Monday, April 2, 2012

Jurisdiction, mortgage foreclosure, attorney's fees, res judicata, and sage pudding with honey-whiskey sauce


Appeals -- Non-final orders -- Order declaring that certain provisions of a settlement agreement are binding and enforceable, and directing parties to reconvene settlement negotiations, is a non-appealable, non-final order -- Argument that court has jurisdiction under rule which provides for the appeal of non-final orders concerning injunctions is rejected -- Order is not designed to protect property or other rights from injury by prohibiting or commanding certain acts, and is more akin to a case management order regulating the conduct of parties before the court than an injunction
ROSS A. CLEVENS, Appellant, v. OMNI HEALTHCARE, INC. and OMNI HEALTHCARE, P.A., et al., Appellee. 5th District.

Attorney's fees -- Where condemning authority made pre-suit written offer to purchase parcel for a specified amount, “subject to all apportionment claims,” trial court erred in refusing to limit attorney's fees based on benefits obtained pursuant to section 73.092(1), Florida Statutes -- Section 73.015, Florida Statutes, the pre-suit offer statute, does not contemplate a separate offer to a fee owner for the value of his or her property excluding other interests -- The making of the written offer “subject to apportionment” did not render it too indefinite for use in determining the benefits achieved by landowners -- Remand for further consideration of landowners' argument that applying section 73.092(1) to limit fees denies constitutional right to full compensation because the condemning authority caused excessive litigation
ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Appellant, v. TUSCAN RIDGE, LLC, et al., Appellee. 5th District.

Contracts -- Real property sale -- Assignment agreement -- Ambiguities -- Trial court did not err in finding that agreement for assignment of sale and purchase agreement, which included provision of an additional purchase price to be derived by multiplying specific dollar amount times that number of lots approved by county having dimensions of 70' x 120' which exceeded 166 lots, was ambiguous with respect to approved lots which did not specifically measure 70' x 120' -- No error in determining that assignment agreement required reformation to reflect true intent of parties, which was to pay additional price for each “typical” 70' x 120' lot that exceeded 166 lots -- Vendor's lien -- Trial court erred in imposing vendor's lien on property in favor of assignor to secure payment of agreed upon purchase price -- Assignor was not vendor -- Assignment agreement expressly stated that purchase price for property was not owed to assignor, but to the seller of the property
PRIME HOMES, INC., a Florida corporation, PRIME HOMES AT PORTOFINO PRESERVE, LTD., a Florida Limited Partnership, and PORTOFINO PRESERVE BUILDERS, INC., a Florida corporation, Appellants, v. PINE LAKE, LLC, a Florida limited liability company, Appellee. 4th District.

Creditors' rights -- Foreign judgments -- Domestication -- In domesticating foreign judgment against husband, trial court did not err in entering summary judgment denying judgment creditor any lien on real property held by husband and wife -- Where conveyance to spouses did not contain any language expressly showing a contrary intent, tenancy by entireties was created -- Presumption is not rebuttable -- Supreme court decision establishing rebuttable presumption for joint bank accounts does not apply to real property
BRIDGEVIEW BANK GROUP, Appellant, v. DANIEL P. CALLAGHAN, et al., Appellees. 4th District.

Contracts -- Employment -- Non-competition agreement -- Injunction -- Where non-compete agreement provided that employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within thirty-mile radius of employer's business address for two years after termination of employment, and after termination of employment employee opened a practice outside the thirty-mile radius which served clients within the thirty-mile radius, trial court erred in entering temporary injunction enjoining employee from delivering veterinary services within the thirty-mile radius -- Agreement did not prohibit employee from providing veterinary services within the thirty-mile radius as long as her business office is located outside the radius
HEATHER HEIDERICH, DVM n/k/a HEATHER FARMER, DVM and EQUINE PERFORMANCE VETERINARY PRACTICE, LLC., Appellant, v. FLORIDA EQUINE VETERINARY SERVICES, INC., Appellee. 5th District.

