Friday, May 25, 2012

Health law appeals, bad faith insurance, medical malpractice and roasted chicken and garlic with sage-butter wild potatoes

Insurance -- Bad faith -- Jurisdiction -- Removal of state court action to federal court -- Remand to state court -- Diversity -- Under 28 U.S.C. section 1446(b), motion to remand bad faith action, which was removed to federal court on the basis of diversity, is granted where insurer's notice of removal was filed more than a year after “commencement of the action” -- Argument that action did not commence until plaintiffs amended complaint to add bad faith claim and underlying judgment on initial uninsured motorist contract claim became final, is rejected -- Under law of Florida, where action was originally filed, a civil action is commenced on date initial compliant is filed -- Further, plain language of section 1446(b) suggests that “commencement of the action” means the filing of original complaint that sets in motion resolution of all claims that may properly disposed of in the action, and addition of a new claim does not reset one-year limitation period -- Insurer's effort to invoke “separate and independent” controversy doctrine for invoking federal jurisdiction in removal action based purely on diversity necessarily fails where judiciary has been effectively divested of its power to analyze diversity actions under section 1441(c)THOMAS A. MOULTROP and PATRICIA GUY MOULTROP, plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, defendant. U.S. District Court, Southern District of Florida.

Insurance -- Property -- Conditions precedent -- Examination under oath -- Error to enter summary judgment in favor of Florida Insurance Guaranty Association, as successor in interest for insurer, based on failure of insured and, subsequently, its assignee to submit to examination under oath where FIGA failed to plead and prove prejudice -- Moreover, record indicates that FIGA was not prejudicedWHISTLER'S PARK, INC., Appellant, v. THE FLORIDA INSURANCE GUARANTY, ETC., Appellee. 5th District.

  Health Care Reform: TAXES LURK BEHIND COURT TEST OF OBAMA HEALTH LAW, 20 No. 1 Westlaw Journal Health Law 3, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - While Supreme Court watchers focus on the controversial insurance requirement in President Obama's health care law, lesser known is that the court's upcoming ruling will also decide the fate of billions of dollars in new taxes. The 2010 law includes a 3.8 percent boost in taxes on investment income and a 0.9 percent increase in the Medicare payroll tax, both hitting people who earn more than $200,000 a year.

Health Care Reform: U.S. SETS DEADLINE FOR PROPOSALS ON STATE HEALTH CARE EXCHANGES, 20 No. 1 Westlaw Journal Health Law 4, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - The Obama administration forged ahead with health care reforms, announcing a Nov. 16 deadline for state governments to submit proposals showing how they intend to operate health insurance exchanges in 2014. The Department of Health and Human Services released a detailed blueprint of the legal and operational requirements states must meet in their proposals if they expect to win federal approval to begin operating regulated insurance markets, in whole or in part.

Health Care Reform/Health Exchanges: NEW JERSEY GOVERNOR VETOES HEALTH EXCHANGE BILL, CALLS IT 'PREMATURE', 20 No. 1 Westlaw Journal Health Law 5, Westlaw Journal Health Law May 24, 2012 Rejecting a key provision of President Obama's health care overhaul law, Republican New Jersey Gov. Chris Christie has vetoed a measure that would have set up a health insurance exchange in the state. The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, requires most Americans to carry health insurance by 2014 or face a fine. To help consumers meet this mandate, the law calls for states to establish "health exchanges," an online marketplace that would give small employers

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 20 No. 1 Westlaw Journal Health Law 6, Westlaw Journal Health Law May 24, 2012 Primary care physicians could see a pay raise in the next two years for treating Medicaid patients under a rule proposed May 9 by the Obama administration. The Department of Health and Human Services said the increase would bring service fees for Medicaid primary care in line with those paid by Medicare. Under the rule, physicians would see a 34 percent increase in average Medicaid primary care payments, according to the HHS.

Veterans Health Benefits: VETS LOSE SUIT ON MENTAL HEALTH CARE, Veterans for Common Sense v. Shinseki, 20 No. 1 Westlaw Journal Health Law 7, Westlaw Journal Health Law May 24, 2012 Courts cannot order the U.S. Department of Veterans Affairs to overhaul the way it cares for the treatment of military veterans with combat-related illnesses, a federal appeals court has ruled. The full 9th U.S. Circuit Court of Appeals said allegations of systemic delays and neglect in mental health care for veterans is something Congress, not the courts, needs to address.In a 10-1 decision, the appellate court reversed a prior 2-1 ruling by a 9th Circuit panel.

