Sunday, November 21, 2010

Wild boar with juniper berries, cranberry orange sauce and legal stuffings

Criminal law -- Sentencing -- Motion to file a supplemental brief to assert, for the first time, a challenge to defendant's sentence under Blakely v. Washington should be denied where defendant waived the right to file supplemental brief attacking his sentence by failing to raise issue in his initial brief, and court can discern no miscarriage of justice that would result on account of defendant's inability to raise proposed Blakely issue -- Long-standing rule in Eleventh Circuit that issues not properly raised in initial brief are deemed abandoned applies in context of a Blakely-based claim sought to be raised by way of supplemental briefing
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARLAND GEORGE CURTIS, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Unopposed motion for continuance of resentencing hearing pending review in United States Supreme Court of decision of United States Court of Appeals which obligates trial court to impose 30-year sentence rather than 17-and-a-half-year sentence initially imposed for offense of production of child pornography for transportation into this country -- Motion granted -- Response to order of Court of Appeals to detail sentencing factors considered by trial court in sentencing defendant in order to assist Supreme Court in determining whether petition for writ of certiorari ought to be granted
UNITED STATES OF AMERICA vs. WILLIAM IREY. U.S. District Court, Middle District of Florida, Orlando Division.

Criminal law -- All writs petition seeking order directing Florida Department of Law Enforcement to either upload DNA profile from semen and secretions found at crime scene into Combined DNA Index System and Florida statewide DNA database for comparison, or perform a one-time manual keyboard search comparing DNA profile to profiles in CODIS and Florida DNA database -- Petition is not procedurally barred -- Jurisdiction relinquished to circuit court to hold evidentiary hearing on specified issues
PAUL CHRISTOPHER HILDWIN, Petitioner(s), vs. STATE OF FLORIDA, Respondent(s) Supreme Court of Florida.

Criminal law -- Murder -- Attempted murder -- Armed robbery -- Death penalty -- Evidence -- Prior bad acts -- No abuse of discretion in permitting testimony of victims' daughter, who was present at scene of crimes, to testify that she had prior relationship with defendant which was built around drugs and that the two bought from and sold drugs to one another -- Evidence was not similar fact Williams rule evidence, but dissimilar fact evidence which established relevant context leading up to charged crimes -- Probative value was not substantially outweighed by prejudicial effect -- Jury question -- No error in trial court's response to guilt-phase jury's question seeking clarification of conscious intent element of “principal” jury instruction -- Sentencing -- No abuse of discretion in denying motion for mistrial based on prosecutor's isolated reference to World Trade Center attack during penalty-phase closing argument, as any error was harmless in light of evidence of aggravation presented against defendant -- Victim impact evidence -- Claim that victim impact evidence was excessive and inflammatory was not preserved for review, and defendant failed to establish fundamental error or due process violation as result of admission of victim impact evidence in this case -- Aggravating circumstances -- No error in finding that murder was committed to avoid arrest, that murder was cold, calculated and premeditated, and that murder was heinous, atrocious or cruel -- Challenge to constitutionality of Florida's capital sentencing scheme based on Apprendi v. New Jersey and Ring v. Arizona is without merit -- Florida's capital sentencing scheme does not violate federal constitutional rights to due process and fair jury trial -- Death penalty is proportionate
RENALDO DEVON McGIRTH, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Probation revocation -- Claim of scoresheet error on initial Criminal Punishment Code sentencing scoresheet utilized when defendant is placed on probation may be raised for first time after revocation of probation -- If claim of error is timely raised in rule 3.800(b)(2) motion during appeal from revocation of probation, claim is preserved for review in that appeal
JAMIE LEE TASKER, Petitioner, v. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Rules of Juvenile Procedure -- Amendment -- Detention hearing -- Presence of counsel

Manuel v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant's sentences of life in prison without parole for armed robbery and attempted murder were unconstitutional.
Defendant's sentences of life in prison without the possibility of parole for the non-homicide offenses of robbery with a firearm and attempted first- degree murder with a firearm were unconstitutional as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Defendant was 13 years old at the time the offenses were committed, and juveniles could not be sentenced to life in prison without parole for non-homicide offenses.

This decision may not yet be released for publication.

