Tuesday, February 21, 2012

Appellate attorney's fees, proposals for settlement, and chocolate ganache cookies

Attorney's fees -- Appellate -- Circuit court appellate division improperly awarded appellate attorney's fees to defendant pursuant to offer of judgment statute where plaintiff had voluntarily dismissed his lawsuit without prejudice

MARIO MEJIA, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. 3rd District.

Attorney's fees -- Award of attorney's fees pursuant to section 57.105, Florida Statutes, reversed where portion of order directing payment of fees contains no findings of fact

REGIONS BANK, Appellant, v. SARWAT M. GAD, et al., Appellees. 1st District.

Attorney's fees -- Proposal for settlement -- Wrongful death -- Non-settling defendants who prevailed in wrongful death action were entitled to recover fees from estate based on personal representative's rejection of reasonable offer of settlement, but those fees could not be recovered from settlement funds allocated to survivor under Wrongful Death Act -- Trial court erred in requiring personal representative to pay defendants' attorney's fee claim before distributing settlement proceeds to himself as sole survivor -- Fact that personal representative in this case was also sole survivor does not change result -- Statute allowing for deduction of litigation expenses from awards made to survivors applies only to fees and costs incurred by attorneys representing the survivors

CHARLES KADLECIK, AS PERSONAL, ETC., Appellant, v. Y. DANIEL HAIM, M.D. AND CENTRAL FLORIDA, ETC., Appellee. 5th District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 7 trustee's fraudulent transfer claims, alleging transfers from debtor corporation to IRS were in payment of principal's personal tax liability at time when debtor was struggling to pay its bills and had no liability to IRS, are core proceedings stemming from bankruptcy itself for which bankruptcy court may enter final orders -- Narrow holding of Stern v. Marshall does not apply to claims at issue -- Even if it were determined that bankruptcy court lacks authority to enter final orders because trustee's fraudulent transfer claims are merely “related to” bankruptcy, court may still enter final orders because Section 157(c)(2), provides that a bankruptcy judge can issue final judgments in non-core proceedings if parties consent, and IRS explicitly and impliedly consented to bankruptcy court's final resolution of claims at issue -- Objection to entry of final orders by bankruptcy court overruled

In re: CUSTOM CONTRACTORS, LLC, Debtor. U.S. Bankruptcy Court, Southern District of Florida, West Palm Beach Division.

Child support -- Enforcement of administrative support order -- Error for court to reduce child support by deviating from guidelines based upon a verbal visitation agreement that was not court-authorized

DEPARTMENT OF REVENUE O/B/O LEMEICIA L. RAMBERT, Appellant, v. DONALD G. WILLIAMS, Appellee. 1st District.

Contracts -- Home repair -- Damages -- Breach of contract by contractor who failed to complete work on plaintiff's home, failed to pay subcontractors, and caused additional damages to home -- Damages awarded on breach of contract count, duplicative damages awarded for negligence and violations of Florida Deceptive and Unfair Trade Practices Act, and an additional amount awarded under civil theft theory -- Torts -- Recovery on negligence theory was barred by economic loss rule where parties were in contractual privity and damages were caused when performing the contract -- Facts adduced at trial do not support award of damages for civil theft -- No error in awarding damages on breach of contract or FDUPTA claims -- Because the same measure of damages applies to both theories of recovery, plaintiffs only entitled to single recovery of damage amount

LAUFEN, INC. AND JAMES JACKSON, Appellant, v. THOMAS ANDREW AND CONSTANTINA ANDREW, Appellee. 5th District.

Dissolution of marriage -- Contempt -- Law of the case -- Where first magistrate's report, and subsequent trial court order, held husband was not in contempt for nonpayment of alimony because marriage settlement agreement provided that retirement benefits, in this case his social security benefits, were not subject to be used for alimony, no objection or exception was filed by wife, and later, successor magistrate's report found predecessor magistrate's report misinterpreted plain meaning of marital settlement agreement and that manifest injustice would result from misinterpretation, hence “law of the case” doctrine did not apply, trial court properly quashed successor magistrate's report and concluded based on “law of the case” doctrine that it did not have the authority to overrule another circuit judge based on a finding of manifest injustice or because the current judge believes the predecessor judge was incorrect -- Husband does owe wife accrued alimony, hence the case is remanded for evidentiary hearing to determine whether husband has any other assets to pay former wife alimony -- Notwithstanding correctness of trial court's holding, it misapplied “law of the case” doctrine, since the doctrine only applies when matters are remanded to a trial court from an appellate court -- Rather, the proper principle asserts a successor judge may not correct errors of law committed by predecessor

AMY DRDEK, Appellant, v. DENNIS J. DRDEK, Appellee. 4th District.

