Saturday, November 30, 2013

Attorney's fees, condominium associations, future lost profits, and grilled elk wih peppercorn, red onion, and rosemary sauce



Attorney's fees -- Appeals -- Jurisdiction -- Non-final orders -- An order finding entitlement to attorney's fees but not setting an amount is a non-final, non-appealable order -- Appeal dismissed for lack of jurisdiction
KLING CORPORATION, etc., et al., Appellants, vs. HOLA NETWORKS CORPORATION, etc., et al., Appellees. 3rd District.

Attorney's fees -- Prevailing party -- Administrative law -- Counties -- School boards -- Exceptional student education -- Due process hearing -- Statute providing for award of attorney's fees to prevailing party in administrative proceedings under chapter 120 does not apply to proceeding brought under section 1003.57, which is controlled by procedures outlined in section 1003.57(1)(b)
A. L., by his parent P. L. B., and P. L. B. for herself, and Rosemary N. Palmer, attorney, Appellants, v. JACKSON COUNTY SCHOOL BOARD, Appellee. 1st District.

Attorney's fees -- Receiverships -- Attorney for receiver -- Receiver's attorney lacked standing to pursue award of attorney's fees and costs independent of the receiver where order appointing receiver entitled the receiver, not an attorney, to seek award of attorney's fees and costs, and record reflects that no other court order was entered which would have permitted receiver's attorney to independently pursue award of attorney's fees and costs
SAGA BAY GARDENS CONDOMINIUM ASSOCIATION, INC., Appellant, vs. FOR THE APPOINTMENT OF BLANKET RECEIVER, Appellee. 3rd District.

Civil procedure -- Appeals -- Jurisdiction -- Non-final orders -- Order granting motion for entry of default judgment as to liability only is a non-final, non-appealable order -- This type of order was expressly removed from the list of appealable non-final orders -- Appeal dismissed for lack of jurisdiction
AMMY M. KOGAN, Appellant, vs. MICHAEL MILDENBERGER, Appellee. 3rd District.

Civil procedure -- Dismissal -- Forum non conveniens -- Error to deny motion to dismiss for forum non conveniens based on finding that parties had availed themselves of the jurisdiction of the court -- Finding of personal or subject matter jurisdiction not substitute for existence of convenient forum -- Order granting final summary judgment entered while interlocutory appeal of order denying motion to dismiss was pending also reversed
SERAFIN GARCIA ARMAS, Appellant, vs. BANCO NACIONAL DE CRÉDITO, C.A., etc., Appellee. 3rd District.

Civil procedure -- Sanctions -- Due process -- State v. Spencer, which requires trial court to provide notice and opportunity to respond before enjoining parties from filing further pro se pleadings or motions, applies to all pro se litigants, civil and criminal alike -- Error to prohibit further pro se filings in instant civil litigation without issuing show cause order and permitting reasonable time to respond
BRAD M. BOLTON AND TERESA B. BOLTON, Appellants, v. SE PROPERTY HOLDINGS, LLC, AS SUCCESSOR TO VISION BANK and PARASOL WEST HOMEOWNERS ASSOCIATION, INC., Appellees. 1st District.

Condominiums -- Assessments -- Prior owner is jointly and severally liable with current owner for all past due assessments up to time of transfer of title -- Where condominium association foreclosed on its assessment lien and took title to property while mortgage foreclosure action was pending, mortgage foreclosure action subsequently concluded and third party purchased property at foreclosure sale, association was jointly and severally responsible with former owner back to time when title to property was transferred to former owner, and third-party purchaser at mortgage foreclosure sale was responsible for unpaid assessments back to time when association took title to subject property
PARK WEST PROFESSIONAL CENTER CONDOMINIUM ASSOCIATION, INC., Appellant, vs. JOHN LONDONO, Appellee. 3rd District.

Contempt -- Direct criminal -- Father's failure to comply with truancy orders requiring him to ensure daughter's attendance at school -- Truancy court judge improperly acted as judge and prosecutor -- Evidence was insufficient to establish willful noncompliance with truancy court's orders
DAVE MOYERS, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Contempt -- Where court had entered order requiring co-owner of condominium apartment to “vacate” the unit because her occupancy violated the fifty-five and older age restriction for residents, it was error to hold the co-owner in contempt for continuing to spend several hours a day at the unit for the purpose of remodeling and gardening and staying overnight on several occasions -- Court order was ambiguous as to what was required to vacate the unit, and it was improper to hold party in contempt for violation of an ambiguous order
VIRGINIA HOKENSTROM and HOLLY HOKENSTROM, Appellants, v. ENVIRON TOWERS I CONDOMINIUM ASSOCIATION, INC., Appellee. 4th District.

Contracts -- Discovery -- Trial court departed from essential requirements of law in entering order compelling defendant in breach of contract action to produce personal financial records where such records are not relevant to any issues in litigation -- Defendant's personal financial information is not relevant to his affirmative defense of plaintiff's anticipatory breach of contract because defendant is not required to establish his ability to perform under contract to be relieved of his contractual obligations based on plaintiff's anticipatory breach
JOHN M. RYAN, Petitioner, v. LANDSOURCE HOLDING COMPANY, LLC, Respondent. 2nd District.

