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

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.

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.

Saturday, October 22, 2011

Ineffective assistance of counsel, grand theft, and chocolate biscotti with almonds and sambuca

Criminal law -- Grand theft -- Limitation of actions -- Trial court properly dismissed grand theft charge where capias was issued within limitations period but was not executed until almost eight years after state filed information -- Section 812.035(10) provides five-year limitations period for theft, and that period could be extended for no more than one year based on defendant's continuous absence from state -- Specific statute setting forth statute of limitations for theft controls over provisions of general statute of limitations for third-degree felonies
STATE OF FLORIDA, Appellant, v. MARGARITA PEREZ, Appellee. 2nd District.

Criminal law -- Probation revocation -- Discrepancy between oral pronouncement and written sentence -- Remanded with directions to correct written order to conform to oral pronouncement
JEFFREY W. SIMPSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Trial court abused its discretion in summarily denying defendant's claim of ineffective assistance of counsel because it was facially insufficient without providing defendant at least one opportunity to amend
DANIEL BRIAN EMMERT, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Restitution -- Error to hold restitution hearing in absence of defendant without showing that defendant knowingly, intelligently, and voluntarily waived right to be present
KEITH KNESPLER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Delivery of cocaine -- Speedy trial -- Error to find that speedy trial period for charges of delivery of cocaine commenced on date defendant was taken into custody for acts of using a false name and riding his bicycle without a light -- Trial court misapplied “criminal episode” standard of speedy trial rule by placing great emphasis on ongoing investigation of police officers, rather than actions of defendant
STATE OF FLORIDA, Appellant, v. TILFORD BAYNHAM, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Petition claiming ineffective assistance of appellate counsel during appeal from resentencing proceeding was untimely, successive, and frivolous -- Further pro se filings barred
ALFRED WILCHER, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Juveniles -- Habeas corpus -- Court did not exceed its authority in placing juvenile on home detention with electronic monitoring and imposing 8 p.m. curfew pending placement in moderate risk residential program -- Statute does not place specific limit on home detention pending placement in moderate-risk residential program -- Provision that child who is awaiting placement in a moderate-risk residential program must be removed from detention within five days refers to secure detention
V.P., a child, Petitioner, v. STATE OF FLORIDA and DEPARTMENT OF JUVENILE JUSTICE, Respondents. 4th District.

Criminal law -- Second degree murder -- Evidence -- Sufficiency -- Defendant convicted of second degree murder for the shooting deaths of two victims after the victims and several others had surrounded defendant, defendant and victim began cursing at one another, and one victim struck defendant after being encouraged by second victim -- Evidence warranted conviction for manslaughter but was insufficient to sustain convictions of second degree murder because defendant's shooting of the victims was an impulsive overreaction to the victim's attack rather than an act out of ill will, hatred, spite, or evil intent where defendant was backed up against his vehicle when he was confronted by multiple men, victims had both been drinking, and defendant was struck by victim causing him to fall back against the vehicle -- State's argument that defendant's demeanor before the confrontation was sufficient to prove that he acted with a depraved mind is rejected -- Defendant's use of deadly force occurred after he was attacked, and state pointed to no evidence that defendant had a previous grudge or ongoing dispute with the victims -- Jury instructions -- Stand Your Ground law -- Trial court erred in instructing jury as to the Stand Your Ground law over defendant's objection and in rejecting defendant's requested special instruction where there was evidence that defendant was engaged in unlawful activity at the time of the shooting and defendant's special instruction adequately addressed the scope of the duty to retreat in such cases, was a correct statement of the law, and was not misleading or confusing -- New trial is warranted, rather than remand with instructions to reduce murder convictions to manslaughter convictions, given error in jury instruction on self-defense
JOHN THOMAS DORSEY, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Plea -- Withdrawal -- Counsel -- Adversarial relationship -- Trial court erred in summarily denying pro se motion to withdraw plea alleging that counsel did not handle the case properly, that defendant was lied to, pressured and frightened into taking the plea deal, and that defendant was unaware of his option to dismiss counsel -- Remanded for evidentiary hearing to determine the nature of defendant's attorney-client relationship and whether conflict-free counsel should be appointed before the issue of withdrawing defendant's plea is considered
DELBERT G. HALL, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Providing a false name to a law enforcement officer -- Conviction reversed where defendant was charged with providing a false name to a particular officer, but state presented only evidence that he provided a false name to a second officer -- It is fundamental error to convict a person of an uncharged crime -- Error was not harmless because defendant could, in theory, yet be convicted of providing a false name to the second officer -- Grand theft -- Burglary of a structure -- Evidence -- Taped interview -- Where pro se defendant, while cross-examining investigator, informed the court he wanted to impeach investigator's testimony using recording of interview with investigator, and prosecutor and standby counsel informed the court that the recording would need to be redacted to remove references to defendant's criminal history, trial court erred in finding, out of concern over making the jury wait, that there was insufficient time to redact the recording, giving defendant the option of playing the recording in its entirety or not at all, with the defendant choosing the latter -- This ruling prevented the defendant from exercising his constitutional right to impeach witnesses against him and was not harmless error as the jury's verdict could have been affected by impeachment of investigator's testimony with the recording
JUSTIN WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cannabis -- Search and seizure -- Warrant -- Where warrant authorized officers to enter and search the premises and curtilage, including any vehicles and/or temporary structures within the curtilage and all persons found on the premises, for certain items, including “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances,” officers were authorized to search truck and mailbox -- Officers could properly seize utility bills for property located at a different address as documents that would lead to identification of persons responsible for the unlawful possession of controlled substances, particularly when defendant's wallet contained receipt for payment of electric bill for that second property -- Error to grant motion to suppress evidence seized from mailbox and truck at first property and all evidence found at second property, which was searched pursuant to a warrant based upon affidavit the crux of which was the utility bills found at the first property
THE STATE OF FLORIDA, Appellant, vs. GUILLERMO MARTINEZ, Appellee. 3rd District.

