Sunday, March 18, 2012

Business law issues, torts, and biscuits with fresh thyme-strawberry jam


Appeals -- Non-final orders -- Order on defendant's motion to dismiss for lack of jurisdiction is not an appealable, non-final order where order granted the motion to dismiss, but allowed plaintiff time to amend the complaint, and did not actually determine jurisdiction at all -- Injunction -- Order granting temporary injunction is affirmed where defendants did not challenge injunction on its merits, but rather asserted that court lacked jurisdiction, and jurisdiction issues remain to be decided
MARGARET GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, and MICHELLE GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, Appellants, v. OLGA T. GRASSO, Appellee. 2nd District.


Arbitration -- Waiver -- Action by partnership formed to purchase arena football team against defendant who expressed interest in becoming part owner of team, entered into agreement with partnership under which defendant was provided confidential business information, and then purchased part ownership in team after direct negotiations with owner without knowledge of partners -- Partners did not waive right to arbitrate action against defendant by suing defendant for injunctive relief -- Defendant consented to arbitration by submitting to arbitrator the issue of whether plaintiffs waived the right to arbitrate -- Having elected to proceed before arbitrator, defendant cannot claim that arbitrator exceeded his authority -- Trial court properly entered judgment confirming arbitration award
ROBERT NUCCI, M.D., Appellant, v. STORM FOOTBALL PARTNERS a/k/a collectively THOMAS BEGLEY, individually; JAY MIZE, individually; DOUG GRABER, individually; and ERIC SNOW, individually, Appellees. 2nd District.


Arbitration -- Where arbitration agreement provided an exception to arbitration for claims seeking equitable relief, trial court properly denied motion to compel arbitration of claims seeking injunctive relief and equitable accounting
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, ET AL., Appellants, vs. FLAMINGO/SOUTH BEACH 1 CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.


Civil procedure -- Dismissal -- Failure to comply with discovery orders -- Final order dismissing with prejudice was deficient for failing to include explicit finding of willful noncompliance, even though lower court cited, with specificity, details surrounding plaintiff's failure to comply with court's orders and attend depositions
WENDY I. YOUNG, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee. 4th District.


Dissolution of marriage -- Alimony -- In denying wife's request for permanent periodic alimony and, instead, awarding her bridge-the-gap alimony, trial court miscalculated parties' monthly net incomes by adding their monthly retirement incomes to their net incomes after the parties themselves had included their retirement in their income calculations -- Trial court also erred by failing to address evidence that wife made financial and career sacrifices in moving from South Carolina to Florida to marry husband -- Remand for recalculation of parties' incomes and for findings of fact relating to parties' respective contributions to marriage and career building
LOUETTER BOOTH RUCKER, FORMER WIFE, Appellant, v. ROBERT MALCOLM RUCKER, HUSBAND, Appellee. 1st District.


Dissolution of marriage -- Alimony -- Modification -- Order denying husband's petition to modify alimony alleging a substantial decline in husband's income is reversed where circuit court's finding that husband was in a “supportive relationship” was not supported by competent, substantial evidence -- Although circuit court did not ascribe to husband a specific financial benefit based on the relationship, circuit court's finding that he was in a supportive relationship strongly suggests that it factored the relationship into its decision to deny husband's petition -- Remand with instructions to reconsider petition without regard to husband's relationship
JONATHAN M. MORRELL, Appellant, v. FELICIA A. MORRELL, Appellee. 2nd District.



Dissolution of marriage -- Alimony -- Modification -- Supportive relationship between former wife and another person not basis for reducing former husband's alimony obligation where relationship existed prior to parties' divorce and alimony award -- Under terms of section 61.14(1)(b), reduction or termination of alimony based on existence of a supportive relationship between the obligee and another person is authorized only if the relationship has existed “since the granting of a divorce and the award of alimony”
PATRICK H. KING, Appellant/Cross-Appellee, v. CYNTHIA L. KING, Appellee/Cross-Appellant. 2nd District.