Consumer law -- Debt collections -- Florida Consumer Collection Practices Act -- Trial court properly granted judgment on the pleadings in favor of debt collector where plaintiff, seeking damages under FCCPA, failed to state a valid claim under the FCCPA -- Claim that debt collector violated FCCPA in leaving messages on answering machine requesting plaintiff return its call but without disclosing its identity is without merit because no provision of the FCCPA requires such disclosure -- While plaintiff may arguably have alleged violation of federal law prohibiting debt collectors from placing calls without meaningful disclosure of the caller's identity, her suing under the FCCPA rather than federal law was fatal to her complaint -- While a Florida consumer is entitled to the benefit of whichever statute, between state and federal, has the more protective provisions, the plaintiff must nevertheless bring her claim pursuant to the applicable statute -- Alternative claim that debt collector violated FCCPA in asserting a legal right that did not exist is without merit because plaintiff did not and cannot point to any legal right asserted in the answering machine messages
MELISSA READ, Appellant, v. MFP, INC., d/b/a FINANCIAL CREDIT SERVICES, Appellee. 2nd District.

Constitutional law -- Separation of powers -- Legislative privilege -- A member of Florida House of Representatives and his aide are entitled to claim legislative privilege as a ground for refusing to testify in a civil case -- Trial court erred in failing to quash subpoenas directing Representative and his aide to appear for depositions to ask them how they obtained documents which had been acquired and distributed in the course of debate within the House on the merits of a pending bill -- Legislative privilege is not absolute, and court will always have to make preliminary inquiry to determine whether information is within scope of privilege and whether the need for privacy is outweighed by a more important governmental interest -- Appeals -- Order compelling a nonparty to provide discovery is reviewable by appeal
THE FLORIDA HOUSE OF REPRESENTATIVES, on behalf of Rick Kriseman, in his official capacity as a Member of the Florida House of Representatives; and DAVID FLINTOM, in his official capacity as Staff of the Florida House of Representatives, Appellants, v. EXPEDIA, INC.; ORBITZ, LLC; INTERNETWORK PUBLISHING CORP., d/b/a Lodging.com; TRAVELOCITY.COM, LLP; PRICELINE.COM, INC.; TRAVELWEB LLC, HOTWIRE, INC.; HOTELS.COM, L. P.; BROWARD COUNTY, FLORIDA; and FLORIDA DEPARTMENT OF REVENUE, Appellees. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Error to designate wife's jewelry as nonmarital -- Error to value certificate of deposit awarded to husband as of date of filing due to CD's passive appreciation -- Trial court erred in failing to equitably distribute contents of marital home, instead acceding without husband's assent to wife's request that it defer equitable distribution in favor of mediation
ASHOK KUMAR, Appellant, v. SUJATA KUMAR, Appellee. 2nd District.
Dissolution of marriage -- Discovery -- Where, because of his being a convicted felon, husband resigned from his official ownership positions in companies which had been operated by husband and wife during marriage, and wife terminated husband from any position of importance in companies upon husband's filing for divorce, it was a departure from essential requirements of law for trial court to grant protective orders denying husband discovery of documents relating to financial status of companies -- Because husband is more than a mere employee of companies, and the companies form a part of the marital estate, husband is entitled to access requested documents in order to evaluate them for purposes of equitable distribution and alimony
GEORGE E. BUSHONG, Petitioner, v. SARAH M. PEEL, Respondent. 2nd District.

Dissolution of marriage -- Child custody -- Time-sharing -- Error to establish time-sharing plan without addressing parental responsibility and without creating a parenting plan -- Remand for creation of parenting plan which complies with statutory requirements -- Record refutes wife's claim that trial court failed to consider best interests of children when fashioning time-sharing schedule
JAMECA MUNROE, Appellant, v. MACKENSON R. OLIBRICE, Appellee. 4th District.

