Wednesday, September 9, 2020

Torts, trespass, premises liability, dissolution, and Chicken Mole Poblano, nasturtium and heirloom cucumber salad

 Appeals -- Stay -- Automatic bankruptcy stay -- Appellate panel is bound by court's prior decision in Shop in the Grove, Ltd. v. Union Federal Savings and Loan Ass'n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982), which held that bankruptcy automatic stay provision is inapplicable in appellate court where the debtor, who is the defendant below and who has filed for federal bankruptcy protection, is the appellant, but panel suggests that court should revisit and recede from that decision. NATIONAL MEDICAL IMAGING, LLC, et al., Appellants, v. LYON FINANCIAL SERVICES, INC., etc., Appellee. 3rd District.

Child custody -- Appeals -- Order approving report and recommendation of general magistrate regarding time-sharing and parenting plan affirmed -- Appellate review is limited to errors on face of order where no exceptions to report and recommendation were filed. MELISSA LYNN MURPHY, Appellant, v. LACY AUSTIN RAY HUTCHENS, Appellee. 5th District.

Civil procedure -- Setting of action for trial -- Failure to strictly comply with rule 1.440 -- Final judgment reversed where matter was tried prematurely and not properly noticed for trial. BENJAMIN CHANCEY AND ANGELIA CHANCEY, Appellants, v. MICHAEL YOUNG AND MARION COUNTY BOARD OF COMMISSIONERS, Appellees. 5th District.

Contracts -- Employment -- Termination/nonrenewal -- Action brought against employer claiming breach of contract and covenant of good faith, reformation, and negligent misrepresentation stemming from the employer's decision to not renew employee's contract after expiration of the initial term and place employee on administrative leave without following procedures outlined in termination provision of contract -- No error in entering summary judgment in favor of employer on breach of contract claim -- Administrative leave is not the same as termination, and employer's summary judgment evidence established that employee was placed on administrative leave, where he remained with full pay and benefits, until the agreement expired -- Although employee was relieved of his duties, fact remains that employee was not terminated during the term of the agreement and, as such, employer was not required to follow termination provision of contract when it declined to renew -- Additionally, other provisions of contract state that expiration is not dismissal or termination which would trigger contract's termination provision -- Trial court's interpretation of contract was reasonable and gave effect to the entire agreement -- Because there is no breach of contract claim, claim that employer breached the implied covenant of good faith and fair dealing necessarily fails -- No error in entering summary judgment in favor of employer on reformation claim where employee showed no wrongful or inequitable conduct by employer, and employee's evidence conclusively contradicted his claim of mistake -- Trial court's apparent erroneous ruling that the statute of frauds barred reformation claim does not warrant reversal because summary judgment was otherwise appropriate -- No error in entering summary judgment in favor of employer on claim of negligent misrepresentation -- Contract was not ambiguous and alleged misrepresentations made to employee reflected contract's language -- Although trial court adopted employer's proposed order verbatim, including erroneous legal conclusion that statute of frauds prohibited reformation claim, circumstances of the case do not create an appearance that the trial court failed to exercise independent judgment. DARREN WHITE, Appellant, v. FORT MYERS BEACH FIRE CONTROL DISTRICT, Appellee. 2nd District.

Contracts -- Jurisdiction -- Non-residents -- Action by Florida company against Puerto Rican company for breach of contract for plaintiff to install glass tiles in pools being constructed by defendant in Puerto Rico -- Trial court erred in denying motion to dismiss where plaintiff failed to establish that defendant had sufficient minimum contacts with Florida to satisfy due process requirements for personal jurisdiction over defendant -- Specific jurisdiction provision of long-arm statute was satisfied by allegation that defendant breached contract in Florida by failing to make payments in Florida as required by contract -- Substantial services under contract were performed in Puerto Rico, not Florida, and defendant did not purposefully avail itself of privilege of conducting business activities in Florida, and did not establish minimum contacts with Florida. JOHNNY'S POOL SUPER CENTER, INC., Appellant, v. FOREVERPOOLS CARIBBEAN, LLC, Appellee. 3rd District.

