Thursday, October 6, 2016

Certiorari, civil procedure, and linguine with fresh pineapple sage, fresh rosemary, organic cream, and shaved asiago



Attorney’s fees -- Offer of judgment -- Although complaint made passing reference to equitable relief, action was one for damages, and plaintiff would be entitled to attorney’s fees under offer of judgment statute if he recovers a judgment in an amount at least 25 percent greater than the offerFAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.



Certiorari -- Jurisdiction -- Petitioner is not entitled to second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of PIP policy language where there was no violation of a clearly established principle of law resulting in a miscarriage of justice by circuit court -- There was no clearly established principle of law where there are conflicting decisions of district courts of appeal on issue, and Florida Supreme Court has accepted jurisdiction to resolve the conflicting decisionsALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o ALEXIA BLAKE, Respondent. 3rd District.


Civil procedure -- Default -- Trial court abused discretion by entering default judgment after defendants filed motion to dismiss and motion to clarify instead of an answerSILAS PIERCE AND ESTATE SALES STARS, Appellants, v. CHRISTOPHER KROHA, Appellee. 5th District.


Civil procedure -- Dismissal of complaint -- Action by condominium unit owner against another unit owner and condominium association alleging that improper installation of carpet on roof of condominium building resulted in water damage to plaintiff’s unit -- Appeals -- Order dismissing five of six counts against association is a non-final, non-appealable order where the remaining count arises out of the same facts as the dismissed counts -- Where claims were filed against unit owner individually and as trustee, it was error to dismiss claims against trustee where motion to dismiss was filed solely by individual, and trustee was not a movant -- Trial court erred in dismissing claims in amended complaint as barred by statute of limitations where claims in amended complaint arose from same conduct, transaction, or occurrence alleged in initial timely complaint, so that amended complaint relates back to initial complaintBROOK ANDERSON, Appellant, v. IRA EPSTEIN, etc., et al., Appellees. 3rd District.


Dissolution of marriage -- Alimony -- Trial court abused discretion in failing to award wife permanent alimony -- Because marriage was long-term marriage, there was an initial presumption in favor of permanent alimony, and husband did not present sufficient evidence to rebut this presumption -- Court erroneously denied request for permanent alimony on basis of figures set forth in wife’s most recent financial affidavit where affidavit was based on wife’s current living arrangements -- Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage

CINDI B. CLEMENS, Appellant, v. MICHAEL P. CLEMENS, Appellee. 5th District.


Dissolution of marriage -- Child custody -- Trial court did not exceed its discretionary authority by including in final judgment on parenting plan and timesharing a provision prohibiting father’s discussion of any religious matters during visitation with children where there was “clear, affirmative showing” on the record that father’s actions towards children, which he adamantly believed were religiously motivated, have been harmful to childrenMICHAEL KOCH, Former Husband, Appellant, v. EMILY A. KOCH, Former Wife, Appellee. 1st District.


Dissolution of marriage -- Equitable distribution -- Trial court’s prospective-only award to former wife of her share of former husband’s pension on remand did not depart from appellate court’s mandate directing trial court to reconsider the proper disposition of the marital portion of pension by considering the factors in section 61.075, Florida Statutes -- Appellate attorney’s fees -- Trial court erred in denial of award of appellate attorney’s fees to former wife who prevailed on appeal -- Court’s finding that former husband was unable to pay appellate attorney’s fees contradicted its prior attorney’s fee award without any additional evidence or hearing, and was unsupported by record, given the large disparity in the parties’ incomesARVITA M. COLEMAN, Appellant, v. MICHAEL BLAND, Appellee. 5th District.

Dissolution of marriage -- Prohibition -- Intervenor’s claim did not survive parties’ voluntary dismissal of dissolution of marriage proceedingsCATHERINE CLAFLIN, Petitioner, vs. CLARENCE CHRISTOPHER CLAFLIN, Respondent, vs. MSP RECOVERY SERVICES, LLC, Intervenor. 3rd District.


Dissolution of marriage -- Provision characterizing award of attorney’s fees and costs as a form of support that is not dischargeable in bankruptcy or by any other means was improper -- Remand with instructions to strike this provisionFELIX DE JESUS GUERRA, Appellant, v. ANGELA GUERRA, Appellee. 2nd District.


Employer-employee relations -- Retaliatory discharge for filing workers’ compensation claim -- Damages -- Award of damages was excessive in light of absence of medical evidence that employer’s conduct caused employee’s medical condition to worsen or caused employee to suffer past or future psychological harm -- Remand for remittitur or new trial -- Judgment improperly awarded post-verdict interest -- Error to deny leave for employee to assert claim for punitive damages where there was a reasonable showing of a basis for recovery of such damages –

FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.


Family law forms -- Amendment -- Memorandum for Certificate of Military ServiceIN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.



Family law forms -- Amendments -- Name change petitionsIN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.


Florida Bar -- Rules -- Amendment -- Competence -- Minimum continuing legal education standardsIN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR 4-1.1 AND 6-10.3. Supreme Court of Florida.

Insurance -- Homeowners -- Sinkhole claims -- The statutory presumption of correctness afforded to an insurer’s internal report during the investigation process in the sinkhole statutes does not extend to later trial proceedings -- Attorney’s fees -- Insured prevailing in action against insurer -- A prevailing insured’s recovery of attorney’s fees under section 627.428, Florida Statutes, requires only an incorrect denial of benefits, not a showing of bad faith on the part of the insurer -- Insurer’s payment of policy proceeds after suit has been filed constitutes the functional equivalent of a confession of judgment, thereby entitling insured to an award of attorney’s feesKATHY JOHNSON, Petitioner, v. OMEGA INSURANCE COMPANY, Respondent. Supreme Court of Florida.



Insurance -- Personal injury protection -- Sufficiency of language in PIP policy to put insureds on notice that reimbursement of medical bills will be limited by statutory schedule -- Appeals –


Mortgage foreclosure -- Error to grant summary judgment in favor of plaintiff where plaintiff failed to demonstrate legal insufficiency of affirmative defense that plaintiff failed to comply with paragraph 22 of mortgage regarding notice of acceleration -- Affidavit addressed to whether notice was actually sent to defendants did not address allegation that notice did not comply with requirements of mortgageBALBINA A. YOUNG and LAWRENCE E. YOUNG, SR., Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee. 2nd District.



Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court abused its discretion in excluding bank’s business records, which included records from prior servicer, where bank’s witness demonstrated sufficient familiarity with boarding process which occurred after purchase of prior servicer’s assets and witness’s testimony established trustworthiness of prior servicer’s recordsOCWEN LOAN SERVICING, LLC, Appellant, v. ROBERT GUNDERSEN and JOAN GUNDERSEN, Appellees. 4th District.


Promissory notes -- Power of attorney -- Trial court erred in dismissing counts of complaint filed by plaintiff as attorney-in-fact under powers of attorney executed by family members seeking to recover on promissory notes given to members of plaintiff’s family -- Although notes contained language barring assignment or transfer of notes without maker’s prior written consent, powers of attorney giving plaintiff the right to collect the sums due under the notes on behalf of the owners did not constitute an assignment or transfer of the notes -- Under the powers of attorney, plaintiff was acting as an agent of the owners of the notesLUIS ANTONIO NIETO VILLAMIZAR a/k/a LUIS NIETO, individually and as Attorney in Fact, Appellant, v. LUNA DEVELOPMENTS GROUP, LLC, etc., et al., Appellees. 3rd District.

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