Tuesday, February 21, 2012

Appellate attorney's fees, proposals for settlement, and chocolate ganache cookies

Attorney's fees -- Appellate -- Circuit court appellate division improperly awarded appellate attorney's fees to defendant pursuant to offer of judgment statute where plaintiff had voluntarily dismissed his lawsuit without prejudice

MARIO MEJIA, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. 3rd District.

Attorney's fees -- Award of attorney's fees pursuant to section 57.105, Florida Statutes, reversed where portion of order directing payment of fees contains no findings of fact

REGIONS BANK, Appellant, v. SARWAT M. GAD, et al., Appellees. 1st District.

Attorney's fees -- Proposal for settlement -- Wrongful death -- Non-settling defendants who prevailed in wrongful death action were entitled to recover fees from estate based on personal representative's rejection of reasonable offer of settlement, but those fees could not be recovered from settlement funds allocated to survivor under Wrongful Death Act -- Trial court erred in requiring personal representative to pay defendants' attorney's fee claim before distributing settlement proceeds to himself as sole survivor -- Fact that personal representative in this case was also sole survivor does not change result -- Statute allowing for deduction of litigation expenses from awards made to survivors applies only to fees and costs incurred by attorneys representing the survivors

CHARLES KADLECIK, AS PERSONAL, ETC., Appellant, v. Y. DANIEL HAIM, M.D. AND CENTRAL FLORIDA, ETC., Appellee. 5th District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 7 trustee's fraudulent transfer claims, alleging transfers from debtor corporation to IRS were in payment of principal's personal tax liability at time when debtor was struggling to pay its bills and had no liability to IRS, are core proceedings stemming from bankruptcy itself for which bankruptcy court may enter final orders -- Narrow holding of Stern v. Marshall does not apply to claims at issue -- Even if it were determined that bankruptcy court lacks authority to enter final orders because trustee's fraudulent transfer claims are merely “related to” bankruptcy, court may still enter final orders because Section 157(c)(2), provides that a bankruptcy judge can issue final judgments in non-core proceedings if parties consent, and IRS explicitly and impliedly consented to bankruptcy court's final resolution of claims at issue -- Objection to entry of final orders by bankruptcy court overruled

In re: CUSTOM CONTRACTORS, LLC, Debtor. U.S. Bankruptcy Court, Southern District of Florida, West Palm Beach Division.

Child support -- Enforcement of administrative support order -- Error for court to reduce child support by deviating from guidelines based upon a verbal visitation agreement that was not court-authorized

DEPARTMENT OF REVENUE O/B/O LEMEICIA L. RAMBERT, Appellant, v. DONALD G. WILLIAMS, Appellee. 1st District.

Contracts -- Home repair -- Damages -- Breach of contract by contractor who failed to complete work on plaintiff's home, failed to pay subcontractors, and caused additional damages to home -- Damages awarded on breach of contract count, duplicative damages awarded for negligence and violations of Florida Deceptive and Unfair Trade Practices Act, and an additional amount awarded under civil theft theory -- Torts -- Recovery on negligence theory was barred by economic loss rule where parties were in contractual privity and damages were caused when performing the contract -- Facts adduced at trial do not support award of damages for civil theft -- No error in awarding damages on breach of contract or FDUPTA claims -- Because the same measure of damages applies to both theories of recovery, plaintiffs only entitled to single recovery of damage amount

LAUFEN, INC. AND JAMES JACKSON, Appellant, v. THOMAS ANDREW AND CONSTANTINA ANDREW, Appellee. 5th District.

Dissolution of marriage -- Contempt -- Law of the case -- Where first magistrate's report, and subsequent trial court order, held husband was not in contempt for nonpayment of alimony because marriage settlement agreement provided that retirement benefits, in this case his social security benefits, were not subject to be used for alimony, no objection or exception was filed by wife, and later, successor magistrate's report found predecessor magistrate's report misinterpreted plain meaning of marital settlement agreement and that manifest injustice would result from misinterpretation, hence “law of the case” doctrine did not apply, trial court properly quashed successor magistrate's report and concluded based on “law of the case” doctrine that it did not have the authority to overrule another circuit judge based on a finding of manifest injustice or because the current judge believes the predecessor judge was incorrect -- Husband does owe wife accrued alimony, hence the case is remanded for evidentiary hearing to determine whether husband has any other assets to pay former wife alimony -- Notwithstanding correctness of trial court's holding, it misapplied “law of the case” doctrine, since the doctrine only applies when matters are remanded to a trial court from an appellate court -- Rather, the proper principle asserts a successor judge may not correct errors of law committed by predecessor

AMY DRDEK, Appellant, v. DENNIS J. DRDEK, Appellee. 4th District.