Contracts -- Sale of real property -- Option to purchase -- Specific performance -- Trial court did not err in declining to grant specific performance of an option to repurchase certain real property where, although option holder furnished notice of intent to exercise the option as authorized under original purchase contract, trial court found a dearth of proof that option holder stood ready, willing, and able to tender payment, along with a lack of compliance with certain contractually stipulated terms -- An option holder must strictly comply with the applicable provisions of the contract, necessarily accepting the terms of the option unqualifiedly. LUPETTO, INC., Appellant, v. SOUTH BAY DEVELOPERS GROUP, LLC, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Permanent alimony award reversed where, without explanation, the award falls short of former wife's basic monthly expenses while leaving former husband with a substantial surplus. JOY TRACHTMAN TORDINI N/K/A JOY TRACHTMAN, Appellant, v. RAPHAEL JOSEPH TORDINI, Appellee. 5th District.

Estates -- Attorney's fees -- Personal representative's counsel -- Substantial competent evidence supported contractual attorney's fees awarded for administration of the estate, and there were no allegations of bad faith or overcharging. QUANISHA HARRIS, Appellant, v. IN RE: ESTATE OF WILLIE HARRIS, Appellee. 3rd District.

Insurance -- Homeowners -- Bad faith -- Failure to attempt in good faith to settle claim -- Trial court erred in entering summary judgment for insurer in insureds' bad faith action on ground that insurer cured a Civil Remedy Notice of Insurer's Violations by invoking the appraisal process before the CRN was filed and paying the appraisal award more than sixty days after the CRN was filed -- CRN is not required to contain a specific amount sought to cure alleged bad faith. PATTI FORTUNE and JEREMY DOMIN, Appellants, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a FRONTLINE INSURANCE, Appellee. 2nd District.

Insurance -- Third-party beneficiaries -- Language of the policy of insurance clearly reflects that plaintiff was not intended to primarily and directly benefit from the policy where policy expressly stated that it was only between the named insured and the insurer, and that there was no contract of insurance between insurer and plaintiff. PAMELA GOINS, Appellant, v. PRAETORIAN INSURANCE COMPANY, Appellee. 5th District.

Mortgage foreclosure -- Judges -- Disqualification -- Adverse rulings -- Petition for prohibition seeking review of order denying disqualification of judge based on claim that judge discounted petitioner's credibility by ordering sequestration of rents despite petitioner's affidavit that petitioner lacked a tenant -- Petition is denied where record shows that challenged action did not stem from disqualifying personal bias or prejudice toward petitioner. NIDIA N. MAGARINO, Petitioner, v. THE BANK OF NEW YORK MELLON, etc., Respondent. 3rd District. Probate rules -- Amendments -- Petition to determine capacity -- Designation of health care surrogates or other advance directives -- Petition for appointment of guardian of an incapacitated person -- Petitioner required to state whether they have knowledge or belief that there are other possible alternatives to guardianship -- Guardian advocate -- Petitioner required to state whether they have knowledge that person with developmental disability has executed a designation of health care surrogate -- Expedited judicial intervention concerning medical treatment procedures -- Forms -- Adoption of new rules containing standardized forms to reduce costs and create uniformity statewide. IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES -- GUARDIANSHIP. Supreme Court of Florida.

Real property -- Homestead -- Insurance -- Assignment of post-loss benefits -- Question certified: Does Article X, section 4(c) of the Florida Constitution allow the owner of homestead property, joined by the spouse if married, to assign post-loss insurance benefits to a third-party contractor contracted to make repairs to the homestead property?. LANDMARK CONSTRUCTION INC. OF CENTRAL FLORIDA, AS ASSIGNEE OF CARMELO GONZALEZ AND VICTORIA GONZALEZ, Appellant, v. ANCHOR PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 5th District.


Replevin -- Unclean hands -- Summary judgment -- Action by lender seeking to obtain mobile home from successor in interest to foreclosed property on which the mobile was located -- Trial court erred in granting summary judgment in favor of property owner based on unclean hands defense alleging that lender had made material misrepresentations to bankruptcy court concerning the value of, and equity in, the mobile home in order to maintain control of the asset -- Property owner failed to establish that it was injured as a result of lender's alleged misconduct where bankruptcy documents did not support property owner's position that misconduct caused its predecessor in interest to file responsive pleadings in bankruptcy case -- Even assuming that predecessor in interest's expenditure of time and resources could be relied upon to show an injury to property owner, it is clear from the record that no such expenditure was shown. 21ST MORTGAGE CORPORATION, Appellant, v. TSE PLANTATION, LLC, MERI L. HARRELL, CURTIS R. HARRELL, et al., Appellees. 1st District.


