Appealing issues, strip searches, and collards with garlic, rosemark, lamb and peppercorns

Strip-Searches: SUPREME COURT OKS STRIP-SEARCHING MINOR-OFFENSE ARRESTEES, Florence v. Burlington County Bd. of Chosen Freeholders, 19 No. 3 Westlaw Journal Class Action 2, Westlaw Journal Class Action April 19, 2012 A split U.S. Supreme Court, voting 5-4 along ideological lines, has ruled that strip-searches of people arrested for minor offenses does not violate the Fourth Amendment principle against unreasonable searches and seizures. Chief Justice John Roberts and Justice Samuel Alito voted with the majority but stressed in concurring opinions that the decision deals only with individuals who are to be placed in the general prison population and leaves open the possibility that an exception could be made.

Business Organizations - No-action clause of trust indenture barred noteholders' suit. Under New York law, the no-action clause of a trust indenture barred noteholders' suit alleging that the corporation's issuance of a dividend and planned spin off a business were fraudulent transfers. Plaintiffs' majority ownership of the notes was not a ground to refuse to apply the no-action clause. The corporation's failure to give 60-days notice before issuing the dividend did not make it impossible for plaintiffs to comply with the trustee demand exception.

Akanthos Capital Management, LLC v. CompuCredit Holdings Corp. ,(C.A.11 (Ga.))

Appeals -- Attorney's fees  -- Challenge to fee award on ground that trial court erred in failing to examine time records and lawyer's testimony in making fee award, failed to make findings as to fee multiplier, and applied overly narrow interpretation of Sunshine Law's fee-shifting statutes -- Standard of review for award of attorney's fees is abuse of discretion -- Record before appellate court does not provide adequate basis for reversal of fee award

CHARLES JAMES GRAPSKI and MICHAEL CANNEY, Appellants, v. CITY OF ALACHUA, Appellee. 1st District.

Appeals -- Dismissal -- Contempt -- Where trial court entered order of contempt based on appellants' willful evasion of discovery in aid of execution of final default judgment against them and appellants have failed to purge the finding of contempt and writ of bodily attachment, dismissal of their appeal is warranted, as a party in contempt of the trial court cannot seek to invoke the authority of a district court -- Dismissal stayed for customary 20-day grace period for appellants to comply with trial court's orders

MARK DANIELS, ET.AL., Appellants/Defendants/Cross-claim defendants, vs. JP MORGAN CHASE BANK, N.A., ET AL., Appellees/Cross-Claimants/plaintiffs. 3rd District.

Appeals -- Timeliness -- Untimely motion for rehearing did not toll rendition of final order for purposes of appeal -- Appeal dismissed

IVORY MILES, JR., Appellant, v. STATE OF FLORIDA, Appellee.

Appeals -- Law of the case -- Petition for review of order sealing judicial record, filed by intervenor, who sought tape recordings and transcripts of recordings which state and defendant claimed were recordings of defense attorney and a forensic psychologist working with defense counsel that were made without consent of either -- Petition for review denied -- Intervenor must accept record and pleadings as they exist and may not raise new issues -- Per curiam decision without opinion becomes law of the case as to all issues concluded in the appellate proceeding in which it was entered -- Because identical legal arguments asserted by petitioner were raised and rejected in prior appeals in this proceeding, doctrine of law of the case governs and requires denial of petition -- Further, mandate has issued on appellate court's decision affirming the order that petitioner seeks to reverse, and appellate court's term expired without recall of that mandate -- Accordingly, any action appellate court would take regarding that order, either as a panel or en banc, would be void -- Security Communications Act -- Petitioner's claim that Chapter 934 would be unconstitutional as applied if it required sealing of records and limited public access is without merit -- Court notes that testimony of defendant, his mother, defense counsel, and psychologist at evidentiary hearing is not sealed or otherwise restricted from public access

BRUCE B. BRUGMANN, Petitioner, v. THE STATE OF FLORIDA, and SEAN CASEY, Respondents. 3rd District.

Appeals -- Certiorari -- Petition for certiorari review of circuit court decision reversing city code enforcement board's ruling that defendant violated two distinct ordinances by parking large sailboat on property zoned residential -- Circuit court decision is quashed where lower court failed to address one of the violations, and no exceptions applied to the violation because respondent's boat did not meet any of the criteria -- To reach conclusion that object in question was not a boat because it was under construction, as respondent contends the circuit court did, circuit court would have departed from its permissible standard of review by invading fact finding province of the board and applied incorrect legal standard to construction of ordinance

CITY OF COCOA BEACH, FLORIDA, Petitioner, v. BRUCE FOUNTAIN AND JENNIFER FOUNTAIN, Respondents. 5th District.

