Saturday, October 16, 2010

Blue skies and cappucino with attitude while enjoying the latest in interesting law

Coton v. Televised Visual X-Ography, Inc. ,(M.D.Fla.)
Torts - Photographer was entitled to compensatory damages for company's unauthorized use of her image on cover of pornographic movie.
A photographer was entitled to compensatory damages of $100,000 for a video company's defamation by implication, under Florida law, via the unauthorized use of her self-portrait on the packaging of a pornographic movie. The photographer stated that the use of the photograph was humiliating and distressing, and caused her to become depressed. She also stated that she was shocked, disgusted, and ashamed when she saw the image being used in association with a pornographic movie, and that the use of the photograph caused her stress and problems with her family and friends. The photographer worried that being associated with a pornographic movie would harm her career. The photographer's humiliation and distress was compounded by the company president's offensive and belittling email responses to her requests to remove the photograph from the movie packaging. The photographer gave up photography for several months. She had trouble sleeping and eating.

Dissolution of marriage -- Alimony -- Error to fail to award retroactive alimony dating back to date dissolution petition was filed and to fail to award prejudgment interest on husband's alimony arrearage -- Trial court's finding that award of retroactive alimony would overlap with temporary alimony award failed to account for interim between date dissolution petition was filed and date temporary award was entered
BILLIE LUTZ GREMEL, Appellant, v. KIRK ALLAN GREMEL, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Pension -- Where facts showed that husband, under partnership agreement with law firm, received credit for 100 months of service that occurred prior to marriage, trial court erred in ruling that 100% of the pension was marital in nature -- Commingling of withdrawals as they were received and use of those funds by the parties jointly did not change nature of entire asset from non-marital to marital -- Remand for further proceedings to determine value of marital portion of pension -- Error to include in final judgment conflicting provisions as to marital residence or farm expenses where parties had a clear agreement regarding these expenses which was made in and accepted in open court
EGERTON K. VAN DEN BERG, Appellant/Cross-Appellee, v. CAROLINE M. VAN DEN BERG, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Temporary alimony and child support -- Trial court erred by awarding wife temporary alimony and child support in an amount which exceeded husband's net income
ATEF AZIZ, Appellant, v. SHEREEN AZIZ, Appellee. 2nd District.

Child support -- Where Department of Revenue had filed action for child support on behalf of mother, and trial court determined, after evidentiary hearing, that no child support payments were necessary because child spent equal time with each parent, and mother neither appealed that order nor filed a petition for modification of chid support based on change of circumstances, trial court erred in entering order changing prior child support determination and directing father to pay child support -- Absence of transcript does not preclude appellate court from reviewing lower court judgment for error apparent on its face
RICHARD ALLEN HILL, Appellant, vs. VANESSA MARIA CALDERIN, Appellee. 3rd District.

Dissolution of marriage -- Arbitration -- Parties were not entitled to arbitrate post-judgment dispute regarding financial matters -- Arbitration provision in parties' assets agreement regarding financial issues was not enforceable
FAUSTINO MARTINEZ, Appellant, vs. FULYA KURT, Appellee. 3rd District.

Dissolution of marriage -- Child support -- Modification -- Error to enter summary judgment, as recommended by hearing officer, ordering husband to make monthly child support payments to former wife on ground that parenting plan in final judgment called for child to spend at least 40 percent of overnights of the year with wife where there were disputed issues of material fact as to whether grounds existed for deviating from presumptive support award under the guidelines -- Under parenting plan, time parties' child would spend with wife was speculative, depending entirely on wife's willingness and ability to satisfy significant advance conditions; and evidence was presented showing that wife had failed to meet the conditions and had actually exercised very few overnight visitations with child -- Moreover, marital settlement agreement required husband to shoulder almost total financial responsibility for child and wife agreed to provide child's health and dental insurance; and court must have considered this agreement to be an equitable deviation from child support award called for under the guidelines, whether calculated in usual manner or as adjusted for substantial timesharing, since it approved agreement and incorporated it in final dissolution judgment -- Finally, hearing officer's child support calculation was based solely on financial affidavits, notwithstanding husband's protestations that wife had failed to make complete financial disclosures and the fact that wife's financial claims were significantly impeached in sworn filings in opposition to motion for summary judgment -- Remand for further proceedings

