Sunday, March 4, 2012

Non-final orders, jurisdiction, and fresh pasta with tomatoes, rosemary and braised kale with garlic


Appeals -- Non-final orders -- Jurisdiction -- Interlocutory order that merely gives trial court's opinion of the percentage of ownership in corporation held by three persons is not appealable under rule of appellate procedure that allows for review of non-final orders that determine the right to immediate possession of property, since the order on appeal does not order any disbursement of funds or determine any right to immediate possession of property -- Appeal dismissed for lack of jurisdiction
DAVID J. HIGGINS, Appellant, vs. DAVID J. RYAN, ET AL., Appellees. 3rd District.


Attorney's fees -- Unjust enrichment -- Plaintiff attorneys recruited by defendant attorneys to handle health care provider claims against insurance company -- Action arising out of defendants' conduct in engineering a secret multimillion dollar settlement of all clients' claims, which resulted in defendants receiving millions in attorney's fees and plaintiffs receiving just over four thousand dollars -- Unjust enrichment claim was not barred by an express contract where there was no contract addressing how proceeds of a settlement of the type engineered by defendants were to be allocated -- Because trial court calculated damages separately as to each defendant, there was no legal basis for a set-off from the pre-trial settlement involving another defendant law firm, which was not a party to this appeal -- Trial court did not abuse its discretion in admitting expert testimony on the value of defendants' services over defendants' objections of surprise and lack of foundation where expert's opinions were disclosed in interrogatories and testimony was founded upon factually-based chain of underlying reasoning regarding the nature of the work at issue -- In light of trial court's finding that plaintiffs were 50% responsible for result achieved, trial court's measure of damages was consistent with law of unjust enrichment
CHARLES J. KANE, HARLEY N. KANE and KANE & KANE, a professional corporation, Appellants, v. STEWART TILGHMAN FOX & BIANCHI, P.A., a professional association, WILLIAM C. HEARON, P.A., a professional association, and TODD S. STEWART, P.A., a professional association, MARKS & FLEISCHER, P.A., a professional association, GARY MARKS, AMIR FLEISCHER, LAURA M. WATSON, P.A. d/b/a WATSON & LENTNER, LAURA M. WATSON and DARIN J. LENTNER, Appellees. 4th District.


Contracts -- Condominium sale -- Action against seller alleging breach of contract for failure to deliver completed condominium unit within two-year period specified by contract and seeking return of security deposit, with defendant asserting counterclaim for breach by buyer and various affirmative defenses -- Prior order which was styled as an order granting plaintiff's motion for summary judgment and which also entered judgment in favor of plaintiffs and required defendant to pay a sum certain was a final judgment -- Once that judgment was affirmed on appeal, trial court had no authority to enter a second final judgment where that second final judgment was not entered pursuant to either Rule 1.530 or Rule 1.540
HARBOR COMMUNITIES, LLC, Appellant, v. JOHN JEFFREY JERUE and LAURETTE JERUE, Appellees. 4th District.




Civil rights -- Arrest -- Excessive force -- Arresting officers who repeatedly used their tasers in an attempt to subdue and arrest struggling suspect who died shortly thereafter while being transported to jail are entitled to qualified immunity on excessive force claims where officers' conduct does not rise to level of “obvious clarity,” which would require all reasonable officers to inevitably conclude that force used was unlawful, given severity of crime committed, threat posed, level of resistance and balance of interests -- Torts -- Assault -- Battery -- Arresting officers are entitled to official immunity under Georgia law on assault and battery claims where their actions of employing tasers during a struggle to arrest decedent, who refused to let his arms be brought together and handcuffed, were undisputedly discretionary and no reasonable jury could find that officers acted with actual malice by using their tasers with deliberate intent to do wrong -- Negligence -- Officer could not be held liable under Georgia law for any negligence-based claim, or wrongful death claim premised on negligence, resulting from performance of discretionary acts
MARTHA HOYT, Individually, and as Administrator of the Estate of James Christopher Allen, JAMES ALLEN, Plaintiffs-Appellees, v. BERNARD COOKS, In his individual capacity, RANDY T. HARKLEROAD, In his individual capacity, Defendants-Appellants. 11th Circuit.

Dissolution of marriage -- Attorney's fees -- Need and ability to pay -- Trial court erred in failing to make finding regarding wife's need and husband's ability to pay wife's temporary attorney fees -- Order is also deficient where trial court failed to make required findings regarding the reasonableness of wife's attorney's hourly rate and the number of hours expended
GEORGE A. ROUTH, Appellant, v. SARAH L. THOMPSON, and JAMIE ROUTH COX, individually, and as trustee, Appellees. 2nd District.

Estates -- Personal representative -- Appointment -- Circuit court abused its discretion in appointing decedent's mother as personal representative over decedent's surviving spouse -- While the circuit court has discretion to appoint someone other than the statutorily preferred individual if the record shows that the preferred person is not fit to serve as personal representative, decedent's mother produced no witnesses or evidence at the hearing to show that surviving spouse was disqualified from serving
GEORGE M. BOWDOIN, Individually, and as natural guardian and next friend of BRITNEY BOWDOIN, Appellant, v. MARY L. RINNIER, Appellee. 2nd District.
Dissolution of marriage -- Marital home -- Where former wife was awarded exclusive possession of marital home, and former husband was awarded one-half equity in home, with former husband to be paid his half of the equity upon refinancing or sale of the home, it was error to fail to set a deadline for refinancing or sale of the home -- Alimony -- Where marriage was a long-term marriage of thirty years, and evidence supported former husband's need, court abused discretion in failing to award at least nominal alimony to husband -- Attorney's fees -- Where former husband requested attorney's fees in his pleadings and at final hearing, it was error for court to fail to address issue of attorney's fees or to reserve jurisdiction to award attorney's fees
ROBERT C. GULLEDGE, Appellant, v. ROBYN GULLEDGE, Appellee. 2nd District.