Criminal law -- Juveniles -- Battery -- Closing argument -- No abuse of discretion in trial court's not allowing defense to argue self-defense in closing argument, a defense not previously raised, where defense could not reasonably have been inferred from any evidence at trial
M.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sexual offenders -- Violation of registration and reporting requirements -- Trial court correctly concluded that the rule of criminal procedure which extends a deadline where the deadline falls on a weekend or holiday is not applicable to reporting requirements for sexual offenders, which are not based on a computation of time
ALVIN WILLIAMS, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct Richardson hearing when state failed to disclose relevant evidence until second day of trial, in denying defendant's request to recall witnesses to question them about this new evidence, and in questioning jury about whether defendant's booking sheet, which was located in the jury room without being admitted into evidence, influenced its verdict
JAMEL RA SHAUD WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Appeals -- Order denying motion for appointed counsel for post conviction purposes is not among class of orders appealable pursuant to rule 9.140(b)(1) -- Appeal dismissed without prejudice to right to file petition for writ of mandamus seeking to compel ruling by circuit court on pending motion(s) requesting that defendant be granted relief from his conviction
DELMART E.J.M. VREELAND, II, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Double jeopardy -- Retrial after reversal by appellate court -- Where petitioner was prosecuted for first-degree murder based on alternative theories of premeditation and felony murder, jury returned guilty verdict without specifying the theory on which it relied, and state court reversed and remanded for retrial after finding that conviction for underlying felony was based upon legally insufficient theory and could not stand, retrial of defendant for premeditated murder did not violate Double Jeopardy Clause -- Petitioner failed to establish that state court's denial of relief was contrary to, or involved unreasonable application of, clearly established federal law
JESUS DELGADO, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. 11th Circuit.

Aliens -- Removal -- Conviction of crime involving moral turpitude -- Board of Immigration Appeals and Immigration Judge erred by considering extraneous evidence outside record of alien's false imprisonment conviction to determine that his false imprisonment conviction qualified as conviction of a crime involving moral turpitude -- Congress unambiguously intended adjudicators to use categorical and modified categorical approach to determine whether a person was convicted of crime involving moral turpitude
CAMILO ERNESTO SANCHEZ FAJARDO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. 11th Circuit.

Criminal law -- Indictment -- Failure to state an offense -- Counts of indictment alleging state correctional officers knowingly falsified records with intent to impede, obstruct, and influence the investigation and proper administration of matter within jurisdiction of United States are insufficient as matter of law where indictment fails to identify “department or agency of the United States” conducting an investigation or for which administration would be impeded by defendants' alleged falsification of records -- Counts for falsification of records must be dismissed, because indictment neither tracks statutory language nor contains essential facts constituting the offenses charged -- Count alleging state correctional officer knowingly tampered with fellow correctional officer with intent to hinder, delay and prevent communication to federal law enforcement officer of information relating to commission of federal offense was insufficient and must be dismissed, where indictment fails to provide factual basis for charged offense
UNITED STATES OF AMERICA, Plaintiff, v. ALEXANDER MCQUEEN, et al., Defendants. U.S. District Court, Southern District of Florida, Miami Division.

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.

Thursday, October 20, 2011

Bill Aims at Worker Misclassification

Posted Oct. 17, 2011 by Ilyse Schuman

Rep. Lynn Woolsey (D-CA) has reintroduced legislation that would create new record-keeping requirements for employers that hire independent contractors, and impose stricter penalties for misclassification. Notably, the Employee Misclassification Prevention Act (H.R. 3178) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. More.

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.