Dissolution of marriage -- Equitable distribution -- Marital home -- Error to make husband solely responsible for expenses associated with marital home prior to its sale without addressing husband's entitlement to credits for these expenses
JON L. SWERGOLD, Appellant, v. JILL H. SWERGOLD n/k/a JILL H. KAZDIN, Appellee. 4th District.


Estates -- Prohibition -- Probate court is without jurisdiction to continue controlling party's interest in residence or in his share of net proceeds of sale of residence where they are not part of estate or otherwise under jurisdiction of probate court -- Liens against property and proceeds are to be recognized outside administration of estate
CARLTON FIELDS, P.A. AND GARY W. POLLACK, Petitioners/Appellants, vs. EDWARD J. LOCASCIO AND IN RE: ESTATE OF SILVIA M. LOCASCIO, Respondents/Appellees. 3rd District.


Mortgage foreclosure -- Affirmative defenses -- Truth in Lending Act violations -- Consumer law -- Plaintiff “originated” loan when it relied upon services of a mortgage broker to place it in touch with defendant, a prospective borrower and, accordingly, plaintiff was a creditor as defined by Truth in Lending Act, even though defendant initially sought out services of mortgage broker -- Trial court erred in ruling that TILA did not apply to transaction -- TILA defenses were not time-barred -- Consumer, relying on 15 U.S.C. section 1640(a)(1), is entitled to actual and statutory damages as a defense of recoupment or set-off to an action for collection of a debt, even when such claims would be barred by TILA's three-year statute of limitation -- However, consumer cannot assert the right of rescission as a defense in recoupment for TILA violations once the period for the statute of limitations has expired -- Accordingly, trial court properly found that, even if TILA does apply, defendant received all necessary TILA disclosures relating to her right of rescission, and her right of rescission was limited to three-business-day window following the closing of the transaction -- Because trial court did not make factual findings regarding plaintiff's alleged violations of TILA, other than those relating to defendant's right of rescission, case remanded for further proceedings -- Trial court properly ruled that defendant did not have private right of action for violations of Florida Fair Lending Act
DENISE L. MARTINEC, Appellant, v. EARLY BIRD INTERNATIONAL, INC. and LARRY MARTINEC, Appellees. 4th District.


Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well
JESUS BARRETO and DANIA BARRETO, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. 4th District.


Mortgage foreclosure -- Deficiency -- Trial court abused discretion by rejecting expert testimony of property appraiser as to fair market value of property and denying mortgagee's motion for deficiency judgment
BEACH COMMUNITY BANK, Appellant, v. FIRST BROWNSVILLE COMPANY, a Florida Corporation, ARTHUR C. BUNTON, III, and ARCHIBALD HOVANESIAN, JR., Appellees. 1st District.


Mortgage foreclosure -- Pleading -- Verification -- Appeals -- Certiorari -- Petition seeking review of non-final order denying without prejudice plaintiff's motion to amend complaint to add a count to reestablish lost promissory note on ground that verification of amended complaint was insufficient because it was based on “knowledge and belief” -- Trial court departed from essential requirements of the law where plain language of Florida Rule of Civil Procedure 1.110(b) allows verification language to include the phrase “to the best of my knowledge and belief,” and section 92.525, on which trial court relied, provides an exception that a document may be verified by a signed declaration including such language when permitted by law -- Error to find that rule 1.110(b) did not apply because it refers to verification of “documents,” whereas a complaint is a pleading -- A pleading is a document -- Injury cannot be remedied on appeal where, although court denied motion to amend complaint without prejudice to refile, order effectively left plaintiff without the ability to amend because plaintiff could not in good faith meet court's more stringent verification requirement
TRUCAP GRANTOR TRUST 2010-1, Petitioner, v. GLENN W. PELT; LINDA A. PELT; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MIN NO. 1002370-9000063487-7; BENEFICIAL FLORIDA, INC.; PNC BANK, N.A., SUCCESSOR BY MERGER TO NATIONAL CITY BANK; and LAKE JOVITA HOMEOWNERS ASSOCIATION, INC., Respondents. 2nd District.