Dissolution of marriage -- Jurisdiction -- Residency requirement -- Error to deny husband's motion to dismiss wife's dissolution petition, in which he alleged that circuit court did not have subject matter jurisdiction because husband did not meet residency requirement, without making any findings regarding where husband resided before wife petitioned for divorce in Florida -- Wife, as party petitioning for dissolution, has burden of proving that the residency requirement is satisfied
CONRAD S. MIKULEC, Petitioner, v. PATRICIA HIGGINS MIKULEC, Respondent. 4th District.

Torts -- School boards -- Action against school board seeking damages for injuries suffered by student when she walked into traffic at school bus stop and was struck by vehicle -- Because school board did not have control over student at time of accident, trial court did not err in dismissing complaint with prejudice
JULIE WINSLOW, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY, Appellee. 1st District.

Gear Shift: LOUISIANA APPEALS COURT AFFIRMS $5 MILLION VERDICT IN CHILD-DEATH CASE, Guillot v. DaimlerChrysler Corp., 30 No. 8 Westlaw Journal Automotive 1, Westlaw Journal Automotive October 12, 2010
A Louisiana appeals court has affirmed a $5 million verdict to the family of a child taken off life support after being removed from his pregnant mother following an automobile accident that crushed her midsection. A 2-1 majority of the state's 4th District Court of Appeal said the damages were not excessive given the circumstances of the case and the emotional trauma the parents suffered.The record says August and Juli Guillot and their 3-year-old daughter, Madison, got into the family's 1999 automobile.

Gear Shift: GEORGIA GRANDMOTHER RUN OVER BY OWN CAR WINS $1 MILLION, Roper v. Chrysler Motors, 30 No. 8 Westlaw Journal Automotive 2, Westlaw Journal Automotive October 12, 2010
A state court jury in Fulton County, Ga., has awarded a 77-year-old woman $1.1 million after she was run over by her own 1994 Dodge Intrepid when the gear shift slipped out of the park position. Plaintiff's attorney Lance A. Cooper of Marietta, Ga., said in a press statement that several jurors had mothers who were about the same age as the plaintiff, Ramona Roper."They were very concerned about my client's future and wanted to make sure that she was taken care of," Cooper said.

Birth Injury: APPEALS COURT REJECTS 'SHOCKINGLY LOW' DAMAGES AWARD IN BIRTH INJURY CASE, Worden v. Injured Patients & Families Comp. Fund, 6 No. 10 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice October 8, 2010
Calling a jury award "shockingly low," a Wisconsin appeals court has ordered a new trial on noneconomic damages only in a malpractice action brought by a family whose child suffered a catastrophic brain injury at birth. The jury's $150,000 award for Autumn Worden's pain and suffering and $150,000 to her parents for the loss of their daughter's society and companionship and its failure to award anything for Autumn's future loss of earning capacity was "so unreasonably low as to shock our conscience."

Wrongful Death: PLASTIC SURGEON MUST PAY NEARLY $2 MILLION OVER YOUNG MOM'S DEATH, Lopez v. Galumbeck., 6 No. 10 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice October 8, 2010
A jury has awarded $1.95 million in the case of Virginia woman who died following cosmetic surgery, finding the plastic surgeon negligently sent her home less than an hour after completing the procedures even though she was having trouble breathing. Maritess Lopez, 36, died from aspiration pneumonia less than 40 hours after Dr. Matthew A. Galumbeck performed a "mommy makeover" July 30, 2008, according to the complaint filed in the Virginia Beach Circuit Court.