Sunday, October 16, 2011

Appeals, business law, torts and sea bass with spinach lightly sauteed with garlic

Appeals -- Preservation of issue -- Appeal alleging that circuit court had no procedural basis to enter final order -- Where nothing in plaintiff's appendix suggests he raised his procedural argument to the circuit court, and plaintiff has not provided a transcript of the hearing which led to the final order, the appellate court is forced to conclude that the plaintiff has not preserved his procedural argument -- Based on circuit court's factual findings, it cannot be concluded that the final order was fundamentally erroneous on its face
WILLIS MORGAN, Appellant, v. CHADWICK E. WAGNER, Chief of Police of the City of Hollywood, Florida, MICHAEL J. SATZ, State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, and JOSEPH MATTHEWS, Appellees. 4th District.

Appeals -- Timeliness -- Appellant's notice of appeal failed to timely invoke court's jurisdiction to review final administrative order -- Premature -- Agency order on appellant's motion to vacate final order has not been rendered by agency and therefore the appeal from this order is premature -- Dismissal of premature appeal is without prejudice

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Loan agreement -- In action on claim of personal loan that was poorly documented and never repaid by defendants who claim it was a gift, trial court abused discretion in awarding attorney's fees against plaintiff and her attorney based on defendant's claim that plaintiff and her attorney knew or should have known that no admissible evidence existed to support claim of money lent and related claims -- In noting its deliberation about the evidence and testimony from both sides, trial court expressly recognized that plaintiff's testimony, along with cancelled checks, constituted evidence supporting her claims although insufficient to meet her burden of proof -- Statute does not penalize losing parties and their attorneys when they present competent, substantial evidence simply because the trier of fact resolves conflicting testimony against the losers -- Contracts -- Statute of Frauds -- Trial court erred in ruling Statute of Frauds barred claim for money lent because there was no signed memorandum evidencing the loan where the claim was for a direct promise to pay, not for a promise to pay another's debt, and hence the claim for money lent is not within the purview of the statute

Attorney's fees -- Contracts -- Contingency fee agreement -- Termination of services clause -- Representation agreement between attorney and client was unenforceable as matter of law where provision of agreement providing for immediate payment of accrued hourly rates upon discharge constituted a penalty clause, in violation of Bar rule -- Argument that trial court should have severed offending language from agreement rather than finding entire agreement unenforceable was not preserved for review where argument was not raised below -- Quantum meruit -- Attorney not entitled to any quantum meruit recovery where contingency did not occur

Bankruptcy -- Estate property -- Chapter 7 debtor's annual salary received post-petition is not property of estate under 11 U.S.C. section 541(a)(6) and is exempt from administration by trustee as earnings from services performed by an individual debtor after commencement of case -- “Five percent bonus,” which is calculated by taking 5% of net profit for the particular month, is actually a distribution of profit from property of estate and, therefore, constitutes property of estate as “proceeds, product, offspring, rents or profits of or from property of estate” under Section 541(a)(6) and should be turned over to trustee -- Debtor's annual salary is properly exempt wages under Section 222.11, Florida Statutes, and “5% bonus” does not fall within definition of earnings as defined in statute
In re: HOYT WILLARD COOK, JR., & GLENDA ANN COOK, Debtors. U.S. Bankruptcy Court, Northern District of Florida, Panama City Division.

Bankruptcy -- Unclaimed funds -- Release of funds -- Funds locators as alleged assignees of former debtors, whose assets were fully administered and distributed in Chapter 11 liquidating plans confirmed several years ago, filed applications to withdraw funds deposited into court's registry, representing distributions in liquidating plan unclaimed by creditors entitled to the funds -- After confirmation of liquidation plan of reorganization in which debtor is dissolved, all of its assets are liquidated, and no entity acquires the assets of debtor under the plan, neither funds locators as alleged assignees of former debtors nor former officers or directors who executed the assignments to funds locators are entitled to recover unclaimed funds in court's registry on behalf of long ago dissolved debtors -- A former debtor whose assets were fully administered in chapter 11 liquidating plan, is not a debtor under 11 U.S.C. section 347(b) with a right to recover unclaimed funds; instead, money will be treated like unclaimed funds in Chapter 7 case and remain available only to rightful claimants -- A corporation that is dissolved pursuant to a chapter 11 liquidating plan has no right to recover unclaimed funds in court's registry; rather, funds remain in registry subject to withdrawal only by creditors who were entitled to distributions under plans -- State statutes cited by applicants, which authorize dissolved corporations to take actions to wind up their affairs, do not support distribution of unclaimed funds to applicants following liquidation of a company's assets in Chapter 11 case