Mortgage foreclosure -- Relief from judgment -- Fraud -- Substituted plaintiff -- Trial court erred in granting defendant's motion to vacate judgment of foreclosure based on fraud and misrepresentation of the plaintiff because defendant's fraud allegations were indefinite -- Neither defendant's motion nor the record supported a prima facie case of fraud based on alleged discrepancies regarding dates when plaintiff's right to foreclose came to exist where documents show trial court was promptly informed of the changes to the identity of party seeking to foreclose, and defendant did not contend he was prejudiced by any alleged confusion regarding creditor's identity
FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellant, vs. JEFFERSON DE SOUZA, Appellee. 3rd District.


Torts -- Automobile accident -- Rear-end collision damages -- Jury instructions -- Trial court did not abuse its discretion in giving jury instruction informing jury that a tortfeasor is responsible for additional injuries caused by medical negligence of a physician treating plaintiff for original injuries where defense expert opined that back surgery performed on plaintiff in attempt to alleviate back pain plaintiff experienced following accident was unnecessary to treat the injuries sustained in the accident and recognized that plaintiff had an impairment rating based on that surgery -- Moreover, care physician provided following accident was called into question by defense counsel in closing argument
JOEY JAMES PEDRO and JILL PEDRO, Appellants, v. BETSY BABER, Appellee. 2nd District.


Torts -- Automobile accident -- Rear-end collision -- Rebuttable presumption of negligence by rear driver -- Exceptions -- Plaintiff's vehicle hit in rear after she had to come to an abrupt stop when another vehicle cut in front of lead vehicle she was following -- Trial court erred in denying plaintiff's motion for a directed verdict where defendants did not adequately rebut presumption that defendant driver was negligent -- Sudden-stop exception was inapplicable where facts were not sufficient to support finding that plaintiff's stop could not be reasonably anticipated at the time and place it occurred -- Alternatively, plaintiff's car was not illegally or improperly stopped due to her failure to move immediately after the lead vehicle resumed driving, as fact that lead vehicle realized it could safely continue does not mean plaintiff had a duty to follow within the time interval involved
DIANNA DOUGLAS-SEIBERT, F/K/A DIANNA DOUGLAS, Appellant/Cross-Appellee, v. LOUIS RICCUCCI AND TARMAC AMERICA, LLC, Appellees/Cross-Appellants. 5th District.


Torts -- Civil procedure -- Discovery -- Privilege -- Nursing homes and related health care facilities -- Internal risk management and quality assurance program -- Incident reports -- Adult protective services -- Reports and records -- Trial court departed from essential requirements of law by ordering production of documents and answer to interrogatories without first conducting in camera inspection to determine precise nature of ostensibly privileged documents and to further determine applicability of work product and statutory privileges
SPRINGHILL HEALTH CARE ASSOCIATES, LLC, ET AL., Petitioners, v. LINDA BENLEIN, PERSONAL REPRESENTATIVE OF, ETC., Respondent. 5th District.


Torts -- Premises liability -- Discovery -- Trade secrets -- Action by employee of management company for restaurant franchisee against franchisor, alleging liability of franchisor for assault on plaintiff by another employee of management company -- Trial court departed from essential requirements of law in compelling production of franchisor's operation and training manuals to the extent the court ordered production of potential trade secret information without conducting in camera review to determine if material is a trade secret and relevant -- Trial court's order was deficient in that it failed to specify findings to support determination that plaintiff demonstrated reasonable necessity for production despite existence of trade secrets
McDONALD'S RESTAURANTS OF FLORIDA, INC., Petitioner, v. JANE DOE; J & I MANAGEMENT COMPANY, INC.; CONSTANCE MOLNAR; MICHELE SALERNO; JUAN VAZQUEZ; and J.V. & SONS, INC., Respondents. 2nd District.

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