Contracts -- Leases -- Damages -- Where lessor breached lease and constructively evicted lessee, ultimately causing the destruction of lessee's business, by failing to repair leaking roof, trial court properly found that prospective lost profits was the correct measure of damages -- Awarding market value for a business that has been slowly reduced to nothing due to defendant's breach would be inequitable -- There was no clear error in trial court's factual finding that awarding prospective lost profits beyond the initial lease term would be too speculative -- Trial court did not err in dismissing lessee's equitable foreclosure and lis pendens where lessee had no interest in underlying realty -- In awarding attorney's fees to lessee, trial court did not err in denying a contingency fee multiplier where evidence showed that any number of attorneys would have agreed to take case on an hourly or contingent basis
KATZ DELI OF AVENTURA, INC., Appellant, vs. WATERWAYS PLAZA, LLC, etc., Appellee. 3rd District.

Creditors' rights -- Supplementary proceedings -- Fraudulent transfers -- Attorney's fees -- Impleaded parties are not liable for attorney's fees and costs in proceedings supplementary -- In such proceedings, attorney's fees and costs may be awarded only against original judgment debtor -- To extent final judgment against impleaded parties purports to reserve jurisdiction to award attorney's fees and costs against the impleaded parties jointly and severally with judgment debtor, judgment is reversed -- Final judgment awarding attorney's fees and costs for proceedings supplementary reversed to extent that it purports to permit writs of execution against all of the assets of the impleaded parties, rather than solely the assets of judgment debtor now in the hands of the impleaded parties as result of fraudulent transfers
KINGSTON CORPORATION GROUP OF FLORIDA, INC.; KINGSTON GROUP, LLC; TAMIAMI HOEHNE, LLC; and THE SOURCE MINISTRIES, INC., Appellants, v. RICHARD KLEIBER WALTER KLEIBER PARTNERSHIP, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Substantial change in circumstances -- Trial court abused its discretion in finding no change in circumstances warranting reduction in alimony where husband presented unrebutted evidence establishing a forty-percent drop in income from business which he owned and operated, the unavailability of additional money from the business, the lack of substantial assets to liquidate, grim job expectations, and monthly expenses which exceeded his income -- Contempt -- Finding husband was in contempt for failing to pay alimony was not supported by competent, substantial evidence
HENRY M. DRIGGERS, Appellant, v. ROBIN Y. DRIGGERS, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Trusts -- Trial court did not err in granting continuing writ of garnishment over any disbursements made from discretionary trusts to former husband for payment of alimony upon finding that traditional remedies for enforcement of alimony obligation were not effective -- Although trusts contained spendthrift provision, a spendthrift provision is unenforceable against a beneficiary's former spouse who has a judgment or court order against the beneficiary for support or maintenance
BRUCE D. BERLINGER, Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Dissolution of marriage -- Child support -- Modification -- Foreign state support order -- Jurisdiction -- Under provisions of the Uniform Interstate Family Support Act, Florida court does not have jurisdiction to modify a Michigan child support order which was registered in Florida under UIFSA where Michigan no longer has continuing, exclusive jurisdiction over the order; party seeking modification is a Florida resident; and opposing party is a nonresident who objects to Florida's assumption of jurisdiction -- UIFSA is not preempted by federal Full Faith and Credit for Child Support Orders Act -- Petition for writ of prohibition granted -- Circuit court required to refrain from exercising modification jurisdiction
JYRKI TUONO JUHANI PULKKINEN, Petitioner, v. KAREN ELAINE PULKKINEN, n/k/a Karen Elaine Brautcheck, Respondent. 1st District.

Dissolution of marriage -- Equitable distribution -- Court's valuation of marital assets and liabilities was not supported by competent substantial evidence -- On remand, trial court must reconsider other orders that stemmed from erroneous equitable distribution schedule -- Trial court did not err in valuing marital assets and liabilities as of the date of filing dissolution petition -- Building that was nonmarital asset of husband at time of marriage was transformed into marital asset where wife was instrumental in improvements made to building during marriage
JORDAN H. JORDAN, Appellant, v. LAURA JORDAN, Appellee. 4th District.

Dissolution of marriage -- Trusts -- Jurisdiction -- Where court had granted former wife's motion for continuing writs of garnishment over payments to former husband from discretionary trusts for the payment of former husband's alimony obligation, trial court did not err in substituting special trustee of trusts as a party to the family law action -- There is no merit to trustee's argument that court did not have personal jurisdiction over him as special trustee and the trust because the court did not grant the motion for substitution until the same date it granted the continuing writ of garnishment -- Trustee voluntarily submitted himself to the jurisdiction of the family law court when he was appointed as special trustee of the discretionary trusts, filed motions seeking relief in family court, and voluntarily appeared as trustee at hearing in family court
RICHARD K. INGLIS, ESQ., Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Torts -- Contractors -- Failure to maintain premises in safe condition -- Business invitee's action against contractor seeking damages for injuries sustained when he tripped and fell over construction debris as he attempted to enter home through the garage -- Error to enter summary judgment for defendant where there was genuine issue of material fact as to whether contractor, the sole possessor of the property at the time of the incident, failed to satisfy its duty to maintain premises in safe condition -- Whether plaintiff's apparent recognition of open dangers within garage resulted in his assumption of risk of entering house by that route is issue to be decided by jury as part of comparative negligence determination
ROBERT SKALA, Appellant, v. LYONS HERITAGE CORPORATION; SEAN CLARK; and SEAN CLARK CONTRACTING, INC., Appellees. 2nd District.


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