Thursday, March 10, 2011

Federal preemption, appraisals, contracts, real estate and raspberries with chocolate ganache


Attorney's fees -- Offer of judgment -- Trial court properly awarded attorney's fees to defendants pursuant to offer of judgment statute where the two defendants each agreed to contribute $50 to the settlement for a total of $100, with plaintiff, upon acceptance, being required to voluntarily dismiss the suit -- Offer was not an undifferentiated offer of settlement or otherwise improper
ROBERT ROSSMORE, Appellant, v. BENITA G. SMITH AND MARIE LAUGHLIN, Appellees. 5th District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee filed complaint to avoid as actual fraudulent transfers the total amount of loan repayments made to bank from debtors within past four years, alleging that debtor and his co-debtor companies perpetrated bank fraud scheme in which debtors falsified due diligence materials to con banks into lending debtor and his co-debtor companies millions of dollars -- Bank is not entitled to dismissal of complaint on ground that trustee failed to state a claim for actual fraudulent transfer because so-called Ponzi scheme presumption on which trustee relies does not apply to series of loan repayments debtor and his co-debtor companies made to bank, and that trustee pled facts that establish bank's good faith defense to fraudulent transfer claim -- Chapter 11 trustee pled enough facts to state plausible claim for actual fraudulent transfer based on Ponzi scheme presumption by alleging that loan repayments made to bank further perpetuated debtor's other Ponzi schemes -- Bank fraud scheme did not satisfy all four of factors for proving existence of Ponzi scheme because bank loans are by any definition not investments and therefore bank was not an investor -- Because bank fraud scheme was not Ponzi scheme, trustee could not rely solely on alleged existence of bank fraud scheme to establish entitlement to Ponzi scheme presumption of actual fraudulent intent, but must show that debtor's loan repayments to bank somehow further perpetrated one of debtor's Ponzi schemes -- Bank's good faith defense is not established on pleadings -- Trustee pled sufficient facts to establish plausibility of its claim that bank “should have known” of debtor's fraudulent purposes, where trustee alleged that bank ignored “information regarding the borrower's financial difficulty,” even though complaint does not specify how bank would have uncovered debtor's fraudulent scheme had it followed up on some of alleged warning signs of difficulty
In re: LOUIS J. PEARLMAN, et al., Debtor. U.S. Bankruptcy Court, Middle District of Florida, Orlando Division.


Criminal law -- Murder -- Evidence -- Hearsay -- Testimonial out-of-court statements -- Victim's statements identifying and describing shooter and location of shooting, made to police officers who discovered him mortally wounded in a gas station parking lot, were not testimonial statements where the circumstances of the interaction between the victim and the police objectively indicated that the primary purpose of police interrogation was “to enable police assistance to meet an ongoing emergency” -- Admission of these statements at defendant's trial did not violate Confrontation Clause
MICHIGAN, Petitioner, v. RICHARD PERRY BRYANT. U.S. Supreme Court.

Criminal law -- Prohibition -- Emergency petition seeking to prohibit circuit court from proceeding to trial until supreme court determines proper procedure for deciding immunity from prosecution under “Stand Your Ground Law” -- In view of supreme court's recent decision resolving conflict on this issue and rejecting district court's prior position, petition granted and trial court directed to follow the approved procedure
JULIO CRUZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Contracts -- Real estate appraisal services -- Error to fail to award prejudgment interest on damages awarded to real estate appraiser for services as expert in eminent domain action -- On remand, trial court to determine whether date payment was due was date on which appraiser submitted his first invoice to clients or the date appraiser sent invoice to clients after court in eminent domain action declined to award fees -- No merit to argument that prejudgment interest should be calculated as of date of filing of complaint where record contained evidence regarding dates of appraiser's two demands for payment
D. P. “RICK” WOOD, Appellant, v. Unknown Personal Representative of the Estate of SAMUEL E. BURNETTE and SHARON K. BURNETTE, Appellees. 2nd District.