Estates -- Real property -- Partition -- Attorney's fees -- Trial court erred in failing to make a determination regarding the amount of attorney's fees plaintiff's attorney earned advancing her partition count due to the fact that plaintiff's first three counts sought full title in herself and only sought partition in the alternative -- Although defendant provided greater services because he had to defend plaintiff's first three counts to get case to partition posture, that fact does not preclude plaintiff's attorney from receiving some award based solely on the acts he or she took towards partition

ROBERTA FERNANDEZ-FOX, Appellant, v. MARK REYES AS PERSONAL REPRESENTATIVE, ETC., Appellee. 5th District.

Injunctions -- Domestic violence -- Evidence in record on appeal was insufficient to support final injunction protecting wife and parties' minor children from domestic violence by husband -- Claim that trial court erred by relying on pleadings, testimony, and other evidence from previous proceedings without properly taking judicial notice was not preserved for appellate review by objection -- Challenge to lack of explanatory findings of fact relating to statutory factors for determining entitlement to final judgment of injunction was not preserved for appellate review where matter was not brought to attention of trial court to afford a reasonable opportunity to correct the deficiency

JUAN R. ACHURRA, Appellant, v. ESPERANZA ACHURRA, Appellee. 1st District.

Mortgage foreclosure -- Standing -- Action to foreclose residential mortgage and recover on promissory note -- Entry of final summary judgment for original mortgagee was fundamental error where original mortgagee was a non-party because it had withdrawn from case -- Judgment would still be reversed even if entered in favor of alleged transferee who sought to establish note and recover on it where transferee failed to prove who lost the note and when it was lost, offered no proof of anyone's right to enforce note when lost, and produced no evidence of ownership -- Although mortgagor failed to raise lack of standing as an affirmative defense, this failure did not operate as a waiver where there is no evidence showing mortgagor was on notice prior to filing answer that ownership of note had been transferred because it appears the claimed transfer, which allegedly took place the day suit was filed, was either concealed for three years while original mortgagee pursued suit, or the assignment was backdated to justify substituting transferee as plaintiff -- Furthermore, transferee still had to prove its right to enforce note when judgment was entered, even if mortgagor had waived his right to challenge standing

MARC D. BEAUMONT, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee. 5th District.

Torts -- Automobile accident -- Cross-examination -- Limitation -- Trial court abused its discretion when it limited scope of cross-examination of defendant's medical expert on proximate cause of plaintiff's injuries in order to effectively refute notion that plaintiff's damages were not proximately caused by accident -- Because trial court foreclosed plaintiff's attempt to negate notion that her damages were not proximately caused by accident, witness's theory was left unchallenged and could have led to jury's awarding plaintiff only a fractional portion of the damages she sought -- Plaintiff entitled to new trial

AUDRA W. POLAND and STEVEN POLAND, her husband, Appellants, v. SUSAN S. ZACCHEO, Appellee. 4th District.

Torts -- Contracts -- Churches -- Ecclesiastical abstention doctrine -- Action by members of board of directors of church, a not for profit corporation, alleging that defendants, acting without authority, attempted to remove board members in violation of statutory procedures to be followed in removing board members -- Trial court erred in dismissing action on ground that ecclesiastical abstention doctrine barred court from deciding dispute -- Because case may be resolved by applying neutral principles of law without inquiry into religious doctrine and without requiring court to interpret policies or practices of church, abstention doctrine does not bar case

JAMES BENDROSS, W.C. DILLARD, EDWIN HENDERSON, LORENZO MCDOWELL AND SIDNEY WHITE, Appellants, vs. REV. PHILLIP F. READON AND EUGENE RICE, Appellees. 3rd District.



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