Attorney's fees -- Offer of judgment -- Torts -- Automobile accident -- Action against individual driver, owner of truck, lessee of truck, and lessee's wholly owned subsidiary to which lease was assigned and which was driver's employer -- Error to assess attorney's fees against plaintiff based on undifferentiated offer made by employer of negligent driver conditioning settlement on execution of release in favor of all named defendants and their affiliates -- Offer was not valid offer under circumstances -- Because offeror's liability was based on vicarious liability, and vicarious liability was contested by the offeror, plaintiff was entitled to separate offers from each defendant, which would have permitted him to independently and intelligently assess and evaluate each offer

RICK HAROLD DUPLANTIS, Appellant, v. BROCK SPECIALTY SERVICES, LTD., et al., Appellees. 5th District.

Civil procedure -- Striking of pleadings -- Error to enter order striking pleadings as sanction for refusal of plaintiff and her attorney to appear where written order does not make it apparent that court considered all factors set out in Kozel v. Ostendorf -- Error to fail to consider whether lesser sanction would be a viable alternative

JANUARY MARTIN, individually and on behalf of a class of all others similarly situated, Appellant, v. MAROONE CHEVROLET OF DELRAY, LLC., a Florida limited liability corporation, and AUTONATION FINANCIAL SERVICES CORP., a foreign corporation, Appellees. 4th District.

Civil procedure -- Dismissal -- Standing -- Trial court correctly concluded that dissolved limited liability company which had assigned its claims against defendant to members of LLC lacked standing

VERO BEACH REAL ESTATE INVESTORS, L.L.C. and ERIC LEVINE, Appellants, v. JERICHO STATE CAPITAL CORP. OF FLORIDA, ANDREA LEVINE and STUART KRAMER, Appellees. 4th District.

Contracts -- Action against condominium association for electrical work performed on association's building after plaintiff had obtained judgment for payment against developer -- Error to enter summary judgment for defendant association on basis of affirmative defense that property was under the control of developer and that there was never a contract between plaintiff and association -- Summary judgment was improper because there was factual issue as to whether association, developer, or a combination of both contracted for the work -- Judicial estoppel -- Fact that plaintiff was successful in suit against developer does not estop plaintiff from asserting that association is liable for payment -- There is no inherent inconsistency in plaintiff's position that it can recover against both developer and association

SOUTH FLORIDA COASTAL ELECTRIC, INC., Appellant, v. TREASURES ON THE BAY II CONDO ASS'N, INC., Appellee. 3rd District.

Contracts -- Mortgages -- Action against lender for breach of contract, breach of implied covenant of good faith and fair dealing, and promissory estoppel, alleging lender failed to comply with its obligations under federal Home Affordable Modification Program by declining to issue mortgagor a permanent loan modification -- No implied private right of action exists under HAMP -- To extent claims fall outside scope of HAMP, they fail as matter of law

JASON A. MILLER, Plaintiff-Appellant, v. CHASE HOME FINANCE, LLC, Defendant-Appellee. 11th Circuit.

Consumer law -- Florida Consumer Collection Practices Act -- Attorney's fees -- In awarding attorney's fees to prevailing consumer in FCCPA action, trial court did not abuse discretion in determining that $350 per hour was a reasonable rate for purpose of lodestar calculation, although federal courts have capped hourly rates in federal Fair Debt Collection Practices Act actions at $250 per hour -- Trial court erred in including travel time for purpose of lodestar calculation where plaintiff retained attorney from another county, but a competent local attorney could have handled case -- Trial court erred in applying a contingent fee multiplier of 2.0 which would have been prohibited if court had given due consideration and great weight to civil remedies available under federal FDCPA

DISH NETWORK SERVICE L.L.C., Appellant, v. JAMES MYERS, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Mathematical error resulting in husband receiving a disproportionate amount of net assets shall be corrected on remand -- Attorney's fees -- Although husband remedied much of the damages that may have resulted from his breach of court's stay order, wife is entitled to attorney's fees for time expended litigating issues related to husband's violations

JANET ROBINSON, Appellant, v. FRANK J. ROBINSON, III, Appellee. 5th District.

