Monday, May 10, 2021

Wrongful death, arbitration, juror challenges, dissolution of marriage, and grilled salmon with fresh ginger and wasabi

Appeals -- Second-tier certiorari review of circuit court appellate division order reversing hearing officer's determination that respondent was in violation of County Code -- Circuit court applied correct law in determining whether hearing officer's findings were supported by competent substantial evidence and in finding that hearing officer had denied respondent due process -- Circuit court improperly remanded case with instructions to dismiss citation -- Available remedy to circuit court in granting writ of certiorari was limited to quashing hearing officer's order, and nothing more. MIAMI-DADE COUNTY, Petitioner, v. SNAPP INDUSTRIES, INC., Respondent. 3rd District.

Civil procedure -- Amendment of answer -- Trial court abused discretion in denying defendant's ore tenus motion, made at summary judgment hearing, to amend answer to assert affirmative defense -- Defendant had not abused privilege to amend, plaintiff would not be prejudiced by amendment, and amendment would not be futile. MISHPAJA SHAJINE, INC., et al., Appellants, v. GRANADA INSURANCE COMPANY, et al., Appellees. 3rd District.

Civil procedure -- Discovery -- Business records -- Examination -- Transport of documents -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring party to transport original corporate documents from California to opposing counsel in Florida where opposing party did not identify any reason to do so. LE-1, a Florida Limited Liability Company d/b/a LE-1, a California Limited Partnership, Petitioner, v. WILLIAM B. TROWER, as Successor Personal Representative of the Estate of LINDA B. WEISHEIT, Respondent. 4th District.

Civil procedure -- Discovery -- Depositions -- Former opposing counsel in pending case -- Trial court properly quashed subpoena and issued protective order to prohibit defendant from taking deposition of plaintiff's former counsel where defendant failed to allege or establish that no other means existed to obtain information sought. CENTRAL CONCRETE SUPERMIX, INC., Petitioner, v. JOSE A. “PEPE” CANCIO, SR., Respondent. 3rd District.

Contracts -- Limitation of actions -- Action for breach of contract filed against estate of plaintiffs' deceased aunt and uncle alleging entitlement to “incentive money” which was initially supposed to be given to the plaintiffs for each year of college they completed pursuant to incentive program initiated by the deceased, but which was never distributed and which plaintiffs assumed was being kept under loan-back provision which stated that plaintiffs could loan the funds back to the deceased to accrue 10% interest, compounded monthly, that plaintiffs could then collect at their discretion -- No error in entering final summary judgment in favor of defendant estate -- For each installment of incentive money, the right to obtain it vested when each plaintiff completed a year of college, and thus the statute of limitations began to run when each installment was due -- Because plaintiffs did not bring action against estate until more than five years after they had each completed their last year of college, their actions were barred by the statute of limitations -- Court rejects argument that statute of limitations would begin to run only if plaintiffs' demands for payment were denied -- Lend-back provision of contract required plaintiffs to communicate their election of the provision to the deceased -- Because neither plaintiff communicated their election of the lend-back provision the provision was not invoked -- Even assuming lend-back provision had been triggered, contract ended one year after each plaintiff's respective graduation. JOHN P. WOODWARD, and ROBERT C. WOODWARD, Appellants, v. TIMOTHY J. MORELL, in his capacity as Personal Representative of THE ESTATE OF MILDRED W. OLSON, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Modification -- Change in circumstances -- Magistrate's report and recommendation -- Former husband's modification petition seeking change in parental responsibility and time-sharing based, in part, on incidents involving former wife and her boyfriend -- Evidence supported magistrate's finding that there had been a substantial change in circumstances based on former wife's behaviors, her relationship with her boyfriend, and removal of children from former wife's “temporary care” during a dependency case -- Evidence supported magistrate's conclusion that, while removal of children from former wife during dependency proceedings was temporary, a substantial change in circumstances had occurred based on former wife's volatile relationship with her boyfriend which continued beyond the conclusion of dependency proceedings -- Trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting wife's exceptions to magistrate's report on that basis -- Remand with directions to enter order adopting report and recommendations of magistrate. P.D.V-G., Appellant, v. B.A.V-G., Appellee. 2nd District.

Dissolution of marriage -- Injunctions -- Freezing accounts -- Trial court abused its discretion by exceeding the scope of wife's requested relief for a freeze of marital accounts when it ordered husband's individual bank accounts to be placed in both parties' names -- Issue was not tried by consent. AJAY KUMAR DODDAPANENI, Appellant, v. CANDACE ELAINE DODDAPANENI, Appellee. 5th District.

Dissolution of marriage -- Magistrates -- Report and recommendations -- Exceptions -- Trial court abused its discretion by summarily denying former wife's exceptions to magistrate's report and recommendations based upon wife's failure to file transcript of hearing before the magistrate within 45 days allotted and ordered by court -- Hearing on exceptions is mandatory, and transcript is required only “if necessary for the court's review” -- Where exceptions raise pure issues of law, such as whether magistrate's report and recommendations improperly modified parties' property rights as previously determined by final judgment of dissolution, transcript would not be necessary -- Remand for trial court to hold hearing and consider exceptions on the merits. ROSEMITA JEAN, Appellant, v. JOSUE JEAN, Appellee. 2nd District.