Creditors' rights -- Postjudgment discovery in aid of execution of judgment -- Trial court departed from essential requirements of law by permitting discovery in aid of execution of a final summary judgment which was void -- Summary judgment was null and void where trial court entered it while appeal of a nonfinal order was pending
LORI GIBSON; LESLIE BETTS; MARC BETTS; and LYDIA SIERRA, Petitioners, v. PROGRESS BANK OF FLORIDA, a chartered commercial bank; AXIOM WORLDWIDE, L.L.C., a limited liability company; NICHOLAS J. EXARHOS, individually; and JAMES J. GIBSON, JR., individually, Respondents. 2nd District.

D&O Insurance: FLORIDA APPEALS COURT REVERSES D&O SETTLEMENT-OFFER RULING, Arrowood Indem. Co. v. Acosta Inc., 21 No. 21 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage March 4, 2011
A Florida appeals court has reversed a ruling that an insurer did not exhibit good faith by offering $1,000 to settle a coverage dispute under a director- and-officer policy when the insurer's potential liability was $10 million. The trial judge erred by relying on an objective standard to find that Arrowood Indemnity Co.'s offer was unreasonable when it could have been liable for its entire $10 million D&O policy limit, the 1st District Court of Appeal said.

Insurance -- Automobile -- Comprehensive coverage -- Cancellation of policy -- Trial court erred in entering summary judgment for insurer in insured's action to recover benefits for losses sustained when his automobile was stolen on ground that policy had been cancelled for non-payment of premium prior to loss, where there was factual issue as to whether notice of cancellation had been mailed or delivered to insured by insurer as required by statute -- Fact that insured had received a letter from Florida Department of Motor Vehicles stating that policy had been cancelled did not satisfy statutory requirement for cancellation of policy
ANDRE BANTON, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A FOREIGN PROFIT CORPORATION, Appellee. 3rd District.

Insurance -- Management liability -- Duty to defend and indemnify -- Where policy contained intellectual property rights exclusion which provided that insurer would not be liable for loss in connection with a claim in any way involving any actual or alleged intellectual property rights, trial court properly entered judgment on the pleadings in favor of insurer in insured's action for declaratory relief seeking determination of insurer's duty to defend and indemnify insured against lawsuits arising out of patents acquired by insured and its subsidiary, allegedly without fair compensation to owner
MERGENET SOLUTIONS, INC., Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Coverage Dispute: BAD-FAITH CLAIM SURVIVES IN COVERAGE DISPUTE OVER WATERLOGGED HOUSE, Lombardi v. Allstate, 21 No. 21 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage March 4, 2011
A federal judge in Pittsburgh has kept alive a bad-faith claim concerning an adjuster's denial of a claim for water damage after a brief phone call with the claimant. "Put succinctly, a claim was denied during the course of a three-minute phone call, when no admission was made which would have otherwise exempted the claim from coverage," U.S. District Judge Donetta W. Ambrose of the Western District of Pennsylvania said.

Insurance –Coverage Dispute: 10TH CIRCUIT SAYS BAD-FAITH CLAIM NOT 'FRIVOLOUS', Blakely v. USAA Cas. Ins. Co., 21 No. 21 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage March 4, 2011
The 10th U.S. Circuit Court of Appeals has reinstated a claim for bad faith in a case in which homeowners had to invoke their policy's appraisal process to recoup $200,000 they were owed as a result of a fire loss. The three-judge panel unanimously held that a Utah federal court erred when it dismissed the claim as frivolous.According to the panel's opinion, Alan and Colelyn Blakely's house was damaged in a 2002 fire caused by a worker who was refinishing floors in the home.

Paternity -- Child support -- Modification -- Where mother's initial petition for modification was dismissed without prejudice after father falsely represented that he did not receive timely service of the petition, modification should have been made retroactive to date of initial petition for modification rather than to date on which mother filed second amended petition for modification -- Attorney's fees -- All child support cases that are administered by the Department of Revenue are considered Title IV-D cases, despite the fact that the Department of Revenue has not been named as a party -- Where case is a Title IV-D case and father is the non-prevailing obligor, mother's claim for attorney's fees against father is permitted
ROSEMARIE SPANO, Appellant, vs. DENNIS E. BRUCE, Appellee. 3rd District.

