Sunday, August 3, 2014

Appeals and tolling, jurisdiction and waiver, and organic roasted chicken on a bed of fresh baby kale, sauteed pecans, and shaved Asiago


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Appeals -- Timeliness -- Tolling of period for filing notice of appeal -- Motion for rehearing of order granting summary judgment -- Where there is no substantive difference between the rights adjudicated in order granting summary judgment and the final summary judgment, there is no impediment to treating the motion for rehearing as an authorized, premature motion, tolling the time for filing notice of appeal -- Motion to dismiss appeal as untimely denied
ROSA MARIN and SMART CARS AND TRUCKS CORPORATION, Appellants, v. OBED LIMONTE, FRANK DE LA OLIVA and EXUS ISUZU PARTS, CORPORATION, Appellees. 3rd District.


Civil procedure -- Discovery in aid of execution -- Attorney-client privilege -- Trial court departed from essential requirements of law in ordering production of attorney-client privileged documents under crime-fraud exception without affording defendant an evidentiary hearing to offer its reasonable explanation of its conduct or communications
MERCO GROUP OF THE PALM BEACHES, INC., Petitioner, v. JOHN G. MCGREGOR, DAVID GHYSELS, DAVID SARAGA, HARJAS CHATWAL, MARK BENNETT, KEVIN R. MACKEY, MICHAEL L. MACKEY, CYNTHIA RAFTIS, ANASTASIA RAFTIS, SPIRO RAFTIS, GREGORY PILL, RICHARD HOFFMAN, SHARON HOFFMAN, BRUCE PINCHERON, THOMAS FASSO, JR., DANIEL KOHN, BARBARA KOHN, DIANE MALHORTRA, VIKRANT MALHORTA, and MARUICE BASSALI, Respondents. 4th District.


Creditors' rights -- Discovery -- Personal financial information of non-party individual who was associated with corporate judgment debtor -- Trial court departed from essential requirements of law in denying non-party's motion for protective order seeking to prevent discovery of her personal financial information where judgment creditors failed to establish any facts demonstrating that the discovery of personal financial information was reasonably calculated to identify or lead to the discovery of assets that could be reached to satisfy the judgment
WINDERTING INVESTMENTS, LLC, a Florida limited liability company, and HELEN EMILY KWOK, an individual, Petitioners, v. GREGORY FURNELL, an individual, DARLENE BRADEN, an individual, and JAMIE JOHNSTON, n/k/a JAMIE TANNER, an individual, Respondents. 2nd District.


Dissolution of marriage -- Child custody -- No error in denying father's emergency verified motion to compel mother to return parties' minor children to Florida -- Trial court correctly found that Florida's relocation statute did not apply where mother moved to foreign state before father filed for dissolution of marriage
BENJAMIN D. ROLISON, Appellant, v. RACHEL L. ROLISON, Appellee. 1st District.


Dissolution of marriage -- Contempt -- Failure to pay alimony -- Amended written order finding former husband in contempt for failure to pay alimony was inconsistent with trial court's oral ruling denying motion for contempt -- Remand for trial court to make findings in accordance with procedure set forth in Bowen v. Bowen
JEFFREY R. FULLER, Appellant, v. NANCY LORRAINE ELIZABETH DUBè FULLER n/k/a NANCY LORRAINE ELIZABETH DUBAY, Appellee. 2nd District.


Dissolution of marriage -- Discovery -- Trial court departed from essential requirements of law by ordering former wife to submit to a psychological examination where it had not been established that her mental condition was in controversy -- Court's belief that former wife was not supporting or promoting child's relationship with former husband since child was choosing not to see former husband did not establish that former wife's mental health was in controversy -- Court also departed from essential requirements of law in ordering mental evaluation without notice to former wife that her mental condition was at issue
JACQUELYN A. ASTEBERG f/k/a JACQUELYN RUSSELL, Petitioner, v. JEFFREY L. RUSSELL, Respondent. 2nd District.


Estates -- Claims -- Timeliness -- Claims filed beyond three-month creditors' claim period set forth in statute were time-barred, even assuming claimant was a known or reasonably ascertainable creditor who was not served with a copy of notice to creditors -- Where a personal representative has failed to serve a copy of notice to creditors on a known or reasonably ascertainable creditor, creditor's remedy is to petition probate court for an extension of time pursuant to section 733.702(3) within two-year window set forth in section 733.710 -- Conflict
JAMES BURTON SOUDER, Appellant, v. JASON GEORGE MALONE, Appellee. 5th District.