Estates -- Real property -- Partition -- Attorney's fees -- Trial court erred in failing to make a determination regarding the amount of attorney's fees plaintiff's attorney earned advancing her partition count due to the fact that plaintiff's first three counts sought full title in herself and only sought partition in the alternative -- Although defendant provided greater services because he had to defend plaintiff's first three counts to get case to partition posture, that fact does not preclude plaintiff's attorney from receiving some award based solely on the acts he or she took towards partition

ROBERTA FERNANDEZ-FOX, Appellant, v. MARK REYES AS PERSONAL REPRESENTATIVE, ETC., Appellee. 5th District.

Injunctions -- Domestic violence -- Evidence in record on appeal was insufficient to support final injunction protecting wife and parties' minor children from domestic violence by husband -- Claim that trial court erred by relying on pleadings, testimony, and other evidence from previous proceedings without properly taking judicial notice was not preserved for appellate review by objection -- Challenge to lack of explanatory findings of fact relating to statutory factors for determining entitlement to final judgment of injunction was not preserved for appellate review where matter was not brought to attention of trial court to afford a reasonable opportunity to correct the deficiency

JUAN R. ACHURRA, Appellant, v. ESPERANZA ACHURRA, Appellee. 1st District.

Mortgage foreclosure -- Standing -- Action to foreclose residential mortgage and recover on promissory note -- Entry of final summary judgment for original mortgagee was fundamental error where original mortgagee was a non-party because it had withdrawn from case -- Judgment would still be reversed even if entered in favor of alleged transferee who sought to establish note and recover on it where transferee failed to prove who lost the note and when it was lost, offered no proof of anyone's right to enforce note when lost, and produced no evidence of ownership -- Although mortgagor failed to raise lack of standing as an affirmative defense, this failure did not operate as a waiver where there is no evidence showing mortgagor was on notice prior to filing answer that ownership of note had been transferred because it appears the claimed transfer, which allegedly took place the day suit was filed, was either concealed for three years while original mortgagee pursued suit, or the assignment was backdated to justify substituting transferee as plaintiff -- Furthermore, transferee still had to prove its right to enforce note when judgment was entered, even if mortgagor had waived his right to challenge standing

MARC D. BEAUMONT, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee. 5th District.

Torts -- Automobile accident -- Cross-examination -- Limitation -- Trial court abused its discretion when it limited scope of cross-examination of defendant's medical expert on proximate cause of plaintiff's injuries in order to effectively refute notion that plaintiff's damages were not proximately caused by accident -- Because trial court foreclosed plaintiff's attempt to negate notion that her damages were not proximately caused by accident, witness's theory was left unchallenged and could have led to jury's awarding plaintiff only a fractional portion of the damages she sought -- Plaintiff entitled to new trial

AUDRA W. POLAND and STEVEN POLAND, her husband, Appellants, v. SUSAN S. ZACCHEO, Appellee. 4th District.

Torts -- Contracts -- Churches -- Ecclesiastical abstention doctrine -- Action by members of board of directors of church, a not for profit corporation, alleging that defendants, acting without authority, attempted to remove board members in violation of statutory procedures to be followed in removing board members -- Trial court erred in dismissing action on ground that ecclesiastical abstention doctrine barred court from deciding dispute -- Because case may be resolved by applying neutral principles of law without inquiry into religious doctrine and without requiring court to interpret policies or practices of church, abstention doctrine does not bar case

JAMES BENDROSS, W.C. DILLARD, EDWIN HENDERSON, LORENZO MCDOWELL AND SIDNEY WHITE, Appellants, vs. REV. PHILLIP F. READON AND EUGENE RICE, Appellees. 3rd District.



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Thursday, February 16, 2012

Show Me the Money: Helping Clients Find and Protect Assets in a Divorce

This ABA Journal podcast is brought to you by WestlawNext. . . .HERE

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Tuesday, February 14, 2012

Appeals, punitive damages caps, criminal law and pumpkin-sage, handmade ravioli

Happy Valentine's Day to all!

