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
GRAND RESERVE AT TAMPA CONDOMINIUM ASSOCIATION, INC., and BUSINESS LAW GROUP, P.A., Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AF1, Appellee. 2nd District.

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
ROBERT MILLARD HAYES and LINDA WEBSTER HAYES, husband and wife, Appellants, v. NORMAN HARRIS SERVICES, INC.; GORDON CUTHBERTSON; and ENVIROGREEN LANDSCAPE MAINTENANCE, INC., a Florida corporation, Appellees. 2nd District.

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
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. PREMIER DIAGNOSTIC CENTERS, LLC, (A/A/O SHERRY DUJON, DOLORES LANCASTER, MARIA LOPEZ), Respondent. 3rd District.

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
CORNERSTONE INVESTMENT FUNDING, LLC, Appellant, v. PAINTED POST GROUP, INC., Appellee. 4th District.

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
NEAPOLITAN ENTERPRISES, LLC, Appellant, v. THE CITY OF NAPLES, OLDE NAPLES BUILDING LLC, and BROAD AVENUE LLC, Appellees. 2nd District.

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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Friday, December 18, 2015

In New Jersey bridge scandal federal judge criticizes BigLaw firm's 'unorthodox approach'

"A federal judge is taking Gibson, Dunn & Crutcher to task for failing to preserve contemporaneous interview notes in an investigation that found no wrongdoing by New Jersey Gov. Chris Christie in a lane closing scandal In a decision (PDF) on Wednesday, U.S. District Judge Susan Wigenton of Newark said the law firm took an “unorthodox approach” by overwriting lawyers’ electronic interview notes to produce an edited, final version.. . . .“Although [Gibson, Dunn & Crutcher] did not delete or shred documents,” Wigenton wrote, “the process of overwriting their interview notes and drafts of the summaries had the same effect. This was a clever tactic, but when public investigations are involved, straightforward lawyering is superior to calculated strategy. The taxpayers of the state of New Jersey paid GDC millions of dollars to conduct a transparent and thorough investigation. What they got instead was opacity and gamesmanship. They deserve better.”" More.

Originally posted in ABA Journal News by Debra Cassens Weiss, Dec. 17, 2015

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Saturday, December 5, 2015

Little-known hospital billing practice can negate Medicare coverage of later nursing-home stay

"Under rules implementing the Affordable Care Act, hospitals can be penalized if too many patients return for further treatment within 30 days of being discharged.
So, to avoid the penalty, a number of hospitals are admitting return patients under “observation status” to keep them out of the readmission statistics. Although patients get the same treatment, taxpayers save money because the hospitals generally get reimbursed at a lower “outpatient” rate for observation patients, the Wall Street Journal (sub. req.) reports.
However, the practice can prove costly for consumers. As outpatients, they may be required to cover a larger portion of the bill than they would be charged as inpatients. And, for those who need to spend time at a nursing home after being released from the hospital, Medicare won’t pay the bill. Under the program, individuals must be formally admitted to the hospital for three days prior to the nursing home stay for it to be covered by Medicare, and “observation” patients don’t meet that requirement."
More.

Originally posted in ABA Journal News by Martha Neil, Dec. 3, 2015

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Tuesday, November 10, 2015

DOJ reveals in new indictment that hacking schemes were 'breathtaking in size and scope' targeted 12 companies, obtained data on 100 million

"Expanding charges in a case against two Israeli men and a U.S. citizen, a federal prosecutor on Tuesday unsealed a superseding indictment (PDF) and accused them of playing a role in a sprawling years-long series of hacking schemes that stole personal data for 100 million people and targeted as many as a dozen companies"  More.

Originally posted in ABA Journal News, Nov. 10, 2015 by Martha Neil.

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Saturday, October 24, 2015

Easley appointed President of the Rosemary Barkett Appellate Inn of Court

Congratulations to Dorothy F. Easley on her recent appointment as President of the Rosemary Barkett Appellate Inn of Court, 2015-16. The RBIC, named in honor of former Florida Supreme Court Justice and Eleventh Circuit Judge Rosemary Barkett, was established by Florida Third District Court of Appeal Judge Vance Salter in 2011. It serves to advance current appellate issues, professionalism, ethics, and mentoring.

