The "Appellate Gourmet (c)"

Show Me the Money: Helping Clients Find and Protect Assets in a Divorce

2012-02-16T17:14:00.000-08:00

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Appeals, punitive damages caps, criminal law and pumpkin-sage, handmade ravioli

2012-02-14T11:38:00.000-08:00

Happy Valentine's Day to all!

Insurance -- Automobile -- Coverage -- Automobile accident occurring during interim between lapse of coverage under expired policy and reinstatement of policy -- Trial court erred in ruling that insurer's unconditional acceptance of premium waived its right to claim that there had been a lapse in coverage -- Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss -- Estoppel -- Genuine issue of material fact remains as to whether a potentially misleading bill that insurer sent to named insured, which incorrectly listed the renewal policy period, supports affirmative defense of estoppel -- Civil procedure -- Summary judgment -- Trial court erred in rejecting, as self-serving, affidavit of insurer's underwriting specialist which simply asserted that insurer mailed renewal bills and reminders, insured failed to timely pay renewal premium, and when insured made premium payment following accident, insurer reinstated policy commencing the next day

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. MICHEL CAMILLO and JEAN-PAUL CAMILLO, Appellees. 4th District.

Insurance- Torts -- Automobile accident -- Rear-end collision -- New trial -- Error to grant summary judgment in favor of plaintiffs where sufficient evidence fairly and reasonably tended to show that their vehicle was illegally stopped in the roadway at a time when it was both dark and raining, and there was conflicting testimony regarding whether emergency flashers on plaintiffs' vehicle were illuminated -- Threshold defense -- Non-resident -- Error to grant summary judgment finding that Florida's permanent injury threshold defense was unavailable to defendant where defendant was subject to Florida's no-fault law and maintained no-fault insurance coverage through her Illinois policy, which incorporated the laws of Florida by reference

ANA JIMINEZ, Appellant/Cross-Appellee, v. GEORGE FACCONE, Individually; and GEORGE FACCONE, as Personal Representative of the Estate of Rita Faccone, Deceased, Appellees/Cross-Appellants. 2nd District.

Expert Witness: ARKANSAS HIGH COURT FINDS EXPERT-WITNESS REQUIREMENT UNCONSTITUTIONAL, Broussard v. St. Edward Mercy Health System, 7 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 3, 2012 The Arkansas Supreme Court has deemed unconstitutional a state law requiring expert witnesses in malpractice cases to practice in the same medical specialty as the defendant. The requirement in found in Ark. Code Ann. 16-114-206(a) violates the separation-of-powers doctrine in the state constitution because it interferes with the courts' power to set and control procedure, the high court said.The ruling stemmed from Teresa L. Broussard's malpractice lawsuit against St. Edward Mercy Medical Center.

Failure to Diagnose: JUDGE ALLOWS VETERAN'S DELAYED-DIAGNOSIS CLAIMS TO PROCEED, Normand v. United States, 7 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 3, 2012 A U.S. veteran who alleges that VA hospital workers delayed his prostate cancer diagnosis and caused him to undergo radiation therapy that left him impotent may continue to pursue limited negligence claims against the government, a federal judge has ruled. Chief U.S. District Judge Glen E. Conrad of the Western District of Virginia said the government is entitled to summary judgment on claims involving a nurse practitioner

Hospital Negligence: STAFFING COMPANY LOSES BID TO REVERSE $3.5 MILLION VERDICT, Medical Staffing Network v. Connors, 7 No. 18 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice February 3, 2012 A staffing agency that claimed a Georgia hospital had entered into a secret agreement with a malpractice plaintiff to increase the agency's liability has lost its appellate court bid to reverse a $3.5 million verdict. DeKalb Medical Center's litigation agreement with a deceased patient's family did not render the verdict against Medical Staffing Network Inc. fundamentally unfair, the Georgia Court of Appeals said.

Interesting Legislation: PENNSYLVANIA HOUSE OKS PUNITIVE DAMAGES CAP FOR NURSING HOMES, 7 No. 18 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice February 3, 2012 The Pennsylvania House of Representatives has approved legislation that limits punitive damages awards against nursing homes to 200 percent of a plaintiff's compensatory damages. House Bill 1907 does not take away a plaintiff's right to full compensation, but eliminates courts' ability to hand out "jackpot-type" awards, Republican state Rep. Glen Grell, the bill's sponsor, said in a Jan. 19 statement. The House voted 103-89 to pass the measure Jan. 18 after considering it for the third time.

Criminal law -- Aliens -- Reentry into United States after removal or deportation -- Government is collaterally estopped from litigating alienage where jury's verdict of acquittal in prior federal criminal trial for illegal reentry was necessarily based on jury's reasonable doubt about defendant's alienage and fact of alienage status is an essential element of current prosecution for illegal reentry -- Because government is collaterally estopped from arguing that defendant is an alien, it cannot prove an essential element for charged offense of illegal reentry and indictment must be dismissed

UNITED STATES OF AMERICA, Petitioner-Appellee, v. EMILIANO VALDIVIEZ-GARZA, a.k.a. Ismael Valdiviez, Defendant-Appellant. 11th Circuit.

Criminal law -- Costs -- It was error to assess costs in written order of sentence which were not orally announced -- Error to assess public defender fee without giving defendant opportunity to contest fee

ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state

STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.

Criminal law -- Double jeopardy -- Felony merger doctrine -- Separate convictions for attempted felony murder and attempted premeditated murder arising from same criminal episode did not amount to double jeopardy violation under standard analysis -- However, dual convictions based on attempted killing of one victim are precluded by felony merger doctrine -- Attempted felony murder conviction reversed

JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Evidence -- Hearsay -- Tape recording -- Trial court did not err in allowing surreptitiously recorded conversation between defendant and co-defendant in the back of a patrol car to be played at trial where defendant's side of conversation was admissible as a party admission and co-defendant's side of conversation was admissible to place defendant's statements into context -- Further, conversation between the two was not instigated by law enforcement or any other person with primary purpose of collecting evidence for criminal prosecution

TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

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Criminal law, health care reform and vegetarian chili with fresh Italian parsley and hot peppers

2012-02-04T10:04:00.000-08:00

Fraudulent misrepresentation -- Securities act violations -- Fraudulent inducement to purchase stock in corporation -- Complaint alleging that plaintiffs were misled regarding facts material to transaction known to defendants due to superior knowledge, which defendants concealed, sufficiently pled claims for fraudulent misrepresentation and securities act violations -- Trial court erred in dismissing claims

GEMINI INVESTORS III, L.P., ET AL., Appellants, vs. MICHAEL NUNEZ, ET AL., Appellees. 3rd District.

Legal malpractice -- Failure to fully implement estate plan, resulting in higher estate taxes -- Error to grant summary judgment in favor of defendants based on conclusions that plaintiffs were not intended beneficiaries of estate and therefore lacked standing and that, in any event, family limited partnership, which defendants failed to implement, was not a viable estate planning tool in this case -- Genuine issues of material fact existed both as to whether plaintiffs were intended beneficiaries of estate and whether use of FLP, which would have considerably reduced estate taxes, was a viable tax planning vehicle

EDWARD C. HODGE, OLIVER W. COWART and MERRILL M. HENRY A/K/A MITCHEL M. HENRY, Appellants, v. SCOTT W. CICHON, ANDREW C. GRANT, J. LESTER KANEY and COBB & COLE, P.A., Appellees. 5th District.

Negligence -- Vicarious liability -- Plaintiff who was victim of sexual abuse by counselor at group care facility for foster children when plaintiff was a minor -- Counselor employed by subcontractor that was hired under management and consulting agreement which acknowledged that subcontractor may assume contractor's position at program at some point in future -- Contractor was not entitled to summary judgment based on its argument that it owed no duty to plaintiff because a facility in charge of sheltering and caring for foster children has duty to conform to certain standard of conduct to protect children from unreasonable risks of harm, and there is conflicting evidence as to whether control of facility had been transferred to subcontractor -- Proximate cause issue must be resolved by jury where record contained evidence from which jury could conclude that contractor or subcontractor knew or should have known about counselor's inappropriate relationship with plaintiff, and reasonable people could differ as to whether counselor's criminal acts were foreseeable in light of notice of the relationship -- Summary judgment entered on vicarious liability claim against subcontractor is affirmed where counselor's criminal acts were committed outside the scope of and not done in furtherance of her employment

TACRIAN GOSS, Appellant, v. HUMAN SERVICES ASSOCIATES, INC., VISIONQUEST NATIONAL, LTD., and MORGAN LEE BROWN Appellees. 5th District.

Wrongful death -- Medical malpractice -- Causation -- Evidence offered supporting finding that doctor was negligent in failing to intubate deceased and more likely than not, had deceased been intubated, she would have survived -- Trial court erred in denying hospital's motion for directed verdict which alleged that plaintiff failed to prove that any negligence by hospital's nursing staff caused deceased's death -- Although it was shown that the doctor was negligent and that nurses had breached a duty by checking box indicating that deceased needed less intensive care than was required, there was no evidence that nursing staff's negligence was a cause of death where no one testified that nurses had duty to intubate, or that checking box for the proper level of care and checking deceased's vital signs immediately or more frequently would have affected the outcome

HOLLYWOOD MEDICAL CENTER, INC., d/b/a HOLLYWOOD MEDICAL CENTER, a Florida Corporation, Appellant, v. CAMILLUS ALFRED, as Personal Representative of the Estate of URSULINE ALFRED, deceased and URSULINE ALFRED, individually and on behalf of all the survivors of URSULINE ALFRED, Appellees. 4th District.

Criminal law -- Aggravated battery -- Resisting officer with violence -- Jury instructions -- Justifiable use of non-deadly force -- Charges arising from incident in which defendant struck officer where officer claimed defendant struck him with baton upon his attempt to place handcuffs on defendant, and defendant claimed that he punched officer after officer used his baton to strike him while his hands were in the air -- Failure to instruct jury on justifiable use of non-deadly force constituted reversible error because defendant's version of incident, however improbable, was not demonstrably false and was sufficient to support such an instruction

RICO GLENN, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Appeals -- Order denying motion to reduce or modify sentence is not appealable

MARK A. REYES, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Attempted burglary -- Evidence -- Where perpetrator gained entry to dwelling through open window and no property was taken, it was error to admit “tools” found on defendant's person when he was apprehended as there was no evidence linking these items to the crime, either as instruments or fruits of the crime

JERRY STEPHENS, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Attorney's fees -- Attorney appointed to represent indigent defendant in criminal case -- Where case had been determined to be extraordinary and unusual, court departed from essential requirements of law by limiting fee to double the flat fee without considering the number of hours expended in determining whether the fee award was confiscatory

JOSHUA D. ZELMAN, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent. 1st District.

Criminal law -- Burglary of a dwelling -- Attached porch -- Bicycle stolen from concrete pad connecting to front walkway -- Area from which defendant stole bicycle was not an “attached porch” within the definition of a “dwelling,” as provided in section 810.011(2), where the area was located in the front of the home and maintained neither posts nor sufficient enclosure to visually indicate it was an extension of, rather than just near, the home -- Moreover, there was no personal property within the area suggesting it was a logical extension of the dwelling and, unlike a carport, the area was open to unknown, uninvited people

HARLEY LLOYD COLBERT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.

JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Drug trafficking -- Obtaining controlled substance by withholding information -- Search and seizure -- Trial court did not err in denying motion to suppress defendants' pharmacy records -- Trial court erred in denying motion to suppress statements made by defendants' doctors to law enforcement

KAREN PLEVYAK HAY, a/k/a KAREN L. HAY, and ROBERT RONALD HAY, Appellants, v. STATE OF FLORIDA, Appellee. 2nd District.

TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Evidence -- Search and seizure -- Interception and disclosure of wire, oral, or electronic communications -- Outgoing calls by 911 dispatcher -- Error to deny defendant's motion to suppress outgoing phone call recorded by 911 dispatcher where original call to 911 reporting a disturbance was made from the house next door -- Plain language of section 934.03(2)(g)2 does not allow outgoing calls by 911 dispatcher to be recorded without consent of person being called, even if outgoing call is in reference or relates to incoming 911 call, where the outgoing call was not to the number from which the incoming call was placed for purpose of obtaining information required for emergency assistance -- State's contention that statute should be read broadly is rejected in light of statute's plain language and legislative history -- Argument that recording was lawful because communication on recording was oral communication between defendant and victims in which defendant had no expectation of privacy is rejected -- Recording subject to the motion to suppress included only communications that were picked up over telephone which clearly met definition of “wire communication” in section 934.02(1), and there is no basis in limited record of suppression hearing to conclude defendant had no expectation of privacy

ROBERT JASON PERDUE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Grand theft -- Jurisdiction -- Theft occurring on commercial airplane -- Order denying defendant's motion to dismiss is reversed where theft was not committed wholly or partly within Florida under section 910.005(1)(a) because theft was fully executed before plane reached Florida's territory -- Further, because the crime was completed the moment defendant obtained victim's money with intent to permanently deprive, defendant's actions could not constitute an attempt to commit an offense within Florida under section 910.005(1)(b)

STACY SANDERS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to file supplemental brief raising issue of whether attempted voluntary manslaughter jury instruction, given in trial for attempted first-degree murder with firearm, amounted to fundamental error -- Where, before initial brief was filed in petitioner's direct appeal, sister district court of appeal issued decision holding that use of standard jury instruction on manslaughter requiring state to prove intent to kill victim constituted fundamental error, and, while petitioner's direct appeal was pending, the same court subsequently issued decision holding that its reasoning applied to standard instruction on attempted manslaughter, appellate counsel had duty to ask for supplemental briefing on the jury instruction issue -- Standard jury instruction on attempted manslaughter possessed same fatal flaw as standard instruction on manslaughter -- Conflict certified

TYRONE DILL, Petitioner, v. STATE OF FLORIDA, Respondent. 5th District.