Insurance -- Automobile -- Coverage -- Automobile accident occurring during interim between lapse of coverage under expired policy and reinstatement of policy -- Trial court erred in ruling that insurer's unconditional acceptance of premium waived its right to claim that there had been a lapse in coverage -- Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss -- Estoppel -- Genuine issue of material fact remains as to whether a potentially misleading bill that insurer sent to named insured, which incorrectly listed the renewal policy period, supports affirmative defense of estoppel -- Civil procedure -- Summary judgment -- Trial court erred in rejecting, as self-serving, affidavit of insurer's underwriting specialist which simply asserted that insurer mailed renewal bills and reminders, insured failed to timely pay renewal premium, and when insured made premium payment following accident, insurer reinstated policy commencing the next day
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. MICHEL CAMILLO and JEAN-PAUL CAMILLO, Appellees. 4th District.


Insurance- Torts -- Automobile accident -- Rear-end collision -- New trial -- Error to grant summary judgment in favor of plaintiffs where sufficient evidence fairly and reasonably tended to show that their vehicle was illegally stopped in the roadway at a time when it was both dark and raining, and there was conflicting testimony regarding whether emergency flashers on plaintiffs' vehicle were illuminated -- Threshold defense -- Non-resident -- Error to grant summary judgment finding that Florida's permanent injury threshold defense was unavailable to defendant where defendant was subject to Florida's no-fault law and maintained no-fault insurance coverage through her Illinois policy, which incorporated the laws of Florida by reference
ANA JIMINEZ, Appellant/Cross-Appellee, v. GEORGE FACCONE, Individually; and GEORGE FACCONE, as Personal Representative of the Estate of Rita Faccone, Deceased, Appellees/Cross-Appellants. 2nd District.

Expert Witness: ARKANSAS HIGH COURT FINDS EXPERT-WITNESS REQUIREMENT UNCONSTITUTIONAL, Broussard v. St. Edward Mercy Health System, 7 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 3, 2012 The Arkansas Supreme Court has deemed unconstitutional a state law requiring expert witnesses in malpractice cases to practice in the same medical specialty as the defendant. The requirement in found in Ark. Code Ann. 16-114-206(a) violates the separation-of-powers doctrine in the state constitution because it interferes with the courts' power to set and control procedure, the high court said.The ruling stemmed from Teresa L. Broussard's malpractice lawsuit against St. Edward Mercy Medical Center.  

Failure to Diagnose: JUDGE ALLOWS VETERAN'S DELAYED-DIAGNOSIS CLAIMS TO PROCEED, Normand v. United States, 7 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 3, 2012 A U.S. veteran who alleges that VA hospital workers delayed his prostate cancer diagnosis and caused him to undergo radiation therapy that left him impotent may continue to pursue limited negligence claims against the government, a federal judge has ruled. Chief U.S. District Judge Glen E. Conrad of the Western District of Virginia said the government is entitled to summary judgment on claims involving a nurse practitioner


Hospital Negligence: STAFFING COMPANY LOSES BID TO REVERSE $3.5 MILLION VERDICT, Medical Staffing Network v. Connors, 7 No. 18 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice February 3, 2012 A staffing agency that claimed a Georgia hospital had entered into a secret agreement with a malpractice plaintiff to increase the agency's liability has lost its appellate court bid to reverse a $3.5 million verdict. DeKalb Medical Center's litigation agreement with a deceased patient's family did not render the verdict against Medical Staffing Network Inc. fundamentally unfair, the Georgia Court of Appeals said.

Interesting Legislation: PENNSYLVANIA HOUSE OKS PUNITIVE DAMAGES CAP FOR NURSING HOMES, 7 No. 18 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice February 3, 2012 The Pennsylvania House of Representatives has approved legislation that limits punitive damages awards against nursing homes to 200 percent of a plaintiff's compensatory damages. House Bill 1907 does not take away a plaintiff's right to full compensation, but eliminates courts' ability to hand out "jackpot-type" awards, Republican state Rep. Glen Grell, the bill's sponsor, said in a Jan. 19 statement. The House voted 103-89 to pass the measure Jan. 18 after considering it for the third time. 