Injunctions -- Protection against domestic violence -- Trial court erred in dismissing third petition for protection against domestic violence on basis that petition raised allegations resolved by petitioner's voluntary dismissal of earlier petition pursuant to settlement agreement where third petition raised an incident which postdated the settlement and voluntary dismissal of earlier petition
JENNIFER PARRISH, Appellant, v. JACOB MATTHEW PARRISH, Appellee. 2nd District.


Injunctions -- Wrongful injunction -- Recovery against injunction bond -- Plaintiff's voluntary dismissal of its complaint without prejudice after temporary injunction had expired by its own terms did not constitute an automatic determination that defendants had been wrongfully enjoined so as to entitle them to damages against bond -- Plaintiff's voluntary dismissal of its suit without prejudice after it has sought and received a temporary injunction can, but does not automatically, constitute an adjudication that the adverse party was wrongfully enjoined -- In determining whether a voluntary dismissal constitutes an adjudication that the enjoined party was wrongfully enjoined, trial court should consider the totality of the circumstances on a case-by-case basis
VICTORIA MOSSUCCO, etc., et al., Appellants, v. AVENTURA TENNIS, LLC, INC., Appellee. 3rd District.


Injury Law
Adams, et al. v. Laboratory Corp. of America
11th Circuit Docket: 13-10425          Opinion Date: July 29, 2014
Judge: Per curiam
Plaintiff and her husband filed suit against LabCorp, alleging that its cytotechnicians were negligent in failing to identify abnormalities in plaintiff's Pap smears and that this negligence caused a delay in her cancer diagnosis. The district court granted LabCorp's motion to exclude plaintiff's expert's testimony based on its conclusion that her methodology did not meet the reliability requirements under Federal Rule of Evidence 702. The district court then granted LabCorp's motion for summary judgment. The court concluded, however, that the expert was qualified to testify about cytotechnologists' standard of care, her methodology was reliable, and her testimony would assist the trier of fact. Therefore, the district court abused its discretion in excluding her testimony. The court reversed in part, vacated in part, and remanded for further proceedings.
http://j.st/ZqYj

Intercepted communications -- Trial court departed from essential requirements of law in denying motion for protective order seeking to expunge video and voice recording of petitioner, which state seeks to use as evidence in criminal cases in which petitioner is not a party -- Evidence was insufficient for court to conclude that petitioner lacked a reasonable expectation of privacy in communication made by petitioner in his enclosed vehicle while the vehicle was traveling on a public road in daylight
JOSEPH E. ABDO, Petitioner, v. STATE OF FLORIDA, Respondent. 2nd District.


Jurisdiction -- Non-residents -- Service of process -- Service by publication pursuant to Venezuelan law was sufficient to confer in personam jurisdiction where service was made in compliance with Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters -- Personal service is not required for Florida court to have jurisdiction to render a money judgment against defendant -- Where service is effected in compliance with Hague Service Convention, any additional requirements under Florida law are preempted -- Motion to dismiss for lack of jurisdiction or to quash service of process properly denied
JUAN ANDRES PUIGBO, Appellant, v. MEDEX TRADING, LLC, et al., Appellees. 3rd District.


Jurisdiction -- Non-residents -- Torts -- Conversion -- Civil procedure -- Relief from judgment -- Action against corporation and individual arising out of business relationship in which corporate defendant agreed to process payments made by plaintiff's customers and to transfer the funds to plaintiff's bank accounts in Florida on a regular basis -- Defendant, who had been properly served with process, did not waive right to challenge circuit court's personal jurisdiction over him by waiting to file motion to vacate until after the circuit court entered final judgment against him -- Default judgment entered against individual defendant was void where circuit court lacked personal jurisdiction over him -- Tortious act within state -- Where conversion arose from alleged withdrawal of funds from a designated bank account in Delaware, alleged tort did not occur in Florida, but occurred either in Delaware or in state where defendants allegedly gained dominion and control over the funds -- Accordingly tort had no connexity with state and did not occur within state -- Any act of individual defendant in his capacity as officer of corporate defendant not basis for personal jurisdiction over defendant individually -- Trial court erred in denying motion to vacate judgment in accordance with rule 1.540(b)(4)
K. MITCHELL WIGGINS, Appellant, v. TIGRENT, INC., f/k/a Whitney Information Network, Inc., a Colorado corporation, Appellee. 2nd District.