Dissolution of marriage -- Marital settlement agreement -- Agreement contains latent ambiguity regarding former husband's obligation to pay half of adult son's tuition and expenses at private, out-of-state university -- Remand for evidentiary hearing to allow trial court to determine intent of parties when they executed agreement -- Contempt -- Trial court erred in holding former husband in civil contempt for failure to comply with enforcement order requiring former husband to reimburse former wife for payments she made for adult son's college expenses -- Where a party is obligated to pay his adult child's college expenses pursuant to a marital settlement agreement, the obligation is not child support, but rather a contractual obligation arising from the agreement -- Contempt is not available to enforce contractual obligation to pay adult child's college expenses -- Court further erred in ordering former husband incarcerated unless he paid purge amount without findings as to ability to pay

JORGE LUIS RIERA, Appellant, vs. ANA MARGARITA RIERA, Appellee. 3rd District.

Dissolution of marriage -- Child custody -- Telephonic testimony -- Trial court erred in allowing step-mother to testify by telephone at evidentiary hearing on father's petition to relocate with child where mother objected to step-mother's telephonic testimony -- Trial court may only allow testimony to be taken through communication equipment if all parties consent -- Error is not harmless where trial court relied upon step-mother's testimony in making its factual determinations

JESSICA L. COLE, Appellant, v. WILLIAM L. COLE, Appellee. 5th District.

Dissolution of marriage -- Settlement agreement -- Remand to correct final judgment so that the number of alimony payments and total amount of alimony are consistent with mediated agreement

DONNA ROBERTS TRASK, Appellant, v. SCOTT A. TRASK, Appellee. 2nd District.

Estates -- Personal representative -- Removal -- Removal of personal representative is reversed where removal was ordered without notice or evidentiary hearing

MERCEDES LEZCANO, Appellant, vs. IN RE: ESTATE OF EXZUN LAZARO HIDALGO, Appellee. 3rd District.

Estates -- Trusts -- It was error to approve settlement agreement which provided for modification of trust requirement that there shall always be a corporate trustee after the settlor ceases to serve -- Trust specifically addressed and prohibited judicial modification of trust

JEAN SCOTT BELLAMY, Individually and as Co-Trustee of the Robert R. Bellamy Trust dated July 1, 1982, as amended, Appellant, vs. MARGARET BELLAMY LANGFITT, LYELL BELLAMY MCMERTY, AND NORTHERN TRUST, N.A., etc., et al., Appellees. 3rd District.

False Claims Act: 11TH CIRCUIT REINSTATES 'REVERSE FALSE CLAIMS' SUIT, United States v. Medco Health Solutions, 17 No. 10 Westlaw Journal Health Care Fraud 6, Westlaw Journal Health Care Fraud April 30, 2012 Two former employees of subsidiaries of prescription benefits provider Medco Health Solutions have won reinstatement of their whistle-blower action accusing the companies of concealing their obligation to return nearly $70 million in overpayments to the government. A panel of the 11th U.S. Circuit Court of Appeals reversed a Florida federal judge's decision to dismiss the employees' complaint for failure to plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b).

Florida Whistle-blower's Act -- Exhaustion of administrative remedies -- No error in granting final summary judgment in favor of city where plaintiff filed civil rights complaint against the city pursuant to the Florida Whistle-blower's Act without first filing his grievance with the Civil Service Board

DENNIS L. WILLIAMS, Appellant, vs. THE CITY OF MIAMI, Appellee. 3rd District.

Law of the case -- Circuit court erred in affirming city commission's finding, based on a de novo review of zoning board's recommendation, that imposed a height restriction on a proposed building -- Law of the case required city commission to conduct a limited appellate review of the zoning board, not a de novo review, as the circuit court had previously determined the city commission had improperly exceeded its appellate jurisdiction by considering new evidence, a result affirmed on a previous appeal, after which the city commission held further, improper, de novo proceedings

LUCIA A DOUGHERTY, ON BEHALF OF CONTRACT VENDEE J. LAURENCE EISENBERG, TRUSTEE, Petitioner, vs. CITY OF MIAMI, FLORIDA, ETC. ET AL., Respondents. 3rd District.

Mortgage foreclosure -- Contracts -- Guaranty -- Equitable estoppel -- Trial court properly found that guarantors waived affirmative defenses of insufficiency of service of process and lack of personal jurisdiction by failing to plead those defenses with particularity -- However, genuine issues of material fact remain with respect to whether lender should be estopped from foreclosing on loan based upon lender's oral representations to extend maturity date, as evidenced by guarantors' consent to deduction from loan proceeds to obtain new appraisal and their forgoing development and sale of project -- Neither parol evidence rule nor statute of frauds prohibited parties from obtaining extension of time by oral agreement -- Parol evidence rule applies to verbal agreements between parties to written contract which are made before or at the time of execution of the contract and does not apply to admission of subsequent oral agreements that alter, modify, or change the parties' former agreement -- Statute of frauds -- Guarantors' arguments that statute of frauds does not bar defense of equitable estoppel because lender's performance was complete upon its agreement to the extension of time, removing the oral agreement from the one-year requirement of the statute of frauds, and because nothing in the oral agreement prevented the guarantors from paying off the loan before the end of the year were sufficient to create genuine issues of fact and prevent entry of summary judgment -- Further, parties may plead around statute of frauds defense by demonstrating estoppel on face of their pleading, and record contains affidavit directly attesting to oral agreement and guarantors' reliance on it