In re: A.G.A. FLOWERS, INC., et al., Debtors. U.S. Bankruptcy Court, Southern District of Florida.
Bankruptcy -- Sanctions -- Violation of automatic stay and discharge injunction -- Debtor moved for sanctions against state agencies for willfully violating automatic stay and discharge injunction by issuing collection letters and suspending debtor's Florida driver's license for alleged child support arrearages -- Debtor is entitled to award of actual damages and sanctions pursuant to court's statutory and inherent powers, where debtor established by preponderance of evidence and by clear and convincing evidence that state agencies knowingly, intentionally, and repeatedly violated automatic stay, discharge injunction, and numerous orders of court -- Sovereign immunity -- Where state agencies voluntarily waived sovereign immunity pursuant to Section 106(b) by filing proofs of claim for child support debt, Bankruptcy Court may impose sanctions and award of attorney's fees and costs -- Doctrines of collateral estoppel and res judicata preclude respondents from attempting in this sanction proceeding to relitigate the adjudication of the claim objection, plan confirmation, and payment satisfaction of its allowed claim through debtor's fulfillment of plan -- Respondents were afforded due process where they had full and fair opportunity to litigate claim objection, confirmation of plan, discharge, trustee's final report, and closing of case -- Respondents are not entitled to reconsideration of order finding that attorney's fees and costs debtor incurred are relevant to determination of sanctions motion and that cause existed for reopening evidence regarding such fees and costs, where they presented no newly discovered evidence or manifest errors of law or fact warranting the reconsideration or amendment of order
In re: MIGUEL A. DIAZ, Debtor. U.S. Bankruptcy Court, Middle District of Florida, Orlando Division.

Civil procedure -- Certiorari -- Depositions -- Subpoena -- Insurance adjuster who resided and worked in Hillsborough County, and who was not designated a corporate representative, erroneously compelled by county court to attend deposition in Broward county -- Petition for second-tier certiorari is denied where circuit court's dismissal of certiorari petition did not constitute a miscarriage of justice

Civil procedure -- Default on motor vehicle lease -- Summary judgment -- Trial court properly entered summary judgment where there were no issues of material fact -- Remand for correction of scrivener's error

Civil rights -- Municipal corporations -- Ordinance -- Constitutionality -- Four homeless plaintiffs challenge constitutionality of municipal ordinance, which authorizes city agents to issue temporary trespass warning for city property on which warning recipient violates city or state law, and second ordinance, which prohibits storage of personal property on public property -- Due process -- Trespass ordinance is unconstitutional facially, and as applied, under Due Process Clause of Fourteenth Amendment, because ordinance lacks constitutionally adequate procedural protections as the ordinance is presently written and allegedly enforced -- Plaintiffs possess constitutionally protected liberty interest in lawfully visiting city property that is open to public generally, plaintiffs will be deprived of that interest by issuance of trespass warning, and ordinance causes a substantial risk of erroneous deprivation of liberty because it provides a lot of discretion to a variety of city agents to issue trespass warning for wide range of acts, and because no procedure is provided for recipient of trespass warning to challenge the warning or for warning to be rescinded -- Overbreadth -- Plaintiffs have not stated claim for relief that trespass ordinance is substantially overbroad in the discretion it gives city employees to issue trespass warnings, which ban access to traditional public fora uniquely dedicated to expressive activities -- Right to travel -- Plaintiffs stated claim for relief that city's customs and practices of enforcing trespass ordinance on public sidewalks surrounding public parks burdens their protected right to intrastate travel under Florida Constitution -- City asserted no compelling governmental interest in alleged enforcement of trespass ordinance on sidewalks and did not argue that alleged enforcement policies are narrowly tailored to meet city's goals -- Based on allegations and arguments presented, city's alleged policy of enforcing trespass ordinance on public sidewalks does not pass strict scrutiny test under Florida law -- Vagueness -- District court properly dismissed claim that storage ordinance is facially void for vagueness under Due Process Clause because it fails to define sufficiently the term “unlawful storage,” term “unattended,” or both -- Because ordinance is not impermissibly vague in all its applications, court cannot conclude that ordinance is facially unconstitutional in its definitions of “unlawful storage” and “unattended” items
ANTHONY CATRON, JO ANNE REYNOLDS, WILLIAM SHUMATE, on behalf of themselves and all others similarly situated, RAYMOND YOUNG, Plaintiffs-Appellants, CHARLES R. HARGIS, et al., Plaintiffs, v. CITY OF ST. PETERSBURG, Defendant-Appellee. 11th Circuit.