Criminal law -- Aliens -- Reentry into United States after removal or deportation -- Government is collaterally estopped from litigating alienage where jury's verdict of acquittal in prior federal criminal trial for illegal reentry was necessarily based on jury's reasonable doubt about defendant's alienage and fact of alienage status is an essential element of current prosecution for illegal reentry -- Because government is collaterally estopped from arguing that defendant is an alien, it cannot prove an essential element for charged offense of illegal reentry and indictment must be dismissed
UNITED STATES OF AMERICA, Petitioner-Appellee, v. EMILIANO VALDIVIEZ-GARZA, a.k.a. Ismael Valdiviez, Defendant-Appellant. 11th Circuit.


Criminal law -- Costs -- It was error to assess costs in written order of sentence which were not orally announced -- Error to assess public defender fee without giving defendant opportunity to contest fee
ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.



Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.


Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.


Criminal law -- Double jeopardy -- Felony merger doctrine -- Separate convictions for attempted felony murder and attempted premeditated murder arising from same criminal episode did not amount to double jeopardy violation under standard analysis -- However, dual convictions based on attempted killing of one victim are precluded by felony merger doctrine -- Attempted felony murder conviction reversed
JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.


Criminal law -- Evidence -- Hearsay -- Tape recording -- Trial court did not err in allowing surreptitiously recorded conversation between defendant and co-defendant in the back of a patrol car to be played at trial where defendant's side of conversation was admissible as a party admission and co-defendant's side of conversation was admissible to place defendant's statements into context -- Further, conversation between the two was not instigated by law enforcement or any other person with primary purpose of collecting evidence for criminal prosecution
TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


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Saturday, February 4, 2012

Criminal law, health care reform and vegetarian chili with fresh Italian parsley and hot peppers


Fraudulent misrepresentation -- Securities act violations -- Fraudulent inducement to purchase stock in corporation -- Complaint alleging that plaintiffs were misled regarding facts material to transaction known to defendants due to superior knowledge, which defendants concealed, sufficiently pled claims for fraudulent misrepresentation and securities act violations -- Trial court erred in dismissing claims
GEMINI INVESTORS III, L.P., ET AL., Appellants, vs. MICHAEL NUNEZ, ET AL., Appellees. 3rd District.

Legal malpractice -- Failure to fully implement estate plan, resulting in higher estate taxes -- Error to grant summary judgment in favor of defendants based on conclusions that plaintiffs were not intended beneficiaries of estate and therefore lacked standing and that, in any event, family limited partnership, which defendants failed to implement, was not a viable estate planning tool in this case -- Genuine issues of material fact existed both as to whether plaintiffs were intended beneficiaries of estate and whether use of FLP, which would have considerably reduced estate taxes, was a viable tax planning vehicle
EDWARD C. HODGE, OLIVER W. COWART and MERRILL M. HENRY A/K/A MITCHEL M. HENRY, Appellants, v. SCOTT W. CICHON, ANDREW C. GRANT, J. LESTER KANEY and COBB & COLE, P.A., Appellees. 5th District.

Negligence -- Vicarious liability -- Plaintiff who was victim of sexual abuse by counselor at group care facility for foster children when plaintiff was a minor -- Counselor employed by subcontractor that was hired under management and consulting agreement which acknowledged that subcontractor may assume contractor's position at program at some point in future -- Contractor was not entitled to summary judgment based on its argument that it owed no duty to plaintiff because a facility in charge of sheltering and caring for foster children has duty to conform to certain standard of conduct to protect children from unreasonable risks of harm, and there is conflicting evidence as to whether control of facility had been transferred to subcontractor -- Proximate cause issue must be resolved by jury where record contained evidence from which jury could conclude that contractor or subcontractor knew or should have known about counselor's inappropriate relationship with plaintiff, and reasonable people could differ as to whether counselor's criminal acts were foreseeable in light of notice of the relationship -- Summary judgment entered on vicarious liability claim against subcontractor is affirmed where counselor's criminal acts were committed outside the scope of and not done in furtherance of her employment
TACRIAN GOSS, Appellant, v. HUMAN SERVICES ASSOCIATES, INC., VISIONQUEST NATIONAL, LTD., and MORGAN LEE BROWN Appellees. 5th District.