Criminal law -- Habeas corpus -- Manslaughter -- Jury instructions -- Justifiable and excusable homicide -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to raise as fundamental error trial court's failure to instruct jury on justifiable and excusable homicide in connection with manslaughter instruction

BASIL BURFORD, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Medical Malpractice (Legislation): FLORIDA LAWMAKERS WANT MED-MAL CLAIMS OUT OF THE COURTS, 19 No. 9 Westlaw Journal Health Law 7, Westlaw Journal Health Law January 26, 2012 Two Republican lawmakers in Florida have proposed landmark legislation that would replace the state's medical malpractice litigation system with an administrative process. Senate Bill 1588, introduced Jan. 6 by state Sen. Alan Hays calls for the creation of a "patient compensation system" that would be as the exclusive remedy for personal injury and wrongful-death claims related to medical malpractice.

Medical Devices: WRIGHT MEDICAL HID DANGERS OF PROFEMUR HIP SYSTEM, SUIT SAYS, Dees v. Wright Med. Tech., 19 No. 9 Westlaw Journal Health Law 8, Westlaw Journal Health Law January 26, 2012 Wright Medical Technology Inc. concealed the dangers of premature wear of its Profemur-Z total hip system, according a man suing the company in a Georgia federal court, claiming the device required replacement in less than three years. Jace Dees says Georgia-based Wright and parent Wright Medical Group Inc. knew of durability problems with the prosthetic hip and had received hundreds of related complaints before his was implanted in September 2008, yet fraudulently continued to market.

Nursing Homes: $100 MILLION SUIT ALLEGES ABUSE, COVER-UP AT NEW YORK GROUP HOME, Romeo v. Aid to the Developmentally Disabled, 19 No. 9 Westlaw Journal Health Law 9, Westlaw Journal Health Law January 26, 2012 The sister of a deceased mentally retarded man has alleged in a $100 million federal court lawsuit that his group home operator conspired with New York disability advocates to cover up the negligent and abusive treatment he received. Jean Romeo claims that Aid to the Developmentally Disabled Inc. and the Individual Group Home Living program worked together to "stonewall" her family from receiving information about her brother's injuries and death.

Attorneys' fees, child support, medical malpractice and cornish game hen roasted with maple syrup, mustard, thyme and Port

2012-01-22T17:20:00.000-08:00

Attorney's fees -- Prevailing party -- Error to award fees to attorney who failed to testify at hearing

DAVID E. NEITLICH and CAROLE C. NEITLICH, Appellants, v. THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee. 4th District.

Child support -- Paternity -- Child born during intact marriage -- Department of Revenue petition to establish paternity and child support, filed against legal father and against putative biological father -- Trial court erred in granting putative biological father's motion to dismiss without considering child's best interests -- Remand for hearing to determine whether, in light of fact that child's legitimacy will remain intact, it would be in best interests of child to allow DOR to pursue its paternity action against putative father

DEPARTMENT OF REVENUE on behalf of CAROLINA SURAPA GARCIA, Appellant, v. JORGE IGLESIAS and ARIEL GARCIA, Appellees. 4th District.

Civil procedure -- Default -- Error to grant motion to vacate 1992 default final judgment on ground that plaintiffs were unable to provide a return of service without first conducting evidentiary hearing to determine whether defendant was served with process prior to entry of default judgment -- Return of service is not the only means by which plaintiff can prove that there has been valid service of process on defendant prior to entry of default judgment -- Certified printout of clerk's progress docket and certified copy of final judgment on default together constituted evidence which afforded a reasonable basis for the conclusion that more likely than not service of process on defendant was properly perfected before final default judgment was issued -- On remand, trial court should treat this documentary evidence as creating a rebuttable presumption affecting the burden of producing evidence -- Accordingly, defendant will have burden of introducing credible and admissible evidence showing he was not properly served with process prior to entry of default judgment, and if he is able to do so, trial court will then weigh evidence and resolve the question of fact at issue

NANCY C. BLOCK and JOHN E. STEPHENS, JR., as Trustees of the Jackson Martindell Trust dated December 30, 1988, Appellants, v. RIP TOSUN, Appellee. 4th District.

Insurance -- Automobile -- Homeowners -- Circuit court properly found that homeowner's insurer, not issuer of automobile policy, was liable for indemnity and defense of claims against an insured who, while passenger in car driven by girlfriend and owned by girlfriend's parents, repeatedly reached over and grabbed steering wheel without altering direction of vehicle -- Accident which occurred when driver swerved as she was trying to push insured away was not covered by automobile policy -- Passenger's grabbing of steering wheel to annoy driver was not “use of . . . a non-owned auto” within meaning of automobile policy; and damages claimed did not fall within provision of homeowners policy excluding claims for bodily injury or property damage arising out of ownership, maintenance, or use of motor vehicle -- Further, because vehicle was non-owned auto within meaning of automobile policy, coverage was available only if insured was “driving” “with the permission, or reasonably believed to be with the permission of the owner,” and it was not reasonable to believe that insured's horseplay was in any way sanctioned by owners of vehicle

SUNSHINE STATE INSURANCE COMPANY, Appellant, v. CHRISTOPHER JONES, DEBRA WATSON-JONES, NICHO WATSON, MICHELE BALDASTI, by and through her mother and legal guardian, STACY BALDASTI, and KAYLA MINEO, by and through her mother and legal guardian, CHERYL MINEO, and GEICO GENERAL INSURANCE COMPANY, Appellees. 4th District.

Torts -- Medical malpractice -- Provision of medical care and services -- Limitation of actions -- Claim that injuries resulting from a fall from a test table at hospital were a result of nurse failing to exercise reasonable care in assisting plaintiff onto a gurney -- Negligence alleged arose out of the provision of medical care and services where injury occurred while nurse was trying to move plaintiff from test table to gurney after it was thought that plaintiff was suffering from an allergic reaction to dye given to plaintiff for CT scan -- No error in granting defendants' motion for summary judgment where, because claims were determined to be ones of medical negligence, claims were barred by two-year statute of limitations and plaintiff's failure to comply with presuit requirements

CHRISTINE D. STUBBS, Appellant, v. SURGI-STAFF, INC. and LORENZO RIVERA, Appellees. 4th District.

D.C. Joins 11 states and the Virgin Islands in Amicus Brief Supporting Constitutionality of Health Care Law

2012-01-17T14:53:00.000-08:00

"The Office of the Attorney General for the District of Columbia announced today that the city has joined 11 states and the Virgin Islands in signing an amicus brief (PDF) to the U.S. Supreme Court that supports the constitutionality of the 2010 federal healthcare law. The brief, according to the statement released today by the D.C. attorney general’s office, contends that “the federal commerce power, by design, includes the power to regulate individual conduct so long as the individual’s conduct, combined with others’ conduct, may have a significant effect on interstate commerce.”" More.
From The BLT Jan. 17, 2012

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Criminal law, sentencing, arbitration and medical malpractice, with roast duck served on fresh blackberry and cranberry sauce

2012-01-16T10:02:00.000-08:00

Criminal law -- Attempted murder -- Jury instructions -- Giving of standard jury instruction on attempted manslaughter is not fundamental error in prosecution for attempted first degree murder where defendant is convicted of lesser included offense of attempted second degree murder -- Conflict certified

JEAN L. CORIOLAN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Counsel -- Ineffectiveness -- Defendant convicted of sexual battery by digital penetration and oral penetration of a child under 12 after two counts for lewd or lascivious molestation against a second victim were severed subsequent to the jury being informed of the crimes, and second victim was permitted to testify as a Williams Rule witness -- Ineffectiveness was apparent on the face of the record, and no conceivable tactical strategy would justify conduct of counsel, where counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes; abandoned his client's rights by agreeing to waive ten-day notice requirement for Williams Rule evidence; failed to object to trial court's refusal to permit counsel to introduce witnesses whose testimony may have persuaded trial court that evidence sought to be admitted under theWilliams Rule standard was unreliable; and failed to object when judge left a position of neutrality by making suggestions to the state on theories for admitting Williams Rule evidence and obtaining counsel's waiver of defendant's right to notice -- Ineffectiveness was so serious as to have affected outcome where there was no evidence other than testimony of the two victims, and proper objections may have prevented victim in severed counts from testifying as Williams Rule witness

ARCHIE HILLS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- First-degree grand theft -- Jury instructions -- Good faith defense -- Trial court erred in refusing to give requested special instructions on good faith, the lack of criminal implications for a disagreement regarding contract interpretation, and the definition of “petroleum contaminated water” (PCW) set forth in the Florida Administrative Code, where defendants, under contract to remove water contaminated with jet fuel from airport's fuel farm, were charged with stealing jet fuel contaminated or uncontaminated with water, but claimed they believed that, under two contracts which referred to PCW but which left the term inadequately distinguished from jet fuel, they were entitled to remove all the contents of a tank which contained both water and jet fuel in various mixture proportions -- Trial court's use of a standard instruction on the element of intent did not relieve it of the duty to give the good-faith instruction because the good-faith theory was adequately supported by evidence at trial, the standard instruction on the element of intent is insufficient to adequately cover the effect of a good-faith claim, and the requested special instructions constituted a correct statement of law and were not confusing or misleading -- No merit to state's argument that defendants were not entitled to an instruction giving the Administrative Code's definition of PCW because the definition itself is not a valid theory of defense -- Definitions are routinely included in jury instructions, and because the term defined is beyond the scope of common experience, the trial court had an affirmative responsibility to give the instruction -- Allowing defense counsel to argue the definition of PCW to the jury in closing was not an adequate substitute -- Trial court erred in failing to give special instruction on disputed contract interpretation because where, as here, the interpretation involves the possibility of criminal conviction, the rule of lenity requires that doubt be resolved in favor of the accused, and the failure to give the instruction left the jury free to resolve the contract's ambiguity against the defendants -- Evidence -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct a Richardson hearing upon being alerted by defense counsel to possible discovery violation where state witness's testimony departed dramatically from his pretrial deposition, it is clear the state was aware this would happen, and no disclosure was produced until the witness had already taken the stand -- Defense counsel was not obligated to make an objection based on Richardson or to request a Richardson hearing -- By defense counsel's merely bringing the state's non-compliance to the trial court's attention, the issue is preserved -- State's failure to disclose the changed testimony constituted a violation of its duty under rules of criminal procedure imposing a continuing duty to disclose -- Post-trial inquiry was not an adequate Richardsonhearing because it was untimely and because even if it had been timely, it improperly shifted the burden to the defense to demonstrate prejudice

CLIFF BERRY, INC., and JEFFREY CLINT SMITH, Appellants, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Appeals -- Mediation -- Failure to appear -- Sanctions imposed on parties who failed to appear at court ordered appellate mediation where no motion seeking to excuse personal appearance was filed -- Appearance of parties' insurance company representative cannot take parties' place

CARDEN & ASSOCIATES, INC. AND LENWOOD HOLLISTER, JR., Appellants, v. C.O.D. TREES PARTNERSHIP, Appellee. 5th District.

Arbitration -- Arbitrable issues -- Credit card agreement -- Class action by credit card holders alleging violations of Credit Repair Organizations Act largely based on defendants' allegedly misleading misrepresentation that credit card could be used to rebuild poor credit and defendants' assessment of multiple fees upon opening of the accounts, which greatly reduced advertised credit limit -- Because CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act requires arbitration agreement at issue to be enforced according to its terms

COMPUCREDIT CORPORATION, ET AL., Petitioners v. WANDA GREENWOOD ET AL. U.S. Supreme Court.

Attorney's fees -- Prevailing party -- Injunction -- Trial court erred in awarding prevailing party attorney's fees to homeowners association in action seeking injunction to require that homeowner obtain insurance on home in accordance with subdivision declaration where association had adequate remedy at law by obtaining insurance coverage on home and assessing the cost against the homeowner -- Because association had adequate remedy at law, trial court should have dismissed complaint for injunctive relief

ROBERT ALORDA and DANIELLE ALORDA-McKINNON, Appellants, v. SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee. 2nd District.