Mortgage foreclosure -- Deficiency after defendant had defaulted by failing to pay balance of balloon note and had given plaintiff a deed in lieu of foreclosure -- Where deficiency owed to plaintiff was to be determined by the amount due on the note less a reduction for the value of the property obtained by plaintiff via the deed in lieu of foreclosure, and two appraisals of property were admitted into evidence at evidentiary hearing, it cannot be concluded that trial court abused its discretion in relying on the lower appraisal to value the property where no transcript of the evidentiary hearing has been provided to appellate court -- Trial court erred in awarding plaintiff expenses for insurance and taxes on property after the date the property was deeded to plaintiff -- Prejudgment interest -- Plaintiff was entitled to prejudgment interest at the contractual rate of 18% on full principal balloon balance from date of default through date of deed in lieu of foreclosure, but was entitled to prejudgment interest at the contractual rate on the difference between the full principal balloon balance and the value of the property between the date of the deed in lieu of foreclosure and the date of entry of judgment -- It was error to award plaintiff prejudgment interest at the contractual rate on the full principal balloon balance from the date of default through the date of entry of judgment
PIERRE PHILIPPE, Appellant, v. MICHAEL WEINER, M.D., P.A. SHARING PLAN, Appellee. 3rd District.


Mortgage foreclosure -- Jurisdiction -- Service of process -- Trial court erred in presuming service of process to be valid where affidavits of service were not regular on their faces -- Affidavits of service were defective on their face because they state that they came to hand before the summonses were even issued, and because process server attested that he effected substituted service upon defendant through his unknown wife although service was actually effected on defendant's mother who was not living at defendant's residence when service allegedly occurred
FRANK ROMEO and CONNIE YANG, s/h/a the unknown spouse of Frank Romeo, Appellants, v. US BANK NATIONAL ASSOCIATION, As Trustee For BNC Mortgage Loan Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2, SEBASTIAN LAKES CONDOMINIUM ASSOCIATION, INC., et al., Appellees. 4th District.


Mortgage foreclosure -- Jurisdiction -- Trial court lost jurisdiction when bank voluntarily dismissed its foreclosure action, and had no authority to rule on borrowers' motion to determine reasonableness of bank's attorney's fees -- Petition for writ of prohibition granted
IBERIABANK, a Louisiana State Bank, Petitioner, v. RHN INVESTMENTS, LTD., a Florida limited partnership, RHN INVESTMENTS, INC., a Florida corporation, RAYMOND H. NORDINE, an individual, Respondents. 4th District.


Mortgage foreclosure -- Notice of default -- Summary judgment in favor of plaintiff not precluded by defendants' averment that they did not receive notice of default where language of mortgage required only that plaintiff mail notice, not that defendants receive it, and plaintiff established by affidavit that it mailed notice to defendants
DANIEL ROMAN and NOEMI ROMAN, Appellants, v. WELLS FARGO BANK, Appellee. 5th District.


Mortgage foreclosure -- Voluntary dismissal -- Attorney's fees -- Defendant did not waive attorney's fees by failing to request fees in motion to dismiss -- Separate motion for attorney's fees filed within 30 days of plaintiff's dismissal of action was timely filed -- Defendant was not required to plead contractual or statutory basis for attorney's fees -- Language in notice of voluntary dismissal conditioning dismissal on defendants paying their own attorney's fees and costs did not preclude defendant from recovering attorney's fees, as this unilateral document was not binding upon him -- Trial court erred in denying defendant's request for attorney's fees
GEORGE TUNISON III, Appellant, v. BANK OF AMERICA, N.A., successor by merger to BAC Home Loans Servicing LP, f/k/a Countrywide Home Loans Servicing, LP, Appellee. 2nd District.


Real estate brokers -- Commission -- Lien -- A real estate broker can properly place a lien on real property to collect a commission that was permitted by contract -- The remedy of a lien against the proceeds of sale provided by Florida Commercial Real Estate Commission Lien Act is not exclusive
J. MILTON DADELAND, LLC, etc., Appellant, v. ABALA, INC., etc., et al., Appellees. 3rd District.

