Wednesday, April 22, 2015

Child support, imputed income, attorney fees, and grilled grassfed sirlion, rosemary, garlic, and brussel sprouts sauteed in walnut oil



Child support -- Modification -- Administrative support order -- Trial court fundamentally erred when it reduced father's monthly child support obligations without notice or hearing

DEPARTMENT OF REVENUE, o/b/o Loretta Sermon, Cherral Smith, and Yata Frichelle Canty, Appellant, v. GEORGE BAKER, Appellee. 2nd District.


Civil procedure -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law in compelling production of attorney-client privileged documents on basis that documents were relevant and contained information that could not reasonably be obtained from another source -- Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent's showing of relevance and necessity
FLORIDA POWER & LIGHT COMPANY, Petitioner, v. MARK W. HICKS, Respondent. 4th District.



Contracts -- Attorneys -- Fees -- Dispute between trial attorneys and appellate attorneys regarding amount of fees due to appellate attorneys pursuant to “trial support agreement” for appellate attorneys to help trial attorneys steer clear of reversible error during course of trial -- Under contract provision which entitled appellate attorneys to two and one-half percent of gross recovery if case was settled after appellate attorneys were requested to take any action in preparation of a response to or drafting a motion for new trial, appellate attorneys were entitled to two and one-half percent of the gross recovery where judgment against defendants in case was appealed, appellate court affirmed judgment with the exception of a setoff amount that should have been deducted from judgment, and defendants then agreed to pay the judgment minus the setoff and obtain a satisfaction of the judgment -- In ruling that the fee belonged to trial attorneys, trial court erroneously reasoned that the word “settled” means voluntary resolution of the dispute between the parties via a settlement agreement, and that a trial and its attendant verdict and judgment does not equate to a settlement agreement -- Within context of entire agreement, the word “settled” means the resolution of the lawsuit by final decision or payment or satisfaction of the judgment previously rendered -- Trial court also erred in finding that appellate attorneys materially breached the agreement by advancing an interpretation that differed from trial attorneys' interpretation
BURLINGTON & ROCKENBACH, P.A., ETC., Appellant, v. LAW OFFICES OF E. CLAY PARKER, ETC., ET AL., Appellees. 5th District.


Contracts -- Lease of commercial property -- Action by landlord against tenant after tenant terminated lease and vacated property because of an allegedly illegal drainage of storm water from property -- Trial court properly entered judgment for landlord after court made no finding that there were any illegal conditions on property -- Tenant is not entitled to terminate lease based on theory of constructive eviction unless premises are unsafe, unfit, or unsuitable for occupancy for purposes for which they were leased -- Damages -- Damages were not subject to limitation pursuant to early termination clause in addendum to lease where tenant did not give notice of its intention to vacate property within period specified by clause -- Where landlord leased property to another tenant at a lower rate after tenant's vacation of property, tenant is liable for rent plus sales and property taxes and insurance not paid by the new tenant for remaining term of the lease

GRIFFIN INDUSTRIES, LLC, a foreign limited liability company, Appellant, v. DIXIE SOUTHLAND CORPORATION, a Florida corporation, Appellee. 4th District.


Contracts -- Profit participation agreements -- Dispute arising out of agreements whereby parties purchased commercial shopping center properties and subsequently entered into preliminary profit participation agreements to establish rights and responsibilities for the completion of the purchase, and post-closing profit participation agreements which provided that each participant would receive portion of net cash flow and net proceeds, after reimbursement of owner's outstanding capital, including compounded return on investment -- Fraud -- Plaintiffs' action against defendants for fraud and breach of contract based on defendants' having misrepresented, in preliminary PPAs, that they would not receive portion of brokerage commission was not extinguished by merger clause in subsequent PPAs -- Existence of merger clause does not prevent cause of action for fraud -- Moreover, merger clause was limited to those representations relating to participation interests and did not cover representations with respect to commissions paid at closing of sales of property -- Further, preliminary PPAs stated that they were controlling instruments until closing, and once closing took place, there was no reason to include representation of “no commission” in PPAs -- Accounting -- Declaratory judgment -- No error in concluding that counterclaimants were entitled to accounting to determine net cash flow and whether distributions were owing from respective shopping centers -- Trial court did not abuse its discretion in determining that counterclaim-defendants were not responsible for further accounting at their expense but that, instead, were to furnish financial records on properties to counterclaimants at their request to complete an updated accounting, should they so desire -- No abuse of discretion in requiring that accounting of net proceeds be made upon refinancing or sale of property -- Trial court did not err in concluding that there was no obligation, either express or implied, on part of counterclaim-defendant to furnish financial information to counterclaimants for purpose of determining whether counterclaimants would make an offer to purchase property -- Moreover, trial court properly found that claim to an accounting to enable counterclaimants to create an advantageous offer to purchase properties based on 1995 prices was not raised in pleadings
HARRY HAHAMOVITCH, HHH DEVELOPMENT GROUP, INC., HHH FINANCIAL CORPORATION, INC., SOUTH SQUARE DEVELOPMENT, INC. and PLAZA LA MER, INC., Appellants, v. DELRAY PROPERTY INVESTMENTS, INC., SOSQ PROPERTY INVESTMENTS, INC., HATIM HASHWANI and ROBERT GEISERMAN, Appellees. 4th District.