Fessenden v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant whose convictions were reversed because his acts were not criminal was not a "wrongfully incarcerated person."
The Florida District Court of Appeal's earlier legal opinion that the acts committed by defendant did not constitute grand theft or violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which resulted in defendant's convictions of those offenses being vacated, did not constitute "exonerating evidence" establishing the defendant's actual innocence of the offenses. Therefore, as a matter of apparent first impression, the District Court of Appeal held that the defendant was not a "wrongfully incarcerated person" entitled to compensation under the Victims of Wrongful Incarceration Compensation Act. The error that resulted in defendant's convictions was one of law, rather than one of fact.

This decision may not yet be released for publication.
R.I. v. Department of Children And Families ,(Fla.App. 4 Dist.)
Government - Agency was not required to pay any fees for establishment of special needs pooled trust for developmentally disabled teenager.
In a matter of first impression, the District Court of Appeal of Florida has held that the Department of Children and Families, as trustee of a master trust into which a developmentally disabled teenager's Social Security disability benefits were paid, was not required to pay any administrative fees or costs for the establishment of a special needs pooled trust for the teenager, who had attained the age of 18. The Court held that the Department was authorized by statute to expend the teenager's trust assets for his benefit, including the payment of fees to establish a special needs pooled trust for the teenager. The Court explained that the teenager's joining the special needs pooled trust allowed him to conserve his assets and ensure continued eligibility for public assistance. Thus, paying the $500 administrative fee to join the special needs pooled trust was an appropriate expenditure of trust funds.

This decision may not yet be released for publication.

Civil rights -- Action against deputy sheriff alleging use of excessive force when plaintiff was brought to county jail and deliberate indifference to plaintiff's serious medical needs while plaintiff was detained in jail -- District court properly denied defendant's motion for summary judgment and qualified immunity on excessive force claim -- District court erred in denying defendant's motion for summary judgment on claim of deliberate indifference to serious medical needs where plaintiff received reasonably prompt medical attention and received continuous medical care from jail nurse until she was taken to hospital -- Even if a constitutional violation based on deliberate indifference was shown, defendant is entitled to qualified immunity -- No preexisting law clearly established that an approximately two-to-five minute delay of medical care is a constitutional violation
MARCELLA POURMOGHANI-ESFAHANI, Plaintiff-Appellee, v. DAVID GEE, Sheriff of Hillsborough County, individually, SHANNA MARSH, Hillsborough County Deputy, individually, Defendants-Appellants, JOHN DOES, Numbers 1 through 7, individually, et al., Defendants. 11th Circuit.

Insurance -- Breach of contract action by insured against insurer to determine whether insured suffered covered damages under property insurance policy -- Evidence -- Insurer's motion in limine to prevent insured from presenting evidence of insurer's bad faith or claims handling practices -- Motion granted -- Evidence of insurer's claims handling procedures is irrelevant to determination of coverage and damages -- Insurer's motion in limine to preclude insured from introducing evidence of other claims against insurer including affirmative defenses used by insurer in other cases -- Motion granted, but insured will be permitted to cross-examine insurer's experts about their involvement in other cases, and insurer will be permitted to question insured's witnesses about their involvement in other cases
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Disability -- Evidence -- Where the only damages to which plaintiff would be entitled if he prevailed in his breach of contract claim against disability insurer are benefits that accrued through the date suit was filed, and the sole issue is whether plaintiff can meet his burden of establishing that he was totally disabled, evidence regarding defendant's bad faith and claims handling and business practices, evidence of plaintiff's emotional distress during claims handling process, evidence regarding consequential damages, and evidence of plaintiff's post-suit mental condition is all irrelevant and inadmissible -- Defendant's motion in limine to exclude such evidence granted
LOWELL D. KENNEDY, M.D., Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Insured's claims against property insurer related to damage to insured property allegedly caused by hurricane -- Evidence -- Hearsay -- Insured's motion in limine to bar insurer from introducing examination under oath testimony of insured's corporate representative -- Motion denied -- Examination under oath testimony is an admission by a party opponent through its designated corporate representative, and is deemed to be not hearsay -- Testimony during examination under oath is not admissible as former testimony so long as witness remains available to testify at trial
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Torts -- Maritime law -- Jurisdiction -- Arbitration -- Action by Nicaraguan seaman alleging claims for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide adequate medical care was properly removed from state court to federal court pursuant to Convention on Recognition and Enforcement of Foreign Arbitral Awards -- Because a party may remove a matter under the Convention at any time prior to trial, removal was timely -- There is no merit to plaintiff's contention that employment contract containing arbitration provision is void as against public policy because he would be required to arbitrate his claims in Nicaragua applying Bahamian law, and will be unable to pursue his Jones Act claims -- A Jones Act claim is subject to arbitration under the Convention -- There is no merit to plaintiff's contention that he may avoid arbitration agreement because the costs of arbitration are prohibitive
HAROLD LEONEL PINEDA LINDO, Plaintiff, vs. NCL (BAHAMAS) LTD. d/b/a NCL, Defendant. U.S. District Court, Southern District of Florida, Miami Division.