Child support -- Child custody -- Intervention -- Where Department of Revenue initiated proceedings to establish paternity and require father to pay medical support and child support; father filed petition seeking custody of child and child support from child's mother; custody petition was transferred to a new lower court case number; mother and father ultimately entered into agreement providing that father would consent to termination of parental rights and mother would agree to withdraw action for support; and thereafter trial court entered order in custody case approving the agreement and terminating the father's parental rights, trial court did not err in denying motions to intervene in the two cases, filed by mother on behalf of minor child for purpose of challenging the agreement and order terminating parental rights on ground that agreement and order had deprived child of support and a father/child relationship -- Although parents' agreement for termination of parental rights and subsequent order adopting agreement are void and subject to challenge, trial court correctly ruled that intervention was not appropriate vehicle for mother or child to challenge agreement and resulting order -- Affirmance of order denying intervention is without prejudice to rights of mother or child to challenge agreement and order approving agreement in a motion for relief from judgment or in a newly-initiated proceeding

KELLEY LYNN REED, both individually and o/b/o ABBY LYNN REED, a minor child, Appellant, v. ROLLIN F. BLANSHINE and DEPARTMENT OF REVENUE, Appellees. 4th District.

Civil procedure -- Service of process -- Condominiums -- Registered agent -- No merit to argument that service of process on registered agent of corporation qualified to transact business in Florida must comply with hierarchical provisions of section 48.081(1)(a)-(d)

VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.

Contracts -- Condominium sale -- Preconstruction agreement -- Action arising out of buyer's refusal to close due to seller's failure to complete the condominium within two years of the contract as provided by the contract -- Trial court properly found breach of contract by buyer where, although court erred in determining that the unit could be permissibly conveyed on date permitted in the contract pursuant to 718.104(4)(e), purchase contract provided that the period for completing the unit could be extended beyond two years if certain delays occurred, and trial court's finding that certain delays did occur was supported by competent and substantial evidence

SOMMAI BREAZEALE, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee. 1st District.

Contracts -- Condominium sale -- Return of deposit to buyer -- Withholding portion of deposit -- Action by buyer seeking to void contract for developer's violation of section 718.202, Florida Statutes, by conditioning return of buyer's deposit upon its lender's consent to return the deposit -- Error to enter summary judgment for defendant developer where there was factual issue as to whether buyer had defaulted under the contract

FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Imputed income -- Trial court erred, as a matter of law, in concluding that it could not impute income to wife because husband's vocational expert did not place wife in a job and there was no evidence that wife had turned down specific employment -- Instead, court should have considered wife's work history, occupational qualifications, and prevailing earnings in the community for class of available jobs -- Remand for reconsideration of issue of imputing income and, if necessary, recalculation of permanent alimony

SHARON BOOTH MIDDLETON, Appellant/Cross-Appellee, v. JAMES W. MIDDLETON, Appellee/Cross-Appellant. 5th District.

Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery

MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.

Dissolution of marriage -- Judges -- Disqualification -- After having granted motion to disqualify, judge was prohibited from directing former husband to submit his objections to former wife's motion to compel sale of former husband's residence to satisfy arrearages or a proposed order -- Trial judge is generally prohibited from taking any action in a case once disqualified, and exception in the case of ministerial acts is inapplicable

RICHARD S. ROSS, Petitioner, v. SHERI LYNN ROSS, Respondent. 4th District.

Dissolution of marriage -- Temporary alimony -- Temporary pre-dissolution attorney's fees -- Waiver -- Marital settlement agreement -- Agreement between parties that waives or limits right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is violation of public policy -- Error to strike notice of hearing on wife's motion for increase in temporary alimony and attorney's fees and costs based on provisions of a marital settlement agreement which parties entered into during prior dissolution proceeding which was ultimately dismissed after parties reconciled and which contained allegedly unmodifiable alimony provision and provision requiring each party to pay for their own legal fees

LISA KHAN, Appellant, v. ASLAM KHAN, Appellee. 4th District.

Dissolution of marriage -- Settlement agreement -- Enforcement -- Post-dissolution agreement in which it was agreed that mother's new husband would file for formal adoption of child, husband would pay half the original amount of child support, former husband would continue payments on life insurance policy, and former husband would have access to his son for life -- Circuit court, which was asked to determine validity and enforceability of agreement in light of adoption of child, erred in closing case on ground that family division did not have jurisdiction and that motions for enforcement and contempt should be heard in adoption court -- Even though child was subject of adoption, judge sitting in family division would have authority to rule on issues connected to the agreements reached in family court proceedings; and, in fact, court in this case reserved jurisdiction of parties and subject matter in final order incorporating the post-judgment agreement -- Further, no jurisdiction was reserved in final judgment of adoption and, accordingly, the issues regarding the post-judgment agreement could only be litigated in court retaining jurisdiction for that purpose

DONNA M. BAUDANZA, n/k/a DONNA M. DUNNE, Appellant, v. DENNIS BAUDANZA, Appellee. 4th District.

Judges -- Disqualification -- Prohibition -- Where judge has disqualified herself from case, prohibition is not appropriate for that case -- Blanket motion for recusal -- Attorneys are not entitled to writ of prohibition to disqualify judge in other pending cases in which attorneys are counsel of record

R.M.C., GRANDMOTHER, Petitioner, v. D. C., FATHER, Respondent. 1st District.

Jurors -- Post-trial interview -- Plaintiffs not entitled to interview jurors after trial to demonstrate that jurors' nondisclosure of information regarding their involvement with court system justified new trial where jurors' failure to disclose information, if any, was attributable to plaintiffs' lack of diligence in uncovering the information during voir dire

JANET RODGERS and DOUGLAS CARL RODGERS, as co-personal representatives of the estate of CARL SHANE DOUGLAS RODGERS, deceased, Appellants, v. AFTER SCHOOL PROGRAMS, INC., Appellee. 4th District.

Mortgage foreclosure -- Default -- Vacation -- Civil procedure -- Defendant who defaulted cannot thereafter contest allegations of complaint that plaintiff was the owner and holder of the note and mortgage -- With respect to remaining contentions that documents submitted in support of complaint and motion for summary judgment were faulty or inadmissible, rule 1.540(b) motion cannot be used as substitute for a motion for rehearing or an appeal

JO-ANN T. BEAULIEU, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee. 4th District.

Life Insurance: RESCISSION OF LIFE INSURANCE POLICY ISN'T BAD FAITH, Salkin v. United Servs. Auto. Ass'n, 7 No. 18 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith January 10, 2012

A life insurance carrier did not act in bad faith when it rescinded a policy based on material misrepresentations that a policyholder made about his medical history during the application process, a California federal judge has ruled. U.S. District Judge Virginia A. Phillips of the Central District of California held that summary judgment in favor of the insurer is warranted where the policyholder's statements "discouraged" the carrier from seeking his medical records.

Medical malpractice -- Causation -- Evidence -- Expert -- Action alleging that defendant obstetrician was negligent in using fetal vacuum extractor during delivery of plaintiff, and that this negligence caused plaintiff to suffer ischemic stroke which caused brain injury, leaving plaintiff with cerebral palsy -- Trial court did not err in excluding testimony of plaintiff's standard of care expert which would link breach of standard of care to plaintiff's ischemic stroke, because such testimony would go to causation and would exceed the scope of matters on which expert was qualified -- Where defendant's expert had testified regarding his own publications and work in the field of epidemiology and a “huge national experiment” which showed no association between vacuum extraction and stroke, it was not error to allow defense counsel to ask expert, “Have you ever heard of the concept before this lawsuit that a vacuum assist can cause an ischemic stroke?” -- Question was not improper bolstering, but rather a fair follow-up to unchallenged testimony about the “huge national experiment” -- Court did not err in allowing another defense expert to use a National Institutes of Health study to explain why he concluded that the preeclampsia plaintiff's mother developed during pregnancy contributed to plaintiff's brain injury -- It is not improper bolstering to allow an expert to testify about the results of a government study such as the NIH study

DANIEL DUSS, A MINOR CHILD, BY AND THROUGH REGIONS BANK, THE GUARDIAN OF HIS PROPERTY, Appellant, v. MARTIN A. GARCIA, M.D., AN INDIVIDUAL; NORTH FLORIDA OBSTETRICAL & GYNECOLOGICAL ASSOCIATES, P. A., A FLORIDA FOR PROFIT PROFESSIONAL ASSOCIATION, Appellees. 1st District.

Supreme Court Pollard Decision Bars Bivens Actions Against Private Prison Employees

2012-01-11T08:11:00.000-08:00

The Minneci v. Pollard decision concerned a Bivens action by a prisoner in a a federal facility operated by a private company. Justice Breyer writing for the majority refused to authorize a Bivens action because state tort law provides an adequate remedy, not because of immunity.

"Because in the circumstance of this case, state tort law authorizes adequate alternative damages actions—providing both significant deterrence and compensation—no Bivens remedy can be implied here." The Court continued: "Wilkie v. Robbins, 551 U. S. 537, fairly summarizes the basicconsiderations the Court applies here. In deciding whether to recognize a Bivens remedy, a court must first ask “whether any alternative, existing process for protecting the [constitutionally recognized]interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding” damages remedy. Even absent an alternative, “a Bivens remedy is a subject of judgment: ‘the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed . . . toany special factors counselling hesitation before authorizing a newkind of federal litigation.’ ” Id., at 550." "Pollard cannot assert a Bivens claim, primarily because his Eighth Amendment claim focuses on a kind of conduct that typically falls within the scope of traditionalstate tort law. And in the case of a privately employed defendant, state tort law provides an “alternative, existing process” capable ofprotecting the constitutional interests at stake. Wilkie, 551 U. S., at 550. The existence of that alternative remedy constitutes a “convincing reason for the Judicial Branch to refrain from providing a newand freestanding” damages remedy. Ibid."
Here is a link to the Opinion.

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Family law, commercial law issues, and braised kale, garlic and Italian sausage with penne pasta and garlic

2012-01-10T13:55:00.000-08:00

Criminal law -- Attempted second-degree murder -- Jury instructions -- Trial judge's instruction on lesser offense of attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State requires reversal and remand for new trial -- Conflict certified -- Inconsistent verdicts -- Jury instructions -- Even were attempted manslaughter instruction not erroneous, defendant's conviction as principal to attempted second-degree murder and, in another count, as accessory after the fact for the same offense, would require reversal -- While there is no standard instruction for this circumstance, defendant was entitled to an instruction explaining that the jury could convict him of only one of these offenses -- Trial court's handling of inconsistent verdicts by sentencing defendant only on the greater offense of attempted second degree murder and dismissing the related accessory charge was improper because it cannot be declared beyond reasonable doubt that jury's inconsistent verdict is harmless and that jury would have selected the greater offense if forced to choose -- Evidence -- Statements of defendant -- It was error to admit, as evidence of consciousness of guilt, defendant's statement that he contacted an attorney and had been advised to “lay low”

ERIC BAZEMORE, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Sentencing -- Resentencing -- Appellate counsel was not ineffective for failure to argue that imposition of consecutive sentences after defendant had filed motion to correct initially imposed illegal concurrent sentences was vindictive -- Because overall length of defendant's imprisonment before and after resentencing remained unchanged, there was no presumption of vindictiveness -- Appellate counsel was ineffective for failure to argue that trial court violated defendant's double jeopardy rights when it resentenced defendant to consecutive sentences on counts for which defendant had not challenged his sentences in rule 3.800(b)(2) motion, where defendant had begun serving the initial concurrent sentences and the sentences were final by the time defendant filed rule 3.800(b)(2) motion

JESUS RANGEL BERNAL, Petitioner, v. STATE OF FLORIDA, Respondent. 1st District.

Criminal law -- Counsel -- Waiver -- Failure to conduct proper Faretta inquiry at sentencing hearing -- Remand for resentencing following proper inquiry

WILLIAM EARL DUNCAN, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Counsel -- Waiver -- Where defendant expressed that he wanted to represent himself, and court conducted Faretta inquiry and accepted defendant's waiver of counsel, it was error for court to fail to renew offer of assistance of counsel at commencement of trial which was a crucial stage of proceedings -- Trial court's hearing on motion to suppress qualified as an intervening proceeding requiring court to conduct another inquiry, and court was required to renew the offer of assistance of counsel at the next crucial stage when defendant's trial commenced three weeks later

TAJHON BODERICK WILSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Defrauding financial institution -- Aggravated white-collar crime -- Scheme or artifice to defraud financial institution -- Retrial following mistrial -- Trial court properly dismissed counts of third amended information which charged new crimes not included in prior informations, as these crimes were barred by the statute of limitations -- Error to dismiss, as time-barred, count charging defendants with first-degree aggravated white collar crime where charge, which was predicated on series of prior acts of defrauding financial institution, was filed less than four years after date of first predicate act -- The fact that individual predicate offenses would have been untimely if brought as independent charges does not affect timeliness of prosecution for aggravated white-collar crime

STATE OF FLORIDA, Appellant, v. EDWARD DARRELL TRAYLOR and PERRY MICHAEL TRAYLOR, Appellees. 5th District.