Jurisdiction -- Service of process -- Substitute -- Error to deny motion to quash service and service of process where return of service stated that substitute service was obtained by serving defendant's father at defendant's home, where father resided, but defendant presented clear and convincing evidence, unrebutted by plaintiff, that father was not residing at her home -- Process server's testimony that he had no specific recollection of serving court papers upon father, but that it was his practice when attempting substitute service to inquire of recipients whether they resided with the parties to be served, was not sufficient to rebut father's testimony that he was not asked whether he resided at home and that he, in fact, did not reside at home
CHRISTY CARONE, Appellant, v. MILLENNIUM SETTLEMENTS, INC. and CAMBRIDGE GALAHER SETTLEMENTS AND INSURANCE SERVICES, INC., a foreign for profit corporation, Appellees. 4th District.


Mortgage foreclosure -- Trial court's grant of summary judgment of foreclosure was premature where there were outstanding discovery requests, and the information contained in the outstanding discovery could create genuine issues of material fact
DILCIA OSORTO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Natixis 2007-HE2, Appellee. 4th District.

Mortgage foreclosure -- Sale -- Failure to publish notice -- Trial court did not abuse its discretion in denying motion to confirm foreclosure sale and direct clerk of court to issue certificates of sale and title to highest bidder where order of foreclosure required clerk to sell property in accordance with section 45.031, Florida Statutes, and it is undisputed that notice of sale was not published as required by statute
CASTELO DEVELOPMENT, LLC, Appellant, v. AURORA LOAN SERVICES LLC, PATRICIA PEREZ; NIBALDO PEREZ; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; CANTERBURY AT QUANTUM VILLAGE PROPERTY OWNERS ASSOCIATION OF PALM BEACH, INC.; QUANTUM PARK PROPERTY OWNERS' ASSOCIATION, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION, Appellees. 4th District.



Torts -- Interference with a business relationship -- Attorney-client relationship -- Error to dismiss claim of tortious interference with a business relationship because plaintiff sufficiently pled cause of action where pleadings alleged that defendant knowingly, intentionally, and unjustifiably provided disparaging information about plaintiff to plaintiff's client for the purpose of inducing client to fire plaintiff and hire defendant, and that plaintiff suffered damages because it lost out on a legal fee due to defendant's actions -- Contracts -- Agreement that plaintiff would remove name from settlement that client obtained after hiring defendant in exchange for defendant holding a percentage of disputed funds in trust until fee dispute between parties was settled, which defendant allegedly failed to do -- Error do dismiss claim of breach of oral contract where plaintiff's allegations were sufficient to demonstrate a legal right to defendant's performance of the bargain, and, although plaintiff may not be able to establish value of that right at this point in pleadings, plaintiff's allegations demonstrated a right to at least nominal damages -- Trusts -- Constructive -- Dismissal of action for a constructive trust is affirmed because a constructive trust is a remedy, not a cause of action
SWOPE RODANTE, P.A., Appellant, v. THOMAS HARMON and HARMON, WOODS, PARKER, HENDRICKS & ABRUNZO, P.A., Appellees. 2nd District.

Wrongful death -- Product liability -- Tobacco -- In action by individual class member, trial court did not err in application of findings reached by jury and affirmed by Florida Supreme Court in class action case of Engle v. Liggett Group, Inc. -- Because those findings are accepted as to the conduct of tobacco companies and the health effects of smoking, to prevail on the theory of strict liability, plaintiff needed only to prove legal causation and damages -- Question certified: Does accepting as res judicata the eight Phase I findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violate the tobacco companies' due process rights guaranteed by the Fourteenth Amendment of the United States Constitution?
PHILIP MORRIS USA, INC.; R.J. REYNOLDS TOBACCO COMPANY; and LIGGETT GROUP, LLC, Appellants, v. JAMES L. DOUGLAS, as Personal Representative for the Estate of CHARLOTTE M. DOUGLAS, Appellee. 2nd District.

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