Wrongful death -- Torts -- Railroads -- Action against railroad for deaths and personal injury of occupants of automobile which was struck by train at railroad crossing where warning lights were flashing, but often flashed when no train was coming -- Jury instructions -- False activation of warning system -- Trial court properly instructed jury that a false activation is one caused by a condition that requires repair -- Court's instruction accurately defined “false activation” under federal law and accurately stated that plaintiff had not presented evidence of an activation matching that definition -- Court did not err in instructing jury not to consider train's speed because the train was in compliance with federal law -- Installation and maintenance of warning light system at crossing -- Taking all instructions together, jury was properly instructed that railroad could not be held liable for decision about which warning device to put in place or continue in place, but it could be held liable for any failure to repair an existing warning light -- Evidence -- Trial court did not err in excluding evidence of another train-car collision that had occurred at the crossing ten years before on the grounds that the prior collision was too remote in time and that the conditions were too dissimilar -- Further, court allowed evidence of another collision which occurred much closer in time and under similar circumstances -- Court did not err in allowing defendant to perform a demonstration of a train headlight for the jury
MARY MARGARET WRIGHT, Administrator of the Estate of Kevin Francis Wright, Jr., JILLIAN ALYCE WRIGHT, b.a.t. Mary Margaret Wright, Plaintiff-Consolidated-Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee. 11th Circuit.

Liens -- Judgment lien -- The re-recording of a certified copy of a judgment lien after the expiration of the original judgment lien imposes a new lien on real property held by the judgment debtor -- County court properly authorized levy on real property owned by party who purchased property from judgment debtor after re-recording of judgment

Torts -- Medical malpractice -- Hospitals -- Presuit requirements -- Corroborating expert medical opinion -- Although she had not been a hospital floor nurse for the preceding three years, the curriculum vitae and affidavits of nurse established that she had actively engaged in the practice of nursing and nurse consulting in the preceding three years, and that she was qualified to offer opinion regarding the prevailing professional standards of care for hospital nurses and an opinion on causation for purposes of presuit notice -- Trial court did not depart from essential requirements of law in denying defendant's motion to dismiss for failure to comply with presuit requirements
HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. DAVID WIRTH and RENEE WIRTH, Respondents. 5th District.

Administrative law -- Child support -- Administrative law judge did not have jurisdiction to require child's mother, on whose behalf Department of Revenue had initiated a proceeding under section 409.2563, Florida Statutes, to pay child support to child's maternal grandmother with whom child had been living -- ALJ lacked jurisdiction to order payments from “the parent from whom support is not being sought” -- ALJ did have jurisdiction to order that child's father, the parent from whom support is being sought, to pay child support to child's maternal grandmother
DEPARTMENT OF REVENUE, obo WENDY R. SMITH, Appellant, v. EPHRAIM SELLES, Appellee. 1st District.

Administrative law -- Rule challenge -- Administrative law judge erred in exercising jurisdiction to entertain a challenge to a rule as being an invalid exercise of delegated legislative authority where the rule had expired by repeal of its enabling statute

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Act -- Failure to provide purchasers with property report in advance of signing of contract -- No error in allowing purchasers to rescind contracts to purchase homes -- Exemption from ILSA's requirements applicable when contract obligates seller to erect building on property within two years did not apply where contract limited purchasers' remedy of specific performance by requiring purchasers to perform two conditions precedent before suing for specific performance -- Although circuit court incorrectly found that restrictions on remedy of specific performance were “invalid and unenforceable,” it correctly found that contract's savings clause did not apply -- Conditions themselves were valid and enforceable, and the only effect of including them in contract was to disqualify contract as being exempt from ILSA's requirements -- Error to calculate prejudgment interest from date purchasers demanded rescission, rather than from date purchasers paid their deposit
KOLTER SIGNATURE HOMES, INC., a foreign corporation, and VILLAGER REALTY LTD., L.P., a foreign limited partnership, Appellants, v. GLENN G. SHENTON and PAMELA A. SHENTON, husband and wife, and MAURICIO MARTINEZ and ELIRAN ASSULIN, tenants in common, Appellees. 4th District.

