Friday, October 28, 2011

Trick or treetie, something sweetie, new decisions of interest with pumpkin loaf pudding and bourbon sauce


The Firm is pleased to announce that Dorothy Easley will be publishing Florida Civil Contempt Proceedings in Family Law Support Matters: an Appellate Perspective, in the Nov. 2011 Issue of Family Lawyer Magazine

Contracts -- Real property sale -- Error to enter judgment on pleadings in favor of plaintiff seller in breach of contract action on ground that defendant buyer did not, as required by contract, provide seller with either a written financing commitment or approval letter within commitment period or provide seller with written notice that buyer was unable to obtain a commitment, where there was factual issue as to whether approval letter from lending institution which buyer provided to seller satisfied the financing contingency requirements of contract -- Letter provided to seller contained necessary information expected to be found in an approval letter, including loan amount, maximum interest rate, and information on loan program, loan terms, and loan to value
ROBERTO CUCCARINI, Appellant, vs. MIGUEL ROSENFELD AND CLARISSA ROSENFELD, AND FORTUNE INTERNATIONAL REALTY, INC., Appellees. 3rd District.

Dependent children -- Reunification -- Termination of protective supervision -- Order denying mother's motion for reunification was facially deficient where it included neither the mandatory factors in section 39.621(10), nor the requisite finding under 39.522(2) that reunification would endanger the child -- Order granting Department of Children and Family Services' motion to terminate protective supervision was facially deficient where order did not include findings on three of the five factors required under section 39.621(10), and the factors that were included were addressed in the context of justifying placement with father, rather than with respect to denying reunification with mother -- Remanded for determination of whether reunification with mother would endanger child and consideration of factors enumerated in statute
In the Interest of G.M., a child. C.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee. 2nd District.

Dependent children -- Placement -- Interstate Compact on the Placement of Children -- Trial court erred in terminating protective supervision and permanently placing child with father, who lived in foreign state and with whom child was on an “extended visit,” without foreign state's concurrence to placement and without statutorily-compliant home study -- Mother was entitled to evidentiary hearing before trial court could place child with non-custodial father -- Appellate court's decision not to be read as requiring that child, who is currently residing with father, be relocated back to Florida pending evidentiary hearings
M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Estates -- Personal representative -- Ancillary estate -- Breach of fiduciary duty -- Misappropriation of funds -- Action arising out of executor's use of Florida ancillary estate funds to pay for expenses related to litigation concerning Panama estate -- Executor acted in bad faith and breached his fiduciary duties where executor commingled ancillary estate funds with his law firm's account to avoid compliance with Panamanian court orders, used entire ancillary estate to fund his litigation in Panama over the domiciliary estate and to clear his name from personal attacks, and failed to reserve any of ancillary estate funds to pay creditors' expenses -- Although trial court incorrectly found that executor had no authority to use ancillary estate funds because his installation as executor in Panama was void ab initio rather than voidable, executor's status was irrelevant in light of competent, substantial evidence showing that executor misappropriated estate funds in violation of Florida law
RICHARD S. LEHMAN and RICHARD S. LEHMAN, P.A., Appellants, v. HILDA PIZA LUCOM, et al., Appellees. 4th District.


Mortgage foreclosure -- Civil procedure -- Dismissal -- Failure to prosecute -- Reopening of case -- Trial court had jurisdiction to reinstate dismissed foreclosure case because notice and order of dismissal had been sent to the incorrect address, depriving bank of notice and an opportunity to recommence prosecution before dismissal
MARTIN SCHAFFER and LINDA E. SCHAFFER, Petitioners, v. FIRST BANK, a Missouri state chartered bank, as successor by merger to COAST BANK OF FLORIDA, STEEPLECHASE PROPERTY OWNERS' ASSOCIATION, INC., a Florida corporation, JP MORGAN CHASE BANK, N.A., a national banking association, and UNKNOWN TENANTS, Respondents. 4th District.

Torts -- Limitation of actions -- Product liability -- Airplane -- Statute of repose -- Action against airplane manufacturer by plaintiff who was injured when right wing of airplane failed as he was dusting crops, alleging crash was caused by defective wing assembly and factory modification kit manufactured and designed by defendant -- Neither eighteen-year repose period provided by federal General Aviation Revitalization Act nor Florida's twelve-year statute of repose were restarted with replacement of five-bolt spar splice which did not replace an item on the plane, but rather modified the original design -- Service bulletins do not constitute a “new part” and do not qualify under rolling provision of GARA to extend statute of repose period -- No error in entering summary judgment in favor of manufacturer
LEON C. INMON, Appellant, v. AIR TRACTOR, INC., ET AL., Appellee. 4th District.

Torts -- Automobile accident -- Municipal corporations -- Trial court erred in dismissing action against city on ground that notice of claim provided to city was not provided within three years after accrual of claim where court had not been informed that city had previously received timely notices of claim -- Complaint adequately alleged that plaintiff gave proper notice to city, and city's contention that it did not receive proper notice is an affirmative defense that is not properly raised in a motion to dismiss -- Former counsel's renewed motion for leave to file amicus curiae motion in support of rehearing treated as filed within the meaning of rule 1.540 based upon excusable neglect -- Because record shows that city did receive timely notice of claim, case is remanded with instructions to reinstate complaint
BELKI A. CABRAL, Appellant, vs. CITY OF MIAMI BEACH, Appellee. 3rd District.

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