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Friday, October 9, 2015

Consumer rights, constitutional law, and grilled salmon topped with freshly grated wasabi-ginger-honey paste



Third Circuit:
Witasick v. Minn. Mut. Life Ins, Co.
Court: U.S. Court of Appeals for the Third Circuit Docket: 14-1150 Opinion Date: October 1, 2015
Areas of Law: Contracts, Insurance Law, White Collar Crime
Witasick was covered by a disability policy and a business overhead expense policy. His claims against both policies were honored. A dispute arose concerning coverage of some claimed business expenses. After years of negotiation, the parties settled: the insurer agreed to pay more than $4 million and Witasick agreed to release known, unknown, and future claims. The settlement contained a covenant not to sue, based on “any conduct prior to the date the Parties sign this document, or which is related to, or arises out of” the policies. During negotiations, the U.S. Government notified Witasick that he was the target of a grand jury investigation related to fraud and business expense claims on his income tax returns. Witasick was indicted in 2007. To support its charge of mail fraud, the government relied on information and documents Witasick had submitted to the insurer. An employee of the insurer testified before the Grand Jury and at Witasick’s trial. Witasick was convicted on most counts, but acquitted of mail fraud, and was sentenced to 15 months’ imprisonment. In 2011, Witasick sued the insurer based on the policies and cooperation with the prosecution. The Third Circuit affirmed dismissal, finding the claims prohibited by the settlement agreement.
http://j.st/4s69


Fifth Circuit:
Ferguson v. Bank of New York Mellon
Docket: 14-20585             Opinion Date: October 1, 2015
Areas of Law: Banking, Real Estate & Property Law
 After plaintiffs defaulted on their residential mortgage loan, they sought to enjoin BNY from foreclosing by claiming that the assignment of the deed of trust (DOT) to BNY was void. Plaintiffs also filed a false-lien claim under Texas Civil Practice and Remedies Code 12.002 against BNY and MERS. The district court granted BNY's motion to dismiss. The court concluded that plaintiffs lack standing to challenge BNY’s efforts to foreclose on the ground that MERS’s assignment to BNY was void for violating the PSA. Because plaintiffs have failed to plead facts showing BNY’s lien was in fact fraudulent, plaintiffs have failed to state a false lien claim under Texas Civil Practice and Remedies Code 12.002. Accordingly, the court affirmed the district court's judgment.

Fifth Circuit:
Cole v. Hunter
Court: U.S. Court of Appeals for the Fifth Circuit Docket: 14-10228, Docket: 15-10045           Opinion Date: September 25, 2015
Areas of Law: Civil Rights, Constitutional Law
After Ryan Cole, a seventeen-year-old, was severely injured in an armed encounter with police, he and his parents filed suit against the officers for, among other things, use of excessive force in violation of Ryan's Fourth Amendment rights. The district court denied Defendant Carson’s motion to dismiss and Defendants Hunter and Cassidy’s motion for summary judgment, rejecting the officers’ immunity defense at the motion stage of the case. Under plaintiffs’ version of the facts, the court concluded that it was objectively unreasonable under clearly established law to shoot Ryan. Consequently, the fact disputes identified by the district court - including the central issue of whether Ryan pointed his gun at an officer - are material, and the court dismissed the appeal for lack of jurisdiction. However, the court affirmed the district court’s refusal to dismiss the due process claim relating to fabrication of evidence. Finally, the court concluded that the district court erred in allowing all other claims to proceed.
http://j.st/4s7W

Seventh Circuit:
Defender Sec. Co. v. First Mercury Ins. Co.
Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-1805            Opinion Date: September 29, 2015
Areas of Law: Communications Law, Consumer Law, Contracts, Insurance Law
Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven.
http://j.st/4s8V