Estates -- Wills -- Where testator's will provided for a bequest of the entire estate to her brother and her brother-in-law in equal shares, and provided that if either of them did not survive testator, the share of the deceased shall be given to their surviving spouse, and testator's brother and his spouse both predeceased testator, testator's brother-in-law was entitled to the entire estate because the bequest to the brother and his wife lapsed -- Trial court erred in awarding half of estate to the children of testator's brother and his wife

Mortgages -- Foreclosure -- Default judgment -- No error in summarily denying relief from default judgment of foreclosure rendered after homeowner failed to answer complaint to foreclose mortgage on her home where motion does not demonstrate fraud, show that amounts due and owing are incorrect, or show why any of alleged facts would entitle her to relief sufficient to set aside default judgment -- Argument first raised on appeal that affidavit of indebtedness attesting to amounts due on mortgage and note was insufficient to satisfy requirements for admissibility under business records exception to hearsay rule was not preserved for appellate review

Mortgage foreclosure -- Limitation of actions -- Error to enter summary judgment for defendant in foreclosure action by assignee of federal government agency on ground that action was barred by statute of limitations -- Federal government may file to foreclose on mortgaged property at any time, and assignee of mortgage acquired the benefit of federal government's unlimited time to foreclose

Torts -- Action by chief engineer on yacht asserting claims for unseaworthiness against owner of vessel, maintenance and cure under admiralty law against owner and operator of vessel, and negligence against operator -- No abuse of discretion in denying motion to dismiss for fraud on court based on failure of plaintiff to disclose 1991 injuries -- Error to exclude evidence of these prior injuries from trial -- Error was exacerbated when plaintiff's counsel, who had succeeded in excluding evidence, commented on lack of evidence supporting defendants' claims that plaintiff sustained bad neck or shoulder injury in the past -- New trial required -- Damages -- Whether operator was entitled to set off plaintiff's recovery for cure with insurance payments from operator's insurer may be revisited on remand, as record indicates facts were not sufficiently developed to determine entitlement to set-off -- Error to award prejudgment interest to plaintiff
JVA ENTERPRISES, I, LLC and ENTERPRISES, INC., Appellants, v. JAMES S. PRENTICE, Appellee. 4th District.

Torts -- Interference with contract -- Error to deny seller's motion for directed verdict as to liability on claims of intentional interference with contract -- Prospective buyer of commercial real estate failed to offer any competent evidence of tortious conduct before contract failed to close -- Because circumstances could be reasonably understood as making the property once again available when closing failed to consummate, offer to purchase on same terms and conditions, made by trustee of trust on day after closing failed, was not competent to prove an act capable of interfering with an executory contract -- No error in finding that there was no evidence of mutual agreement to extend closing until the following day where buyer contended that closing agent appeared to acquiesce in such an extension for purpose of allowing buyer to tender funds necessary to close, but there was no evidence of any representation or acknowledgment by seller that closing agent was authorized to do anything other than conduct the closing, particularly since it was undisputed that the day of closing was made essential by the seller -- Specific performance -- Trial court did not err in denying specific performance after finding that buyer failed to tender necessary funds on closing date and finding that there was no clear, definite and certain proof of an extension of closing

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Tuesday, November 2, 2010

Tricked or treated, we got some things good and heated

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- Failure to investigate and present mitigating evidence concerning petitioner's mental health at time of crime -- State court's determination that petitioner's trial counsel was not constitutionally ineffective in preparing for sentencing phase of trial was neither contrary to nor an unreasonable application of clearly established federal law -- Court cannot say that state court unreasonably rejected claim in face of unanimous death-penalty recommendation from jury; finding of four statutory aggravators, including that murder was especially heinous, atrocious and cruel; finding that petitioner was triggerman; petitioner's boasting and detailed statement to a friend; weaknesses highlighted in petitioner's “new” mitigating evidence; and further aggravating evidence that this “new” mitigating evidence may have revealed