Child custody -- Where two women who were involved in lesbian relationship and wished to have a baby which they would raise together paid a reproductive doctor to withdraw ova from one, the biological parent, have the ova artificially inseminated with the sperm of a donor, and have the ova inserted into the womb of the other, the birth parent, both women have parental rights to the child -- Woman who provided her ova to her lesbian partner was not a donor of her ova -- Section 742.14, Florida Statutes, as applied by trial court to eliminate rights of biological mother to child, renders statute unconstitutional as violation of rights to equal protection and privacy -- Section 63.042(3), Florida Statutes, which prohibits gay and lesbian couples from adopting children, does not deprive biological mother of her parental rights -- Biological mother did not waive parental rights by executing informed consent document in reproductive doctor's office -- Question certified: Does the application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

T.M.H., Appellant, v. D.M.T., Appellee. 5th District.

VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.

Consumer law -- Deceptive and unfair trade practices -- Challenge to judgment finding defendant in violation of Florida Deceptive and Unfair Trade Practices Act for receiving payments based on phony invoices his company sent to over 1000 corporations -- No error in denying motion to dismiss complaint filed by Office of Attorney General for failure to provide names of defrauded consumers, as Florida law does not require that each consumer be named in complaint for these types of action -- Self-incrimination -- Post-judgment assertion of Fifth Amendment privilege -- Defendant's blanket objection to order requiring defendant to transfer all international assets in his control to the States and provide an accounting of those assets, on ground that repatriation of assets and documents, as well as accounting of those assets, could provide link in chain of evidence that could lead to criminal charges against defendant was insufficient to support application of Fifth Amendment privilege in this case

BERND TAUBERT, Appellant, v. STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, Appellee. 1st District.

FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.

Contracts -- Noncompetition covenant -- Liquidated damages -- Provision for liquidated damages for breach of noncompetition agreement was unenforceable where damages were readily ascertainable, and provision constituted a penalty

RICHARD GOLDBLATT, individually and VALERIE GOLDBLATT, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee. 3rd District.

Contracts -- Subscription and purchase agreement governing construction and closing of condominium unit -- Trial court erred in finding that developer complied with contract provision requiring timely completion and delivery of unit within two years of date of agreement based on finding that certificate of occupancy, which was issued within two-year period, signaled completion of unit -- Interplay between contract and governing statute leads to determination that recording of surveyor's certificate of substantial completion was relevant event for determining compliance with contract's deadline -- Under plain language of contract, “complete” and “deliver” were related in that duty required to be performed within two years was the delivery of a completed unit, and under plain language of statute, surveyor's certificate of completion must be recorded before a completed condominium unit may be conveyed to purchaser

TRANQUIL HARBOUR DEVELOPMENT, LLC, a Limited Liability Company, Appellant/Cross Appellee, v. BBT, LLC (212 & 311); CLAUDE BROUSSEAU & ANN MARIE DUGRE (303); E & N, INC. (103); JOSEPH FERRARO (211); RICHARD & JANE KISEL (205); LEONARD MARNELL (207); JAR ENTERPRISES, LLC (105 & 108); L. DENNIS PANTER (107 & 206); MARIA COSTOPOLOUS (107); GUY & BARBARA RUVOLO (106); JEFF & DORSEY SHIVER (102); JUDITH ANN WADE (301 & 309); TONY WHITFIELD, PAM MCCLURE, TERESA CARLTON, JANIE SCHMARGE, DARLENE MADDEN, VIC GEORGE, S&S FAMILY PROPERTIES, LLC (101); and, BRYAN & MISTY MORGAN (210), Appellees, and BONNIE STRICKLAND, SYLVIA LANG, NELL WOOTEN, and MIKE NOBLES Appellees/Cross Appellants. 1st District.

Costs -- Prevailing party -- Depositions and transcripts -- Appellate court cannot say that, under circumstances of instant case, trial court abused its discretion in awarding prevailing defendant costs for transcripts of non-evidentiary hearings and costs for expediting preparation and delivery of deposition transcripts -- Award of costs related to video depositions remanded for reconsideration, as it is not possible to tell from record whether costs were sought for both transcript of video deponents' testimony and for the videotapes prior to summary judgment hearing -- Expert witness fees -- Although lead counsel could properly testify as to reasonableness and necessity of deposition and transcript costs, as well as necessity of obtaining expert witnesses, he was not qualified to testify as to reasonable value of expert witnesses' services -- Objection to request for expert fees was specific enough to preserve the objection both as to entitlement and amount of expert witness costs sought by movants, and review of transcript leads to conclusion that trial court may well have granted movants' request for continuance to prepare for evidentiary hearing had trial court deemed the objection sufficient -- Accordingly, although general rule is that party seeking fees and costs is not entitled to second bite at apple to prove its claim, remand for evidentiary hearing on issue regarding request for expert witness fees is appropriate -- Trial court is not precluded from considering time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research -- Trial court must determine that any expert witness fees incurred were reasonably necessary to defend action -- Court notes that supreme court has specifically stated that trial court should exercise discretion in manner consistent with policy of reducing overall costs of litigation and keeping such costs as low as justice will permit

WINTER PARK IMPORTS, INC. D/B/A LEXUS OF ORLANDO, Appellant, v. JM FAMILY ENTERPRISES, INC., ET AL., Appellees. 5th District.

Dissolution of marriage -- Alimony -- Modification -- Abuse of discretion to modify permanent periodic alimony obligation to an amount which exceeded former husband's ability to pay -- To extent alimony award was based upon finding that husband had ability to borrow funds or to deplete his assets to meet future alimony obligations, trial court erred, especially in light of relative financial position of parties -- Further, trial court may consider assets awarded to husband during distribution for purposes of determining alimony, but may not require him to exhaust those assets to make alimony payments -- Attorney's fees -- Abuse of discretion to require husband to pay portion of former wife's attorney's fees where wife was in superior financial position and could pay her own fees

GARY GALLIGAR, former husband, Appellant, v. TERRIE GALLIGAR, former wife, Appellee. 1st District.

Dissolution of marriage -- Alimony modification -- Attorney's fees -- Error to award attorney's fees to wife without indicating in order that trial court considered any factors to determine whether amount of fees or hours expended were reasonable -- Remand for trial court to make such findings

THOMAS L. LUKE, Former Husband, Appellant, v. SYLVIA J. LUKE, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Trial court did not abuse discretion in requiring former husband to pay for respite nursing care for adult child who suffers a severe seizure disorder and has been declared mentally incompetent

HARRY M. KOSLOWSKI, FORMER HUSBAND, Appellant, v. SUSAN S. KOSLOWSKI, N/K/A SUSAN HARDMAN, FORMER WIFE, Appellee. 1st District.

Torts -- Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery

MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.

Torts -- Defamation -- Injunction -- Action seeking injunction to prohibit operator of website, which allows third party users to post complaints, from allowing defamatory post to remain on the website -- Trial court properly dissolved injunction which had been entered against operator of website because Communications Decency Act provides absolute immunity to interactive computer services

JOHN GIORDANO, INDIVIDUALLY, AND G & G ADDICTION TREATMENT, INC., A FLORIDA CORPORATION, Appellants, vs. DONNA L. ROMEO, AND XCENTRIC VENTURES, LLC, an Arizona Limited Liability Corporation, Appellees. 3rd District.

Torts -- Fraudulent inducement -- Arbitration -- No error in denying motion to compel arbitration based on arbitration agreement to which opposing party was non-signatory -- Cause of action for fraud in inducement fails where there was no contract between the parties

GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., CUSTOM CRUSHING & MATERIALS, INC., Appellees. 3rd District.

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Business law, family matters, torts and homemade meatballs with garlic and fresh basil and tomatoes

2011-12-31T13:19:00.000-08:00

RICHARD GOLDBLATT, individually and VALERIE GOLDBLATT, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee. 3rd District.

T.M.H., Appellant, v. D.M.T., Appellee. 5th District.

Civil procedure -- Intervention -- Trial court did not abuse its discretion in denying motion to reconsider order of dismissal because of pending late-filed motion to intervene -- Intervention may not be allowed after final judgment save in the interests of justice

LESLIE K. HARRIS, Appellant, v. BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., and ABERDEEN GOLF & COUNTRY CLUB, INC., Appellees. 4th District.

Contracts -- Leases -- Satisfaction of obligations -- Absence of record support

COCONUT GROVE STATION DEVELOPMENT, LTD., Appellant, vs. MIAMI-DADE COUNTY, Appellee. 3rd District.

WINTER PARK IMPORTS, INC. D/B/A LEXUS OF ORLANDO, Appellant, v. JM FAMILY ENTERPRISES, INC., ET AL., Appellees. 5th District.

Dependent children -- Termination of parental rights -- Evidence was insufficient to establish that continued interaction with mother threatened children's life, safety, or health based on the alleged insufficiency of her attempts to keep children's mentally ill and highly abusive father away from home and away from children

A.H. the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees. 3rd District.

Dissolution of marriage -- Relief from judgment -- Denial -- Appeals -- Motion for rehearing did not toll time for filing appeal from order denying rule 1.540(b) motion -- Child support -- Error to deny request for child support through date of child's high school graduation

MARTIN EDWARD MESSIER, Appellant, vs. LESLEY J. MARTIN-MESSIER, Appellee. 3rd District.

Eminent domain -- Department of Transportation -- Drainage easement -- Business damages -- Provision of lease giving lessee the express and enforceable right to use common areas and parking lot for the term of lease was sufficient to support claim for business damages, notwithstanding fact that lease referred to lessee's interest in common areas and parking lot as a “license” -- Error to dismiss lessee's business damage claim

MH NEW INVESTMENTS, LLC, ETC., ET AL., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. 5th District.

Mortgage foreclosure -- Relief from judgment -- Absence of sworn motion or evidence

NOVASTAR MORTGAGE, INC., Appellant, vs. OSCAR VARGAS, ET AL. Appellees. 3rd District.

Paternity -- Disestablishment -- Trial court erred in granting petition to disestablish paternity on ground that mother failed to produce child for DNA testing without determining whether mother's failure to submit child for testing was willful

DEPARTMENT OF REVENUE, o/b/o M.J.W., Appellant, v. G.A.T., JR., Appellee. 2nd District.

Public employees -- Drug testing -- Discovery -- Subpoena duces tecum -- Non-profit advocacy organization moved to quash subpoenas for documents in connection with action challenging constitutionality of mandatory drug testing of state employees -- Motion to quash is denied in part with respect to documents that are publicly available on the organization's website and responsive to defendant's request -- Authentication of these documents by deposition of records custodian for documents is unnecessary; rather, sworn declaration of records custodian shall be sufficient for authenticity purposes -- Motion to quash is granted with respect to documents or deposition testimony as to organization's “knowledge and position” on employer drug testing and public approval of employer drug testing, as well as prevalence of drug use and harmful effects of drug use in workplace, where defendant has not shown that information sought is truly relevant, that no other means exist to obtain the information, and that it is crucial to his defense of case -- Even if scope of subpoenas, which are exceedingly broad and burdensome on their face, have been narrowed by defendant's response, motion should nevertheless be granted as such testimony from legal advocacy organization that is specifically acting as counsel of record for a party in case raises unnecessary burden and privilege issues that far outweigh any relevance of information sought

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

Public employees -- Drug testing -- Challenge to constitutionality of Executive Order directing all state agencies to amend their drug-testing policies to provide for pre-employment and random drug testing for all state employees, as a violation of Fourth Amendment's prohibition against unreasonable search and seizure -- Jurisdiction -- Standing -- AFSCME union for state employees has standing to sue where union demonstrated an injury in fact, that alleged Fourth Amendment violation is fairly traceable to EO, and that a judgment that EO is unconstitutional would redress complained of injury -- Claim is fully ripe for adjudication because issues are sufficiently defined and concrete -- Claim is not moot where one state agency is currently undertaking EO's implementation and voluntary cessation with respect to other agencies is not likely to endure -- Union has organizational standing to sue on behalf of its members because they could sue individually, and further union has an interest in representing rights of its members -- Motion to join as necessary party treated as motion to intervene -- Intervention -- Secretary of Department of Corrections, who moved to intervene as party-defendant based on intervention as matter of right or permissive intervention when governor suspended implementation of EO for all agencies except DOC, cannot intervene based on intervention as matter of right where secretary has not demonstrated direct interest in constitutionality of EO, has failed to show that existing parties cannot adequately represent his interest, and court will not lose subject matter jurisdiction absent secretary's intervention -- Alternatively, secretary cannot intervene based on permissive intervention

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, and RICHARD FLAMM, Plaintiffs, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

Speech -- Appeal from entry of preliminary injunction preventing enforcement of Alabama statute, which prohibits a state or local government employee from arranging “by payroll deduction or otherwise” the payment of any contribution to an organization that uses any portion of those contributions for “political activity” -- District court found that statute impinges on free speech rights protected by First Amendment and that plaintiffs are likely to succeed in showing that statute is both overbroad in its restrictions and unduly vague as to what constitutes political activity -- Interpretation of Act is question of state law that has not been specifically addressed by state supreme court or by the intermediate state appellate courts; and therefore, the appellate court certified the following questions to Alabama Supreme Court: Is the “or otherwise” language in the statute limited to the use of state mechanisms to support political organizations, or does it cover all contributions by state employees to political organizations, regardless of the source? Does the term “political activity” refer only to electioneering activities?

ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al., Plaintiffs-Appellees, v. STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA, Defendants-Appellants. 11th Circuit.

GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., CUSTOM CRUSHING & MATERIALS, INC., Appellees. 3rd District.

DOL to Issue Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations

2011-12-28T18:01:00.000-08:00

DOL to Issue Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations

Posted originally by Andrew Frisch Dec. 15, 2011

On December 15, 2011 the Department announced that it will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes:

To more clearly define the tasks that may be performed by an exempt companion
To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

More.

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Insurance coverage, appellate court sanctions, and poached eggs on wild baby salad greens with garlic balsamic and olive oil vinagrette and homemade croutons and shaved parmesan

2011-12-11T12:18:00.000-08:00

Arbitration Agreement: FLORIDA HIGH COURT REJECTS DAMAGES CAPS IN ARBITRATION AGREEMENTS, Gessa v. Manor Care of Fla., 14 No. 11 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home December 2, 2011

Provisions in a nursing home's arbitration agreement that limit a resident's potential noneconomic damages to $250,000 and bar the recovery of punitive damages violate public policy and are unenforceable, the Florida Supreme Court has ruled. The court's 4-2 majority said the limitation-of-liability provisions in the contract "directly frustrate" the remedies created by Florida's Nursing Home Resident's Rights Act.

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls

FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee. 2nd District.

Insurance Fraud (Durable Medical Equipment): GEICO ALLEGES $477K FRAUD BY MEDICAL EQUIPMENT SUPPLIERS, HEALTH CARE PROVIDERS, Geico v. Grand Med. Supply, 18 No. 21 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices December 5, 2011 Several durable medical equipment suppliers and doctors participated in a scheme to defraud insurers by submitting fraudulent claims for the devices, a federal complaint by insurance giant Geico has alleged in a New York federal court lawsuit. The fraud cost Geico more than $477,000, according to the 12-count complaint filed in the U.S. District Court for the Eastern District of New York.

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. CARLOS TOMAS GONZALEZ AND MARGARITA GONZALEZ, Appellees. 3rd District.

Dissolution of marriage -- Mediation agreement -- Where initial mediation agreement, which was incorporated into final judgment, stated that parties were to share equally in a note receivable if any money was paid pursuant to the note, the only issue pending when parties entered into second mediation agreement was former husband's petition for modification of custody, and the second mediation agreement provided that, in all other respects the previous final judgment shall remain unmodified and in full force and effect, it was error for court to find that under the second agreement former wife was not entitled to a portion of the funds received pursuant to the note -- By changing the disposition of the funds received pursuant to the note, court modified the final judgment contrary to the plain language of the second agreement -- It was also error for court to deny former wife's motion to hold former husband in contempt for failure to pay child support without establishing amount of arrearage

KERRY HARVELL IRVIN, Appellant, v. MARCUS LANE IRVIN, Appellee. 2nd District.

SANCTIONS Kim v. Westmoore Partners, Inc.,(Cal.App. 4 Dist.) Sanctions - Counsel's violations of rules of court in connection with respondent's brief warranted $10,000 sanction The violations of the Rules of Court by counsel for the respondent warranted $10,000 in sanction. Counsel had requested an extension of time to file the brief, but subsequently filed a brief which was nearly identical to a brief which counsel earlier had filed in another action. The Court of Appeal found that the request for the extension of time was thus unreasonable, as the preparation of the brief, which did not address any of the allegedly "complex" issues actually raised on appeal, could not have claimed any significant amount of time. Furthermore, the brief violated the rule of court specifying the required contents of such briefs, as the brief did not contain any thoughtful analysis or relation to the facts of the current case. Rather, a comparison of the two briefs indicated that counsel, when asserting that the appellants had "falsely argued the case," had constructed his argument simply by redacting the facts recited in the earlier brief and reproducing the resulting rhetoric without reference to the current case. The Court found that counsel's conduct warranted $10,000 in sanctions

Trusts -- Accounting -- Error to enter final summary judgment ordering trustee to file accountings for various trusts where there were disputed issues of material fact and where affirmative defenses, including estoppel and waiver and statute of limitations defenses, were not negated -- Trustee waived reliance on New York law with respect to two trusts where trustee did not raise this issue in trial court -- Fact that one of those two trusts was not in record would not prevent summary judgment for an accounting where trustee did not dispute the fact that the trust was in existence and that moving party was a beneficiary -- With respect to two other trusts, each of which had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account,” moving party did not conclusively show that he was a beneficiary eligible to receive distributions from these trusts -- Although Florida statute requiring an annual accounting now overrides trust provision to the contrary, movant would still be required to show his eligibility as a beneficiary for those periods prior to enactment of statute

DORIS RICH CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and DORIS RICH CORYA and PAUL J. RICH SANDERS as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and DORIS RICH CORYA, as Trustee of other trusts presently unknown, Appellants, v. ROY SANDERS and PAUL J. RICH, JR., Appellees. 4th District.

UNTIMELY APPEALS: Nationwide Ins. Co. v. Parmer,(Ind.App.) Appeals - Motion to reconsider does not toll time limit to certify an order for interlocutory appeal. As a motion to reconsider does not toll the time limit to file a notice of appeal, it necessarily follows that a motion to reconsider does not toll the time limit to certify an order for interlocutory appeal. This was decided as a matter of first impression by the Indiana Court of Appeals.

Walton v. State ,(Fla.) Criminal Justice - Porter decision could not form basis for untimely successive motion for collateral relief from death sentence. The Florida Supreme Court has held that the decision of the United States Supreme Court in Porter v. McCollum, holding that it was objectively unreasonable for a murder defendant's trial counsel to have concluded that there was no reasonable probability that the defendant's sentence would have been different had the sentencing judge and jury heard the significant mitigation evidence that trial counsel had neither uncovered nor presented, did not constitute a fundamental change in constitutional law mandating retroactive application in post-conviction proceedings. Rather, Porter addressed a misapplication of Strickland, and involved a mere application and evolutionary refinement and development of the Strickland analysis. Thus, the instant movant was not entitled to a hearing on his second successive, and untimely, motion for collateral relief from his sentence of death. This decision may not yet be released for publication.

U.S. v. All Funds in the Account of Property Futures, Inc. ,(S.D.Fla.) Criminal Justice - Claimants lacked Article III standing to assert claims in civil forfeiture action. The minority-interest members of limited liability companies (LLCs) lacked Article III standing to assert claims in a civil forfeiture action, on the members' own behalf, to the defendant real properties owned by the LLCs, which were allegedly acquired as the result of fraud. The minority-interest members had no ownership interest in the specific real properties that were subject to forfeiture. Rather, they had merely a proportionate equitable interest in the LLCs' general holdings.

Supreme Court Justices Debate DNA and Confrontation Clause with Little Need for Lawyers

2011-12-07T08:37:00.000-08:00

Supreme Court Justices considering the need for a lab analyst to testify at the trial of an accused rapist knew the issues so well and became so lively during the debate that the lawyers became secondary, according to several press reports of oral arguments on Tuesday. More.
Posted originally by Debra Cassens Weiss, Dec 7, 2011, ABA Journal

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9th Circuit Court of Appeals Lifts Ban on Pay for Bone Marrow Blood Draws

2011-12-03T11:25:00.000-08:00

"When the National Organ Transplant Act became law in 1984, the extraction method for bone marrow was painful and risky, and authorities feared people would get hurt in the interest of making money, the Los Angeles Times reports. Now that bone marrow can be obtained through blood draws, in a process known as apheresis, a unanimous 9th Circuit panel found that the federal law does not cover the process." More

From Post by Stephanie Francis Ward in ABA Journal Dec. 2, 2011

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Mortgage foreclosures, appeals, and cinnamon-lavendar croissants with orange blossom honey

2011-12-03T09:56:00.000-08:00

Administrative law -- Agency for Health Care Administration -- Attorney's fees -- Action arising from Department of Administrative Hearings' finding that AHCA's withdrawal of an application for a home health care facility license, due to what the AHCA perceived as an incomplete application, was incorrect -- Error to award applicant attorney's fees and costs pursuant to section 57.111 despite favorable order from DOAH -- Where, at the time the withdrawal was issued, AHCA knew of continuing litigation concerning ownership of applicant and was told by the Joint Commission on Accreditation of Healthcare Organizations that proceedings had begun to terminate applicant's accreditation, the AHCA was substantially justified in withdrawing the application

AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. MVP HEALTH, INC., Appellee. 1st District.

Administrative law -- Agency for Health Care Administration -- Revocation of assisted living facility licenses, denial of licensure renewal applications, and imposition of administrative fines -- Claims against licensee were not proven where only evidence to support claims was uncorroborated hearsay -- Claim that licensee operated another assisted living facility without obtaining a valid license or qualifying for a license exemption was not proven where evidence was insufficient to show that any person was receiving personal service at facility for period exceeding 24 hours or that one or more adults at facility were not relatives of the owner or administrator

AVALON'S ASSISTED LIVING, LLC d/b/a AVALON'S ASSISTED LIVING and d/b/a AVALON'S ASSISTED LIVING AT AVALON PARK, and AVALON'S ASSISTED LIVING II, LLC d/b/a AVALON'S ASSISTED LIVING AT SOUTHMEADOW, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee. 1st District.

Bankruptcy -- Dismissal -- Chapter 7 -- Abuse -- Dismissal of Chapter 7 case as an abusive filing is warranted where presumption of abuse arises pursuant to section 707(b)(2), the presumption is not rebutted by special circumstances, and totality of debtors' financial situation demonstrates abuse pursuant to Section 707(b)(3)(B) -- Monthly expenses for mortgage payments on surrendered property and student loan debt are not allowable expenses in computing debtor's disposable income pursuant to Section 707(b)(2) Means Test and cannot be considered in Section 707(b)(3) totality of circumstances test -- Payments not actually made are not properly deducted from a debtor's income as part of Means Test -- A presumption of abuse arises where debtors' disposable income for sixty-month period exceeds $11,725 or 25 percent of debtors' total non-priority unsecured debts -- Debtors have not established special circumstances to rebut presumption of abuse where potential future medical expenses are not properly considered special circumstances and debtors did not establish that monthly student loan payment is necessary and reasonable expense for which there is no reasonable alternative -- Even if student loan payment constituted special circumstance, expense would not decrease debtors' monthly disposable income sufficiently that, when multiplied by 60, monthly disposable income would be less than $11,725 or 25 percent of debtors' total non-priority unsecured debts -- Based on totality of circumstances, granting relief to debtors would be an abuse of provisions of Chapter 7 where debtors have sufficient disposable income to repay their debts

In re: MICHAEL S. THOMPSON and CRYSTAL LEE THOMPSON, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Orlando Division.

Bankruptcy -- Adversary proceedings -- Florida Consumer Collections Practices Act -- Jurisdiction -- Abstention -- It is appropriate to deny request to dismiss or abstain from hearing adversary proceeding brought by chapter 7 trustee for related bankruptcy case to recover damages for benefit of debtor's estate, based on alleged violations of Florida Consumer Collections Practices Act -- Because adversary proceeding does not involve resolution of state law counterclaim, U.S. Supreme Court decision in Stern v. Marshall does not supply rule of decision in present proceeding -- Bankruptcy Court may hear FCCPA action, but it cannot enter final judgment without parties' consent, as FCCPA action is non-core proceeding -- Discussion of effect of defendant's admission of jurisdiction -- Even if court were to relieve defendant of its consent to jurisdiction and treat proceeding as non-core proceeding without both parties' consent, court would still hear proceeding -- Exercise of permissive abstention is not appropriate because abstention would not serve interest of justice or comity with state courts or respect for state law -- Bankruptcy court will decide proceedings based on consent of parties

In re: RICHARD CARLTON PEACOCK II, Debtor. U.S. Bankruptcy Court, Middle District of Florida, Tampa Division.

Bankruptcy -- Dismissal -- Chapter 7 -- Abuse -- Considering totality of circumstances, granting relief to debtor would constitute substantial abuse of bankruptcy process as set forth in 11 U.S.C. section 707(b)(3) where debtor has sufficient disposable income to pay her unsecured creditors in full within sixty months -- Debtor is not entitled to Chapter 7 relief -- Deductions for voluntary 401(k) contributions and repayment of 401(k) loans are not appropriate in computing debtor's disposable income, because such deductions are not reasonably necessary for support and maintenance of debtor -- Deduction for payment of debtor's first and second mortgages and for home maintenance expenses related to subject property were improperly included in determining debtor's projected disposable income where evidence clearly shows that debtor has not made any mortgage payments for more than 6 months and that she cannot afford the mortgage payments unless bank agrees to modify mortgage -- Debtor's household expenses for food, clothing, household, and other items, which are well above IRS standards, are excessive and unreasonable -- Deductions for duplicative automobile insurance, for recreation expenses, and school lunches and school activities are excessive and unreasonable, where debtor has not contradicted trustee's evidence that deductions are unreasonable and has not provided any evidence to justify contention that expenses are reasonable

In re: KARI BOOKMYER, Debtor. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division.