Ninth Circuit:
Bradford v. Scherschligt
Court: U.S. Court of Appeals for the Ninth Circuit Docket: 14-35651              Opinion Date: September 25, 2015
Areas of Law: Civil Rights, Constitutional Law
After plaintiff served his full ten-year sentence, the State of Washington vacated his residential burglary and rape conviction based largely on newly-available DNA testing. Plaintiff subsequently filed suit under 42 U.S.C. 1983 against defendant, a police detective, alleging the deliberate fabrication of evidence. The district court found that plaintiff's claim was time-barred and granted summary judgment for defendant. The court held that plaintiff’s claim did not accrue until he was acquitted of all charges on February 10, 2010. Therefore, the court concluded that plaintiff filed the underlying action within the three-year statute of limitations period, and it was error to dismiss his deliberate fabrication of evidence claim as time-barred. The court declined to address defendant’s qualified immunity defense, and remanded for the district court to consider it in the first instance.
http://j.st/4s8T

11th Circuit:
Bankruptcy -- Confirmation -- Chapter 13 plan -- Modification -- Modified plan which proposes plan payments to creditors that escalate over time, with two step-up payments to a fixed payment in months 10-59 and a balloon payment in month 60 of plan, is not confirmable -- Even if, because of the failed mortgage modification mediation, the two step-ups do not violate requirements of 11 U.S.C. section 1325(a)(5), modified plan is not confirmable because debtors have failed to prove the plan is feasible by providing any evidence that would support their ability to make the balloon payment in month 60 of plan -- Because the modified plan is not confirmable and debtors have not been paying the real estate taxes on property, creditor is entitled to complete relief from stay
In re GENE C. LENTZ and MARIA LENTZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida. Case No. 14-15585-BKC-LMI, Chapter 13. January 16, 2015. Laurel M. Isicoff, Judge.

11th Circuit:
Bankruptcy -- Exempt property -- Homestead -- Chapter 7 debtor, who believed he had conveyed his interest in a home by quit-claim deed prior to bankruptcy filing, cannot claim the homestead exemption on property he did not believe he owned at time of his original bankruptcy filing -- To qualify for homestead protection under Florida law, an individual must occupy the property and have actual intent to permanently live in that property, and based on undisputed facts debtor could not have legally intended to permanently reside in the home at time he filed for bankruptcy when he unequivocally stated that he did not believe that he had an ownership interest in home at that time after either conveying or attempting to convey his interest to his son and daughter-in-law
Reopening of proceeding -- Notice -- Debtor failed to properly provide notice to creditor of reopening of case and his intent not only to schedule previously undisclosed property, but also to avoid creditor's properly perfected judgment on that property by claiming a homestead exemption -- Because of debtor's failure to properly serve the Motion to Reopen on creditor in accordance with local rules and bankruptcy rules, creditor's objection to debtor's new homestead exemption claim and creditor's objection to the Motion to Avoid Lien are deemed timely
In re: PYARALI R. CHARANIA, Debtor. U.S. Bankruptcy Court, Southern District of Florida. Case No. 07-14000-RAM, Chapter 7. December 8, 2014. Robert A. Mark, Judge.


11th Circuit:
Bankruptcy -- Judges -- Recusal -- Where Chapter 11 debtor appealed both fee order granting in part fee applications submitted by debtor's counsel and directing counsel to account for all trust account transactions involving debtor as well as order denying counsel's motion for reconsideration, and debtor subsequently filed motion for recusal of bankruptcy judge, the appropriate action for the bankruptcy court, under the circumstances, was to defer ruling on the recusal motion until such time as it was clear that the court had jurisdiction over the singular issue remaining to be determined in the case -- Under the controlling “flexible finality” standard, the bankruptcy court's fee order, reconsideration order, and order setting evidentiary hearing on accounting matter did not appear to be “final,” but if those orders were properly before the district court, the bankruptcy court was at least arguably divested of jurisdiction to proceed further on any matters fairly within ambit of appeal, and it would be inappropriate for bankruptcy court to proceed on any substantive matter until recusal motion had been ruled upon
In re: ANNA MARIA SANDERS, Debtor. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division. Case No. 13-11065-JKO, Chapter 11. February 26, 2015. John K. Olson, Judge.

