Monday, January 16, 2012

Criminal law, sentencing, arbitration and medical malpractice, with roast duck served on fresh blackberry and cranberry sauce


Criminal law -- Attempted murder -- Jury instructions -- Giving of standard jury instruction on attempted manslaughter is not fundamental error in prosecution for attempted first degree murder where defendant is convicted of lesser included offense of attempted second degree murder -- Conflict certified
JEAN L. CORIOLAN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Counsel -- Ineffectiveness -- Defendant convicted of sexual battery by digital penetration and oral penetration of a child under 12 after two counts for lewd or lascivious molestation against a second victim were severed subsequent to the jury being informed of the crimes, and second victim was permitted to testify as a Williams Rule witness -- Ineffectiveness was apparent on the face of the record, and no conceivable tactical strategy would justify conduct of counsel, where counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes; abandoned his client's rights by agreeing to waive ten-day notice requirement for Williams Rule evidence; failed to object to trial court's refusal to permit counsel to introduce witnesses whose testimony may have persuaded trial court that evidence sought to be admitted under theWilliams Rule standard was unreliable; and failed to object when judge left a position of neutrality by making suggestions to the state on theories for admitting Williams Rule evidence and obtaining counsel's waiver of defendant's right to notice -- Ineffectiveness was so serious as to have affected outcome where there was no evidence other than testimony of the two victims, and proper objections may have prevented victim in severed counts from testifying as Williams Rule witness
ARCHIE HILLS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- First-degree grand theft -- Jury instructions -- Good faith defense -- Trial court erred in refusing to give requested special instructions on good faith, the lack of criminal implications for a disagreement regarding contract interpretation, and the definition of “petroleum contaminated water” (PCW) set forth in the Florida Administrative Code, where defendants, under contract to remove water contaminated with jet fuel from airport's fuel farm, were charged with stealing jet fuel contaminated or uncontaminated with water, but claimed they believed that, under two contracts which referred to PCW but which left the term inadequately distinguished from jet fuel, they were entitled to remove all the contents of a tank which contained both water and jet fuel in various mixture proportions -- Trial court's use of a standard instruction on the element of intent did not relieve it of the duty to give the good-faith instruction because the good-faith theory was adequately supported by evidence at trial, the standard instruction on the element of intent is insufficient to adequately cover the effect of a good-faith claim, and the requested special instructions constituted a correct statement of law and were not confusing or misleading -- No merit to state's argument that defendants were not entitled to an instruction giving the Administrative Code's definition of PCW because the definition itself is not a valid theory of defense -- Definitions are routinely included in jury instructions, and because the term defined is beyond the scope of common experience, the trial court had an affirmative responsibility to give the instruction -- Allowing defense counsel to argue the definition of PCW to the jury in closing was not an adequate substitute -- Trial court erred in failing to give special instruction on disputed contract interpretation because where, as here, the interpretation involves the possibility of criminal conviction, the rule of lenity requires that doubt be resolved in favor of the accused, and the failure to give the instruction left the jury free to resolve the contract's ambiguity against the defendants -- Evidence -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct a Richardson hearing upon being alerted by defense counsel to possible discovery violation where state witness's testimony departed dramatically from his pretrial deposition, it is clear the state was aware this would happen, and no disclosure was produced until the witness had already taken the stand -- Defense counsel was not obligated to make an objection based on Richardson or to request a Richardson hearing -- By defense counsel's merely bringing the state's non-compliance to the trial court's attention, the issue is preserved -- State's failure to disclose the changed testimony constituted a violation of its duty under rules of criminal procedure imposing a continuing duty to disclose -- Post-trial inquiry was not an adequate Richardsonhearing because it was untimely and because even if it had been timely, it improperly shifted the burden to the defense to demonstrate prejudice
CLIFF BERRY, INC., and JEFFREY CLINT SMITH, Appellants, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Appeals -- Mediation -- Failure to appear -- Sanctions imposed on parties who failed to appear at court ordered appellate mediation where no motion seeking to excuse personal appearance was filed -- Appearance of parties' insurance company representative cannot take parties' place
CARDEN & ASSOCIATES, INC. AND LENWOOD HOLLISTER, JR., Appellants, v. C.O.D. TREES PARTNERSHIP, Appellee. 5th District.

Arbitration -- Arbitrable issues -- Credit card agreement -- Class action by credit card holders alleging violations of Credit Repair Organizations Act largely based on defendants' allegedly misleading misrepresentation that credit card could be used to rebuild poor credit and defendants' assessment of multiple fees upon opening of the accounts, which greatly reduced advertised credit limit -- Because CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act requires arbitration agreement at issue to be enforced according to its terms
COMPUCREDIT CORPORATION, ET AL., Petitioners v. WANDA GREENWOOD ET AL. U.S. Supreme Court.