Rules of Supreme Court Relating to Admissions to the Bar and Rules Regulating the Florida Bar -- Amendments -- Court declines to adopt proposed emergency rules to provide for admission to the Florida Bar without examination, followed by a supervised practice requirement, of applicants who otherwise qualify for admission based upon graduation from an ABA-accredited law school and demonstration of good moral character to aid registrants for the July 2020 Florida General Bar Examination who have been severely impacted by the delays in administering the examination. IN RE: PETITION TO AMEND THE RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR AND THE RULES REGULATING THE FLORIDA BAR. Supreme Court of Florida.


Rules Regulating Florida Bar -- Amendments -- Conditionally admitted members -- Members admitted to Bar pursuant to consent agreement no longer treated as a separate class of “Conditionally Admitted Members” that are subject to term of probation -- Such members to be treated as any other members of Bar in good standing, except for the added terms of the consent agreement. IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR -- RULE 1-3.2(b). Supreme Court of Florida.


Torts -- Civil theft -- Default -- Damages -- Unliquidated damages -- Default entered for failure to answer complaint in an action alleging civil theft based on defendant's failure to compensate plaintiff with funds received from selling plaintiff's personal items -- Trial court erred in entering final judgment awarding plaintiff unliquidated damages without notice and an opportunity to be heard -- Complaint seeking a specified amount of damages, which was based upon plaintiff's attached list of values that she placed on the respective items of personal property stolen, was a claim for unliquidated damages that did not convert or become a liquidated damage claim by virtue of the later default entered against defendant -- Court recedes from precedent which held that unliquidated damages are converted to liquidated damages when a plaintiff alleges in its complaint that it was damaged in a sum certain and defendant is later defaulted for failing to answer the complaint. ANTHONY J. CIOTTI, AS EXECUTOR OF THE ESTATE OF ANTHONY G. CIOTTI, Appellant, v. NANCI HUBSCH, Appellee. 5th District.


Torts -- Civil theft -- Remedies -- Attorney's fees -- Trial court erred in denying defendants' motion for attorney's fees pursuant to section 772.11 because record shows that plaintiff's civil theft claims were without substantial fact or legal support -- Plaintiff's claims of civil theft were by definition without any factual evidentiary support where trial court had granted directed verdict in favor of defendants on grounds that there was no showing of criminal intent, which is an essential element of a civil theft claim. ISLAND TRAVEL & TOURS LTD. CO., a Florida Corporation, WILLIAM J. HAUF, an individual, ISMAEL O. SENE, an individual, and DANNY LOONEY, an individual, Appellants, v. MYR INDEPENDENT, INC., etc., Appellee. 3rd District.


Torts -- Malicious prosecution -- False arrest -- Absolute immunity -- State attorneys -- Appeals -- Certiorari -- Complaint against assistant state attorney and state attorney stemming from ASA's securing of a material witness warrant for plaintiff's arrest allegedly based on statements ASA knew to be false, and ASA's unsuccessful argument for plaintiff's continued detention -- Discussion of a prosecutor's entitlement to absolute immunity -- Trial court erred in denying ASA and SA's motions to dismiss based on absolute immunity where trial court based its analysis on whether ASA was acting in good faith -- In determining absolute immunity, courts must look to the nature of the function performed, not the identity of the actor who performed it -- Once it is determined that the challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused -- ASA's action in filing the motion for a material witness warrant and advocating for her continued detention were done in the course of an ongoing prosecution and, regardless of ASA's motives, he continued to function as an advocate and his actions were not administrative in nature. SYED MUNAWWAR QADRI, ESQUIRE, AND ARAMIS AYALA, STATE ATTORNEY, NINTH JUDICIAL CIRCUIT, ORANGE COUNTY, FLORIDA, Petitioners, v. SANDRA MARIE RIVERA-MERCADO, Respondent. 5th District.


Torts -- Premises liability -- Business invitee -- Trip and fall -- Depression in parking lot -- Open and obvious danger -- Trial court erred in entering summary judgment in favor of defendants based on conclusion that plaintiff was injured as a result of an open obvious danger -- Based on summary judgment record, a jury could conclude that depression in pavement was not so open and obvious that defendants could reasonably expect that it would be discovered by an invitee where plaintiff stated that the depression blended into the parking lot, and picture of depression depicted a man-made hole that was the same color as the surrounding asphalt and contained dried leaves -- Moreover, even when a dangerous condition is open and obvious, the occupier of the premises is not excused from its duties to protect and warn invitees if it reasonably should anticipate that the condition poses an unreasonable risk of harm to invitee notwithstanding the obvious nature of the condition -- A jury could conclude that defendants reasonably should have anticipated that an invitee negotiating the parking lot to visit defendant's establishment, which resembled an enormous ice cream cone, would be distracted by its striking appearance and by the need to watch for approaching vehicles. TRACY GREENE and JOSHUA GREENE, Appellants, v. TWISTEE TREAT USA, LLC; MISSION BELL, S.C., LLC; and KIMCO REALTY CORPORATION, Appellees. 2nd District.