11th Circuit:
Civil rights -- Public employees -- Speech -- Retaliation -- Political affiliation -- Gender discrimination -- Deputy sheriff appeals grant of summary judgment to city-county government and its sheriff on claims under 42 U.S.C. §1983 alleging that, upon taking office after winning his election, sheriff transferred her to less prestigious position in sheriff's office with less responsibility and authority because she supported his opponent in the election -- District court properly granted summary judgment to consolidated government on First Amendment claim alleging transfer violated plaintiff's rights against employer retaliation based on political affiliation on ground that claim was foreclosed as matter of law by Eleventh Circuit precedent, despite fact that consolidated government's civil service system prohibits employment decisions based on political patronage -- Under Eleventh Circuit precedent, a deputy sheriff fails as a matter of law to plead a First Amendment Claim for an adverse employment decision based on patronage wherever the duties and powers of deputy sheriff and sheriff are the same -- Political loyalty is appropriate requirement for job of deputy sheriff in Georgia -- District court properly granted summary judgment to defendants on plaintiff's Fourteenth Amendment gender discrimination claim where no genuine dispute existed over whether sheriff's proffered reason for plaintiff's transfer were a pretext for discrimination -- Plaintiff failed to create a genuine issue for trial with regard to pretext by failing to cast sufficient doubt on reasoning behind sheriff's reorganization plan for part of sheriff's officer over which plaintiff formerly had control, such that a reasonable juror could find that sheriff's explanation was not believable
TERRI EZELL, Plaintiff-Appellant, v. JOAN B. WYNN, et al., Defendants, JOHN DARR, Individually and in his Capacity as Sheriff of Muscogee County, COLUMBUS CONSOLIDATED GOVERNMENT, Defendants-Appellees. 11th Circuit.


11th Circuit:
Civil rights -- Prisoners -- Prison conditions -- Exhaustion of administrative remedies -- District court reversibly erred in dismissing prisoner's 42 U.S.C. §1983 prison-conditions suit for failure to exhaust administrative remedies established by prison -- In holding that prisoner's informal grievance did not exhaust administrative remedies, district court erred by not following two-step process created by Eleventh Circuit precedent for deciding exhaustion challenges -- District court neither took the first step of accepting plaintiff's facts as true and asking whether, given those facts, plaintiff's grievance exhausted his administrative remedies nor proceeded to second step of identifying particular factual disputes and then making specific findings to resolve those disputes and decide whether the grievance exhausted administrative remedies -- In holding that plaintiff's grievance did not exhaust administrative remedies, district court erred by enforcing a procedural bar that prison itself may have waived -- District courts may not enforce a prison's procedural rule to find a lack of exhaustion after prison itself declined to enforce the rule -- A prisoner has exhausted his administrative remedies when prison officials decide a procedurally flawed grievance on the merits
SHAWN WAYNE WHATLEY, Plaintiff-Appellant, v. WARDEN, WARE STATE PRISON, RODNEY SMITH, Corrections Officer (C.E.R.T. Team) Telfair State Prison, EXAM NURSE, Ware State Prison, MICHAEL GRIFFIN, Supervisor of Lock Down Unit & Tactical Squad Commander, Ware State Prison, Defendants-Appellees. 11th Circuit.



11th Circuit:
Wrongful death -- Medical malpractice -- Federal Tort Claims Act -- Action alleging negligent conduct of medical providers and failure to adequately credential, train, and supervise medical providers arising from allegedly negligent treatment decedent received from medical providers at Veteran's Affairs Medical Center -- Damages -- Statutory cap -- Waiver -- 24 L.P.R.A. § 10035 imposes a cap on medical malpractice liability for regional academic medical centers and “the students, physicians in postgraduate training and the faculty members thereof, for the medical procedures practiced in said Centers in the exercise of their teaching duties” -- This cap on damages is an affirmative defense -- United States waived its defense that facility at issue in this case was an RAMC, making statutory cap on damages applicable, where it failed to raise damages cap as an affirmative defense in its pleadings and engaged in discovery tactics which resulted in unfair prejudice to plaintiffs which could not be cured -- Motion for summary judgment premised on application of 24 L.P.R.A. section 10035 denied
JOSEFA QUINONES, JESSICA MARTINEZ, JUAN QUINONES and ALEXA QUINONES, Plaintiffs, v. USA, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:14-cv-164-T-36MAP. June 29, 2015. Charlene Edwards Honeywell, Judge.




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