Reproductive Rights/Legislation: ARIZONA BANS FUNDING FOR PLANNED PARENTHOOD, OTHER ABORTION PROVIDERS, 20 No. 1 Westlaw Journal Health Law 8, Westlaw Journal Health Law May 24, 2012 Arizona Gov. Jan Brewer, R, has signed a bill that bans Planned Parenthood and other family planning organizations that perform abortions from receiving public funds. Signed into law May 4, House Bill 2800 excludes cases in which a clinic needs to perform an abortion in order to save the life of the mother or if the pregnancy is the result of an act of rape or incest. The legislation applies to any health care provider that is eligible for federal funding under 42 U.S.C. 1396d(1)(2)(B)

Reproductive Rights: JUDGE STOPS TEXAS FROM BARRING PLANNED PARENTHOOD FROM HEALTH PROGRAM, Planned Parenthood Ass'n of Hidalgo County v. Suehs, 20 No. 1 Westlaw Journal Health Law 9, Westlaw Journal Health Law May 24, 2012 A federal judge has temporarily blocked the state of Texas from excluding Planned Parenthood clinics from participating in the government-funded Women's Health Program because the organization provides abortions. The state's Health and Human Services Commission initiated a rule last year barring it from contracting with entities affiliated with abortion providers.Putting the state rule on hold until he can hear full arguments in the case.

Medical Devices/Patents: CORDIS TO APPEAL $40 MILLION JUDGMENT IN STENT PATENT CASE, Boston Scientific Corp. v. Cordis Corp., 20 No. 1 Westlaw Journal Health Law 10, Westlaw Journal Health Law May 24, 2012 Cordis Corp. has filed a notice of appeal in response to a $40 million judgment entered in favor of Boston Scientific Corp. after a Delaware federal judge doubled a jury verdict in a stent design patent dispute. U.S. District Judge Sue L. Robinson of the District of Delaware issued the enhanced damages order March 13, saying the doubling of the jury's $19.5 million award was "reasonable under the circumstances."She denied Cordis' motion for judgment as a matter of law

Medical Malpractice: CALIFORNIA JURY AWARDS $74.5 MILLION FOR GIRL'S BIRTH INJURIES, Blunt v. Haupt, 20 No. 1 Westlaw Journal Health Law 11, Westlaw Journal Health Law May 24, 2012 A California jury has awarded $74.5 million to the parents of a 3-year-old girl who suffers from cerebral palsy allegedly caused by an obstetrician's negligence during her birth. The San Luis Obispo County Superior Court jury awarded $53 million in future medical expenses for Jennifer and Andrew Blunt's daughter Sofia, in addition to $21.5 million in damages for emotional distress, future lost wages and noneconomic damages. The verdict is thought to be one of the largest in California history.

Nursing Homes: CLASS ACTION ALLEGES INADEQUATE STAFFING AT CALIFORNIA NURSING HOMES, Mingura v. HCR ManorCare, 20 No. 1 Westlaw Journal Health Law 12, Westlaw Journal Health Law May 24, 2012 Nursing home chain HCR ManorCare lured elderly and dependent adults to enter its facilities in California by concealing that they regularly fell below the "bare minimum" staffing requirements, a class-action lawsuit alleges. Plaintiff Rebeca Mingura says the company violated state health and consumer protection laws by failing to provide adequate staff to fulfill the legal minimum amount of direct nursing care to each patient.