Class actions -- Action filed by physician claiming that defendant inflated its expenses through a “phantom” expense line, “Other Physician Benefits,” which reduced profits available for bonus payments, although written bonus provisions in physicians' contracts contained no obligation to pay percentage of profits to bonus pool -- Petition for writ of prohibition seeking to prevent trial court from considering second amended complaint to certify a class action after appellate court determined that no class action could be maintained is granted where trial court allowed plaintiff to proceed with one count of its amended class action complaint after appellate court mandated that class action was inappropriate because individual issues predominated over common issues -- Although second amended complaint alleged only that profits were improperly reduced by way of “Other Physician Benefits” and did not claim entitlement to percentage of profits, it is obvious from appellate court's previous decision that any claims pertaining to the alleged improper expense of “Other Physician Benefits” must proceed on an individual basis
INPHYNET CONTRACTING SERVICES, INC., and TEAM HEALTH, INC., Petitioners, v. DAVID M. SORIA, M.D., Respondent. 4th District.

Contracts -- Offer of judgment -- Where individual and corporation of which individual was sole shareholder were both plaintiffs in action alleging breach of several contracts, it was error to require corporate plaintiff to file third amended complaint and to dismiss corporate plaintiff's third amended complaint based on individual plaintiff's acceptance of defendants' offer of judgment which was made only to individual plaintiff -- Individual plaintiff's acceptance of offer of judgment did not bar corporate plaintiff's separate and distinct claims

Creditors' rights -- Garnishment -- Exemptions -- Wages of head of family -- Waiver -- Statement in promissory note signed by judgment debtor that, “I consent to the issuance of a continuing writ of garnishment or attachment against my disposable earnings, in accordance with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part, any money judgment entered in favor of [the Bank],” was sufficient to waive the exemption for the disposable earnings of a head of a family to the extent that the disposable earnings exceed $500 a week -- Trial court erred in blocking judgment creditor's attempt to collect judgment against judgment debtor by garnishing his wages
USAMERIBANK, a Florida corporation, Appellant, v. RICHARD NELSON KLEPAL, JR., and CB RICHARD ELLIS, INC., Appellees. 2nd District.

Dependent children -- Placement -- Jurisdiction -- Modification -- Uniform Child Custody Jurisdiction and Enforcement Act -- Foreign state in which father resided with child pursuant to placement order entered by Florida court was authorized to exercise emergency jurisdiction to protect child, who was allegedly abused by father while in foreign state -- Trial court properly applied statutory factors enumerated under UCCJEA in terminating jurisdiction over child in Florida and transferring case to foreign state after concluding that it was more convenient forum and that it was in child's best interest to be in custody of her paternal aunt in foreign state -- However, where Florida court relied upon facts obtained in foreign state hearing and it was undisputed that mother did not have notice of that hearing, on remand, after due notice to all appropriate parties, including mother, father, and foreign court, trial court should then rule on whether retaining jurisdiction in Florida is proper based on its factual findings
K.I., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 4th District.

Dissolution of marriage -- Marital home -- Alimony -- Trial court erred in crediting husband for one-half of the marital home mortgage payments and other household expenses during the parties' period of separation where husband never requested such credit in his pleadings, husband was responsible for those payments during the marriage, and trial court had specifically ruled that the expenses husband paid toward the home were temporary alimony
LAUREN L. CORTESE, Appellant/Cross-Appellee, v. CHARLES J. CORTESE, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Child custody -- Appeals -- Jurisdiction -- Trial court's final order changing the primary residential parent to the mother is reversed because trial court was divested of jurisdiction to enter order where order was entered while husband's appeal of the trial court's first non-final order was pending
NAPOLEON HUNTER, JR., Appellant, v. LATRAILYA HUNTER, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Child support -- Foreign judgment -- Uniform Interstate Family Support Act -- Limitation of actions -- Trial court improperly concluded that former wife's motion to register and enforce New York judgment against former husband's estate for alimony and child support arrearages was barred by New York's statute of limitations, and that she failed to comply with the Uniform Reciprocal Enforcement of Support Act -- Florida's unlimited time period for enforcing alimony and child support orders applies because the UIFSA has replaced the URESA, and the UIFSA states that, as between the forum and issuing state, the longer statute of limitations applies in proceedings for arrearages -- While wife's action for enforcement may still be limited by laches, because trial court failed to hold an evidentiary hearing, the trial court had no evidentiary basis to conclude that former husband's estate had proven laches -- Reversed and remanded for lower court to conduct evidentiary hearing
CAROLYN JACKMORE, Appellant, v. WILLIAM JACKMORE, and THE ESTATE OF WILLIAM JACKMORE, Deceased, c/o SCOTT JACKMORE, as Personal Representative, Appellees. 1st District.

Dissolution of marriage -- Child custody -- Relocation with child -- Time-sharing -- Order granting wife's motion to relocate children to foreign state is affirmed but remanded with directions to formally adopt the time sharing plan in the order itself and to set deadline for payment of former wife's portion of expert's fee
WILLIAM A. KISH, JR., Appellant, v. EMILY J. KISH N/K/A EMILY J. WHELAN, Appellee. 5th District.

