Tuesday, January 10, 2012

Family law, commercial law issues, and braised kale, garlic and Italian sausage with penne pasta and garlic


Criminal law -- Attempted second-degree murder -- Jury instructions -- Trial judge's instruction on lesser offense of attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State requires reversal and remand for new trial -- Conflict certified -- Inconsistent verdicts -- Jury instructions -- Even were attempted manslaughter instruction not erroneous, defendant's conviction as principal to attempted second-degree murder and, in another count, as accessory after the fact for the same offense, would require reversal -- While there is no standard instruction for this circumstance, defendant was entitled to an instruction explaining that the jury could convict him of only one of these offenses -- Trial court's handling of inconsistent verdicts by sentencing defendant only on the greater offense of attempted second degree murder and dismissing the related accessory charge was improper because it cannot be declared beyond reasonable doubt that jury's inconsistent verdict is harmless and that jury would have selected the greater offense if forced to choose -- Evidence -- Statements of defendant -- It was error to admit, as evidence of consciousness of guilt, defendant's statement that he contacted an attorney and had been advised to “lay low”
ERIC BAZEMORE, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Sentencing -- Resentencing -- Appellate counsel was not ineffective for failure to argue that imposition of consecutive sentences after defendant had filed motion to correct initially imposed illegal concurrent sentences was vindictive -- Because overall length of defendant's imprisonment before and after resentencing remained unchanged, there was no presumption of vindictiveness -- Appellate counsel was ineffective for failure to argue that trial court violated defendant's double jeopardy rights when it resentenced defendant to consecutive sentences on counts for which defendant had not challenged his sentences in rule 3.800(b)(2) motion, where defendant had begun serving the initial concurrent sentences and the sentences were final by the time defendant filed rule 3.800(b)(2) motion
JESUS RANGEL BERNAL, Petitioner, v. STATE OF FLORIDA, Respondent. 1st District.

Criminal law -- Counsel -- Waiver -- Failure to conduct proper Faretta inquiry at sentencing hearing -- Remand for resentencing following proper inquiry
WILLIAM EARL DUNCAN, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Counsel -- Waiver -- Where defendant expressed that he wanted to represent himself, and court conducted Faretta inquiry and accepted defendant's waiver of counsel, it was error for court to fail to renew offer of assistance of counsel at commencement of trial which was a crucial stage of proceedings -- Trial court's hearing on motion to suppress qualified as an intervening proceeding requiring court to conduct another inquiry, and court was required to renew the offer of assistance of counsel at the next crucial stage when defendant's trial commenced three weeks later
TAJHON BODERICK WILSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Defrauding financial institution -- Aggravated white-collar crime -- Scheme or artifice to defraud financial institution -- Retrial following mistrial -- Trial court properly dismissed counts of third amended information which charged new crimes not included in prior informations, as these crimes were barred by the statute of limitations -- Error to dismiss, as time-barred, count charging defendants with first-degree aggravated white collar crime where charge, which was predicated on series of prior acts of defrauding financial institution, was filed less than four years after date of first predicate act -- The fact that individual predicate offenses would have been untimely if brought as independent charges does not affect timeliness of prosecution for aggravated white-collar crime
STATE OF FLORIDA, Appellant, v. EDWARD DARRELL TRAYLOR and PERRY MICHAEL TRAYLOR, Appellees. 5th 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 -- 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.

Consumer law -- Deceptive and unfair trade practices -- Challenge to judgment finding defendant in violation of Florida Deceptive and Unfair Trade Practices Act for receiving payments based on phony invoices his company sent to over 1000 corporations -- No error in denying motion to dismiss complaint filed by Office of Attorney General for failure to provide names of defrauded consumers, as Florida law does not require that each consumer be named in complaint for these types of action -- Self-incrimination -- Post-judgment assertion of Fifth Amendment privilege -- Defendant's blanket objection to order requiring defendant to transfer all international assets in his control to the States and provide an accounting of those assets, on ground that repatriation of assets and documents, as well as accounting of those assets, could provide link in chain of evidence that could lead to criminal charges against defendant was insufficient to support application of Fifth Amendment privilege in this case
BERND TAUBERT, Appellant, v. STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, 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.

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.

Contracts -- Subscription and purchase agreement governing construction and closing of condominium unit -- Trial court erred in finding that developer complied with contract provision requiring timely completion and delivery of unit within two years of date of agreement based on finding that certificate of occupancy, which was issued within two-year period, signaled completion of unit -- Interplay between contract and governing statute leads to determination that recording of surveyor's certificate of substantial completion was relevant event for determining compliance with contract's deadline -- Under plain language of contract, “complete” and “deliver” were related in that duty required to be performed within two years was the delivery of a completed unit, and under plain language of statute, surveyor's certificate of completion must be recorded before a completed condominium unit may be conveyed to purchaser
TRANQUIL HARBOUR DEVELOPMENT, LLC, a Limited Liability Company, Appellant/Cross Appellee, v. BBT, LLC (212 & 311); CLAUDE BROUSSEAU & ANN MARIE DUGRE (303); E & N, INC. (103); JOSEPH FERRARO (211); RICHARD & JANE KISEL (205); LEONARD MARNELL (207); JAR ENTERPRISES, LLC (105 & 108); L. DENNIS PANTER (107 & 206); MARIA COSTOPOLOUS (107); GUY & BARBARA RUVOLO (106); JEFF & DORSEY SHIVER (102); JUDITH ANN WADE (301 & 309); TONY WHITFIELD, PAM MCCLURE, TERESA CARLTON, JANIE SCHMARGE, DARLENE MADDEN, VIC GEORGE, S&S FAMILY PROPERTIES, LLC (101); and, BRYAN & MISTY MORGAN (210), Appellees, and BONNIE STRICKLAND, SYLVIA LANG, NELL WOOTEN, and MIKE NOBLES Appellees/Cross Appellants. 1st 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.


Dissolution of marriage -- Alimony -- Modification -- Abuse of discretion to modify permanent periodic alimony obligation to an amount which exceeded former husband's ability to pay -- To extent alimony award was based upon finding that husband had ability to borrow funds or to deplete his assets to meet future alimony obligations, trial court erred, especially in light of relative financial position of parties -- Further, trial court may consider assets awarded to husband during distribution for purposes of determining alimony, but may not require him to exhaust those assets to make alimony payments -- Attorney's fees -- Abuse of discretion to require husband to pay portion of former wife's attorney's fees where wife was in superior financial position and could pay her own fees
GARY GALLIGAR, former husband, Appellant, v. TERRIE GALLIGAR, former wife, Appellee. 1st District.

Dissolution of marriage -- Alimony modification -- Attorney's fees -- Error to award attorney's fees to wife without indicating in order that trial court considered any factors to determine whether amount of fees or hours expended were reasonable -- Remand for trial court to make such findings
THOMAS L. LUKE, Former Husband, Appellant, v. SYLVIA J. LUKE, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Trial court did not abuse discretion in requiring former husband to pay for respite nursing care for adult child who suffers a severe seizure disorder and has been declared mentally incompetent
HARRY M. KOSLOWSKI, FORMER HUSBAND, Appellant, v. SUSAN S. KOSLOWSKI, N/K/A SUSAN HARDMAN, FORMER WIFE, Appellee. 1st District.

Torts -- 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.

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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