Paternity -- Child support -- Error to award child support where mother had not filed financial affidavit -- Rule does not allow a party to waive the filing of a financial affidavit -- Award of child support without filing of financial affidavit was not harmless error
ARI PALEWSKY, Appellant, vs. FLORIDA DEPARTMENT OF REVENUE, ON BEHALF OF RACHEL MILLER, Appellee. 3rd District.
Dissolution of marriage -- Rehabilitative alimony -- Modification -- Jurisdiction -- Circuit court had jurisdiction over petition seeking to convert rehabilitative alimony to permanent alimony and to increase the amount of award -- Error to dismiss petition for lack of subject matter jurisdiction
PHYLLIS WALKER, Appellant, v. DANIEL A. WALKER, Appellee. 4th District.
Dissolution of marriage -- Attorney's fees -- Wife's failure to accept reasonable settlement offer, in absence of vexatious conduct or bad faith litigation, does not justify award of fees to husband under Chapter 61 -- Error to award husband attorney's fees incurred after wife's rejection of settlement offer -- No abuse of discretion in denying portion of wife's attorney's fees on basis that she unreasonably refused favorable settlement offer, as trial court is permitted to consider results obtained in determining a section 61.16 attorney's fees award
JAMILETTE HALLAC, Appellant, v. JEFFREY HALLAC, Appellee. 4th District.
Paternity -- Child support -- Arrearages -- Error to fail to give father credit for child support payments -- Error to award father IRS income tax exemption in odd-numbered calendar years without indicating that mother, the custodial parent, is required to execute a waiver of the dependency exemption only if father is current in support payments
RICHARD WILLIAMS, Appellant, v. LAUREN LUTRARIO, Appellee. 4th District.
Civil procedure -- Error to deny motion to vacate order dismissing case after plaintiff failed to appear at a status conference of which he had no notice
KESNER TOULOUTE, Appellant, v. CITY OF FORT LAUDERDALE, Appellee. 4th District.


Mortgage foreclosure -- No abuse of discretion in ordering sequestration of rents -- Lack of standing is affirmative defense to foreclosure, and trial court should refrain from conclusively ruling on affirmative defenses in ruling on motion to sequester rents
TIDEWATER ESTATES CO-OP, INC., a Florida not-for-profit corporation, and all other unknown parties including claimants, persons or parties, natural or corporate, or whose legal status is unknown, claiming under any of the above named defendants, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as trustee for the registered holders of MLCFC Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, Appellee. 4th District.
Landlord-tenant -- Sublease -- Landlord's consent -- Action arising out of landlord's attempt to recover damages from tenant's early termination of lease after landlord did not give consent to sublease -- Trial court's finding that landlord made blanket refusal to enter into any sublease, thereby excusing tenant's continued performance under the lease, was supported by competent, substantial evidence -- Because the provision permitting a sublease with the landlord's consent provided no standards which the landlord was to utilize in determining whether to approve or reject a sublease, there was an implied obligation of good faith which landlord's blanket refusal violated
CYRILL SIEWERT, Appellant, v. GERARD W. CASEY, Appellee. 4th District.


Insurance -- Homeowners -- Appraisal -- Trial court erred in granting insured's motion to compel appraisal without conducting an evidentiary hearing where there was an issue of fact as to whether insured had complied with post-loss obligations
UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, vs. JOSE CONCEPCION, Appellee. 3rd District.

Torts -- Negligence -- Railroads -- Locomotive Inspection Act -- Federal preemption -- State-law design-defect and failure-to-warn claims for injury from exposure to asbestos in locomotives and locomotive parts fall within field of locomotive equipment regulation preempted by Locomotive Inspection Act, as that field was defined by Supreme Court's decision in Napier v. Atlantic Coast Line R. Co.
GLORIA GAIL KURNS, EXECUTRIX OF THE ESTATE OF GEORGE M. CORSON, DECEASED, ET AL., Petitioners v. RAILROAD FRICTION PRODUCTS CORPORATION ET AL. U.S. Supreme Court.


Health Care Reform (Consumer Labels): NEW FEDERAL RULES REQUIRE EASY-TO-READ SUMMARIES OF HEALTH PLANS, 14 No. 17 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home February 24, 2012 The Obama administration has finalized regulations requiring all private health insurers to provide "plain language" summaries of their coverage plans to help consumers better understand their benefits. The Health and Human Services Department released the final rules Feb. 9 under requirements in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, calling for insurers to give clear and straightforward information about their plans.  

Health Care Reform (Deficit Reduction): OBAMA'S 2013 BUDGET TO INCREASE HEALTH CARE SAVINGS, 14 No. 17 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home February 24, 2012 WASHINGTON, Feb. 13 (Reuters) - President Obama proposed more aggressive deficit reductions through savings from Medicare, Medicaid and other federal health care programs than the White House put forward just five months ago. At the same time, the president proposed giving an extra $1 billion to the federal agency that will implement his landmark reform law. Obama's $3.8 trillion federal budget proposal for fiscal year 2013 seeks more than $364 billion in savings from lower health care spendings.

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