PETER ROACH, FRANCINE ROACH, MARK LANDAU, ELLA LANDAU, GERI FESSLER and ERIC FESSLER, Appellants, v. TOTALBANK, a Florida banking corporation, Appellee. 4th District.

Promissory notes -- Enforceability -- Documentary stamps -- Final judgment in favor of promisee reversed because promisee had not paid documentary stamps at time of final judgment; but because, among other relevant facts, promisor does not dispute that promissory notes have not been paid and documentary stamps were purchased within time allocated by trial court, final judgment to be reinstated nunc pro tunc to the date the documentary stamps were paid

MARCIAL SOLIS; MSA CRESTVIEW II, LLC; MARSOL CORPORATION; CRESTVIEW II, LTD.; AND MARSOL ONE, LLC, Appellants, vs. NYDIA LACAYO, Appellee. 3rd District.

Slander: SLANDER WITH INTENT TO HARM ISN'T COVERED BY POLICY, 11TH CIRCUIT SAYS, Finger v. State Farm, 7 No. 25 Westlaw Journal Insurance Bad Faith 11, Westlaw Journal Insurance Bad Faith April 17, 2012 A personal liability umbrella policy that covered slander as a personal injury offense but excluded coverage when committed with specific intent to harm was not ambiguous, a federal appeals court has ruled. Once a jury found that Van P. Finger slandered his former business associate with specific intent to cause harm, State Farm Fire & Casualty Insurance Co. owed no money for the verdict, the 11th U.S. Circuit Court of Appeals concluded.Therefore, the panel reversed the lower court's ruling

Torts -- Dismissal -- Fraud on court -- No abuse of discretion in dismissing complaint for fraud on court based upon plaintiff's numerous material misrepresentations regarding his medical history and current injuries, all of which were core issues in case

ROBERT ALLEN PERRINE, DEVON PERRINE, ET AL., Appellant, v. ROBERT EUGENE HENDERSON, SWELL CONSTRUCTION, ETC., Appellee. 5th District.

Torts -- Automobile accident -- Rear-end collision -- Presumption of negligence -- Action arising out of three-vehicle accident in which plaintiffs' vehicle rear-ended the vehicle in front of her which caused it to collide with lead vehicle which had slowed down to allow phantom vehicle to make right turn -- No error in entering final summary judgment against plaintiff where there was no evidence of negligence on the part of the lead drivers -- Plaintiffs' expert's affidavit stating that lead vehicle utilized maximum braking immediately prior to collision and that phantom car made right turn off highway five seconds after turn signal came on and was either at maximum braking power prior to turn or making turn at a high rate of speed was insufficient to create disputed issue of fact -- Affidavit, when viewed in light most favorable to plaintiffs, established that both lead vehicles maintained safe operation of their vehicles in response to phantom vehicle's right turn and, even assuming that abrupt braking was required because of phantom vehicle's actions, such action was appropriate -- Moreover, even without presumption of negligence, review of record leads to conclusion that there was no material negligence on part of lead drivers and it was plaintiff's own negligence in failing to maintain a safe distance that led to accident

LUANNA SHIREY and MICHAEL SHIREY, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, CARLIS R. SABINSON and WILLIAM SABINSON, Appellees. 4th District.

Torts -- Automobile accident -- Dangerous instrumentality doctrine -- Trial court erred in entering summary judgment finding that defendant was not liable under dangerous instrumentality doctrine for the alleged negligent operation of his pickup truck by his adult nonresident stepdaughter where there was factual issue as to whether stepdaughter's operation of vehicle was with defendant's permission -- Although defendant may not have given his express personal permission for stepdaughter to drive vehicle on day of accident, it is possible that defendant's wife, who had general access to truck, allowed the stepdaughter to operate the truck -- If defendant's wife was bailee of truck when it was left at home, it is possible that she is liable for the bailment to her daughter and that defendant is liable in turn as her bailor

JAMES B. STANFORD, Appellant, v. PAUL GEORGE CHAGNON and DENA MORGAN PACE, Appellees. 2nd District.

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