Torts -- Nursing homes -- Jurisdiction -- Non-residents -- Action against non-resident defendants who had ownership interests in entities that owned and operated Florida nursing homes -- Circuit court erred in finding that it had personal jurisdiction over defendants where, although plaintiff established defendants' ownership interests in nursing home's operating and management companies, plaintiff failed to establish any connexity between defendants' financial interests and alleged abuse from which plaintiff's claims arise, and failed to show that defendants have sufficient minimum contacts -- Plaintiff failed to demonstrate that defendants had control over day-to-day operations of nursing home sufficient to establish agency relationship where affidavit provided by plaintiff established nothing more than defendants' ownership interest -- Ownership interest, without more, is insufficient to establish personal jurisdiction over non-resident defendantsHARRIS SCHWARTZBERG; HARRIS SCHWARTZBERG TRUST; STEVEN SCHWARTZBERG TRUST; JUDITH SCHWARTZBERG TRUST; SCHWARTZBERG DESCENDANTS TRUST; HARRIS SCHWARTZBERG 2003 TRUST; STEVEN SCHWARTZBERG 2003 TRUST; HS MIDWEST TRUST #1; JS MIDWEST TRUST; FAM MIDWEST TRUST; JUDITH SCHWARTZBERG 2003 TRUST; HARRIS SCHWARTZBERG 2004 GST TRUST 1; HARRIS SCHWARTZBERG 2004 GST TRUST 2; JUDITH SCHWARTZBERG 2004 GST TRUST 1; JUDITH SCHWARTZBERG 2004 GST TRUST 2; SCHWARTZBERG FAMILY 2004 GST TRUST; SCHWARTZBERG 2004 DESCENDANTS TRUST; JS NATIONAL TRUST; HS NATIONAL TRUST #1; HS NATIONAL TRUST #2; FAM NATIONAL TRUST; and MAXWELL STOLZBERG, Appellants, v. KIM K. KNOBLOCH, as Personal Representative of the Estate of William Knobloch, Deceased, Appellee. 2nd District.

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Tuesday, May 22, 2012

Evidence, automobile accidents, depositions, and salmon carpaccio with capers and organic lemons

Civil rights -- Prisoners -- Due process -- Appeal from dismissal of prisoner's Section 1983 civil rights action alleging state prevented him from gaining access to physical evidence for purposes of DNA testing, in violation of his procedural due process rights, prohibition against cruel and unusual punishment, his right to confrontation, and his right to access to the courts compulsory process -- District court correctly determined that it lacks jurisdiction under Rooker-Feldman doctrine over claim that Florida's DNA access procedures as applied to facts of case fail to meet requirements of procedural due process -- To extent plaintiff raised substantive due process right to obtain biological evidence for DNA testing, in order to make a conclusive showing that he is innocent, claim is without merit, because Supreme Court's decisions in District Attorney's Office for the Third Judicial District v. Osborne unambiguously concluded that there is no substantive due process postconviction right to obtain evidence for DNA testing purposes -- Additionally, actual innocence claim of kind made in this case would be brought in habeas petition and plaintiff has neither sought habeas relief based on free standing actual innocence claim, nor has he shown that available discovery in a habeas proceeding is facially inadequate or that it somehow would be arbitrarily denied to him -- Claims that it is cruel and unusual punishment to subject plaintiff to sentence of life imprisonment if there is evidence that might exonerate him and that plaintiff is entitled to access evidence for DNA testing under Sixth Amendment because he has a right to government's assistance in securing favorable witnesses at trial and to put forward evidence that might influence the determination of guilt or innocence lack merit under Osborne -- Claim that state, by denying plaintiff access to physical evidence, has effectively deprived him of opportunity to litigate his claim, in violation of Due Process and Equal Protection Clauses, is foreclosed by Supreme Court and Eleventh Circuit precedent, which require a litigant asserting an access claim to show actual injury by proving he has colorable underlying claim for which he seeks relief, because plaintiff failed to establish in support of his access to courts claim necessary prerequisite of an actual injuryCARL ROBERT ALVAREZ, Plaintiff-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF FLORIDA, STATE ATTORNEY FOR THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendants-Appellees. 11th Circuit.