Bankruptcy -- Confirmation -- Chapter 13 plan -- Good faith -- Chapter 13 debtors failed to carry their burden to establish confirmation of good faith plan where debtors purchased and financed vehicles shortly before their bankruptcy filings in contemplation of those filings, and then proposed chapter 13 plan which would repay the 910-day car claim at less than contractual interest rates such that plans were not proposed in good faith -- Confirmation denied without prejudice to propose new Chapter 13 plans which would repay creditor in full and at contract interest rates or which would treat creditor outside plan

In re: FREDERICK M. & BEVENA F. BLACKMON, Debtors. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division.

Civil procedure -- Default -- Vacation -- Excusable neglect -- In action for breach of contract, open account and unjust enrichment in which default had been entered for defendants' failure to file answer to original complaint, where trial court first granted defendants' motion for vacation of default judgment on grounds of lack of subject matter jurisdiction based on forum selection clause, then upon plantiff's motion for rehearing determined it did have jurisdiction, it was improper for trial court on its own motion to then set aside default on grounds of excusable neglect without defendants making required evidentiary showing of excusable neglect, a meritorious defense, and due diligence -- Jurisdiction -- Subject matter jurisdiction claim -- Trial court was ultimately correct in concluding the forum selection clause did not deprive it of subject matter jurisdiction -- Nonetheless, trial court could not set aside default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties -- Personal jurisdiction claim -- Claim by defendants, made for first time in their answer brief on appeal, that trial court properly set aside default judgment because plaintiff failed to properly allege personal jurisdiction over defendants in its complaint, lacks merit because it appears undisputed that defendants were served with process in Florida where they are currently living; and a challenge to personal jurisdiction is waived if it is not raised in a party's first filing in the case, and defendants had already participated in the proceedings without making such objection -- Res judicata -- Claim by plaintiff that it would be improper and fundamental error to allow defendants on remand to establish excusable neglect, a meritorious defense, and due diligence lacks merit because, since it involves remanding the case to the trial court following the reversal of an order granting an initial, rather than a second, motion to set aside a default judgment, there is no res judicata issue

BANK OF AMERICA, N.A., Appellant, v. NANCY A. LANE AND ROBERT G. LANE, Appellees. 1st District.

Civil procedure -- Service of process -- Foreign corporations -- Service of process on defendant corporation quashed -- Plaintiff attempted to perform substitute service pursuant to incorrect Florida long arm jurisdiction statute -- Further, plaintiff did not strictly comply with requirements for substituted service against domestic corporation, which requires notification by registered or certified mail to defendant after service upon Secretary of State

EMILIO PINERO, Plaintiff, v. YAM MARGATE, L.L.C., Defendant. U.S. District Court, Southern District of Florida.

Civil rights -- Americans with Disabilities Act -- Dismissal -- When considering motion to dismiss for lack of subject matter jurisdiction, mere fact that plaintiff lives 200 miles from defendants' facility does not necessarily establish lack of standing to initiate lawsuit -- Consideration of matters beyond four corners of complaint is impermissible under Eleventh Circuit precedent in context of motion to dismiss for failure to state a claim -- Motion to dismiss complaint denied

ROBERT COHEN and ACCESS FOR THE DISABLED, Plaintiffs, v. B.T. FT. MYERS, INC., WENDY'S INTERNATIONAL, INC., DEBORAH R. ROBERTSON, KATHERINE WILDEY, and LAURENCE B. OETH, III, Defendants. U.S. District Court, Middle District of Florida, Tampa Division.

Contracts -- Real property sale -- Torts -- Fraudulent inducement -- Failure to disclose material defects in residence -- Error to find sellers liable to purchaser based on conclusion that, although they had no knowledge of undisclosed material defects, sellers “should have known” of defects -- To hold a seller liable for failure to disclose material defect under supreme court ruling in Johnson v. Davis, buyer must prove actual knowledge of the defect -- Trial court's finding that sellers did not have actual knowledge of asserted undisclosed material defects was supported by substantial, competent evidence

ERIC JENSEN and JOYCE JENSEN, Appellants/Cross-Appellees, v. CYNTHIA BAILEY, Appellee/Cross-Appellant. 2nd District.

Contracts -- Arbitration -- Unless there is a challenge to the arbitration provision in a contract which is separate and distinct from any challenge to the underlying contract, the case should be submitted to arbitration

MARSHALL, AMAYA & ANTON, ETC., ET AL., Appellants, vs. KARIN ARNOLD-DOBAL, D.O., Appellee. 3rd District.

Dissolution of marriage -- Child support -- Modification -- Retroactive -- Change in circumstances -- Failure to exercise visitation -- Trial court erred in only awarding retroactive child support from the date which mother filed an amended counter-petition seeking modification of support where, under section 61.30(11)(c), modification is retroactive to the date non-custodial father first failed to regularly exercise court-ordered or agreed visitation

KAREN J. BUHLER, Appellant, v. JOSEPH H. BUHLER, Appellee. 5th District.

Dissolution of marriage -- Child support -- Modification -- Res judicata -- Where appellate court, in prior appeal, held that orders interpreting parties' divorce agreement and setting child support were entered by a Georgia court of competent jurisdiction and that, accordingly, wife was barred by res judicata from relitigating issue of interpretation of parties' divorce agreement in Florida; and appellate court remanded for determination of child support modification from the date former wife petitioned for domestication and modification in Florida, trial court improperly modified child support and established child support arrearage based upon its interpretation of divorce agreement, which differed from that of Georgia court -- Trial court should have determined modification issue pursuant to Florida's child support guidelines

MACK H. SULLIVAN, JR., Appellant, v. EMILY HOFF-SULLIVAN, Appellee. 1st District.

Dissolution of marriage -- Marital home -- Homestead -- Exemption -- Waiver -- Marital settlement agreement -- Action arising out of first wife's attempt to recover unpaid child support by making a claim against former husband's share of proceeds from sale of husband and second wife's martial home pursuant to martial settlement agreement between husband and second wife -- Husband did not waive homestead protection where husband intended that the proceeds from sale would be used to acquire new homestead property and, although MSA stated that husband agreed to satisfy any “liens or encumbrances” on martial home from his share of proceeds, the child support judgments first wife held against husband did not constitute a lien or encumbrance against the homestead property

RINA KERZNER, Appellant, vs. STUART J. KERZNER AND DANA A. KERZNER, Appellees. 3rd District.

Injunctions -- Order granting permanent injunction was defective for failure to specify reasons for entry of injunction, and failure to make specific findings regarding irreparable harm and an unavailable remedy at law

HAROLD S. KIRKLAND, individually, and MARTHA C. KIRKLAND, individually, Appellants, v. PEOPLESSOUTH BANK, Appellee. 1st District.

Jurisdiction -- Service of process -- Limited partnerships -- Substituted service on Secretary of State -- Plaintiff's single attempt to serve defendant limited partnership in lien foreclosure action at the address of its registered agent did not amount to reasonable diligence -- No merit to plaintiff's contention that section 620.1117 requires only the exercise of reasonable diligence to serve the registered agent at its listed registered office -- Because plaintiff failed to effect service of process, default final judgment was void -- Trial court erred in denying motion to set aside default final judgment

TWIN OAKS VILLAS, LTD., Appellant, v. JOEL D. SMITH, L.L.C., and CON COR CONSTRUCTION, INC., Appellees. 1st District.

Labor relations -- Fair Labor Standards Act -- Overtime -- Back wages -- Trial court properly entered summary judgment in favor of former employer in action for unpaid overtime and back wages pursuant to FLSA, as plaintiff was ineligible for either individual or enterprise coverage -- In order to survive summary judgment with respect to individual coverage for overtime compensation under FLSA, plaintiff needed to produce admissible evidence that he worked directly for an instrumentality of interstate commerce or regularly used the instrumentalities of interstate commerce, and plaintiff failed to do so -- Plaintiff failed to establish that employer was an enterprise subject to FLSA's overtime wage provision where plaintiff produced no concrete evidence that employer had gross sales of at least $500,000 in any one year -- District court did not err in rejecting plaintiff's argument that enterprise coverage was available by virtue of his having performed remodeling work, as part of his employment, for a client which was itself potentially a FLSA-covered entity by virtue of its status as an institution which provided care for the aged -- Civil procedure -- District court did not abuse its discretion with respect to various discovery rulings or by sanctioning plaintiff's counsel for abusing the discovery process

LUIS CARLOS JOSENDIS, and similarly situated individuals, Plaintiff-Appellant, v. WALL TO WALL RESIDENCE REPAIRS INC., a Florida corporation, Defendant-Appellee. 11th Circuit.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure where there was factual issue as to whether plaintiff provided notice to cure prior to accelerating debt as required by mortgage -- Unauthenticated copies of default letters sent to defendant were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on motion for summary judgment -- Letters were not self-authenticating

JAMES D. BRYSON, Appellant, v. BRANCH BANKING AND TRUST COMPANY, Appellee. 2nd District.

Municipal corporations -- Ordinances -- Traffic infractions -- Red light cameras -- Trial court erred in finding that ordinance which allows the issuance of notices of violations for red light infractions on basis of red light cameras is preempted by and in conflict with state law

CITY OF AVENTURA, FLORIDA, Appellant, vs. RICHARD MASONE, Appellee. 3rd District.

Wrongful death -- Tobacco companies -- Action by estate of decedent, a member of Engle Class, who died of lung cancer, against tobacco companies who did not manufacture the brand of cigarettes smoked by decedent -- Trial court properly entered summary judgment for defendants on traditional product liability claims, but erred in entering summary judgment for defendants on civil conspiracy to fraudulently conceal claims

MARTHA REY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FERNANDO F. REY, AND FOR THE USE AND BENEFIT OF HERSELF, MARTHA REY, AS THE DECEDENT'S SURVIVING WIFE, AND HIS TWO SURVIVING CHILDREN, FERNANDO C. REY AND JENNIFER REY, Appellant, vs. PHILIP MORRIS, INC., LORILLARD TOBACCO, ET AL., Appellees. 3rd District.

Receivership -- Corporations -- Action arising out of underlying dispute between two sole shareholders and directors of the corporation which resulted from defendant's attempt to assign corporation's sole assets to another company after plaintiff failed to sell defendant his interest in the corporation as defendant claimed plaintiff agreed to -- Trial court did not abuse its discretion in granting plaintiff's motion to appoint receiver pursuant to section 607.1430(2)(a) where record contains competent evidence to support findings that the directors of the corporation were deadlocked, the shareholders were unable to break the deadlock, and the corporation suffered irreparable harm as a result of the deadlock

PETER WENZEL, ETC., ET AL., Appellants, vs. GARY BURMAN, ETC., ET AL., Appellees. 3rd District.

Mortgage foreclosure -- Mandamus -- Action arising out of single LLC member's attempt to halt foreclosure sale on property which was initiated by a company started by co-members of the LLC after the co-members had used the new company to buy the LLC's loan from the bank and caused the LLC to default -- Petition for mandamus requesting that trial court be directed to enter order setting foreclosure sale and deny further requests for postponement of the date is granted where LLC did not defend the foreclosure action, and objecting member of LLC has no direct interest in the case and no standing upon which to seek relief because member is not a party to the case, has no pending motion to intervene in the case, and is not a representative of any party, as member was outvoted by the co-members and cannot act on behalf of the LLC

SR ACQUISITIONS - FLORIDA CITY, LLC, Petitioner, vs. SAN REMO HOMES AT FLORIDA CITY, LLC, Respondent. 3rd District.

Mortgage foreclosure -- Damages -- Error to hold guarantor liable on note for which guarantor did not execute guaranty -- Trial court instructed to modify final judgment to reflect that default interest rate on note runs through date of final judgment

GROVE ONE REALTY, LLC, ET AL., Appellants, vs. OCEAN BANK, Appellee. 3rd District.

Unemployment compensation -- Benefits -- Disqualification -- Voluntary termination of employment -- Claimant, who was unable to read or speak English, received letter from employer, which was written in English, terminating her employment -- Order disqualifying claimant from receiving unemployment compensation benefits after referee determined that claimant voluntarily quit by failing to inquire further about the letter, is reversed -- Determination that claimant voluntarily left employment was not supported by substantial, competent evidence where employer failed to appear at hearing, only evidence presented was that claimant received letter informing her that she had been terminated, and claimant gave no indication of misconduct on her part or that she quit

JOSETTE NERELUS, Appellant, vs. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, AND AMERICA'S DUST BUSTERS, INC., Appellees. 3rd District.