Attorney's fees -- Prevailing party -- Injunction -- Trial court erred in awarding prevailing party attorney's fees to homeowners association in action seeking injunction to require that homeowner obtain insurance on home in accordance with subdivision declaration where association had adequate remedy at law by obtaining insurance coverage on home and assessing the cost against the homeowner -- Because association had adequate remedy at law, trial court should have dismissed complaint for injunctive relief
ROBERT ALORDA and DANIELLE ALORDA-McKINNON, Appellants, v. SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee. 2nd District.

Child support -- Child custody -- Intervention -- Where Department of Revenue initiated proceedings to establish paternity and require father to pay medical support and child support; father filed petition seeking custody of child and child support from child's mother; custody petition was transferred to a new lower court case number; mother and father ultimately entered into agreement providing that father would consent to termination of parental rights and mother would agree to withdraw action for support; and thereafter trial court entered order in custody case approving the agreement and terminating the father's parental rights, trial court did not err in denying motions to intervene in the two cases, filed by mother on behalf of minor child for purpose of challenging the agreement and order terminating parental rights on ground that agreement and order had deprived child of support and a father/child relationship -- Although parents' agreement for termination of parental rights and subsequent order adopting agreement are void and subject to challenge, trial court correctly ruled that intervention was not appropriate vehicle for mother or child to challenge agreement and resulting order -- Affirmance of order denying intervention is without prejudice to rights of mother or child to challenge agreement and order approving agreement in a motion for relief from judgment or in a newly-initiated proceeding
KELLEY LYNN REED, both individually and o/b/o ABBY LYNN REED, a minor child, Appellant, v. ROLLIN F. BLANSHINE and DEPARTMENT OF REVENUE, Appellees. 4th District.


Civil procedure -- Service of process -- Condominiums -- Registered agent -- No merit to argument that service of process on registered agent of corporation qualified to transact business in Florida must comply with hierarchical provisions of section 48.081(1)(a)-(d)
VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.


Contracts -- Condominium sale -- Preconstruction agreement -- Action arising out of buyer's refusal to close due to seller's failure to complete the condominium within two years of the contract as provided by the contract -- Trial court properly found breach of contract by buyer where, although court erred in determining that the unit could be permissibly conveyed on date permitted in the contract pursuant to 718.104(4)(e), purchase contract provided that the period for completing the unit could be extended beyond two years if certain delays occurred, and trial court's finding that certain delays did occur was supported by competent and substantial evidence
SOMMAI BREAZEALE, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee. 1st District.

Contracts -- Condominium sale -- Return of deposit to buyer -- Withholding portion of deposit -- Action by buyer seeking to void contract for developer's violation of section 718.202, Florida Statutes, by conditioning return of buyer's deposit upon its lender's consent to return the deposit -- Error to enter summary judgment for defendant developer where there was factual issue as to whether buyer had defaulted under the contract
FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.


Dissolution of marriage -- Alimony -- Imputed income -- Trial court erred, as a matter of law, in concluding that it could not impute income to wife because husband's vocational expert did not place wife in a job and there was no evidence that wife had turned down specific employment -- Instead, court should have considered wife's work history, occupational qualifications, and prevailing earnings in the community for class of available jobs -- Remand for reconsideration of issue of imputing income and, if necessary, recalculation of permanent alimony
SHARON BOOTH MIDDLETON, Appellant/Cross-Appellee, v. JAMES W. MIDDLETON, Appellee/Cross-Appellant. 5th District.

Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery
MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.


Dissolution of marriage -- Judges -- Disqualification -- After having granted motion to disqualify, judge was prohibited from directing former husband to submit his objections to former wife's motion to compel sale of former husband's residence to satisfy arrearages or a proposed order -- Trial judge is generally prohibited from taking any action in a case once disqualified, and exception in the case of ministerial acts is inapplicable
RICHARD S. ROSS, Petitioner, v. SHERI LYNN ROSS, Respondent. 4th District.


Dissolution of marriage -- Temporary alimony -- Temporary pre-dissolution attorney's fees -- Waiver -- Marital settlement agreement -- Agreement between parties that waives or limits right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is violation of public policy -- Error to strike notice of hearing on wife's motion for increase in temporary alimony and attorney's fees and costs based on provisions of a marital settlement agreement which parties entered into during prior dissolution proceeding which was ultimately dismissed after parties reconciled and which contained allegedly unmodifiable alimony provision and provision requiring each party to pay for their own legal fees
LISA KHAN, Appellant, v. ASLAM KHAN, Appellee. 4th District.


