Sunday, October 3, 2010

Family law, child custody, consumer protection, foreclosure and assorted desserts

Dissolution of marriage -- Equitable distribution -- Error to treat an IRA account inherited by husband from his mother as a marital asset and to award it to wife -- Where parties entered into a stipulation to sell a commercial marital property, with wife to receive $250,000 from the sale proceeds, which she was to use as temporary support for herself and children, it was error for trial court to decline to treat the funds given to wife as either previously paid support or as a distributed asset -- Child support -- In calculating child support award, it was error to fail to deduct the amount of periodic alimony payable to wife in determining husband's net income
RANDY V. HEYSEK, Appellant/Cross-Appellee, v. MARY L. HEYSEK, Appellee/Cross-Appellant. 2nd District.
Taylor v. Homecomings Financial, LLC ,(N.D.Fla.) Real Property - Lender's disclosure of effects of negative amortization met Truth in Lending Act (TILA) requirements. Under Florida law, the plain language of a residential mortgage note, which repeatedly and unmistakably indicated that a mortgagor's monthly payments might not be sufficient to cover the interest, and that any deficiency would be added to the note's principal, did not require a mortgagee or a loan servicer to apply at least a portion of each monthly mortgage payment to the principal. Although the mortgagee made Truth in Lending Act (TILA) disclosures in a form that varied from sample language in a staff interpretation, the language was found to sufficiently notify the borrower of the effects of negative amortization.
Liens -- Home builder's equitable lien on undisbursed construction funds held by construction loan lender -- Where lender retained final construction draw after owner refused to proceed with required end closing on completed home construction, it was error to award builder an equitable lien on the undisbursed construction funds held by lender -- Because parties' written agreement authorized lender to retain the final construction draw if the owner did not proceed with the end closing, lender's retention of undisbursed construction funds was not inequitable under the circumstances, and builder failed to establish unjust enrichment necessary to establish its equitable lien claim
CTX MORTGAGE COMPANY, LLC, Appellant, v. ADVANTAGE BUILDERS OF AMERICA, INC., a Florida corporation, Appellee. 2nd District.
Mortgage foreclosure -- Intervention -- Trial court properly denied motion to intervene filed by parties who sought to intervene more than twenty days after mortgagee had filed foreclosure complaint and filed notice of lis pendens -- Section 48.23(1)(b), Florida Statutes (2008), which allows the holders of unrecorded property interests only twenty days from the recording date of a lis pendens to intervene in an action affecting property does not unconstitutionally violate the principle of separation of powers by infringing on the rulemaking authority of the Florida Supreme Court -- Statute is substantive, and any procedural provisions contained within it are intimately related to the definition of those substantive rights
KHILENA ADHIN, TENITA ISAACS, ET AL., Appellants, v. FIRST HORIZON HOME LOANS, ETC., ET AL., Appellee. 5th District.
Torts -- Premises liability -- Slip and fall on slippery substance in grandstand of greyhound track operated by defendant -- Trial court abused discretion in denying plaintiff's motion to amend complaint to allege breach of a nondelegable duty by defendant -- Court erroneously found that proposed amendment would be futile because statute of limitations on plaintiff's claims had run and proposed amendment would not relate back to original pleading which alleged active negligence -- Claim based on breach of nondelegable duty is not a separate and distinct cause of action from cause of action based on active or direct negligence -- Trial court erred in entering summary judgment for defendant on ground that complaint failed to state cause of action against defendant for breach of its nondelegable duty to maintain premises in reasonably safe condition because plaintiff had not specifically alleged either a breach of a nondelegable duty by defendant or a basis to impose vicarious liability on defendant for actions of cleaning company which had contracted to clean and maintain the facility, and that there was no basis for a claim against defendant for active negligence -- Cause of action for breach of a nondelegable duty and cause of action for vicarious liability have different rationales, and liability for breach of nondelegable duty is a direct liability
ROBERT L. ARMIGER, Appellant, v. ASSOCIATED OUTDOOR CLUBS, INC., and CLEAN SWEEP SUPPLY COMPANY, Appellees. 2nd District.
Wrongful death -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of estate's wrongful death claim against nursing home pursuant to arbitration provision in admission agreement -- Nursing home arbitration agreement executed by a patient is binding on his estate and survivors in wrongful death claim -- Question certified: Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient's estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement?
DEBRA LAIZURE, AS PERSONAL REPRESENTATIVE, ETC., Appellant, v. AVANTE AT LEESBURG, INC., a/k/a AVANTE AT LEESBURG OUTPATIENT REHAB., INC., AVANTE ANCILLARY SERVICES, INC., and AVANTE GROUP, INC., Appellees. 5th District.
Dissolution of marriage -- Equitable distribution -- Error to allocate parties' marital assets without accounting for decrease in value of husband's stock portfolio at time of final hearing -- Husband did not invite error by stipulating to amounts which were potentially subject to equitable distribution at time husband petitioned for dissolution where husband then requested court to account for decrease in stock portfolio's value by time of final hearing -- Husband's argument that final judgment is deficient because its form does not comply with statute is moot given reversal of final judgment, but trial court should insure on remand that form of final judgment complies with statute
KEVIN TILLMAN, Appellant, v. SEBILA ALTUNAY, Appellee. 4th District.