Dissolution of marriage -- Contempt -- Error to enter contempt order requiring mother to enroll child in a specific private school where the underlying order did not explicitly state how the child's tuition was to be paid, and where there was no finding regarding mother's ability to comply
LASHAWN P. HARRIS, Appellant, v. FEASTER BERNARD HAMPTON, Appellee. 4th District.

Estates -- Wills -- Post-nuptial agreement -- Probate court did not err in determining that surviving spouse waived her right to be a beneficiary under deceased husband's will when she executed, after husband's will had been executed, a post-nuptial agreement in which she waived “all rights” on several occasions -- Section of post-nuptial agreement providing for gifts between the parties “hereafter” unambiguously refers to transfers of property after the post-nuptial agreement and does not reserve for the wife beneficiary rights under the will
ANDREA S. STEFFENS, as surviving spouse of decedent, and as Personal Representative of the Estate of JEFFREY E. STEFFENS, Appellant, v. DENISE EVANS, as parent and natural guardian of S.S. and A.S., minors, Appellee. 4th District.

Insurance -- Real property -- Coverage -- Diminution in value of insured building in addition to costs of repair -- Question certified to Supreme Court of Georgia: For an insurance contract providing coverage for “direct physical loss of or damage to” a building that allows the insurer the option of paying either “the cost of repairing the building” or “the loss of value,” if the insurer elects to the repair the building, must it also compensate the insured for the diminution in value of the property resulting from stigma due to its having been physically damaged?
ROYAL CAPITAL DEVELOPMENT, LLC, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Defendant-Appellee. 11th Circuit.

Insurance -- Residential property -- Coverage -- Hurricane damage -- Discovery -- Dispute about disclosure reports of insured's experts -- Additional reports of insured's experts would be stricken and insured would not be allowed to use the experts to supply evidence where insured's “supplemental” reports are not supplements, but rather, are untimely expert disclosures based upon belated investigations and an attempt to bootstrap reports of witnesses who have already been stricken -- Further, allowing such late disclosures would thwart the established deadlines in case and would cause harm and prejudice to insurer in its ability to defend this action -- Insured failed to comply with extended deadline to file its experts' reports; and any claimed prejudice is of its own doing
LA GORCE PALACE CONDO. ASSOC., INC., Plaintiff, v. QBE INSURANCE CORP., Defendant. U.S. District Court, Southern District of Florida.

Landlord-tenant -- Breach of commercial lease -- Summary judgment -- Trial court erred in granting summary judgment after improperly shifting burden regarding absence of genuine issues of material fact to nonmoving party, the tenant, where tenant had alleged affirmative defenses on which the landlord's motion for summary judgment was silent -- Breach of covenant of quiet enjoyment -- No merit to landlord's claim that tenant cannot maintain breach of covenant of quiet enjoyment defense without proving a claim of constructive eviction -- A tenant may claim such damages even where the landlord's actions do not rise to the level of eviction
CORAL WOOD PAGE, INC.; TINA WOODS, and DEREK WOODS, Appellants, v. GRE CORAL WOOD, LP, a Florida limited) partnership, Appellee. 2nd District.

Mortgage foreclosure -- No abuse of discretion in denying mortgagor's motion to set case for mediation pursuant to judicial circuit administrative order, which granted trial court the exclusive discretion to decide whether to compel parties to mediate in homestead mortgage foreclosure actions which were filed prior to specified date -- Given confession that trial court committed procedural errors relating to summary judgment hearing and evidence presented, final summary judgment of foreclosure reversed -- Remand for further proceedings
TRUDY DIEDRICK-CLARKE, Appellant, v. WASHINGTON MUTUAL BANK, Appellee. 4th District.
Mortgage foreclosure -- Error to grant motion to set aside foreclosure judgment and sale where motion was untimely filed more than one year after it was entered
FNS4, LLC, Appellant, vs. SECURITY BANK, N.A., Appellee. 3rd District.

Paternity -- Disestablishment -- Newly discovered evidence -- No error in dismissing petition to disestablish paternity alleging newly discovered evidence in form of DNA test results showing that petitioner was not biological father of child -- Plain language of statute requires showing of newly discovered evidence in addition to DNA test results indicating that a male is not the father of the child, and petitioner provided no newly discovered evidence as defined by statute -- Further, petitioner did not exercise due diligence to discover whether he was biological father at the time he voluntarily acknowledged paternity, although he was aware that there was only a fifty percent chance that he was biological father
PAUL HOOKS, Appellant, v. LAYTOYA QUAINTANCE, Appellee. 1st District.

