Sunday, November 6, 2011

Attorneys' fees, attorney disqualification and cornmeal pancakes with pecans and cranberries


Appeals -- Jurisdiction -- Attorney's fees -- Appellate court lacks jurisdiction to consider challenge to award of attorney's fees based on dismissal with prejudice of counterclaim where trial court reserved jurisdiction to determine the amount of fees to be awarded
CHARLES A. MORRISON AND SHIRLEY W. MORRISON, Appellants, v. UNITED STATES OF AMERICA, ACTING THROUGH FARM SERVICE AGENCY, f/k/a FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee. 1st District.

Attorney Disqualification: BOFA SEEKS TO OUST AIG LAW FIRM FROM $10 BILLION CASE, AIG v. Bank of Am Corp., 22 No. 3 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage October 28, 2011 NEW YORK, Oct. 18 (Reuters) - Bank of America Corp. urged a judge to disqualify the law firm representing insurer American International Group in its $10 billion mortgage fraud lawsuit against the bank, alleging a conflict of interest by one of the firm's partners. The bank said Quinn Emanuel Urquhart & Sullivan should be removed because the partner had defended Merrill Lynch & Co. and its First Franklin Financial Corp. unit against similar charges that they made and sold defective mortgage loan.

Attorney's fees -- Offer of judgment
LOIS M. SEEVERS, Appellant, v. LUIS A. MONTIEL, individually, Appellee. 1st District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee instituted adversary proceedings to avoid and recover as fraudulent transfers distributions made to investors in debtor corporations that were operated as instruments of a Ponzi scheme -- Investors asserted affirmative defense claiming transfers were “for value” -- General rule in fraudulent transfer actions arising out of Ponzi scheme that a defrauded investor gives “value” to debtor in exchange for a return of principal amount of investment, but not as to any payments in excess of principal, applies to investors that hold an equity interest in the insolvent debtors -- Under general rule, transfers from debtors up to principal amount of investment through investors' purchase of limited partnerships from debtors satisfied investor defendants' restitution or fraud claims and provided value to debtors
WILLIAM F. PERKINS, Plaintiff-Appellant, v. AENA Y. HAINES, JAMES BRONNER, SIMONE BRONNER, NATHANIEL BRONNER, GEORGE RUSSELL CURTIS, SR., et al., Defendants-Appellees. 11th Circuit.

Bankruptcy - Transfer made by debtor involved in Ponzi scheme in order to redeem equity investment may constitute transfer "for value."  Addressing an issue of apparent first impression for the circuit, the Eleventh Circuit Court of Appeals has ruled that, with respect to the "for value" defense to fraudulent transfer actions arising out of a Ponzi scheme, the general rule that a debtor's transfers to an investor up to the principal amount of the investment were given "for value" and are not subject to recovery by the bankruptcy trustee, while any transfers exceeding the amount of the principal were not made "for value," applies regardless of whether good faith investors have an equity interest in, or some other form of claim against, the debtor. Courts do not distinguish between equity investments and debt-based claims when applying the "for value" defense of 11 U.S.C.A. 548(c) in this context. Perkins v. Haines ,(C.A.11 (Ga.))

Civil procedure -- Default -- Vacation -- Service of process -- Defects -- Error to deny motion to vacate default and final judgment where plaintiff failed to make diligent effort to personally serve defendant before serving process by publication
DANIEL BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee. 4th District.

Construction: ROOFING CONTRACTOR MUST WEATHER DAMAGES JUDGMENT WITHOUT COVERAGE, Evanston Ins. Co. v. Heeder, 22 No. 3 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage October 28, 2011 An insurer that limited its coverage to residential roofing owes no duty for a $681,000 judgment for damage that happened during a commercial roofing project, a federal judge in Tampa, Fla., has ruled. U.S. District Judge Susan C. Bucklew of the Middle District of Florida said Evanston Insurance Co. only insured roofing contractor Douglas D. Heeder for the operations listed on his insurance application and the policy's declarations page. The judge granted the insurer's motion for summary judgment.

 Contracts -- Insurance -- Discovery -- Request for production -- Insured is not entitled to discovery of insurer's claims file where insured has only alleged a breach of contract action, not a bad faith claims handling case -- To extent any of documents responsive to insured's request for production are contained within insurer's claims file, they are protected from disclosure -- Any documents not contained within claims file that are responsive to insured's request for production should be produced -- Insurer satisfied request for “copies of any and all documents that show payments made” to insured, if any, on this claim, by stating that it has produced copies of checks issued to insured -- To extent documents responsive to this request would be included in claims file they are not discoverable in this breach of contract action -- Request for a copy of each check for payments in this claim is denied as moot where insurer asserts that only documents responsive to this request have already been produced -- Request for a copy of agent's file is due to be granted where insurer asserts conclusory, boilerplate objection that fails to explain precise ground that makes the request objectionable -- Request for a copy of all documents regarding all prior claims, excluding any privileged information, is vague and ambiguous and motion to compel is due to be denied -- Interrogatories -- Interrogatory seeking information about how insurer adjusted the claim is relevant to insured's breach of contract claim and motion to compel is due to be granted -- Privilege log -- Any documents listed on privilege log that are included within claims file are not discoverable -- Regarding documents on privilege log that were withheld based on attorney-client and work product privileges, where insurer has asserted that these documents were made after lawsuit was filed and concern defense of lawsuit, motion to compel is denied
GAVIN'S ACE HARDWARE, INC., Plaintiff, vs. FEDERATED MUTUAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division.

Counties -- School boards -- Teachers -- Termination of employment -- Teacher was given sufficient notice before her employment was terminated following an informal hearing, and she was not denied due process -- Teacher was provided notice of a pre-determination conference to discuss her absences from work, which she did not attend, teacher did not return calls regarding her attendance at conference or her absence from work, administrative complaint was hand delivered to the mailbox at teacher's official home address, and was also sent to two different email addresses on file for her -- Due process does not require a showing that interested party received actual notice
LINDA M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA, Appellee. 5th 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.

Dissolution of marriage -- Child custody -- Time-sharing -- Contempt -- No error in finding wife in contempt for depriving husband of time-sharing with child -- No abuse of discretion in determining that husband was entitled to makeup time-sharing -- Trial court erred in failing to find that the manner in which makeup time-sharing was ordered was in best interests of child, as required by statute -- Competent substantial evidence would not support any implicit finding that order granting husband immediate custody of child and 100% time-sharing for period of 150 days was in best interests of child, as this order not only changed primary custody of child from mother to father, but also relocated child to foreign state in middle of school year -- Remand for further proceedings
MARIAH ARICA CHEEK, FORMER WIFE, Appellant, v. BRIAN R. HESIK, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Appeals -- Neither order domesticating foreign support order nor order of protection expressly disposed of petition to modify child support, either on the merits or on jurisdictional grounds -- Orders are not final orders, and are not appealable non-final orders
KAREN ELAINE PULKKINEN N/K/A KAREN ELAINE BRAUTCHECK, FORMER WIFE, Appellant, v. JYRKI TUONO JUHANI PULKKINEN, FORMER HUSBAND, Appellee. 1st District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with much more law, click here and specific whether you wish to be added to CRIMINAL, CIVIL or HEALTH & INSURANCE.

No comments:

Post a Comment