Secured transactions -- Deficiency judgment after creditor had sold repossessed industrial earthmoving equipment -- Trial court erred in entering summary judgment for deficiency judgment where there was factual issue as to whether sale of repossessed equipment through private sale and internet auction was commercially reasonable -- Summary judgment was not proper on alternative ground that the amount recovered through the sale of the equipment was less than the fair market value of the equipment -- Because summary judgment is reversed, award of attorney's fees based on prevailing party attorney's fee provision in security agreement is also reversed -- Trial court abused discretion in denying defendant's motion for leave to amend its answer where discovery was ongoing, no hearing had been set on plaintiff's motion for summary judgment, privilege to amend had not been abused, amendment would not be futile, and amendment would not prejudice plaintiff
SOUTHERN DEVELOPERS & EARTHMOVING, INC., a Florida corporation; and R. ANTHONY GILL, a/k/a RONALD A. GILL, Appellants, v. CATERPILLAR FINANCIAL SERVICES CORPORATION, Appellee. 2nd District.

Torts -- Duty of care owed to worker who was injured on project for construction of residence -- Trial court properly denied motion for summary judgment by defendant LLC which had signed agreement with owners to act as a “consultant” on the project, where the LLC actually performed many of the functions of a general contractor, and there was evidence that the LLC was in control of the job site where plaintiff was injured while working on the project -- Although court properly declined to enter summary judgment for defendant LLC, court erred in entering summary judgment for individual who was a licensed general contractor, the only member of the LLC, and its sole agent and employee -- Because there were facts in the record that would support a determination that the LLC owed a duty of care to construction workers on the project, jury could find that individual defendant was also liable for a breach of that duty
JOSEPH CANNON and VIVIAN CANNON, Appellants, v. ROBERT FOURNIER, FOURNIER CONSTRUCTION LLC, GLENN ROSE, BRENDA HOFFMAN, and ANDREW HOFFMAN, Appellees. 2nd District.

Torts -- Negligence -- Prank -- Plaintiff's second amended complaint alleged set of facts which established that defendant created a foreseeable zone of risk, and thereby owed a duty of care to plaintiff, where plaintiff alleged that defendant induced her to climb to top edge of a very high cliff despite plaintiff's repeated statements that she was not comfortable with the climb and was afraid to descend alone, refused to accompany plaintiff to bottom, and induced her to jump from cliff into lake, resulting in permanent injury, by tricking her into believing that he had fallen into water and that she should jump in to save him -- Fact that defendant's conduct was part of prank does not foreclose negligence action -- Defendant's alleged conduct, as characterized by plaintiff, did not constitute an intentional tort under supreme court's “substantially certain” test -- Error to dismiss case with prejudice
RANDI BORRACK, Appellant, v. CHARLES D. REED, M.D., Appellee. 4th District.

Torts -- Federal preemption -- Federal Motor Vehicle Safety Standard 208 does not preempt state tort suits claiming that automobile manufacturers should have installed lap-and-shoulder belts, instead of lap belts, on rear inner seats -- Even though state tort suit may restrict manufacturer's choice of belts for rear inner seats, it does not stand as an obstacle to the accomplishments of full purposes and objectives of federal law -- Because providing manufacturers with this seatbelt choice is not a significant objective of the federal regulation, FMVSS 208 does not preempt state tort suit
DELBERT WILLIAMSON, et al., Petitioners, v. MAZDA MOTOR OF AMERICA, INC., et al. U.S. Supreme Court. 

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3 comments:

  1. What a great describe here of whole procedure between seller and buyer and fantastic explain of lawyer work criteria and how to transfer payment as well as each ans every thing included in this post.Thanks

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  2. This comment has been removed by the author.

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  3. Case Randi Borrack vs. Dr, Charles David Reed, Reed did not use spinal precautions as he recovered Randi's body from the water after her life changing attempt to rescue him(his prank) Randi received an L1 burst fx and a crushed spinal cord which caused her instant paralysis in fall then Dr. Reed stopped at a pharmacy where he got 10/650 percocet and methylprednisone that he had her take indicating it was Tylenol and that she must take due to hospital being so far away(hospital was 1mile away) Dr. Reed chased off witnesses and took Ms. Borrack to his home for four days, never a hospital. Ms. Borrack was in spinal shock and denied emergency care until her family rescued her from Dr. Reed. Dr Reed concealed the medication, it would not be till 5/16/2012 that the script Reed wrote to keep Randi quiet would be discovered..Reed relinquished his license upon discovery of script along with discovery of his 3DUI's

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