Speech -- Florida Firearm Owners Privacy Act -- District court erred in entering injunction prohibiting enforcement of inquiry, record-keeping, discrimination, and harassment and related disciplinary provisions of Florida's Firearm Owners Privacy Act, which seeks to protect patients' privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms -- Act is legitimate regulation of professional conduct and simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care -- Standing -- Plaintiffs' self-censorship is cognizable injury-in-fact for standing purposes in this case
DR. BERND WOLLSCHLAEGER, DR. JUDITH SCHAECHTER, DR. TOMMY SCHECHTMAN, AMERICAN ACADEMY OF PEDIATRICS, FLORIDA CHAPTER, AMERICAN ACADEMY OF FAMILY PHYSICIANS, FLORIDA CHAPTER, AMERICAN COLLEGE OF PHYSICIANS, FLORIDA CHAPTER, INC., ROLAND GUTIERREZ, STANLEY SACK, SHANNON FOX-LEVINE, Plaintiffs-Appellees, v. GOVERNOR OF THE STATE OF FLORIDA, SECRETARY, STATE OF FLORIDA, SURGEON GENERAL OF THE STATE OF FLORIDA, SECRETARY, HEALTH CARE ADMINISTRATION OF THE STATE OF FLORIDA, DIVISION DIRECTOR, FLORIDA DEPARTMENT OF HEALTH, Division of Medical Quality Assurance, GEORGE THOMAS, JASON ROSENBERG, ZACHARIAH P. ZACHARIAH, ELISABETH TUCKER, TRINA ESPINOLA, MERLE STRINGER, JAMES ORR, GARY WINCHESTER, NABIL EL SANADI, ROBERT NUSS, ONELIA LAGE, FRED BEARISON, DONALD MULLINS, BRIGETTE RIVERA GOERSCH, BRADLEY LEVINE, Defendants-Appellants. BROWARD COUNTY MEDICAL ASSOCIATION, BROWARD COUNTY PEDIATRIC SOCIETY, PALM BEACH COUNTY MEDICAL SOCIETY, FLORIDA PUBLIC HEALTH ASSOCIATION, UNIVERSITY OF MIAMI SCHOOL OF LAW AND YOUTH CLINIC, CHILDREN'S HEALTHCARE IS A LEGAL DUTY, INC., EARLY CHILDHOOD INITIATIVE FOUNDATION, AMERICAN ACADEMY OF PEDIATRICS, AMERICAN ACADEMY Of CHILD AND ADOLESCENT PSYCHIATRY, AMERICAN ACADEMY OF FAMILY PHYSICIANS, AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, AMERICAN COLLEGE OF SURGEONS, AMERICAN COLLEGE OF PREVENTIVE MEDICINE, AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGIST, AMERICAN CONGRESS OF OBSTETRICIANS AND GYNECOLOGISTS, AMERICAN PSYCHIATRIC ASSOCIATION, CENTER FOR CONSTITUTIONAL JURISPRUDENCE, DOCTORS FOR RESPONSIBLE GUN OWNERSHIP, NATIONAL RIFLE ASSOCIATION OF AMERICA, AMERICAN MEDICAL ASSOCIATION, ACLU FOUNDATION OF FLORIDA, ALACHUA COUNTY MEDICAL SOCIETY, AMERICAN PUBLIC HEALTH ASSOCIATION, AMERICAN ASSOCIATION OF SUICIDOLOGY, SUICIDE AWARENESS VOICES OF EDUCATION, LAW CENTER TO PREVENT GUN VIOLENCE, Amicus Curiae. 11th Circuit.


Torts -- Summary judgment -- Trial court erred in effectively granting defendant's motion for summary judgment under the guise of a motion in limine -- Motion in limine was used to grant summary judgment without affording plaintiff required notice -- Hearing on motion in limine may not serve as a vehicle for presentation of an unnoticed motion for summary judgment
ANTONIO OTERO, Appellant, v. GILBERTO GOMEZ, III, Appellee. 3rd District.

Torts -- Jurisdiction -- Colombians filed lawsuits alleging claims involving torture, personal injury, and death under Torture Victims Protection Act and Alien Tort Statute against United States corporations for engaging in concert of action with paramilitary forces in Colombia -- Complaints do not state claims within jurisdiction of United States courts -- Claims under TVPA must be dismissed because TVPA authorizes liability solely against natural persons and defendant corporations are not natural persons -- Neither appellate court nor district court had jurisdiction over claims under ATS, because presumption against extraterritoriality applies to claims under ATS, and all relevant conduct in this case occurred outside territorial jurisdiction of United States
LILIANA MARIA CARDONA, JOHN DOE, ANGELA MARIA HENAO MONTES, et al., Plaintiffs-Appellees-Cross Appellants, ADANOLIS PARDO LORA, AIDEE MORENO VALENCIA, ALBINIA DELGADO, et al., Plaintiffs-Appellees, v. CHIQUITA BRANDS INTERNATIONAL, INC., an Ohio corporation, CHIQUITA FRESH NORTH AMERICA LLC, a Delaware corporation, Defendants-Appellants-Cross Appellees. 11th Circuit.



Wrongful death -- Department of Transportation -- Sovereign immunity -- Collision on roadway over which department had jurisdiction -- Allegations that department created known hazardous condition involving a hidden danger of which department was aware and that department failed to correct or warn against this danger encompassed operational-level function to which sovereign immunity did not apply -- Error to dismiss complaint on ground that department was entitled to sovereign immunity
SANDRA BERGMANN, as Personal Representative of the Estate of Paul R. Bergmann, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, a governmental agency and WILLIE B. WYNN, individually, Appellees. 1st District.




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