Costs -- Defendant was denied due process when costs were assessed against it without a written motion for costs and without providing defendant an opportunity to be heard

MEDICAL SPECIALISTS OF TAMPA BAY, LLC, Appellant, v. DAVID KELLY, Appellee. 2nd District.


Creditors' rights -- Garnishment -- Service of process on garnishee LLC was defective where writ of garnishment was served on an hourly employee who is not an officer or manager, who does not supervise other personnel, who does not have any direct client contact, and who is not the registered agent for service of process -- There is no merit to contention that employee was a business agent authorized to accept service of process -- Trial court erred in denying motion to quash service of process
MORGAN STANLEY SMITH BARNEY, LLC, Appellant, v. GIBRALTAR PRIVATE BANK & TRUST CO., Appellee. 3rd District.


Dissolution of marriage -- Imputed income -- Evidence supported finding that husband was voluntarily unemployed -- Amount of income imputed to husband was unsupported by specific findings regarding husband's occupational qualifications and prevailing earning levels for similar positions within relevant community -- Child support -- No error in failing to decrease amount of child support proportionately as each child reaches majority -- Child support guidelines do not require that reduction be made on proportionate basis -- Error to require husband to maintain life insurance as security for child support without making findings of fact regarding necessity, cost, and availability of life insurance -- Equitable distribution plan to be corrected to eliminate improper double-counting of 529 College Savings Plan, which was added to husband's assets as an independent asset and also included in another account awarded to husband

GLENN ROBERT BROGA, Appellant, v. LINDA MARIE BROGA, Appellee. 1st District.


Dissolution of marriage -- Income -- Attorney's fees -- Trial court abused discretion by imputing income equal to minimum wage for a forty-hour workweek to former wife, without considering her pay from Army Reserves, while including in husband's income his pension and disability benefits in addition to a full-time imputed minimum wage -- It was improper to consider former husband's secondary sources of income while ignoring former wife's -- It was error to award former wife attorney's fees where no evidence supported the reasonableness of the fee award -- On remand, trial court to conduct evidentiary hearing on reasonableness of fees
ROGER HARRIS, Appellant, v. MARY L. HARRIS, Appellee. 5th District.


Injunctions -- Repeat violence -- Modification -- Where respondent was incarcerated and properly brought to trial court's attention his desire to appear telephonically for hearing, and trial court noted that respondent was to appear telephonically but failed to issue order directed to Department of Corrections requiring respondent to appear telephonically at specified time and date, trial court erred in denying motion for modification of injunction when respondent failed to appear telephonically on date of hearing -- Remand for further proceedings
JERRY W. HAVENNER, Appellant, v. DEBORA HUTCHINSON, Appellee. 1st District.

Injunctions -- Stalking -- Cyberstalking -- Error to enter final judgment of injunction for protection against stalking where evidence did not establish two incidents of stalking -- Single blog posting disclosing petitioner's involvement in affair with respondent's husband not sufficient to support injunction
MELISSA LEACH, Appellant, v. TARA MICHELLE KERSEY, Appellee. 2nd District.


Mandamus -- Criminal law -- Parole -- Challenge to continued suspension of presumptive parole release date by Commission on Offender Review -- Permitting sentencing court to raise objections to petitioner's release on parole pursuant to section 947.1745(6) did not violate ex post facto clauses of state and federal constitutions, although statute was not in existence at time petitioner was convicted
WILLIAM INMON, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.


