Saturday, December 31, 2011

Business law, family matters, torts and homemade meatballs with garlic and fresh basil and tomatoes

Contracts -- Noncompetition covenant -- Liquidated damages -- Provision for liquidated damages for breach of noncompetition agreement was unenforceable where damages were readily ascertainable, and provision constituted a penalty
RICHARD GOLDBLATT, individually and VALERIE GOLDBLATT, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee. 3rd District.


Child custody -- Where two women who were involved in lesbian relationship and wished to have a baby which they would raise together paid a reproductive doctor to withdraw ova from one, the biological parent, have the ova artificially inseminated with the sperm of a donor, and have the ova inserted into the womb of the other, the birth parent, both women have parental rights to the child -- Woman who provided her ova to her lesbian partner was not a donor of her ova -- Section 742.14, Florida Statutes, as applied by trial court to eliminate rights of biological mother to child, renders statute unconstitutional as violation of rights to equal protection and privacy -- Section 63.042(3), Florida Statutes, which prohibits gay and lesbian couples from adopting children, does not deprive biological mother of her parental rights -- Biological mother did not waive parental rights by executing informed consent document in reproductive doctor's office -- Question certified: Does the application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?
T.M.H., Appellant, v. D.M.T., Appellee. 5th District.


Civil procedure -- Intervention -- Trial court did not abuse its discretion in denying motion to reconsider order of dismissal because of pending late-filed motion to intervene -- Intervention may not be allowed after final judgment save in the interests of justice
LESLIE K. HARRIS, Appellant, v. BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., and ABERDEEN GOLF & COUNTRY CLUB, INC., Appellees. 4th District.


Contracts -- Leases -- Satisfaction of obligations -- Absence of record support
COCONUT GROVE STATION DEVELOPMENT, LTD., Appellant, vs. MIAMI-DADE COUNTY, Appellee. 3rd District.


Costs -- Prevailing party -- Depositions and transcripts -- Appellate court cannot say that, under circumstances of instant case, trial court abused its discretion in awarding prevailing defendant costs for transcripts of non-evidentiary hearings and costs for expediting preparation and delivery of deposition transcripts -- Award of costs related to video depositions remanded for reconsideration, as it is not possible to tell from record whether costs were sought for both transcript of video deponents' testimony and for the videotapes prior to summary judgment hearing -- Expert witness fees -- Although lead counsel could properly testify as to reasonableness and necessity of deposition and transcript costs, as well as necessity of obtaining expert witnesses, he was not qualified to testify as to reasonable value of expert witnesses' services -- Objection to request for expert fees was specific enough to preserve the objection both as to entitlement and amount of expert witness costs sought by movants, and review of transcript leads to conclusion that trial court may well have granted movants' request for continuance to prepare for evidentiary hearing had trial court deemed the objection sufficient -- Accordingly, although general rule is that party seeking fees and costs is not entitled to second bite at apple to prove its claim, remand for evidentiary hearing on issue regarding request for expert witness fees is appropriate -- Trial court is not precluded from considering time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research -- Trial court must determine that any expert witness fees incurred were reasonably necessary to defend action -- Court notes that supreme court has specifically stated that trial court should exercise discretion in manner consistent with policy of reducing overall costs of litigation and keeping such costs as low as justice will permit
WINTER PARK IMPORTS, INC. D/B/A LEXUS OF ORLANDO, Appellant, v. JM FAMILY ENTERPRISES, INC., ET AL., Appellees. 5th District.


Dependent children -- Termination of parental rights -- Evidence was insufficient to establish that continued interaction with mother threatened children's life, safety, or health based on the alleged insufficiency of her attempts to keep children's mentally ill and highly abusive father away from home and away from children
A.H. the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees. 3rd District.


Dissolution of marriage -- Relief from judgment -- Denial -- Appeals -- Motion for rehearing did not toll time for filing appeal from order denying rule 1.540(b) motion -- Child support -- Error to deny request for child support through date of child's high school graduation
MARTIN EDWARD MESSIER, Appellant, vs. LESLEY J. MARTIN-MESSIER, Appellee. 3rd District.


Eminent domain -- Department of Transportation -- Drainage easement -- Business damages -- Provision of lease giving lessee the express and enforceable right to use common areas and parking lot for the term of lease was sufficient to support claim for business damages, notwithstanding fact that lease referred to lessee's interest in common areas and parking lot as a “license” -- Error to dismiss lessee's business damage claim
MH NEW INVESTMENTS, LLC, ETC., ET AL., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. 5th District.


Mortgage foreclosure -- Relief from judgment -- Absence of sworn motion or evidence
NOVASTAR MORTGAGE, INC., Appellant, vs. OSCAR VARGAS, ET AL. Appellees. 3rd District.