Paternity -- Disestablishment -- Error to deny former husband's petition to disestablish paternity of child conceived before parties were married, filed after DNA test results conclusively proved that former husband was not biological father of child, where requirements of section 742.18 were satisfied -- Former husband was “a male ordered to pay child support” for purposes of section 742.18's mechanism for disestablishing paternity where, as part of final judgment of dissolution of parties' marriage, he was ordered to share equally with former wife the child's medical, dental, and childcare-related expenses and he was designated child's primary residential parent, which unquestionably obligated him to contribute to child's support -- Trial court erred in concluding that DNA test results did not amount to newly discovered evidence because former husband knew or should have known that he was not biological father at time he signed child's birth certificate -- DNA test results performed since the initial determination of paternity satisfy the statutory requirement for newly discovered evidence so long as they meet the statute's other time requirements -- Plain language of statute only addresses a petitioner's knowledge since the initial paternity determination and, accordingly, any suspicions a petitioner may have had prior to that initial establishment of paternity are irrelevant -- Conflict certified -- In view of former husband's role as child's primary residential parent, trial court erred in concluding that former husband was estopped from disestablishing paternity because he continued to assert parental responsibility over child after receiving DNA test results

P.G., Appellant, v. E.W., Appellee. 2nd District.

Wrongful death -- Product liability -- Strict liability -- Vehicle tire -- Tread separation, causing driver to lose control of vehicle -- Discovery -- Trade secrets -- No abuse of discretion in limiting document discovery from defendant to those involving tires with the same or similar specifications

MARIO A. ALVAREZ, Appellant, v. COOPER TIRE & RUBBER COMPANY, Appellee. 4th District.

Wrongful death -- Hospitals -- Medical malpractice -- Presuit requirements -- Claim that hospital negligently retained physicians who it knew would not treat patients without insurance, ultimately causing death of decedent due to lack of treatment, was a claim arising under Medical Malpractice Act, even if doctors' motives for refusing to come to hospital to provide treatment were purely economic -- Trial court departed from essential requirements of law when it denied motion to dismiss third amended complaint for failure to follow medical malpractice presuit requirements

PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a PALMS WEST HOSPITAL, f/k/a COLUMBIA PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a PALMS WEST HOSPITAL, Petitioner, v. CHARLES H. BURNS, as Personal Representative of the ESTATE OF ENRIQUE CASASNOVAS, Deceased, for the benefit of the ESTATE OF ENRIQUE CASASNOVAS, Respondent. 4th District.

Attorney's fees -- Contracts -- Prevailing party -- Where appellate court reversed award of damages with respect to one claim in a multicount action and remanded to trial court to vacate that portion of award, thereby reducing prevailing plaintiff's recovery by nearly 85%, trial court erred in denying defendant's motion for relief from attorney's fee judgment without holding evidentiary hearing to determine whether claim which was reversed on appeal was separate, distinct claim or was inextricably intertwined with claims on which plaintiff ultimately prevailed -- Further, even if trial court concludes that claims were not separate, results obtained were drastically changed, and this may or may not require reduction of attorney's fees

RIVER BRIDGE CORPORATION, a foreign corporation and RIVER BRIDGE REALTY CORPORATION, a foreign corporation, Appellants, v. AMERICAN SOMAX VENTURES, a Florida General partnership through its Partners, AMERICAN HOME DEVELOPMENT CORP., SOMAX DEVELOPMENT CORP., MSF INTERNATIONAL, INC., a Florida corporation, MOBIL OIL CORPORATION, a foreign corporation, and MOBIL LAND AND DEVELOPMENT CORPORATION, a foreign corporation, Appellees. 4th District.

Torts -- Contracts -- Exculpatory clauses -- Claim against retailer for damages resulting from trespass, nuisance, and negligence, brought after roof over retailer's store, which was adjacent to plaintiff's store, collapsed as result of weather from hurricane, severing a sprinkler main and causing uncontrolled water flow into mall and plaintiff's store -- No error in entering partial summary judgment limiting plaintiff's recovery to its insurance deductible based on mall operating agreement in which plaintiff and defendant agreed to release each other from liability from any loss or damage to property covered by party's insurance policy, which release applied even if casualty was caused by fault or negligence of a party or anyone for whom a party might be responsible -- Evidence that the roof in another of defendant's stores had sustained damage in a prior hurricane and that defendant's internal memoranda acknowledged potential for damage due to hurricanes and need to perform maintenance prior to such storms did not establish gross negligence which would render exculpatory clause in commercial operating agreement unenforceable under controlling state law -- Trial court erred in finding that plaintiff's insurance recovery for its losses in this case was, in fact, not subject to a deductible because the insurer, for its own purposes, made a unilateral decision to allocate the entire deductible to a different store, rather than apportioning it among three stores to which the deductible applied -- Genuine issue of material fact existed as to how deductible was apportioned and whether application of the deductible was beyond plaintiff's control

J.C. PENNEY COMPANY, INC., Appellant, v. DILLARD'S, INC., Appellee. 4th District.

Torts -- Cruise ships -- Injury to seaman -- Jurisdiction -- Removal of state court action to federal court -- Remand to state court -- Seaman injured during employment aboard cruise ship brought action in state court alleging negligence under Jones Act, unseaworthiness, failure to provide maintenance and cure, and failure to pay wages under Seaman's Wage Act, and defendant cruise ship subsequently removed action to federal court arguing that claims are governed by arbitration provision in employment agreement and therefore federal question jurisdiction exists -- Case should be remanded back to state court in its entirety, where arbitration clause in employment agreement is null and void as to Seaman's Wage Act claim, compelling arbitration of Jones Act claim would contravene public policy and arbitration provision must be declared null and void as it relates to Jones Act claim, and compelling arbitration as to unseaworthiness and maintenance and cure claims, while remanding Jones Act and Seaman's Wage Act claims, would be inefficient and a waste of judicial resources

HECTOR PAVON, Plaintiff, v. CARNIVAL CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

1st Circuit denies issue-of-first-impression appeal of cyberstalking defendant

2011-11-29T06:24:00.000-08:00

"On Nov. 23, a unanimous panel in U.S. v Walker rejected Jeffrey Martin Walker's appeal of his August 2009 conviction on counts of stalking — and mailing a threatening letter targeting — his wife. He was sentenced to 11 years and five months in prison in December 2009.

The 1st Circuit rejected Walker's argument that the interstate stalking statute applies only to injuring or harassing acts that occur during or after interstate travel. The court also held that the charge for mailing a threatening letter can apply even when the letter threatens someone other than the addressee. Finally, the court held that a defendant's failure to challenge a perceived indictment error before the trial is a waiver according to the Federal Rules of Criminal Procedure." More
First posted Nov. 28, 2011 by Sheri Qualters in National Law Journal

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Insurance and torts, tobacco, procedural due process over angel hair pasta, tossed with fresh basil and roasted garlic

2011-11-18T15:09:00.000-08:00

Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved

LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee. 4th District.

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion

CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 1st District.

Medical -- Appeals -- Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment -- Question certified -- To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict -- Court recedes from line of cases which applied a strict, outcome-determinative “but-for” test for harmless error -- Wrongful death -- Action alleging anesthesiologist and hospital were negligent in administering anesthesia, in monitoring decedent's system during cesarean delivery and controlling her fluids during surgery, and in responding to decedent's cardiopulmonary arrests -- Cross-examination -- Limitation -- Trial court abused its discretion in precluding plaintiff from cross-examining defense expert, who maintained that death resulted from amniotic fluid embolus and testified regarding range of probability of AFE occurring, regarding credibility of another witness, whose testimony seemingly indicated a disproportionately high diagnosis of AFE cases at defendant hospital -- Error was harmless where it is more likely than not that the restriction on the cross-examination did not contribute to the verdict

FRANK SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. IVO BAUX, M.D., IVO BAUX, M.D., P.A. PINNACLE ANESTHESIA, P.L.; and WEST BOCA MEDICAL CENTER, INC., Appellees. 4th District.

Torts -- Trusts -- Breach of fiduciary duty -- Amended final judgment awarding plaintiff an equitable lien on certain real property on plaintiff's breach of fiduciary duty claim against defendant individually and as trustee of revocable living trust was apparently based on erroneous impression that trial court could not transfer title of property to plaintiff -- Remand for reconsideration of appropriate remedy

REBEKAH PARIZ, Appellant/Cross-Appellee, vs. HELEN M. COLON, INDIVIDUALLY, AND AS TRUSTEE OF THE HELEN M. COLON REVOCABLE LIVING TRUST AND HELEN M. COLON REVOCABLE LIVING TRUST, Appellee/Cross-Appellant. 3rd District.

Torts -- Product liability -- Tobacco -- Individual action by Engle class member -- Appeals -- Certiorari -- Petition for certiorari review of orders denying plaintiff's motion to amend a complaint filed by her and her deceased husband in order to state an action for wrongful death and plaintiff's motion to substitute herself, as personal representative of husband's estate, as the plaintiff -- Denial of motion to amend is not reviewable by certiorari where order of dismissal could be entered and plaintiff could then seek review by plenary appeal -- Petition dismissed for lack of jurisdiction -- Concern expressed over basis for circuit court's ruling, which relied upon district court opinion holding that when a personal injury plaintiff's death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed, as new lawsuits could be barred as untimely under Engle even though original personal injury lawsuits were timely filed

CHARLEEN SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LORILLARD, INC.; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Respondents. 2nd District.

Torts -- Civil procedure -- Relief from judgment -- Procedural due process -- No abuse of discretion in denying plaintiffs' motion for relief from summary judgment entered in favor of retailer in action alleging malicious prosecution and other claims arising out of arrest and prosecution of plaintiff for retail theft -- Plaintiffs were afforded both proper notice and a meaningful opportunity to be heard where it was undisputed that they were served with notice of summary judgment hearing approximately three months before hearing took place and raised no objections to either the scheduled date or duration of hearing in interim between receipt of notice and hearing; hearing was conducted in fair manner appropriate to nature of proceeding; and summary judgment was granted only after plaintiffs conceded the issue of probable cause

OSANNA S. CARMONA and NELSON L. CARMONA, Appellants, v. WAL-MART STORES, EAST, LP, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Evidence -- Damages -- Claim that trial court, in granting plaintiff's motion in limine, improperly precluded defendants from presenting testimony that the amount of damages plaintiff was claiming was not reasonable or necessary for the injuries at issue was not preserved for appeal where no transcript of hearing on motion in limine was in the record and neither record nor brief revealed what specific testimony was excluded as a result of the motion in limine -- Trial court did not err in denying motion for directed verdict as to charges that plaintiff's physician violated section 456.052 by self-referring plaintiff for MRIs to a facility that the physician himself owned without making required disclosure, as it was unclear whether statute was, in fact, violated -- Argument -- Trial court did not abuse its discretion in denying defendant's motion for new trial based on cumulative effect of allegedly improper remarks made by plaintiff's counsel during closing argument where defendants failed to show that remarks were incurable, remarks were not as pervasive as defendants suggest, many of the remarks were fair reply to arguments made by defendants, and public's interest in system of justice was not impaired

AARMADA PROTECTION SYSTEMS 2000, INC. and JEFFREY STEVEN DUBLE, JR., Appellants, v. LANCE YANDELL and MAUREEN YANDELL, Appellees. 4th District.

Class Action? Chicago Lawyer Sues Southwest, Says Airline Breached Free-Drink Coupon Contract

2011-11-18T04:56:00.000-08:00

"Although the airline revised its policy in August of last year, notifying customers that such coupons would be honored only on the day of the flight after August 2011, a Chicago lawyer is challenging that change.
Adam J. Levitt, who allegedly has about 45 now-worthless free-drink coupons from Southwest, filed suit yesterday in federal court in Chicago, according to Reuters. The complaint, which seeks class action status, contends that the carrier breached a contract with passengers by changing its policy and refusing to honor the coupons, which have no expiration date. Alcoholic beverages purchased on board otherwise would cost about $5 each." More.

Posted in ABA Journal by Marcia Neil, Nov. 17, 2011

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Justices struggle over strip-search case

2011-11-17T08:09:00.000-08:00

"The Supreme Court on Wednesday struggled with whether jail officials may conduct intrusive strip searches of all arrestees, even of those detained for minor offenses, or whether the Constitution demands something more." The Petitioner "urged the justices to hold that the Fourth Amendment requires reasonable suspicion for strip searches of all arrestees in order to protect individual integrity and dignity" The opposing side urged a uniform policy, "reasonable suspicion should not be required when an arrestee is going to be put into the general prison or jail population." "The Fourth Amendment issue in Florence v. Board of Chosen Freeholders stems from two strip searches of Albert Florence, a New Jersey resident. Florence, after a traffic stop, was arrested on a bench warrant for failure to pay a fine. Although Florence produced a receipt showing payment of the fine, the officer arrested him and took him to the Burlington County jail in New Jersey." More.
Posted in National Law Journal by Marcia Coyle, Oct. 12, 2011

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Attorneys' fees, attorney disqualification and cornmeal pancakes with pecans and cranberries

2011-11-06T13:04:00.000-08:00

Appeals -- Jurisdiction -- Attorney's fees -- Appellate court lacks jurisdiction to consider challenge to award of attorney's fees based on dismissal with prejudice of counterclaim where trial court reserved jurisdiction to determine the amount of fees to be awarded

CHARLES A. MORRISON AND SHIRLEY W. MORRISON, Appellants, v. UNITED STATES OF AMERICA, ACTING THROUGH FARM SERVICE AGENCY, f/k/a FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee. 1st District.