Torts -- Automobile accident -- Contracts -- Proposal for settlement -- Trial court erred in concluding that a binding settlement agreement had been reached before suit was filed where the purported acceptance of the settlement offer did not mirror the offer and, therefore, did not create a binding contract of settlement -- Where plaintiff's offer of settlement to defendant's insurer stated that actual performance was required for acceptance and required a general bodily injury release ready for plaintiff's signature, the release tendered by insurer that encompassed all claims arising from the accident, and included indemnification language and a new term not contained in the offer, was a counter-offer which plaintiff was not bound by in absence of manifestation of assent to additional terms

Torts -- Automobile insurer filed complaint against medical provider and two officers or employees of provider, alleging that billing claim forms submitted by defendants pursuant to assignments from fifteen insured patients contained false and fraudulent statements and that defendants planned and organized a pattern and practice of deception, which included recruiting and paying drivers and insured patients to stage vehicle collisions to produce these fraudulent claims -- Jurisdiction -- Diversity -- Insurer's claims against single medical provider and officers and employees of provider properly included aggregated amounts from fifteen insurance claims submitted to insurer, and aggregated amount satisfies $75,000 jurisdictional requirement -- 28 U.S.C. section 1359, which applies when a party has been improperly or collusively made or joined to invoke jurisdiction, does not preclude diversity jurisdiction in instant case -- Statutory preemption -- Plain language of Section 627.736(12), Florida Statutes does not preempt plaintiff's common law claims -- Nothing in statute provides that cause of action exists only if there is a conviction, or that other causes of action are preempted -- Piercing corporate veil -- Individual defendants can be individually liable on asserted claims where individual liability is not premised upon piercing corporate veil, and complaint alleges direct participation of two individuals in alleged unlawful and fraudulent conduct -- Fraud -- Claim of common law fraud against medical provider is barred by economic loss rule and must be dismissed where obligation of insurer to pay provider was premised solely on assignment of benefits from insured patients to the provider -- Economic loss rules does not bar common law fraud claims against individual officers and employees of corporate employer, where there was no contractual relationship between insurer and individual defendants, in their individual capacities -- Allegations in common law fraud claim sufficiently set forth a claim of fraud as to both individual defendants to comply with heightened pleading requirements for a fraud claim -- Unjust enrichment -- Claim is not barred by Florida economic loss rule and sets forth plausible claim to satisfy federal pleading requirements -- Deceptive and unfair trade practices -- Complaint adequately pleads claim for damages under Florida Deceptive and Unfair Trade Practices Act, even if specificity requirements of Rule 9(b) apply to FDUTPA -- Argument that plaintiff should have reasonably foreseen deception and mitigated damages is, at best, an affirmative defense which will not support motion to dismiss -- Negligent supervision -- Claim was adequately pled and no case has been cited which finds such a claim barred by Florida economic loss rule -- Civil conspiracy -- Intracorporate conspiracy doctrine bars civil conspiracy claim where there are no allegations that individual defendants have interest separate and distinct from their corporate interests as employees of medical provider -- Declaratory relief -- Claim for declaratory relief pursuant to Section 86.01, Florida Statutes, survives motion to dismiss as to pending claims which seek to determine existence or nonexistence of fact upon which insurer's obligations under insurance policy depend -- As to future claims for payment, declaratory relief claim is not ripe and no case or controversy currently exists as to claims which may or may not be filed
NATIONWIDE MUTUAL COMPANY, Plaintiff, v. FT. MYERS TOTAL REHAB CENTER, INC., PETER REITER, DC, DAVID PINTO, Defendants. U.S. District Court, Middle District of Florida, Ft. Myers Division.

Torts -- Cruise ships -- Arbitration -- Appeal by cruise line from denial of its motion to compel arbitration of dispute between cruise line and ship's bar server who was allegedly drugged and raped while unconscious in a cabin with five men -- District court did not err in holding that claims for false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy, and fraudulent misrepresentation do not fall within scope of arbitration provision, where those claims contain allegations that do not arise from, do not relate to, and are not connected with parties' crew agreement or services performed by plaintiff as bar server -- Claims are not the immediate, foreseeable result of performance of parties' contractual duties or plaintiff's services as cruise line employee, and are not within scope of arbitration clause, where claims involve factual allegations about how cruise line and its officials treated plaintiff after learning that she had been raped, including allegations that she was kept on the ship against her will, that she was prevented from getting medical attention off the ship, that her rape kit was destroyed in incinerator, and that her confidentiality as rape victim was intentionally violated -- District court erred by denying motion to compel arbitration on remaining five claims which fall under either Jones Act or general maritime law applicable to seamen, or Seaman's Wage Act, because those claims arise directly from plaintiff's undisputed status as a “seaman” employed by cruise line and the rights that she derives from that employment status, and as a result fall within scope of arbitration provision
JANE DOE, Plaintiff, Counter Defendant, Appellee, v. PRINCESS CRUISE LINES, LTD., a foreign corporation, d.b.a. Princess Cruises, Defendant, Counter Claimant, Appellant. 11th Circuit.