Criminal law -- Medicare fraud -- Conspiracy to defraud United States, to cause submission of false claims, and to pay health care kickbacks -- Conspiracy to commit health care fraud -- Evidence -- Trial court improperly excluded, as hearsay, videotape which arguably showed coconspirators assuring defendant that there was no fraudulent scheme at clinic which employed defendant and which was established as front for massive Medicare scam -- Error was harmless because videotape was duplicative of witness testimony discussing the exculpatory content of videotape, which testimony was stressed by defendant's counsel in closing argument -- District court did not abuse discretion by refusing to exclude evidence that individual who provided funding and personnel necessary to start clinic was once defendant's ex-husband -- Evidence was sufficient to support convictions of both defendants on all counts -- Sentencing -- Reasons given by district court justified sentencing physician-defendant above the guidelines and imposing sentence which was far greater than that imposed on coconspirators who were more deeply involved in fraudulent scheme -- District court did not err in assigning little weight to post-verdict polygraph examinations after finding that evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway district court's decision to apply obstruction of justice enhancement -- Mandatory Victim Restitution Act -- Term “victim” as used in MVRA includes government -- Amount of loss -- No error in attributing entire loss to defendant-nurse, notwithstanding her argument that she knew clinic was providing medically unnecessary treatment, but there was no evidence that she knew clinic was billing Medicare for infusions that were not provided at all -- Risk of death or serious injury -- No error in applying two-level enhancement based on finding that nurse-defendant's offense involved “conscious or reckless risk of death or serious bodily injury”
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. 11th Circuit.

Medicaid Cuts: LA. CLASS ACTION CHALLENGES REDUCTION OF MEDICAID HOME-CARE SERVICES, Pitts v. Greenstein, 13 No. 9 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home October 22, 2010
A class of disabled Medicaid recipients in Louisiana has alleged the state health department's plan to reduce benefits for home-based care violates federal disability law and might unnecessarily force thousands into nursing homes. Lead plaintiffs Helen Pitts and Kenneth Roman asked the U.S. District Court for the Middle District of Louisiana to grant preliminary and permanent injunctions enjoining the state's Department of Health and Hospitals from denying long-term personal-care services.

Health Care Reform: STATES GET $49 MILLION TO BUILD INSURANCE EXCHANGES, 13 No. 9 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home October 22, 2010
The federal government has awarded $49 million in grants to 48 states and the District of Columbia to help them research and develop health insurance exchanges aimed at helping consumers shop for coverage. The state-based exchanges will make buying health insurance easier by providing eligible consumers and small businesses "one-stop shopping" where they can compare and purchase health insurance coverage, according a Sept. 30 statement released by the U.S. Department of Health and Human Services.

Health Care Reform: DOCTOR-OWNED HOSPITALS URGE COURT TO STRIKE BAN ON NEW FACILITIES, Physician Hosps. of Am. v. Sebelius, 13 No. 9 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home October 22, 2010
An industry group representing physician-owned hospitals has asked a federal judge to allow it to proceed with a lawsuit seeking to block part of the new health care reform law that limits the growth and construction of new doctor- owned facilities. Physician Hospitals of America, along with the Texas Spine and Joint Hospital, a 20-bed private facility in Tyler, Texas, are challenging the constitutionality of Section 6001 of the Patient Protection and Affordable Health Care Act.

Civil rights -- Municipal corporations -- Employment discrimination -- Retaliation -- Title VII -- Error to dismiss Title VII retaliation claim based on determination that factual findings of county personnel board, an independent state agency, were entitled to preclusive effect over the federal action -- District court improperly failed to draw distinction between Title VII and section 1983 with regard to preclusive effects of state administrative proceedings on actions brought thereunder
PATRICK L. BISHOP, SR., Plaintiff-Appellant, v. BIRMINGHAM POLICE DEPARTMENT, CITY OF, Defendant, BIRMINGHAM, CITY OF, THE, Defendant-Appellee. 11th Circuit.

Federal jurisdiction -- Torts -- Removal of state court action to federal court -- Timeliness -- Appellate court need not decide whether defendant's notice of removal was timely in instant case because any error in failing to remand case to state court on ground that notice of removal was untimely would be procedural error and would be insufficient to warrant vacating judgment and remanding for new trial in state court where it was undisputed that requirements for diversity jurisdiction were met by time district court entered judgment
BRIAN MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA TRIATHLON, a foreign company, Defendants-Appellees. 11th Circuit.

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal
JOSE ALEJANDRO PINEDA AND MARTHA PINEDA, Appellants/Cross-Appellees, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant. 3rd District.

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where plaintiff failed to file with court the original note, evidence of assignment of mortgage and note, or affidavit of ownership and filed no other admissible evidence establishing plaintiff's status as holder and owner of note and mortgage -- Appellate court unable to determine whether trial court considered copy of original note and affidavit of ownership presented by plaintiff at summary judgment hearing, as these documents were not part of record at time the motion for summary judgment was granted -- Moreover, the documents were not authenticated, filed, and served more than twenty days before hearing, as required by procedural rules
GUISEPPE SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure of commercial mortgage loan where lender accepted a substantial paydown after an initial default and acceleration, and the parties entered into an agreement to reinstate the mortgage after the entry of an earlier judgment -- Summary judgment was improper where there exists a triable issue regarding the reinstatement agreement and the parties' performance under it
ONE 79TH STREET ESTATES, INC. and DARRELL WILSON a/k/a Keith D. Wilson, a single man; PO BOY REALTY INVESTMENT, INC., Appellants, vs. AMERICAN INVESTMENT SERVICES, Appellee. 3rd District.