Attorney Disqualification: BOFA SEEKS TO OUST AIG LAW FIRM FROM $10 BILLION CASE, AIG v. Bank of Am Corp., 22 No. 3 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage October 28, 2011 NEW YORK, Oct. 18 (Reuters) - Bank of America Corp. urged a judge to disqualify the law firm representing insurer American International Group in its $10 billion mortgage fraud lawsuit against the bank, alleging a conflict of interest by one of the firm's partners. The bank said Quinn Emanuel Urquhart & Sullivan should be removed because the partner had defended Merrill Lynch & Co. and its First Franklin Financial Corp. unit against similar charges that they made and sold defective mortgage loan.

Attorney's fees -- Offer of judgment

LOIS M. SEEVERS, Appellant, v. LUIS A. MONTIEL, individually, Appellee. 1st District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee instituted adversary proceedings to avoid and recover as fraudulent transfers distributions made to investors in debtor corporations that were operated as instruments of a Ponzi scheme -- Investors asserted affirmative defense claiming transfers were “for value” -- General rule in fraudulent transfer actions arising out of Ponzi scheme that a defrauded investor gives “value” to debtor in exchange for a return of principal amount of investment, but not as to any payments in excess of principal, applies to investors that hold an equity interest in the insolvent debtors -- Under general rule, transfers from debtors up to principal amount of investment through investors' purchase of limited partnerships from debtors satisfied investor defendants' restitution or fraud claims and provided value to debtors

WILLIAM F. PERKINS, Plaintiff-Appellant, v. AENA Y. HAINES, JAMES BRONNER, SIMONE BRONNER, NATHANIEL BRONNER, GEORGE RUSSELL CURTIS, SR., et al., Defendants-Appellees. 11th Circuit.

Bankruptcy - Transfer made by debtor involved in Ponzi scheme in order to redeem equity investment may constitute transfer "for value." Addressing an issue of apparent first impression for the circuit, the Eleventh Circuit Court of Appeals has ruled that, with respect to the "for value" defense to fraudulent transfer actions arising out of a Ponzi scheme, the general rule that a debtor's transfers to an investor up to the principal amount of the investment were given "for value" and are not subject to recovery by the bankruptcy trustee, while any transfers exceeding the amount of the principal were not made "for value," applies regardless of whether good faith investors have an equity interest in, or some other form of claim against, the debtor. Courts do not distinguish between equity investments and debt-based claims when applying the "for value" defense of 11 U.S.C.A. 548(c) in this context. Perkins v. Haines ,(C.A.11 (Ga.))

Civil procedure -- Default -- Vacation -- Service of process -- Defects -- Error to deny motion to vacate default and final judgment where plaintiff failed to make diligent effort to personally serve defendant before serving process by publication

DANIEL BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee. 4th District.

Construction: ROOFING CONTRACTOR MUST WEATHER DAMAGES JUDGMENT WITHOUT COVERAGE, Evanston Ins. Co. v. Heeder, 22 No. 3 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage October 28, 2011 An insurer that limited its coverage to residential roofing owes no duty for a $681,000 judgment for damage that happened during a commercial roofing project, a federal judge in Tampa, Fla., has ruled. U.S. District Judge Susan C. Bucklew of the Middle District of Florida said Evanston Insurance Co. only insured roofing contractor Douglas D. Heeder for the operations listed on his insurance application and the policy's declarations page. The judge granted the insurer's motion for summary judgment.

Contracts -- Insurance -- Discovery -- Request for production -- Insured is not entitled to discovery of insurer's claims file where insured has only alleged a breach of contract action, not a bad faith claims handling case -- To extent any of documents responsive to insured's request for production are contained within insurer's claims file, they are protected from disclosure -- Any documents not contained within claims file that are responsive to insured's request for production should be produced -- Insurer satisfied request for “copies of any and all documents that show payments made” to insured, if any, on this claim, by stating that it has produced copies of checks issued to insured -- To extent documents responsive to this request would be included in claims file they are not discoverable in this breach of contract action -- Request for a copy of each check for payments in this claim is denied as moot where insurer asserts that only documents responsive to this request have already been produced -- Request for a copy of agent's file is due to be granted where insurer asserts conclusory, boilerplate objection that fails to explain precise ground that makes the request objectionable -- Request for a copy of all documents regarding all prior claims, excluding any privileged information, is vague and ambiguous and motion to compel is due to be denied -- Interrogatories -- Interrogatory seeking information about how insurer adjusted the claim is relevant to insured's breach of contract claim and motion to compel is due to be granted -- Privilege log -- Any documents listed on privilege log that are included within claims file are not discoverable -- Regarding documents on privilege log that were withheld based on attorney-client and work product privileges, where insurer has asserted that these documents were made after lawsuit was filed and concern defense of lawsuit, motion to compel is denied

GAVIN'S ACE HARDWARE, INC., Plaintiff, vs. FEDERATED MUTUAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division.

Counties -- School boards -- Teachers -- Termination of employment -- Teacher was given sufficient notice before her employment was terminated following an informal hearing, and she was not denied due process -- Teacher was provided notice of a pre-determination conference to discuss her absences from work, which she did not attend, teacher did not return calls regarding her attendance at conference or her absence from work, administrative complaint was hand delivered to the mailbox at teacher's official home address, and was also sent to two different email addresses on file for her -- Due process does not require a showing that interested party received actual notice

LINDA M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA, Appellee. 5th District.

Dependent children -- Placement -- Interstate Compact on the Placement of Children -- Trial court erred in terminating protective supervision and permanently placing child with father, who lived in foreign state and with whom child was on an “extended visit,” without foreign state's concurrence to placement and without statutorily-compliant home study -- Mother was entitled to evidentiary hearing before trial court could place child with non-custodial father -- Appellate court's decision not to be read as requiring that child, who is currently residing with father, be relocated back to Florida pending evidentiary hearings

M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Time-sharing -- Contempt -- No error in finding wife in contempt for depriving husband of time-sharing with child -- No abuse of discretion in determining that husband was entitled to makeup time-sharing -- Trial court erred in failing to find that the manner in which makeup time-sharing was ordered was in best interests of child, as required by statute -- Competent substantial evidence would not support any implicit finding that order granting husband immediate custody of child and 100% time-sharing for period of 150 days was in best interests of child, as this order not only changed primary custody of child from mother to father, but also relocated child to foreign state in middle of school year -- Remand for further proceedings

MARIAH ARICA CHEEK, FORMER WIFE, Appellant, v. BRIAN R. HESIK, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Appeals -- Neither order domesticating foreign support order nor order of protection expressly disposed of petition to modify child support, either on the merits or on jurisdictional grounds -- Orders are not final orders, and are not appealable non-final orders

KAREN ELAINE PULKKINEN N/K/A KAREN ELAINE BRAUTCHECK, FORMER WIFE, Appellant, v. JYRKI TUONO JUHANI PULKKINEN, FORMER HUSBAND, Appellee. 1st District.

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Chemerinsky: Keeping Up With the Joneses—How Far Does the ‘Reasonable Expectation of Privacy’ Go?

2011-11-01T14:56:00.000-07:00

Posted on ABA Journal by Erwin Chemerinsky

“One of the most difficult, and potentially most important cases of the U.S. Supreme Court term will be argued on Nov. 8. United States v. Jones involves the question of whether it is a search or seizure within the meaning of the Fourth Amendment when the police plant a GPS device on a person’s vehicle and monitor it for 24 hours a day, for 28 days.

Since Katz v. United States, decided in 1967, the Supreme Court has defined the protections of the Fourth Amendment in terms of the “reasonable expectation of privacy.” But how does that apply in this situation?

On the one hand, the court has long held that people have no expectation of privacy for their public activities. The police could have followed Jones’ car on public streets for a month, perhaps by using undercover officers, and no one would have contended that there was a search or seizure that required a warrant.” More.

Trick or treetie, something sweetie, new decisions of interest with pumpkin loaf pudding and bourbon sauce

2011-10-28T08:57:00.000-07:00

The Firm is pleased to announce that Dorothy Easley will be publishing Florida Civil Contempt Proceedings in Family Law Support Matters: an Appellate Perspective, in the Nov. 2011 Issue of Family Lawyer Magazine

Contracts -- Real property sale -- Error to enter judgment on pleadings in favor of plaintiff seller in breach of contract action on ground that defendant buyer did not, as required by contract, provide seller with either a written financing commitment or approval letter within commitment period or provide seller with written notice that buyer was unable to obtain a commitment, where there was factual issue as to whether approval letter from lending institution which buyer provided to seller satisfied the financing contingency requirements of contract -- Letter provided to seller contained necessary information expected to be found in an approval letter, including loan amount, maximum interest rate, and information on loan program, loan terms, and loan to value

ROBERTO CUCCARINI, Appellant, vs. MIGUEL ROSENFELD AND CLARISSA ROSENFELD, AND FORTUNE INTERNATIONAL REALTY, INC., Appellees. 3rd District.

Dependent children -- Reunification -- Termination of protective supervision -- Order denying mother's motion for reunification was facially deficient where it included neither the mandatory factors in section 39.621(10), nor the requisite finding under 39.522(2) that reunification would endanger the child -- Order granting Department of Children and Family Services' motion to terminate protective supervision was facially deficient where order did not include findings on three of the five factors required under section 39.621(10), and the factors that were included were addressed in the context of justifying placement with father, rather than with respect to denying reunification with mother -- Remanded for determination of whether reunification with mother would endanger child and consideration of factors enumerated in statute

In the Interest of G.M., a child. C.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee. 2nd District.

M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Estates -- Personal representative -- Ancillary estate -- Breach of fiduciary duty -- Misappropriation of funds -- Action arising out of executor's use of Florida ancillary estate funds to pay for expenses related to litigation concerning Panama estate -- Executor acted in bad faith and breached his fiduciary duties where executor commingled ancillary estate funds with his law firm's account to avoid compliance with Panamanian court orders, used entire ancillary estate to fund his litigation in Panama over the domiciliary estate and to clear his name from personal attacks, and failed to reserve any of ancillary estate funds to pay creditors' expenses -- Although trial court incorrectly found that executor had no authority to use ancillary estate funds because his installation as executor in Panama was void ab initio rather than voidable, executor's status was irrelevant in light of competent, substantial evidence showing that executor misappropriated estate funds in violation of Florida law

RICHARD S. LEHMAN and RICHARD S. LEHMAN, P.A., Appellants, v. HILDA PIZA LUCOM, et al., Appellees. 4th District.

Mortgage foreclosure -- Civil procedure -- Dismissal -- Failure to prosecute -- Reopening of case -- Trial court had jurisdiction to reinstate dismissed foreclosure case because notice and order of dismissal had been sent to the incorrect address, depriving bank of notice and an opportunity to recommence prosecution before dismissal

MARTIN SCHAFFER and LINDA E. SCHAFFER, Petitioners, v. FIRST BANK, a Missouri state chartered bank, as successor by merger to COAST BANK OF FLORIDA, STEEPLECHASE PROPERTY OWNERS' ASSOCIATION, INC., a Florida corporation, JP MORGAN CHASE BANK, N.A., a national banking association, and UNKNOWN TENANTS, Respondents. 4th District.

Torts -- Limitation of actions -- Product liability -- Airplane -- Statute of repose -- Action against airplane manufacturer by plaintiff who was injured when right wing of airplane failed as he was dusting crops, alleging crash was caused by defective wing assembly and factory modification kit manufactured and designed by defendant -- Neither eighteen-year repose period provided by federal General Aviation Revitalization Act nor Florida's twelve-year statute of repose were restarted with replacement of five-bolt spar splice which did not replace an item on the plane, but rather modified the original design -- Service bulletins do not constitute a “new part” and do not qualify under rolling provision of GARA to extend statute of repose period -- No error in entering summary judgment in favor of manufacturer

LEON C. INMON, Appellant, v. AIR TRACTOR, INC., ET AL., Appellee. 4th District.

Torts -- Automobile accident -- Municipal corporations -- Trial court erred in dismissing action against city on ground that notice of claim provided to city was not provided within three years after accrual of claim where court had not been informed that city had previously received timely notices of claim -- Complaint adequately alleged that plaintiff gave proper notice to city, and city's contention that it did not receive proper notice is an affirmative defense that is not properly raised in a motion to dismiss -- Former counsel's renewed motion for leave to file amicus curiae motion in support of rehearing treated as filed within the meaning of rule 1.540 based upon excusable neglect -- Because record shows that city did receive timely notice of claim, case is remanded with instructions to reinstate complaint

BELKI A. CABRAL, Appellant, vs. CITY OF MIAMI BEACH, Appellee. 3rd District.