive trade practices and misleading advertising claims asserted by plaintiff -- Even if the claim were not barred by sovereign immunity, claim lacks merit because summary judgment evidence establishes the ticket was not a winner -- Contracts -- Trial court properly held Lottery did not breach contract embodied in lottery ticket where relevant statute provides that no prize may be paid arising from tickets that are produced or issued in error -- Promissory estoppel -- Trial court properly concluded promissory estoppel claim was a recasting of breach of contract claim
ANNA MARIA CURCIO, Appellant, v. STATE OF FLORIDA DEPARTMENT OF THE LOTTERY D/B/A FLORIDA LOTTERY, Appellee. 1st District.

Dissolution of marriage -- Alimony -- Modification -- Imputed income -- Trial court erred in failing to impute to former wife income for earnings that could reasonably be projected based on her liquid assets while imputing the same type of income to former husband -- Remand for recalculation of alimony
ALBERT JOSEPH WINNIER, Appellant, v. CAROL ANN WINNIER, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion in awarding attorney's fees to wife where parties were equally able to pay their own fees -- Amounts husband was obligated to pay in alimony and child support should have been deducted when determining husband's ability to pay
RICHARD KEITH HAYWALD, Appellant, v. DENISE MICHELLE FOUGERE, Appellee. 1st District.



Garnishment -- Circuit court acting in its appellate capacity departed from essential requirements of law when it affirmed county court order dismissing judgment creditor's garnishment action against judgment debtor's employer based on bankruptcy discharge of the underlying debt owed to creditor by the judgment debtor -- Discharge of judgment debtor's liability to creditor did not eliminate employer's independent liability under garnishment statute -- Under clear terms of garnishment statute, garnishee was independently liable for amounts that it should have retained for creditor's benefit between date writ of garnishment was served and date debtor filed for bankruptcy protection -- Circuit court's departure from essential requirements of law resulted in miscarriage of justice when circuit court also affirmed county court's sua sponte dismissal of creditor's garnishment action in response to motion for judgment on pleadings -- Dismissal was not only improper response to the denial of a motion for judgment on pleadings, but dismissal was form of relief not requested by either of the parties and, accordingly, violated creditor's due process rights
PAUL DAVID DANIELS, Petitioner, v. SORRISO DENTAL STUDIO, LLC, Respondent. 2nd District.


Real property -- Homeowners associations -- Impairment of contracts -- In granting summary judgment to homeowners' association, enforcing payment by foreclosure sale purchaser of assessments accrued under previous owner, trial court's reliance on statute providing that parcel owners are jointly and severally liable with previous owners for unpaid assessments, rather than on provisions of association's declaration providing that obligation for delinquent assessments shall not pass to successors in title, violated new owner's constitutional right against impairment of contract, where new owner was a third-party beneficiary of the declaration -- No merit to homeowners association's claim that the statute amended the declaration -- Remand for entry of summary judgment in favor of new owner
PUDLIT 2 JOINT VENTURE, LLP, a Florida limited liability partnership, Appellant, v. WESTWOOD GARDENS HOMEOWNERS ASSOCIATION, INC., a Florida corporation not-for-profit, Appellee. 4th District.


Torts -- Conspiracy -- Fraudulent transfers -- Action by shareholder and creditor of corporation alleging that defendants improperly transferred assets to another corporation, which did not pay reasonably equivalent value in exchange for the assets -- Trial court erred in entering summary judgment for corporate defendant on count alleging fraudulent transfer -- Plaintiff was creditor for purposes of fraudulent transfer statute where he classified his contributions to first corporation as loans, not equity -- Accordingly, trial court erred in finding that plaintiff needed to bring derivative action as opposed to a direct action -- Trial court erred in concluding that plaintiff sued wrong entity -- Suit was not premised on agency relationship between corporate defendant and wholly-owned subsidiary which employed the individual who actually transferred the assets at issue -- Trial court erred in finding that record was devoid of evidence that transfer was made with intent to hinder, delay, or defraud plaintiff -- Genuine issues of material fact exist as to existence of two “badges of fraud” -- In light of appellate court's reversal of summary judgment on fraudulent transfer claim, it was error to enter summary judgment on conspiracy count, which was premised on existence of actionable claim for fraudulent transfer
MARK S. YARALLI, individually and as 50% shareholder of Digiplot, Inc., Appellant, v. AMERICAN REPROGRAPHICS COMPANY, LLC, a Florida limited liability company, Appellee. 4th District.

Torts -- Legal malpractice -- Discovery -- Depositions -- Non-party material witness -- Trial court did not depart from essential requirements of law by denying non-party's motion for protective order to prevent continuation of deposition -- As material witness, the fact that certain financial information may be disclosed is not sufficient reason, standing alone, to preclude deposition -- Trial court properly issued order limiting subject matter of pending deposition to those specific issues framed by amended complaint
CARLOS KAUFFMAN, Petitioner, vs. FRANKLIN DURAN, Respondent. 3rd District.

Torts -- Malicious prosecution -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Trial court erred in awarding attorney's fees pursuant to section 57.105, Florida Statutes, in favor of defendant, an unlicensed contractor who had filed an invalid lien against plaintiff's property, on the basis that plaintiff's malicious prosecution action against defendant was not supported by material facts or applicable law -- Evidence was sufficient to establish all elements required for a prima facie case of malicious prosecution, including legal malice and damages
COLLEEN J. MacALISTER, Appellant, v. BEVIS CONSTRUCTION, INC., and MICHAEL BEVIS, Appellees. 2nd District.

Torts -- Negligence -- Contractors -- Unlicensed contractor -- To be considered licensed under contract for construction of home for plaintiffs, defendant, as of date of contract, had to have a primary or secondary qualifying agent in accordance with statute concerning scope of work to be performed under the contract -- Trial court erred in entering judgment in favor of plaintiffs based on finding that defendant was acting as unlicensed contractor where defendant met this requirement -- Statute precludes considering events that occur after the contract date by instructing that a contractor be considered unlicensed “only if” the contractor is unlicensed at that specific time -- Licensure question under section 489.128(1) turns on whether the business organization is associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract, irrespective of whether that person ultimately obtains the permit and supervises the construction under the contract -- Evidence that defendant may have violated law by building home with a contractor other than the one whose name appeared on building permit, by using former agent's license when she was not affiliated with project, and by conducting project with inadequate supervision was irrelevant to narrow issue of whether defendant was licensed on date of contract
TAYLOR MORRISON SERVICES, INC. f/k/a Morrison Homes, Inc., Appellant, v. CAROL ECOS AND SUSAN BESSING, Appellees. 1st District.

Wrongful death -- Sovereign immunity -- State university's Athletic Association, a university direct-support organization, is entitled to limited sovereign immunity because the university has the right to control the association and exercises actual control over association -- Remand for entry of judgment corresponding to jury's award of damages but limiting athletic association's liability for payment to $200,000 pursuant to section 768.28(5), Florida Statutes
ENOCK PLANCHER, etc., Petitioner, vs. UCF ATHLETICS ASSOCIATION, INC., et al., Respondent. Supreme Court of Florida.


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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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