Thursday, May 10, 2012

Appeals, good timing, bad timing and malpractice, with sun dried tomatoes sauteed with garlic, balsamic vinegar and Greek oregano over wild salad greens

Appeals -- Timeliness -- Appellate court lacks jurisdiction over appeal where notice of appeal was filed more than thirty days of rendition after order -- Dismissed without prejudice to filing petition for belated appealEXCELLUS O. HYLAND, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Child custody -- Jurisdiction -- Appeals -- Mootness -- Action arising out of father's filing petition seeking to domesticate and enforce Ecuadorian judgment, and petition filed pursuant to International Child Abduction Remedies Act, after mother removed children to Florida and refused to return children to Ecuador -- Petition for writ of certiorari seeking review of non-final order of Florida circuit court granting sole custody of parties' children to father -- Appeal of order is moot where father already returned to Ecuador with children, filed notice of dismissal of his case, and at no point in present proceedings did mother seek affirmative relief regarding custody -- Despite nugatory character order, the order is vacated in order to eliminate possibility that it might work to advantage or disadvantage of the parties sometime in the futureMARIA FERNANDA OBANDO GARCES, Appellant, v. DINO MIGUEL ZAVALA LEGARDA, Appellee. 1st District.

Criminal law -- Sentencing -- Guidelines -- Departure -- Specialized medical treatment -- Trial court's holding, that it had no discretion to impose its desired downward departure sentence for possession of child pornography because defendant did not make showing that treatment for mental illness was unavailable from the Department of Corrections, was correct under then-current case law, but District Court has, since the sentencing, receded from its previous holding and on remand trial court has discretion to impose downward departure -- On remand state may present evidence that DOC can provide the treatment, but such evidence is merely an additional factor for trial court's consideration in exercising its discretionALEXANDER COLLETTA, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Search and seizure -- Investigatory stop -- Tip given to officer by face-to-face tipster who wished to remain anonymous was insufficient to provide reasonable suspicion to justify investigatory stop of defendant where officers did not observe anything to confirm the reliability of the information provided by the tipsterGEROME BERRY, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Modification -- Judgment modifying time-sharing schedule is reversed where, after finding that there had been a substantial change in circumstances, trial court failed to address the best interests of the childDWAYNE MAYO, Appellant, v. JAMIE MAYO, Appellee. 2nd District.

Mortgage foreclosure -- Verification of complaint -- Nothing in rule governing verification of complaint to foreclose mortgage on residential property requires that the verification be contained within the complaint -- No error in entering summary judgment in favor of lenderDANIEL WILLIAM BECKER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee of The Indymac INDX Mortgage Trust 2007-FLX3, mortgage pass-through certificates, series 2007-FLX3 under the pooling and service agreement dated April 3, 2007; unknown spouse of Daniel William Becker; CITY OF PEMBROKE PINES, FLORIDA; and unknown person(s) in possession of the subject property, Appellees. 4th District.

Real property -- Tax deed sale -- Error to enter summary judgment for defendants in owners' action to vacate tax certificate sale -- Evidentiary hearing is required on issue of adequacy of notice to owners of sale -- As second and independent basis for reversal, court notes concern that visible irregularity in auction of property, coupled with gross disparity between bid and assessed value, failed to elicit truly competitive biddingBETTY HORNE, Appellant, vs. MIAMI-DADE COUNTY, FLORIDA, ETC., AND METROPOLITAN HOMES, LLC, ETC., ET AL., Appellees. 3rd District.

Torts -- Negligence -- Action by condominium insurer against roofing contractor to recover amounts paid for damage caused when large stone veneer wall fell while defendant was conducting repairs -- District court did not err in granting defendant's motion for judgment as matter of law, holding that no reasonable jury could find that defendant was negligent because plaintiff failed to present any evidence on standard of care in roofing industry -- Regardless of whether roofers are “professionals” under Florida law, plaintiff was required to put forth some evidence of standard of care in roofing industry in order to establish what a reasonably prudent roofer would do under similar circumstances -- Fact that veneer fell while roofers were working on it was not enough to establish negligence on its own -- Civil procedure -- Specificity requirement in Rule 50(a)(2) did not bar granting of judgment as matter of law in this caseINSURANCE COMPANY OF THE WEST, a California corporation, Plaintiff-Appellant, v. ISLAND DREAM HOMES, INC., a Florida corporation, Defendant-Appellee. 11th Circuit

Torts -- Medical malpractice -- New trial -- Causation -- Trial court did not abuse its discretion in ordering new trial as to element of causation in case involving failure to diagnose tumor in an infant where only expert that plaintiffs offered on causation was not qualified to speak to that element, and, even if expert were qualified, her limited credentials were substantially outweighed by defendant's expert in area of medicine at issue -- Damages -- No abuse of discretion in ordering new trial as to element of damages where trial court demonstrated how element of damages was intertwined with causation such that any infirmity as to causation would render damages verdict against manifest weight of evidence as wellSTEVEN RAMOS and JULIE ANDERSEN, on behalf of GIA RAMOS, a minor, Appellants, v. MELANIE COOMBS, M.D.; SOUTH FLORIDA PEDIATRIC PARTNERS, L.L.C., a Florida Limited Liability Corporation; NICOLE MARK, M.D., and ALAN FURIA, M.D., Appellees. 4th District.

Trusts -- Trust beneficiary's action against trustees alleging breach of trust -- Limitation of actions -- Error to dismiss complaint on ground claims are time-barred -- Limitations period in section 737.307, Florida Statutes, is inapplicable where beneficiary has not received an account or statement -- Section 95.11(3)(o), Florida Statutes, does not apply to actions for breach of trustANDREW S. TAPLIN, Appellant, vs. MARTIN W. TAPLIN, ET AL., ETC., Appellees. 3rd District.

Racketeering -- Conspiracy -- Victims of Ponzi scheme filed complaint asserting causes of action for violation of Florida's Civil Remedies for Criminal Practices Act and conspiracy to violate Florida RICO Act, arguing that bank engaged in pattern of criminal activity as defined under Act by repeatedly accepting cash deposits in excess of $10,000 without preparing or submitting required currency transaction reports -- Dismissal of complaint for failure to state a claim of a primary RICO violation is warranted where plaintiff alleged criminal conduct that falls within ambit of Florida RICO Act, but failed to allege sufficient continuity to state a claim under Act -- Limited period of 120 days, four months, during which defendant bank is alleged to have participated in RICO enterprise precludes a finding of closed-ended continuity -- Plaintiff failed to demonstrate open-ended continuity, which depends on a “threat” of continuity, because plaintiff's allegations provide no basis to infer a threat, implicit or otherwise, of bank's predicate acts continuing into future, and by time action commenced bank had already terminated its relationship with perpetrator of Ponzi scheme on its own initiative and after only four months -- Claim for conspiracy to commit RICO violations also fails, because plaintiff failed to state claim of a primary RICO violation and conspiracy count does not contain any additional allegations -- Dismissal should be with prejudice where court has already afforded plaintiff opportunity to amend, and additional opportunity would be futile, given that plaintiff's own allegations and exhibits make clear that she cannot establish requisite continuity to state a claim under Florida RICO ActNERLINE HORACE-MANASSE, et al., Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant. U.S. District Court, Southern District of Florida.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.