Criminal law -- Concealing location of minor in violation of court order -- Error to deny motion for judgment of acquittal where state did not prove that defendant concealed location of child in violation of court order, as there was no court order expressly telling defendant that she was required to disclose location of child to court -- Statute is not ambiguousANALYN MERKLE n/k/a ANALYN G. MEGISON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Fines and surcharges -- Error to impose discretionary fines in written judgment where those fines were not orally pronounced -- Surcharges associated with those fines were likewise improperly imposedMARSHALL S. LAMOREAUX, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Employer-employee relations -- Employee benefit plans -- Retirement benefits -- Employee Retirement Income Security Act -- Allegations that fiduciaries of retirement plan, which was structured both as an “eligible individual account plan” and an “employee stock ownership plan,” breached their fiduciary responsibilities under ERISA by continuing to purchase and failing to sell employer's stock even though they knew based on nonpublic information that stock price probably was inflated; provided inaccurate information to plan participants in fiduciary communications; and failed to disclose to plan participants certain business practices by employer that had inflated employer's stock price -- Discussion of prudence and diversification in context of EIAP and ESOP and of presumption described in Moench v. Robertson -- District court did not err in dismissing plaintiffs' claims that defendants breached fiduciary duties of prudence and loyalty -- Prudence -- Although district court improperly concluded that plaintiffs' claim that defendants acted imprudently in acquiring and holding employer's stock was actually a claim that defendants should have diversified the plan's investments and erred in concluding, alternatively, that defendants had no discretion not to invest in employer's stock, defendants' motion to dismiss prudence claim was properly granted based on district court's second alternative holding that plaintiffs' allegations were insufficient to rebut presumption of prudence -- Claim was not a diversification claim where plaintiffs alleged that defendants acted imprudently because they knew stock was overpriced, not merely that stock made up too large a percentage of the company stock fund -- Fact that plan required that plan be invested “primarily” in company stock did not require defendants to invest exclusively in the stock and did not eliminate discretion to sell company stock or stop investing in it -- ESOP fiduciary is presumed prudent for investing in, or continuing to hold, employer securities consistently with the terms of the plan, and that presumption can be overcome only by showing an abuse of discretion -- Although fiduciary is generally required to invest according to terms of plan, when circumstances arise such that continuing to do so would defeat or substantially impair purpose of plan, a prudent fiduciary should deviate from those terms to the extent necessary, and it is an abuse of discretion not to do so -- It is not necessary, as district court held, that company be on the “brink of financial collapse” in order to demonstrate abuse of discretion -- Because abuse of discretion standard applies to fiduciary's decision to continue to invest or remain invested in company stock in obedience to plan's directions, abuse of discretion is element of a claim that the fiduciary's decision was imprudent, and district court properly dismissed prudence claim for failure to state cause of action where plaintiffs failed to plead facts sufficient to raise plausible inference that fiduciaries abused their discretion by following plan's directions -- Loyalty -- District court did not err in dismissing claims that defendants violated fiduciary duty of loyalty by making misrepresentations in SEC filings that were sent to, or were accessible to, plan participants or by failing to inform plan participants of employer's business practices and the effect those practices would likely have on stock price when they became public

RAYMOND A. LANFEAR, RANDALL W. CLARK, ANTONIO FIERROS, Plaintiffs-Appellants, TERRY CLARK, et al., Plaintiffs, v. HOME DEPOT, INC., ROBERT L. NARDELLI, JOHN I. CLENDENIN, MILLEDGE A. HART, III, KENNETH G. LANGONE, et al., Defendants-Appellees, LARRY M. MERCER, et al., Defendant. 11th Circuit.

Mortgage foreclosure -- Default -- Vacation -- Service of process -- Defects -- Substitute service on defendant at address in foreign state at which wife was residing was not valid where it was not shown that this address was defendant's “usual place of abode” -- Evidence showing that defendant and his wife had separated two months earlier, that a petition for dissolution of marriage was pending, and that defendant was living in a different city was sufficient to rebut presumed validity of substitute service -- Neither copy of personal financial statement dated four days after process was served, in which defendant listed the wife's address as his address, nor testimony by plaintiff's vice president that defendant told him he and his wife were reconciling was sufficient to establish that wife's address was defendant's usual place of abode at time of service -- Error to deny motion to set aside final judgment of foreclosure and foreclosure sale for invalid service of processSTEPHEN H. HECK, Appellant, v. BANK LIBERTY, SUCCESSOR IN INTEREST TO CHAMPION BANK BY ASSET ACQUISITION FROM THE FDIC, AS RECEIVER FOR CHAMPION BANK, Appellee. 1st District.

 Torts -- Automobile accident -- Evidence -- Deposition of defendant driver -- No abuse of discretion in allowing deposition of defendant to be published to jury and read into record at rescheduled trial after defense counsel filed affidavit detailing his unsuccessful efforts to locate defendant for several weeks prior to trial and asserting that client had taken a temporary job assignment out of state with a federal military agency, defendant had stated to defense counsel that she was uncertain about her ability to contact counsel while on assignment, and counsel had been unable to obtain any information from employer about defendant's whereabouts -- Being called away for compelling reason was sufficient to show deponent's absence was not self-procuredTARA ASHLEY SUZANNE HUTCHINGS, Appellant, v. PATRICIA ANN LILES, Appellee. 1st District.

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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.

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Tuesday, May 1, 2012

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

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

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

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
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

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

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

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

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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