Name change -- Petition for name change was facially insufficient where petitioner, a state prisoner, admitted that his civil rights were suspended -- Claim that denial of petition substantially burdens exercise of religion, in violation of federal Religious Land Use and Institutionalized Persons Act, is without merit -- RLUIPA does not apply to claim brought under state statute that applies to all persons petitioning for name change, not merely those incarcerated within correctional institution
JESSE C. HARRELL a/k/a JESSE CLEVELAND HUNTER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


Torts -- Automobile accident -- Attorney's fees -- Proposal for settlement -- Proposal for settlement by one plaintiff which would resolve loss of consortium claim of offering plaintiff's husband in addition to claim of offering plaintiff was a joint proposal, and was invalid because it did not apportion the amount between the plaintiffs
VALERIE AUDIFFRED, Petitioner, v. THOMAS B. ARNOLD, Respondent. Supreme Court of Florida.


Torts -- Automobile accident -- Rear-end collision -- Damages -- Mental anguish and financial hardship -- Trial court erred in allowing evidence regarding mental anguish plaintiff suffered from defendant's desire to leave accident scene, a minor auto collision, defendant's failure to apologize to plaintiff, and defendant's delay in admitting negligence until just prior to trial and in admitting evidence of plaintiff's financial problems following accident -- Error cannot be considered harmless under new standard announced by supreme court in Special v. West Boca Medical Center where plaintiff cannot prove that there is no reasonable possibility that error complained of contributed to verdict in which jury awarded over $1 million in damages to plaintiff whom testimony revealed had pre-existing symptoms similar to those he claimed in instant case -- Damages -- Set-off -- Collateral source -- Unemployment compensation benefits are not specifically listed in collateral source statute and cannot be interpreted as a collateral source under any of its provisions -- Trial court erred in setting off those benefits from final judgment
YEINSON TORRES HURTADO and VIVIANA HURTADO ESCOBAR, Appellants, v. NIGEL DESOUZA, Appellee. 4th District.


Torts -- Dismissal -- Appeal from written order denying motion to dismiss without differentiating between grounds for dismissal asserted in motion, which sought dismissal for failure to state cause of action and for lack of personal jurisdiction -- Error to deny motion to dismiss without affording parties opportunity for full hearing on merits of defendant's jurisdictional objection
BLOGWIRE HUNGARY SZELLEMI ALKOTáST HASZNOSíTó, KFT, a/k/a GAWKER MEDIA, Appellant, v. TERRY GENE BOLLEA, p/k/a HULK HOGAN; HEATHER CLEM; GAWKER MEDIA, LLC, a/k/a GAWKER MEDIA; NICK DENTON; A.J. DAULERIO; and GAWKER MEDIA GROUP, INC., a/k/a GAWKER MEDIA, Appellees. 2nd District.


Torts -- Negligent hiring and retention -- Attorney's fees -- Proposal for settlement -- Joint proposal for settlement by two defendants was invalid where it did not apportion the amount attributable to each offeror -- It was error to award attorney's fees to defendant pursuant to offer of judgment statute
ANCEL PRATT, JR., Petitioner, v. MICHAEL C. WEISS, D.O., et al., Respondents. Supreme Court of Florida.

Torts -- Workers' compensation immunity -- Action by subcontractor's employee against defendant that rented scissor lifts to other subcontractors on project -- Because defendant was not a subcontractor, it was error to grant summary judgment for defendant on the basis of horizontal immunity under workers' compensation law
WILSON CICERON and ROSIE CICERON, his wife, Appellants, v. SUNBELT RENTALS, INC., Appellee. 4th District.


Trusts -- Reformation of revocable trust -- Trust is subject to reformation to correct draftsman's error in failing to include schedule of beneficial interests -- Trial court erred in finding that trust was never created and was void ab initio because there were no definite beneficiaries of the purported trust -- Trust was valid and subject to reformation where it clearly designated settlor as beneficiary during her lifetime -- Although, in absence of reformation, failure of trust to designate any remainder beneficiaries would result in merger so that successor trustee would hold trust assets upon a resulting trust for the benefit of decedent's estate, that does not mean that reformation to supply names of remainder beneficiaries is unavailable -- Reformation of a trust is available to avoid what would otherwise result in a merger
DENISE L. MEGIEL-ROLLO, Individually and as Trustee of the P.M. REVOCABLE TRUST dated July 29, 1997, Appellant, v. SHARON J. MEGIEL, ROBERT MICHAEL MEGIEL, DANIEL MEGIEL, and ANDREA MEGIEL, Appellees. 2nd District.



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