Monday, February 1, 2016

Wrongful death, new trials, appellee sanctions, and Bison with Kale, Rosemary, and Purple potatoes with Lemon Thyme



Appeals -- Sanctions -- Maintenance of indefensible position in trial court and on appeal -- Rare circumstance in which appellee may be sanctioned -- Appellee complying with none of court deadlines -- Appellee directed to show cause why appellant's attorney's fees should not be assessed against appellee
HSBC Bank USA, N.A., Appellant, vs. BISCAYNE POINT CONDOMINIUM ASSOCIATION, Appellee. 3rd District.

Child custody -- Timesharing -- Error to modify timesharing by restricting contact to one time per week in a supervised setting without identifying what steps parent must take in order to reestablish unsupervised timesharing
IEHUDA TZYNDER, Appellant, vs. KEREN EDELSBURG, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Mortgage foreclosure -- Standing -- Substituted plaintiff -- Trial court erred in granting summary judgment in favor of new plaintiff, to whom mortgage had been assigned, substituted for predecessor plaintiff on same day as hearing on motion for summary judgment, because the assignment from the predecessor plaintiff, which was not in the evidentiary record, leaves standing as an issue of material fact not conclusively established by the pleadings or other summary judgment evidence -- An order of substitution does not create standing -- No merit to successor plaintiff's argument that, because the assignment was a recorded document, the trial court could properly take judicial note of it -- Even if judicially noticed, plaintiff cannot rely on it for standing because it was not served at least 20 days before the hearing on summary judgment
GREGORY SANDEFUR, Appellant, v. RVS CAPITAL, LLC, a Florida limited liability company, RIO VISTA SALOON, LLC, a Florida limited liability company, and DAVID ZWICK, Appellees. 4th District.

Contracts -- Construction -- Arbitration -- Determination of arbitrability of breach of contract claim -- By incorporating into contract the Construction Industry Rules of the American Arbitration Association, which make the issue of arbitrability subject to arbitration, parties sufficiently evidenced intent to have arbitrators, not a court, hear and decide the issue of arbitrability
GLASSWALL, LLC, Appellant, vs. MONADNOCK CONSTRUCTION, INC., et al., Appellees. 3rd District.

Contracts -- Fraud in the inducement -- Economic loss rule -- Claim that defendant fraudulently induced plaintiff to join auto-racing team by misrepresenting that defendant was fully funded and did not need plaintiff's money in order to run the team -- Because defendant's fraudulent representations were of a present fact, the fraudulent misrepresentation claim did not merge with plaintiff's breach of contract claim, and was not barred by economic loss rule -- Trial court erred in granting defendant's motion for judgment notwithstanding verdict for plaintiff on fraudulent inducement claim -- Attorneys -- Trial court did not abuse discretion by denying out-of-state attorney's motion to appear pro hac vice on the basis that granting of motion would adversely impact the administration of justice and disrupt the proceedings
PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and TOMMY CONSTANTINE, a/k/a THOMAS CONSTANTINE, individually, Appellees. 4th District.

Costs -- Section 57.105 does not provide mechanism for recovering costs
GRAND RESERVE AT TAMPA CONDOMINIUM ASSOCIATION, INC., and BUSINESS LAW GROUP, P.A., Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AF1, Appellee. 2nd District.

Creditors' rights -- Execution of consent judgment -- Motion to stay writ of execution and vacate levy on debtors' personal residence on ground that residence was debtors' homestead -- Trial court denied debtors due process when it refused to hear debtors' homestead exemption objection -- Objection was raised in emergency motion to stay and was therefore before the trial court at the time of hearing; counsel for debtors told court that he had argument pertaining to emergency motion to stay that did not pertain to issues in the motion to vacate consent judgment, but trial court erroneously determined that motion to stay did not contain any argument separate from arguments raised in motion to vacate consent judgment; and counsel clearly informed court in a timely motion for rehearing that separate homestead objection remained unresolved -- Remand for further proceedings
ROBERT MILLARD HAYES and LINDA WEBSTER HAYES, husband and wife, Appellants, v. NORMAN HARRIS SERVICES, INC.; GORDON CUTHBERTSON; and ENVIROGREEN LANDSCAPE MAINTENANCE, INC., a Florida corporation, Appellees. 2nd District.