Wrongful death -- Medical malpractice -- Causation -- Evidence offered supporting finding that doctor was negligent in failing to intubate deceased and more likely than not, had deceased been intubated, she would have survived -- Trial court erred in denying hospital's motion for directed verdict which alleged that plaintiff failed to prove that any negligence by hospital's nursing staff caused deceased's death -- Although it was shown that the doctor was negligent and that nurses had breached a duty by checking box indicating that deceased needed less intensive care than was required, there was no evidence that nursing staff's negligence was a cause of death where no one testified that nurses had duty to intubate, or that checking box for the proper level of care and checking deceased's vital signs immediately or more frequently would have affected the outcome
HOLLYWOOD MEDICAL CENTER, INC., d/b/a HOLLYWOOD MEDICAL CENTER, a Florida Corporation, Appellant, v. CAMILLUS ALFRED, as Personal Representative of the Estate of URSULINE ALFRED, deceased and URSULINE ALFRED, individually and on behalf of all the survivors of URSULINE ALFRED, Appellees. 4th District.


Criminal law -- Aggravated battery -- Resisting officer with violence -- Jury instructions -- Justifiable use of non-deadly force -- Charges arising from incident in which defendant struck officer where officer claimed defendant struck him with baton upon his attempt to place handcuffs on defendant, and defendant claimed that he punched officer after officer used his baton to strike him while his hands were in the air -- Failure to instruct jury on justifiable use of non-deadly force constituted reversible error because defendant's version of incident, however improbable, was not demonstrably false and was sufficient to support such an instruction
RICO GLENN, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Appeals -- Order denying motion to reduce or modify sentence is not appealable
MARK A. REYES, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Attempted burglary -- Evidence -- Where perpetrator gained entry to dwelling through open window and no property was taken, it was error to admit “tools” found on defendant's person when he was apprehended as there was no evidence linking these items to the crime, either as instruments or fruits of the crime
JERRY STEPHENS, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Attorney's fees -- Attorney appointed to represent indigent defendant in criminal case -- Where case had been determined to be extraordinary and unusual, court departed from essential requirements of law by limiting fee to double the flat fee without considering the number of hours expended in determining whether the fee award was confiscatory
JOSHUA D. ZELMAN, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent. 1st District.

Criminal law -- Burglary of a dwelling -- Attached porch -- Bicycle stolen from concrete pad connecting to front walkway -- Area from which defendant stole bicycle was not an “attached porch” within the definition of a “dwelling,” as provided in section 810.011(2), where the area was located in the front of the home and maintained neither posts nor sufficient enclosure to visually indicate it was an extension of, rather than just near, the home -- Moreover, there was no personal property within the area suggesting it was a logical extension of the dwelling and, unlike a carport, the area was open to unknown, uninvited people
HARLEY LLOYD COLBERT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Costs -- It was error to assess costs in written order of sentence which were not orally announced -- Error to assess public defender fee without giving defendant opportunity to contest fee
ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.

Criminal law -- Double jeopardy -- Felony merger doctrine -- Separate convictions for attempted felony murder and attempted premeditated murder arising from same criminal episode did not amount to double jeopardy violation under standard analysis -- However, dual convictions based on attempted killing of one victim are precluded by felony merger doctrine -- Attempted felony murder conviction reversed
JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Drug trafficking -- Obtaining controlled substance by withholding information -- Search and seizure -- Trial court did not err in denying motion to suppress defendants' pharmacy records -- Trial court erred in denying motion to suppress statements made by defendants' doctors to law enforcement
KAREN PLEVYAK HAY, a/k/a KAREN L. HAY, and ROBERT RONALD HAY, Appellants, v. STATE OF FLORIDA, Appellee. 2nd District.