Dissolution of marriage -- Settlement agreement -- Enforcement -- Post-dissolution agreement in which it was agreed that mother's new husband would file for formal adoption of child, husband would pay half the original amount of child support, former husband would continue payments on life insurance policy, and former husband would have access to his son for life -- Circuit court, which was asked to determine validity and enforceability of agreement in light of adoption of child, erred in closing case on ground that family division did not have jurisdiction and that motions for enforcement and contempt should be heard in adoption court -- Even though child was subject of adoption, judge sitting in family division would have authority to rule on issues connected to the agreements reached in family court proceedings; and, in fact, court in this case reserved jurisdiction of parties and subject matter in final order incorporating the post-judgment agreement -- Further, no jurisdiction was reserved in final judgment of adoption and, accordingly, the issues regarding the post-judgment agreement could only be litigated in court retaining jurisdiction for that purpose
DONNA M. BAUDANZA, n/k/a DONNA M. DUNNE, Appellant, v. DENNIS BAUDANZA, Appellee. 4th District.


Judges -- Disqualification -- Prohibition -- Where judge has disqualified herself from case, prohibition is not appropriate for that case -- Blanket motion for recusal -- Attorneys are not entitled to writ of prohibition to disqualify judge in other pending cases in which attorneys are counsel of record
R.M.C., GRANDMOTHER, Petitioner, v. D. C., FATHER, Respondent. 1st District.


Jurors -- Post-trial interview -- Plaintiffs not entitled to interview jurors after trial to demonstrate that jurors' nondisclosure of information regarding their involvement with court system justified new trial where jurors' failure to disclose information, if any, was attributable to plaintiffs' lack of diligence in uncovering the information during voir dire
JANET RODGERS and DOUGLAS CARL RODGERS, as co-personal representatives of the estate of CARL SHANE DOUGLAS RODGERS, deceased, Appellants, v. AFTER SCHOOL PROGRAMS, INC., Appellee. 4th District.


Mortgage foreclosure -- Default -- Vacation -- Civil procedure -- Defendant who defaulted cannot thereafter contest allegations of complaint that plaintiff was the owner and holder of the note and mortgage -- With respect to remaining contentions that documents submitted in support of complaint and motion for summary judgment were faulty or inadmissible, rule 1.540(b) motion cannot be used as substitute for a motion for rehearing or an appeal
JO-ANN T. BEAULIEU, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee. 4th District.

 
Life Insurance: RESCISSION OF LIFE INSURANCE POLICY ISN'T BAD FAITH, Salkin v. United Servs. Auto. Ass'n, 7 No. 18 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith January 10, 2012
A life insurance carrier did not act in bad faith when it rescinded a policy based on material misrepresentations that a policyholder made about his medical history during the application process, a California federal judge has ruled. U.S. District Judge Virginia A. Phillips of the Central District of California held that summary judgment in favor of the insurer is warranted where the policyholder's statements "discouraged" the carrier from seeking his medical records.

Medical malpractice -- Causation -- Evidence -- Expert -- Action alleging that defendant obstetrician was negligent in using fetal vacuum extractor during delivery of plaintiff, and that this negligence caused plaintiff to suffer ischemic stroke which caused brain injury, leaving plaintiff with cerebral palsy -- Trial court did not err in excluding testimony of plaintiff's standard of care expert which would link breach of standard of care to plaintiff's ischemic stroke, because such testimony would go to causation and would exceed the scope of matters on which expert was qualified -- Where defendant's expert had testified regarding his own publications and work in the field of epidemiology and a “huge national experiment” which showed no association between vacuum extraction and stroke, it was not error to allow defense counsel to ask expert, “Have you ever heard of the concept before this lawsuit that a vacuum assist can cause an ischemic stroke?” -- Question was not improper bolstering, but rather a fair follow-up to unchallenged testimony about the “huge national experiment” -- Court did not err in allowing another defense expert to use a National Institutes of Health study to explain why he concluded that the preeclampsia plaintiff's mother developed during pregnancy contributed to plaintiff's brain injury -- It is not improper bolstering to allow an expert to testify about the results of a government study such as the NIH study
DANIEL DUSS, A MINOR CHILD, BY AND THROUGH REGIONS BANK, THE GUARDIAN OF HIS PROPERTY, Appellant, v. MARTIN A. GARCIA, M.D., AN INDIVIDUAL; NORTH FLORIDA OBSTETRICAL & GYNECOLOGICAL ASSOCIATES, P. A., A FLORIDA FOR PROFIT PROFESSIONAL ASSOCIATION, Appellees. 1st District.

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