Dissolution of marriage -- Equitable distribution -- Trial court exceeded scope of appellate mandate by revaluing assets and liabilities, including revisiting issue of value of former husband's dental practice, and by reducing duration of alimony award -- Trial court did not exceed scope of remand by considering evidence regarding former husband's current income, which was relevant to amount of alimony and issue of whether husband could be compelled to pay for minor child's private school tuition -- Remand with instructions to split net proceeds, if any, from sale of marital home and redistribute remaining assets and liabilities in original equitable distribution schedule without revaluing them; and to reinstate ten-year duration of alimony from date of original final judgment -- Appellate court declines to revisit prior ruling that trial court erred in failing to partition marital home where arguments former wife raised on this issue could have been advanced in motion for rehearing in earlier appeal -- Imputed income -- Competent substantial evidence supported amount of income imputed to former wife -- Attorney's fees to be reconsidered on remand in light of appellate court's reversal of trial court's decision to revalue assets -- Alimony credit -- Appeal from award of alimony credit to husband is premature where trial court determined entitlement but did not determine amount of credit -- Private school tuition -- Competent substantial evidence supported trial court's finding that former husband did not have ability to pay child's private school expenses
MARIANNE K. BRENNAN, Appellant, v. DANIEL JOSEPH BRENNAN, Appellee. 4th District.

Dissolution of marriage -- Marital home -- Error to include in final judgment language specifying that former wife must refinance or sell marital home within 18 months without addressing each party's financial responsibilities prior to sale of home and consequences should former wife fail to sell or refinance home within allotted time frame -- With respect to provision assigning value to home and specifying that each party was to receive half of that assigned value in the event that the home was sold, although actual sale price might vary from the assigned value, former husband is entitled to equal share of the actual refinancing value or sale price of home -- Equitable distribution -- Various errors in calculation of equitable distribution in final judgment to be corrected
KEITH A. JONES, Appellant, v. LESLIE D. JONES, Appellee. 5th District.

Dissolution of marriage -- Settlement agreement -- Enforcement -- Estates -- Motion to enforce marital settlement agreement insofar as it addressed disposition of three parcels in the Cayman Islands owned by husband and wife as joint tenancy with rights of survivorship, filed by personal representative of former husband, who died four years after divorce -- Trial court erred in ordering former wife to whom properties passed upon death of former husband either to sell properties or to purchase former husband's interest in them -- Under both unambiguous provisions of former husband's will, which was executed at time husband instituted dissolution proceedings, and Cayman Islands law, disputed parcels became former wife's sole property when former husband died -- Although marital settlement agreement stated that parties would try to sell Cayman Island properties “within a reasonable time” and provided that either party could buy out the other party's interest at any time, it did not require that parties would be forced to sell property immediately if one did not buy out the other -- Error to grant estate's motion to enforce final judgment and marital settlement agreement against former wife -- Order prohibiting former wife from dissipating, encumbering, transferring, or selling these properties to be vacated on remand
DIANE MARIE EBANKS, Appellant, v. CURTIS EBANKS, as Personal Representative of the Estate of Arthur Ebanks, Appellee. 2nd District.



Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce portions of its adjusters' claims files to medical provider in first-party non-bad-faith cases
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. PREMIER DIAGNOSTIC CENTERS, LLC, (A/A/O SHERRY DUJON, DOLORES LANCASTER, MARIA LOPEZ), Respondent. 3rd District.

Insurance -- Uninsured motorist -- Argument -- Insurer entitled to new trial based on cumulative effect of statements by plaintiff's counsel pointing out that plaintiff had done the right thing all along and that insurer had refused to pay the debt it owed to plaintiff, counsel's use of PowerPoint slide visible to jury that emphasized the insurer's responsibility, and an instruction by the trial court which also focused on insurer's liability rather than on the issue of actual damages attributable to the accident
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MICHAEL D. GOLD and GINA GOLD, individually and as husband and wife, Appellees. 4th District.

Judges -- Disqualification -- Motion to disqualify judge was legally sufficient to extent it relied upon specific campaign-related issues, including fact that at least one of opposing party's counsel was playing significant role in judge's current, ongoing reelection campaign -- Prohibition granted
ERIC RIVERA, Petitioner, v. JOSHUA BOSQUE, Respondent. 5th District.

Jurisdiction -- Non-residents -- Contracts -- Failure to pay on contract requiring payment in Florida is sufficient to satisfy Florida's long-arm statute conferring jurisdiction over breach of contract actions -- Minimum contacts -- Where neither amended complaint nor testimony at hearing on jurisdiction showed that any act beyond repayment of promissory note was required to be performed in Florida, defendant did not have sufficient minimum contacts with state to support assertion of personal jurisdiction -- Remand with directions to dismiss without prejudice to refiling complaint in appropriate forum
CORNERSTONE INVESTMENT FUNDING, LLC, Appellant, v. PAINTED POST GROUP, INC., Appellee. 4th District.