Dissolution of marriage -- Judgment -- Although trial court's verbatim adoption of husband's proposed final judgment, standing alone, did not establish that judgment did not reflect judge's independent decision-making, final judgment contained errors and omissions which created appearance that this was the case and reversal is required -- Child custody -- Error to order rotating custody where record was devoid of evidence that would support change in parenting schedule in effect at time of final hearing -- Moreover, parties reached mediation agreement which included stipulation to allow mental health therapist who was counseling children to recommend husband's visitation schedule, and therapist recommended against expanding visitation schedule that was in effect at time of hearing -- Equitable distribution -- Depleted assets -- Error to assign to wife funds withdrawn from her 401(k) account where testimony was uncontradicted that the depleted funds were used for marital expenses, and trial court made no finding of misconduct with respect to wife's use of funds -- Marital home -- Value assigned to marital home was not supported by findings of fact or competent substantial evidence -- Award of lump sum equalizing payment was apparently result of overvaluation of marital home and improper assignment to wife of her depleted 401(k) assets and must be reversed -- Moreover, even if assets had been valued and assigned properly, neither would have provided ability for wife to make the cash equalizing payment ordered
VICTORIA LYNN BISHOP, Appellant, v. TODD CAMERON BISHOP, Appellee. 2nd District.
Insurance -- Uninsured motorist -- New trial -- Trial court did not abuse discretion in granting insured plaintiff a new trial in action against insurer where court had entered summary judgment for plaintiff on liability, and jury awarded plaintiff zero damages upon finding that automobile accident was not a legal cause of any injuries to plaintiff -- Trial court did not abuse discretion by finding that jury verdict was contrary to manifest weight of evidence that plaintiff required some reasonable diagnostic testing where no evidence was presented that any of the diagnostic tests that were performed were not reasonable or necessary to determine whether the accident caused plaintiff's complained of injuries
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, vs. JUAN M. FLORES, Appellee. 3rd District.
Insurance -- Windstorm -- Authority of agent to bind insurer -- Where insurance application clearly provided, on page two, actual notice of limitations on insurance agent's authority to bind the insurer; applicant did not receive page two of application, but a printed line directly above the signature line on page one of application stated, “I further understand and agree to the terms as set forth on page 2”; and applicant's principal admitted that when he signed the application, he understood page two was part of the entire application but never asked to review the page, applicant was placed on inquiry notice and therefore subject to limitations imposed on agent by insurer -- Trial court erred in finding there was no evidence that applicant was ever put on notice of any limitations on agent's authority to bind coverage -- Trial court did not err by failing to apply incorporation by reference doctrine as to page two of insurance application as a matter of law where language on page one of application neither made it subject to terms and conditions on page two nor expressly referred to or described the agency disclaimer on page two
CITIZENS PROPERTY INSURANCE CORPORATION, a Florida corporation, Appellant, v. EUROPEAN WOODCRAFT & MICA DESIGN, INC., a Florida corporation, and GLOBAL INSURANCE SERVICES, INC., a Florida corporation, Appellees. 4th District.
Torts -- Cruise ship -- Punitive damages -- Discovery -- Trial court departed from essential requirements of law by granting plaintiffs leave to amend complaint to assert claim for punitive damages without conducting evidentiary inquiry to determine whether a reasonable basis exists for recovery of punitive damages -- Certain of plaintiffs' discovery requests are barred by appellate court's prior decision quashing discovery order and limiting scope of discovery, and trial court improperly denied defendant's motion for protective order as to those requests -- Remand with directions to assign case to a different judge
ROYAL CARIBBEAN CRUISES, LTD., Petitioner, vs. JANE DOE & JANE DOE, AS NATURAL PARENT AND GUARDIAN OF SARA DOE, A MINOR, Respondents. 3rd District.
Wrongful death -- Medical malpractice -- Error to rule that medical malpractice presuit requirements did not apply to negligence claim against hospital arising out of incident in which decedent, after having been admitted to hospital emergency room purportedly in a disoriented and confused state, fell off stretcher and suffered head injuries that caused his death where complaint asserted claims relating to hospital's standard of care in evaluating condition of patients admitted to emergency room and adequacy of hospital's procedures for managing and supervising patients admitted to emergency rooms
INDIAN RIVER MEMORIAL HOSPITAL, INC., Petitioner, v. KATHLEEN BROWNE, as Personal Representative of the ESTATE OF THOMAS BROWNE, Respondent. 4th District.
Landlord-tenant -- Eviction -- Standing -- Plaintiff lost standing to file eviction action for possession when final judgment of foreclosure was entered for leased premises and certificate of title was issued to lender
VIEW OPINION

Child custody -- Modification -- Venue -- Error to transfer venue on mother's supplemental petition to modify child custody order where venue was proper where petition was filed and no showing was made that another proper venue was more convenient
JESSICA RESOR, Appellant, v. CHRIS WELLING, Appellee. 5th District.
Dissolution of marriage -- Child support -- Error to fail to include in final judgment awarding child support any findings concerning incomes of parties -- Error to fail to address health care coverage for minor child, child care costs, and noncovered medical, dental, and prescription medication expenses
GLORIA L. WHITTINGHAM, Appellant, v. CHRISTOPHER A. WHITTINGHAM, Appellee. 2nd District.
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