Wrongful Death: INADEQUATE EXPERT REPORT DOOMS ESTATE'S WRONGFUL-DEATH CLAIMS, Christus Spohn Health Sys. Corp. v. Lackey, 6 No. 10 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice October 8, 2010
A Texas appeals panel has dismissed wrongful-death claims a deceased woman's estate brought against a nursing home and a hospital, finding deficiencies in the estate's expert reports. Reports filed by a registered nurse and a doctor about the care Margaret Baker Lackey received at the facilities failed to demonstrate a causal link between the facilities' alleged negligence and her death, the Court of Appeals held.Although it reversed a trial court's denial of summary judgment to Christus Spohn.

News in Brief: NEWS IN BRIEF, 17 No. 17 Westlaw Journal Medical Devices 10, Westlaw Journal Medical Devices October 11, 2010
Wright Medical pays $7.9 million in kickback settlement Wright Medical Technology will pay $7.9 million to settle federal allegations it engaged in marketing practices that resulted in the submission of fraudulent reimbursement claims to the federal Medicare program. In a deal announced Sept. 30 by the U.S. attorney's office in Newark, N.J., the medical device maker also agreed to 12 months of federal monitoring in the wake of criminal charges it violated anti-kickback laws by paying surgeons.

Johnson v. State ,(Fla.)
Criminal Justice - It was per se reversible error when trial judge preemptively instructed jury that it could not have testimony read back.
It is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. In so holding, the Supreme Court reasoned that a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury.

Criminal law -- Prisoners -- Presumptive parole release date -- Prisoner Indigency Statute -- An action challenging the Florida Parole Commission's determination of an inmate's presumptive parole release date is a collateral criminal proceeding for the purposes of section 57.085(10), Florida Statutes (2009), which exempts such proceedings from the fee and lien provisions of section 57.085 -- It was error to impose lien on inmate's trust account for costs associated with inmate's non-frivolous petition for writ of mandamus challenging Commission's determination of his presumptive parole release date
FLORIDA PAROLE COMMISSION, Petitioner, vs. JOSEPH ROBERT SPAZIANO, Respondent. Supreme Court of Florida.

Criminal law -- Lewd and lascivious molestation -- Jury instructions -- Trial court did not err in refusing to give jury instruction on simple battery as lesser included offense where information did not allege that touching of victim was against will of victim -- Evidence -- Hearsay -- No error in sustaining state's hearsay objection to questions which defense attempted to ask victim's mother regarding victim's alleged recantation where defense did not question victim about alleged recantation when she was on stand, and thus failed to lay proper foundation for impeachment -- Trial court did not abuse discretion in denying motion for mistrial on basis of allegedly improper closing argument regarding consistency of victim's testimony
RONALD BARNETT, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Opinion filed October 13, 2010.

Criminal law -- Manslaughter -- Self-defense -- Evidence -- Where defendant claimed that he shot victim in self-defense, trial court did not abuse discretion by prohibiting defendant from introducing evidence of victim's reputation in the community for carrying firearms unless defendant could first demonstrate that, prior to the shooting, he was aware of victim's reputation in the community for carrying firearms
LEONEL MUNOZ, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- District court committed no error, plain or otherwise, in imposing 10-year mandatory minimum sentences on three counts of indictment, notwithstanding any disparity created by 100:1 crack-to-powder cocaine ratio -- District court was not authorized to impose sentence below statutory mandatory minimum where government did not file substantial assistance motion under Section 3553(e) and defendant did not qualify for safety-valve exception of Section 3553(f)
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GREGORY ANTHONY GOMES, Defendant-Appellant. 11th Circuit.

Criminal law -- Possession of firearms and ammunition on school property -- No error in denying motion to dismiss charge on ground that firearms at issue were located in private conveyance and securely encased and not immediately available -- Subsection of statute permitting possession of a securely encased firearm for “lawful purpose” within interior of private conveyance did not apply in defendant's case where he was on probation at the time, and condition of probation required that defendant not possess any weapons
STEPHEN MICHAEL BELCHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

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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
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
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?
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
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
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

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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