Municipal corporations -- Trial court erred in dismissing complaint for declaratory and injunctive relief seeking to void city's alleged ultra vires act of confirming parking credits that served to reduce a building's parking space obligation -- It was error to dismiss complaint on ground that Design Review Board determined that building qualified for an allowance of parking space credits, that city granted a parking variance, and that plaintiff's action is procedurally barred because plaintiff failed to timely challenge City Planning Department's administrative determination contained in Design Review Board resolution -- Findings made by trial court in granting motion to dismiss complaint are not supported by allegations of complaint -- Dismissal cannot be affirmed on basis of res judicata or collateral estoppel, as there has not been a prior determination on the merits -- There is no merit to claim that separation of powers bars complaint because it attempts to challenge an executive act of city -- Plaintiff is not requesting that city perform a discretionary act, but, rather, alleged that city engaged in an ultra vires act
NEAPOLITAN ENTERPRISES, LLC, Appellant, v. THE CITY OF NAPLES, OLDE NAPLES BUILDING LLC, and BROAD AVENUE LLC, Appellees. 2nd District.

Torts -- Assignment of claims -- Action by plaintiff against his residential tenant, alleging that tenant was negligent in connection with a fire that damaged plaintiff's property -- Trial court did not err in entering summary judgment for defendant on basis that plaintiff, in mortgage, had assigned rights to recover for property damage to mortgagee
JORGE ARTILES, Appellant, vs. YURISBEL PINO, et al., Appellees. 3rd District.

Torts -- Cruise ships -- Jurisdiction -- Forum non conveniens -- Two class action suits against cruise line by U.S. and non-U.S. passengers on Italian-flagged cruise ship which ran aground in Italy -- Trial court did not err in dismissing one action for forum non conveniens upon finding that Italy is an available and adequate forum, that private interest and public interest factors favor trial in Italy, and that plaintiffs can reinstate their suit in Italy without undue inconvenience or prejudice -- In failing to dismiss U.S. plaintiffs in other action court did not conduct a proper private interest analysis when it failed to consider the necessary evidence required to prove and disprove each element of plaintiffs' cause of action
DENISE ABEID-SABA, et al., Appellants/Appellees/Cross-Appellees, vs. CARNIVAL CORP., CARNIVAL PLC, COSTA CROCIERE, S.p.A., COSTA CRUISE LINES, INC., and JOSEPH FARCUS ARCHITECT, P.A., Appellees/Appellants/Cross-Appellants. 3rd District.

Torts -- Evidence -- Action against automobile dealer that sold truck with lift kit installed to initial purchaser and automobile dealer who subsequently sold truck to plaintiff, who was injured when truck's steering and suspension failed, resulting in truck flipping over -- Trial court did not err in striking affidavit of plaintiff's expert witness, filed after defendants had filed motion for summary judgment, which expressed opinion that dealer who sold truck to plaintiff failed to take action which could have prevented accident where witness's prior deposition testimony stated that he had no opinion regarding the conduct of defendants -- Witness's affidavit was inconsistent with his earlier deposition testimony without any explanation for the inconsistency -- Trial court did not abuse discretion by applying rule that a litigant, when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony -- Trial court did not err in entering summary judgment for defendants where there was no evidence that truck was defective when sold by initial seller and no evidence that second seller of truck had a duty to inspect the truck for latent defects
SHAUN LESNIK, Appellant, v. DUVAL FORD, LLC, a Florida corporation and BURKINS CHEVROLET, INC., a Florida corporation, Appellees. 1st District.

Wrongful death -- Medical malpractice -- New trial -- Plaintiff suffered prejudice where, shortly before trial, defendant amended Fabre defense to include other physicians as non-party defendants and then withdrew the Fabre defense on the last day of trial -- Events created situation in which plaintiff presented case premised on fact that jury would apportion fault between defendant and Fabre defendants, only to have jury to decide case on an all-or-nothing basis -- Trial court abused discretion in denying plaintiff's motion for new trial
JEFFREY M. EDWARDS, as Personal Representative of the Estate of MARY EDWARDS, deceased, for and on behalf of lawful survivors/claimants; JEFFREY M. EDWARDS, surviving spouse; JEFFREY M. EDWARDS, JR., surviving minor child; CARL A. EDWARDS, surviving minor child; and MATTHEW T. EDWARDS, surviving minor child, Appellants, v. JEFFREY ROSEN, M.D.; FLORIDA HEART ASSOCIATES, P.L.; SHAHEEN FARUQUE, M.D.; INPATIENT CONSULTANTS OF FLORIDA, INC.; IMTIAZ AHMAD, M.D.; ALLERGY, SLEEP AND LUNG CARE, P.A.; and LEE MEMORIAL HEALTH SYSTEM, Appellees. 2nd District.



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