Paternity -- Disestablishment -- Trial court erred in granting petition to disestablish paternity on ground that mother failed to produce child for DNA testing without determining whether mother's failure to submit child for testing was willful
DEPARTMENT OF REVENUE, o/b/o M.J.W., Appellant, v. G.A.T., JR., Appellee. 2nd District.


Public employees -- Drug testing -- Discovery -- Subpoena duces tecum -- Non-profit advocacy organization moved to quash subpoenas for documents in connection with action challenging constitutionality of mandatory drug testing of state employees -- Motion to quash is denied in part with respect to documents that are publicly available on the organization's website and responsive to defendant's request -- Authentication of these documents by deposition of records custodian for documents is unnecessary; rather, sworn declaration of records custodian shall be sufficient for authenticity purposes -- Motion to quash is granted with respect to documents or deposition testimony as to organization's “knowledge and position” on employer drug testing and public approval of employer drug testing, as well as prevalence of drug use and harmful effects of drug use in workplace, where defendant has not shown that information sought is truly relevant, that no other means exist to obtain the information, and that it is crucial to his defense of case -- Even if scope of subpoenas, which are exceedingly broad and burdensome on their face, have been narrowed by defendant's response, motion should nevertheless be granted as such testimony from legal advocacy organization that is specifically acting as counsel of record for a party in case raises unnecessary burden and privilege issues that far outweigh any relevance of information sought
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.


Public employees -- Drug testing -- Challenge to constitutionality of Executive Order directing all state agencies to amend their drug-testing policies to provide for pre-employment and random drug testing for all state employees, as a violation of Fourth Amendment's prohibition against unreasonable search and seizure -- Jurisdiction -- Standing -- AFSCME union for state employees has standing to sue where union demonstrated an injury in fact, that alleged Fourth Amendment violation is fairly traceable to EO, and that a judgment that EO is unconstitutional would redress complained of injury -- Claim is fully ripe for adjudication because issues are sufficiently defined and concrete -- Claim is not moot where one state agency is currently undertaking EO's implementation and voluntary cessation with respect to other agencies is not likely to endure -- Union has organizational standing to sue on behalf of its members because they could sue individually, and further union has an interest in representing rights of its members -- Motion to join as necessary party treated as motion to intervene -- Intervention -- Secretary of Department of Corrections, who moved to intervene as party-defendant based on intervention as matter of right or permissive intervention when governor suspended implementation of EO for all agencies except DOC, cannot intervene based on intervention as matter of right where secretary has not demonstrated direct interest in constitutionality of EO, has failed to show that existing parties cannot adequately represent his interest, and court will not lose subject matter jurisdiction absent secretary's intervention -- Alternatively, secretary cannot intervene based on permissive intervention
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, and RICHARD FLAMM, Plaintiffs, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.


Speech -- Appeal from entry of preliminary injunction preventing enforcement of Alabama statute, which prohibits a state or local government employee from arranging “by payroll deduction or otherwise” the payment of any contribution to an organization that uses any portion of those contributions for “political activity” -- District court found that statute impinges on free speech rights protected by First Amendment and that plaintiffs are likely to succeed in showing that statute is both overbroad in its restrictions and unduly vague as to what constitutes political activity -- Interpretation of Act is question of state law that has not been specifically addressed by state supreme court or by the intermediate state appellate courts; and therefore, the appellate court certified the following questions to Alabama Supreme Court: Is the “or otherwise” language in the statute limited to the use of state mechanisms to support political organizations, or does it cover all contributions by state employees to political organizations, regardless of the source? Does the term “political activity” refer only to electioneering activities?
ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al., Plaintiffs-Appellees, v. STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA, Defendants-Appellants. 11th Circuit.


Torts -- Defamation -- Injunction -- Action seeking injunction to prohibit operator of website, which allows third party users to post complaints, from allowing defamatory post to remain on the website -- Trial court properly dissolved injunction which had been entered against operator of website because Communications Decency Act provides absolute immunity to interactive computer services
JOHN GIORDANO, INDIVIDUALLY, AND G & G ADDICTION TREATMENT, INC., A FLORIDA CORPORATION, Appellants, vs. DONNA L. ROMEO, AND XCENTRIC VENTURES, LLC, an Arizona Limited Liability Corporation, Appellees. 3rd District.


Torts -- Fraudulent inducement -- Arbitration -- No error in denying motion to compel arbitration based on arbitration agreement to which opposing party was non-signatory -- Cause of action for fraud in inducement fails where there was no contract between the parties
GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., CUSTOM CRUSHING & MATERIALS, INC., Appellees. 3rd District.

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