Torts -- Fraudulent misrepresentation -- Securities act violations -- Action alleging that defendants, who had superior knowledge of facts which plaintiffs did not know and could not have discovered through due diligence, induced plaintiffs to purchase stock in corporation was sufficient to plead claims for fraudulent inducement and securities act violations -- Trial court erred in dismissing complaint
GEMINI INVESTORS III, L.P., ET AL., Appellants, vs. MICHAEL NUNEZ, ET AL., Appellees. 3rd District.

Torts -- Interference with business relationship -- Defamation -- Damages -- Evidence -- Undisclosed expert testimony -- Action by plaintiff against insurance agency which contracted to market plaintiff's extended warranty service contracts in Puerto Rico, with defendant counterclaiming that plaintiff tortiously interfered with its business relations with dealers and banks, resulting in complete destruction of its business, when it terminated agreement without ninety days' notice and committed various other bad acts -- Trial court erred in denying plaintiff/counterclaim defendant's motion for directed verdict on tortious interference counterclaim where damages were not proven -- Trial court erred in allowing defendant's owner to testify concerning market value of its business on date contract was terminated where owner testified as an expert, owner's testimony was not properly disclosed during pretrial discovery, and owner's testimony was too speculative -- Owner's testimony turned into expert testimony when he claimed to have specialized knowledge regarding the proper mathematical formula which should be used to calculate the market value of a niche insurance agency in Puerto Rico, testified that he acquired this knowledge through thirty years' experience as an agent in the insurance industry, and further testified that he had bought and sold insurance agencies more than ten times in the past using the same valuation methodology -- Mid-trial deposition permitted by trial court was insufficient to cure any prejudice because the only way company could have countered the testimony was through its own expert, and trial court denied company's request for time to consult with an expert and possibly offer rebuttal expert testimony -- Where defendant/counterclaimant claimed that its business was completely destroyed, defendant was required to prove market value of its business on date of loss -- Testimony of properly disclosed expert was too speculative, and was properly excluded, where expert based his opinion on income-based approach to valuation and used projected lost profits for five years into the future, although plaintiff had the right to terminate contract for any reason with ninety days' notice -- Owner's testimony was likewise deficient in that owner used speculative forecasts of future revenue to determine market value -- Defamation -- Trial court erred in denying motion for directed verdict on defamation counterclaim where allegedly defamatory statement by one of plaintiff's salesmen, that defendant's rates were fraudulent, was pure opinion

Torts -- Negligence -- Medical malpractice -- Action by plaintiff who had been a resident of psychiatric facility for young boys, alleging that facility had been negligent for failure to separate plaintiff from another resident who had bullied plaintiff and eventually attacked plaintiff, causing him serious injury -- Action was a negligence action rather than a medical malpractice action -- Trial court erred in entering summary judgment for defendant facility on grounds that plaintiff had failed to comply with medical malpractice presuit requirements and that action was barred by medical malpractice statute of limitations
JAMES JOSEPH, Appellant, v. UNIVERSITY BEHAVIORAL LLC., ET AL., Appellee. 5th District.

Venue -- Insurance -- Commercial vehicle liability -- Forum selection clause -- Trial court improperly denied insurer's motion to dismiss on the basis of improper venue where clear and unambiguous forum selection clause found in policy stated that Georgia shall have jurisdiction and venue over any claims relating to the rights and obligations of the policy, insured freely bargained for and contracted with insurer with full knowledge of the forum selection clause, and insured failed to show that the clause was unreasonable or unjust -- While the compelling reasons exception applies to interstate commercial contracts, cases cited by insured are inapplicable to the instant case because they only address Florida's venue statutes, purely intra-state disputes not governed by forum selection clauses -- Insured's argument that by litigating in Florida and Georgia it would be forced to split its causes of action and that the forum selection clause does not govern all of insured's claims is rejected -- Validity of entire contract must be submitted to the forum chosen by the parties in the contract

Wrongful death -- Federal jurisdiction -- Removal of state court action to federal court -- Remand to state court -- District court did not err in denying motion to reconsider order remanding case to state court, despite movant's claim that in light of recent circuit court opinion issued by court clarifying method for calculating the amount-in-controversy requirement, district court had jurisdiction over the case -- Neither circuit court nor district court has jurisdiction to revisit remand order issued pursuant to section 1447(c)
PEGGY BENDER, Plaintiff-Appellee, v. MAZDA MOTOR CORPORATION, MAZDA MOTOR OF AMERICA, INC., d.b.a. Mazda North American Operations, FORD MOTOR COMPANY, INC., Defendants-Appellants, JIMMY PUGH, et al., Defendants. 11th Circuit.

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.