Torts -- Trespass -- Homeowner's action against neighbor that allegedly hired construction company to trespass upon homeowner's property and remove and destroy sedimentary rock foundation beneath homeowner's fence -- Counterclaims and third-party claims seeking injunctive relief and damages -- Competent, substantial evidence supported judgment in favor of homeowner and award of damages -- No error in pretrial orders dismissing portions of neighbor's second amended third-party complaint and second and third amended counterclaims. MARSHALL IVES, Appellant, v. TATE GETTINGER and ANAMARIA GETTINGER, and ALEX FENCES, INC., Appellees. 3rd District.


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Wednesday, August 19, 2020

We're back blogging with more Recent Decisions of Interest in Dissolution, Attorney's Fees etc. and Garlic White Pizza with Chanterelles and Arugula

I want to apologize to all for being so busy with work and our Recent Decisions of Interest Newsletters that have tripled over the last 6 months.  But I am back!  Stay healthy and safe everyone.

Attorney's fees -- Civil rights -- Prevailing party -- Award of prevailing party attorney's fees and expenses to plaintiff under 42 U.S.C. section 1988 must be vacated and remanded for additional proceedings where jury awarded only nominal damages for defendant's violation of plaintiff's Fourth Amendment right to be free from illegal seizure and district court in determining reasonableness of a fee award misapplied the law in measuring significance of the substantive issue on which plaintiff prevailed or public purpose served by totaling up number of times that Gray II, which was decided in plaintiff's favor, had been cited -- It was error of law for district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which plaintiff prevailed must be significant and public purpose served by her victory must be substantial -- When citation-counting is used as a method for assessing the significance of a decision in plaintiff's favor, citation of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation -- On remand, district court to decide whether plaintiff is entitled to award of attorney's fees and expenses, even though she recovered only nominal damages; and if so, whether she is entitled to enhancement for delay in payment of expenses and for delay in payment of attorney's fees; and if so, how much -- Calculation errors to be avoided on remand noted
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant, EDMUND SEXTON, etc., et al., Defendants. 11th Circuit.

Elections -- Campaign financing -- Excess spending subsidy -- Injunctions -- Candidate for Republican Party for Governor of State of Florida, who is not participating in Florida system of public campaign financing, moved to preliminarily enjoin enforcement of provision of Florida Election Campaign Financing Act, which provides participating candidates with a subsidy to spend on their campaigns when a nonparticipating opponent spends in excess of statutory expenditure limit or $2 for each registered Florida voter -- Plaintiff is entitled to preliminary injunction enjoining State from releasing funds to opposing candidate under excess spending provision because he is likely to succeed on merits of First and Fourteenth Amendment claim that excess spending subsidy severely burdens his constitutional rights to spend unlimited sums of personal funds and private donations in furtherance of his campaign, burden on his right to free speech is irreparable, and, as district court concluded, balance of harms and public interest do not counsel against an injunction -- Under Davis v. Federal Election Commission, excess spending subsidy imposes substantial burden on nonparticipating candidate's right of free speech and is thus subject to strict scrutiny, which requires that Florida justify the subsidy by establishing that it furthers a compelling state interest -- Even if subsidy furthers stated interest of Florida by encouraging participation in public financing system and indirectly preventing corruption or appearance of corruption, excess spending subsidy is not least restrictive means of furthering the anticorruption interest -- Severability -- Even if issue of severance is premature, excess spending subsidy is severable from $500 contribution limit
RICHARD L. SCOTT, Plaintiff-Appellant, v. DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. 11th Circuit.