Mortgage foreclosure -- Receivership -- Trial court erred in allowing receiver to sell mortgaged property, over objection of record owner, before final judgment foreclosing owner's interest in the property -- Contracts -- In absence of statute authorizing court-appointed receiver in foreclosure case to sell mortgaged property before mortgage is foreclosed by final judgment, such authority must be provided in loan agreement between lender and borrower represented by promissory note and mortgage -- Receivership provision in instant case did not purport to give receiver any power of sale of mortgaged property before entry of final foreclosure judgment, but instead explicitly limited receiver's powers to a caretaker role, which included the authority only to operate the property and collect rents -- Under common law, mere appointment of receiver does not itself confer any of the owner's power or authority to sell property -- Finally, recognizing general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene mortgagor's statutory right of redemption
SHUBH HOTELS BOCA, LLC, and ATUL BISARIA, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Mutual Bank (Illinois); and NEIL MERIN, as Court Appointed Receiver for Mortgaged Property, Appellees. 4th District.

Unfair labor practices -- School boards -- Public Employees Relations Commission properly affirmed General Counsel's summary dismissal of teacher's unfair labor practices complaints, where General Counsel found that teacher failed to prove by preponderance of evidence that his protected conduct was a substantial and motivating factor in school principal's retaliatory actions -- There was not sufficient evidence of animus, or relation of adverse events to employee's participation in protected activity, to sustain allegations of unfair labor practices

Torts -- Action against corporate defendant and county by plaintiff who claimed that she was injured when escalator at airport stopped short, causing her to fall -- Error to enter directed verdicts in favor of defendants on ground that there was insufficient evidence of negligence on their part where plaintiff presented evidence showing that defendants were notified that subject escalator stopped running earlier on the day of plaintiff's fall and there was no evidence that any work was performed on the escalator, allowing jury to reasonably infer that defendants negligently failed to determine what was causing it to stop running and correct the problem -- Jury instructions -- Error to refuse to give jury instruction on negligence per se as to county -- Error to overrule plaintiff's objection to defense closing argument that there was no evidence of prior problems with subject escalator where trial court had excluded such evidence -- Plaintiff's treating physician was not required to be an expert back surgeon in order to testify to his belief that plaintiff would need surgery in the future, and it was error to exclude this testimony -- Accordingly, it was error to deny plaintiff's motion for new trial

Torts -- Civil theft -- Complaint which alleged that plaintiffs made a loan to defendant pursuant to an oral agreement, and that at the time of the loan, defendant had no intention to repay it and/or intended not to repay the funds, stated cause of action for civil theft -- Error to grant defendant's motion for judgment on pleadings -- Allegation that defendant had no intention to repay the funds and/or intended not to repay the funds is sufficient to state claim for common law fraud, and common law fraud is explicitly included in the theft statute -- Economic loss doctrine does not bar statutory claim for civil theft -- There is no merit to defendant's contention that it is impossible to have an action for civil theft where there has been a failure to repay money unless there has been a conversion of a specific fund
WILLIAM P. WALKER, III AND GEMMA M. WALKER, HIS WIFE, Appellants, vs. JAIME A. FIGAROLA, Appellee. 3rd District.

Torts -- Res judicata -- Action by insurance company against attorney who had litigated personal injury protection lawsuits against company on behalf of insureds, alleging claim for restitution and fraud based on monies company paid out in connection with the PIP suits -- Trial court erred in dismissing complaint on ground that it stemmed from PIP lawsuits, and had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements -- Application of res judicata was not appropriate because neither the parties nor the cause of action were the same -- Application of collateral estoppel was not appropriate where issues were not the same as those adjudicated in PIP suits

Wrongful death -- Negligent entrustment -- Negligent undertaking -- A defendant cannot be held liable for negligent entrustment or negligent undertaking based on his having taken his alcohol-impaired brother's car keys and then put the keys in a place where his brother easily found them, resulting in his brother causing a fatal collision
GERALD CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. PAUL J. LEWIS, Appellee. 4th District.

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