Criminal law -- Evidence -- Hearsay -- Tape recording -- Trial court did not err in allowing surreptitiously recorded conversation between defendant and co-defendant in the back of a patrol car to be played at trial where defendant's side of conversation was admissible as a party admission and co-defendant's side of conversation was admissible to place defendant's statements into context -- Further, conversation between the two was not instigated by law enforcement or any other person with primary purpose of collecting evidence for criminal prosecution
TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Evidence -- Search and seizure -- Interception and disclosure of wire, oral, or electronic communications -- Outgoing calls by 911 dispatcher -- Error to deny defendant's motion to suppress outgoing phone call recorded by 911 dispatcher where original call to 911 reporting a disturbance was made from the house next door -- Plain language of section 934.03(2)(g)2 does not allow outgoing calls by 911 dispatcher to be recorded without consent of person being called, even if outgoing call is in reference or relates to incoming 911 call, where the outgoing call was not to the number from which the incoming call was placed for purpose of obtaining information required for emergency assistance -- State's contention that statute should be read broadly is rejected in light of statute's plain language and legislative history -- Argument that recording was lawful because communication on recording was oral communication between defendant and victims in which defendant had no expectation of privacy is rejected -- Recording subject to the motion to suppress included only communications that were picked up over telephone which clearly met definition of “wire communication” in section 934.02(1), and there is no basis in limited record of suppression hearing to conclude defendant had no expectation of privacy
ROBERT JASON PERDUE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Grand theft -- Jurisdiction -- Theft occurring on commercial airplane -- Order denying defendant's motion to dismiss is reversed where theft was not committed wholly or partly within Florida under section 910.005(1)(a) because theft was fully executed before plane reached Florida's territory -- Further, because the crime was completed the moment defendant obtained victim's money with intent to permanently deprive, defendant's actions could not constitute an attempt to commit an offense within Florida under section 910.005(1)(b)
STACY SANDERS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to file supplemental brief raising issue of whether attempted voluntary manslaughter jury instruction, given in trial for attempted first-degree murder with firearm, amounted to fundamental error -- Where, before initial brief was filed in petitioner's direct appeal, sister district court of appeal issued decision holding that use of standard jury instruction on manslaughter requiring state to prove intent to kill victim constituted fundamental error, and, while petitioner's direct appeal was pending, the same court subsequently issued decision holding that its reasoning applied to standard instruction on attempted manslaughter, appellate counsel had duty to ask for supplemental briefing on the jury instruction issue -- Standard jury instruction on attempted manslaughter possessed same fatal flaw as standard instruction on manslaughter -- Conflict certified
TYRONE DILL, Petitioner, v. STATE OF FLORIDA, Respondent. 5th District.

Criminal law -- Habeas corpus -- Manslaughter -- Jury instructions -- Justifiable and excusable homicide -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to raise as fundamental error trial court's failure to instruct jury on justifiable and excusable homicide in connection with manslaughter instruction
BASIL BURFORD, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.



Medical Malpractice (Legislation): FLORIDA LAWMAKERS WANT MED-MAL CLAIMS OUT OF THE COURTS, 19 No. 9 Westlaw Journal Health Law 7, Westlaw Journal Health Law January 26, 2012 Two Republican lawmakers in Florida have proposed landmark legislation that would replace the state's medical malpractice litigation system with an administrative process. Senate Bill 1588, introduced Jan. 6 by state Sen. Alan Hays calls for the creation of a "patient compensation system" that would be as the exclusive remedy for personal injury and wrongful-death claims related to medical malpractice.


 Medical Devices: WRIGHT MEDICAL HID DANGERS OF PROFEMUR HIP SYSTEM, SUIT SAYS, Dees v. Wright Med. Tech., 19 No. 9 Westlaw Journal Health Law 8, Westlaw Journal Health Law January 26, 2012 Wright Medical Technology Inc. concealed the dangers of premature wear of its Profemur-Z total hip system, according a man suing the company in a Georgia federal court, claiming the device required replacement in less than three years. Jace Dees says Georgia-based Wright and parent Wright Medical Group Inc. knew of durability problems with the prosthetic hip and had received hundreds of related complaints before his was implanted in September 2008, yet fraudulently continued to market. 

 Nursing Homes: $100 MILLION SUIT ALLEGES ABUSE, COVER-UP AT NEW YORK GROUP HOME, Romeo v. Aid to the Developmentally Disabled, 19 No. 9 Westlaw Journal Health Law 9, Westlaw Journal Health Law January 26, 2012 The sister of a deceased mentally retarded man has alleged in a $100 million federal court lawsuit that his group home operator conspired with New York disability advocates to cover up the negligent and abusive treatment he received. Jean Romeo claims that Aid to the Developmentally Disabled Inc. and the Individual Group Home Living program worked together to "stonewall" her family from receiving information about her brother's injuries and death.

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