Contracts -- Third-party beneficiaries -- Action by homeowners association seeking declaration of rights under crossing agreement between railroad and another homeowners association -- Trial court properly dismissed action on ground that plaintiff homeowners association is not a party to the agreement at issue and not a third-party beneficiary of the agreement -- Plaintiff is not entitled to relief as a third-party beneficiary where parties to agreement did not intend that the agreement be for the benefit of plaintiff, and agreement expressly excludes third-party beneficiaries

Counties -- Injunctions -- Trial court erred in finding that county denied property owner due process by not giving proper notice of administrative hearing on code violation citation -- Record indicates that notice of hearing was sent to owner at both his address of record with county and the address listed at the top of his request for administrative hearing -- Further, it is evident from record that owner had actual notice of hearing -- Trial court erred in granting owner's motion for temporary injunction on ground that owner had been denied due process through administrative hearing process on citation, and trial court was therefore entitled to intervene in administrative hearing process
MIAMI-DADE COUNTY, Appellant, vs. KEITH WILSON, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Modification -- Jurisdiction -- Uniform Interstate Family Support Act -- Trial court had no authority to transfer Florida post-final-judgment dissolution case to foreign state in which both former spouses now reside -- Under UIFSA, Florida court has continuing exclusive jurisdiction over spousal support order throughout the existence of the support obligation -- Correct procedure under UIFSA is to register spousal support judgment in another state for enforcement there; and even after registration, foreign state must send the case back to Florida court to consider any modification order
ANA ALVAREZ SOOTIN, Appellant, vs. JOHN SOOTIN, Appellee. 3rd District. Opinion filed August 4, 2010.

Guardianship -- Trial court abused discretion in appointing ward's son-in-law as her plenary guardian where ward had executed a declaration naming her three daughters as preneed guardians -- There was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian
MARIANNE MAGILL ACUNA & MARILYN MAGILL, Appellants, vs. JACK DRESNER, ET AL., Appellees. 3rd District.

Jurisdiction -- Service of process -- Substitute service -- Service of process was defective where process server failed to note time of service on copy of complaint delivered to the person served -- Requirement to note time on copy of complaint is statutory requirement of service, and strict compliance with statutory requirements of service is mandated -- Second service of process while appeal was pending did not render appeal moot
JOSE E. VIDAL, Appellant, v. SUNTRUST BANK, Appellee. 4th District.

Receiverships -- Ex parte -- Mortgage foreclosure -- Error to appoint receiver for property involved in mortgage foreclosure action without providing notice and opportunity to be heard where mortgagee failed to establish that ex parte receivership was necessary to avoid immediate irreparable harm to mortgaged property or that giving notice and holding a hearing would accelerate or precipitate any injury -- Although loan documents contained provision for appointment of receiver as matter of right and without notice if foreclosure proceedings were instituted, this alone is not dispositive of whether to grant ex parte receivership and provisions of rule 1.610 are not thereby bypassed -- Argument that ex parte receivership was necessary to assist in sale of property rejected -- Argument that ex parte receivership was appropriate because mortgage documents contained assignment of rents provision which provided for appointment of receiver in that context was not raised as basis for appointing receiver; and, moreover, mortgagee did not present verified allegation that any rents were actually being collected on the property or that any such rents were being dissipated -- Trial court also failed to enter appropriate ex parte order where order did not contain any factual findings
JOHN R. DeSILVA, Appellant, v. FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee. 2nd District.

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes
BERNARD WINKLER, ET AL., Appellants, vs. LAWYERS TITLE INSURANCE CORP., ETC., Appellee. 3rd District.

Torts -- Automobile accident -- Damages -- New trial is required where plaintiff's counsel made an improper appeal to passion and sympathy of jury in opening statement, improperly convinced trial judge to limit defense counsel's cross-examination of plaintiff's expert, improperly attacked character of main defense expert during cross-examination, and made improper and prejudicial closing argument

Torts -- Damages -- Future medical expenses -- Abuse of discretion to deny defendants' motion for new trial and motion for remittitur where there was no competent substantial evidence presented at trial that plaintiff was reasonably certain to need future medical treatment -- Remand for new trial or, in the alternative, entry of amended final judgment remitting award for future medical expenses -- Past medical expenses -- Setoff -- Error to fail to determine and apply setoff for personal injury protection benefits to award of past damages

Torts -- Nuisance -- No error in dismissing with prejudice complaint in which plaintiff sought to recover damages to property allegedly caused by overhanging branches and roots of neighbor's trees encroaching on her property and damages resulting from plaintiff's removal of portions of neighbor's tree intruding on her property
VIRGINIA T. SCOTT, Appellant, v. JULIE L. McCARTY, M.D., Appellee. 4th District.


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