Insurance -- Coverage -- Venue -- Forum selection clause -- Ambiguity -- Trial court erred in transferring action to Miami-Dade County where automobile insurer has its headquarters based on determination that policy's forum selection clause, which stated that any legal action against insurer to determine coverage under the policy “shall be filed and maintained in the county where the policy was issued,” mandated exclusive venue in that county -- Forum selection clause in policy is reasonably interpreted as not restricting venue to Miami-Dade County where policy failed to define “issued” and contained no terms expressly mandating venue exclusively in Miami-Dade County. THOMAS ROBLES, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. 1st District.

Insurance -- Homeowners -- Appraisal -- Trial court did not err in determining that policy's appraisal provision clearly and unambiguously applied to claim by insured's assignee for water mitigation services -- Policy provided that either party could demand appraisal to resolve “disagreement regarding the amount of the covered loss,” and it was undisputed that water mitigation services performed by assignee were part of the amount of the covered loss. EXPRESS DAMAGE RESTORATION, LLC, etc., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Insurance -- Homeowners -- Preferred Contractor Endorsement -- Where insurer elected to repair hurricane damage to insured home under Preferred Contractor Endorsement, and insured failed to provide a compliant sworn proof of loss and completed his own repairs to home, thereby preventing insurer from completing repairs under Preferred Contractor Endorsement, trial court erred in entering judgment requiring insurer to pay appraisal amount -- Insured breached policy by failing to fulfill post-loss obligations and hiring his own contractor to perform repairs. PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. ALEJANDRO AMARO, Appellee. 3rd District.

Mortgage foreclosure -- Relief from judgment -- Void judgment -- Foreclosure judgment in favor of junior mortgagee was properly found to be void as to senior mortgagee whose mortgage had been recorded before that of junior mortgagee -- Trial court erred in finding that motion to vacate judgment was not timely filed, as party may move to vacate void judgment at any time -- However, order denying motion to vacate judgment is affirmed, as section 702.036, Florida Statute, barred court from vacating judgment where vacation of judgment would adversely impact quality and character of title of property which had been purchased by third parties after foreclosure sale. WELLS FARGO BANK, N.A., Appellant, v. CHI PENG TAN, BANK OF AMERICA, N.A., as assignee of FIRST MAGNUS FINANCIAL CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Acting solely as Nominee for FIRST MAGNUS FINANCIAL CORPORATION, an Arizona Corporation, SCHINDLER ELEVATOR CORPORATION, SOUTHERN CONSTRUCTION SERVICES, INC., PRECISION U.S.A., INC., PARK TOWER ASSOCIATION, INC., NISSIM SHANI and MICHELE SHANI, Appellees. 4th District.

Torts -- Automobile accident -- Comparative negligence -- Summary judgment -- Appeals -- Mootness -- Action brought against plaintiffs' insurer to recover damages stemming from two separate rear-end collisions involving plaintiffs within a two-week period -- Argument that trial court erred by not granting plaintiffs' motion for summary judgment on issues of liability and plaintiff driver's comparative negligence in causing the accidents is moot where issues were tried before a jury, and evidence authorized jury's verdict -- Argument that evidence was insufficient to allow jury to apportion negligence to plaintiff driver for failing to mitigate his business losses and his pain was not preserved for appeal where plaintiffs failed to move for a directed verdict on issue at close of evidence at trial -- Even if trial court improperly allowed mitigation factors to enter comparative negligence equation, result appears to be harmless where jury's apportionment of negligence to plaintiff driver can be attributed to evidence that plaintiff driver helped cause rear-end collisions by driving forward then suddenly stopping his vehicle. ROY STRICKLAND and KATHRYN STRICKLAND, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. 1st District.

Torts -- Automobile accident -- Rear end collision -- Successor judge who did not preside over trial erred in granting directed verdict in favor of defendant where there was competent substantial evidence to support jury's verdict that defendant was negligent and to support jury's rejection of defendant's defense that he unexpectedly lost consciousness or experienced syncope prior to collision. KAREN HERNANDEZ, etc., Appellants, v. SHULI ANDREW MISHALI, Appellee. 3rd District.

Torts -- Discovery -- Plaintiff failed to meet his burden to establish reversible error in trial court's order granting defendant's motion for protective order and denying plaintiff's motion to compel depositions where plaintiff has failed to provide transcript of hearing during which discovery motions were discussed -- Summary judgment -- Claim that trial court erred in denying plaintiff's motion to continue summary judgment hearing was not preserved for appellate review where plaintiff never obtained an order denying his motion to continue hearing. HENRY TIEN, Appellant, v. AKERMAN LLP (and the terminated AKERMAN, SENTERFITT & EIDSON, P.A.), Appellees. 3rd District.

Torts -- False arrest -- Municipal corporations -- Trial court properly entered summary judgment for defendant city on claim of false arrest where city police officers had probable cause to arrest plaintiff for obstruction without violence -- Where plaintiff had been called by police to pick up her son who was being detained for trespassing at a theater, after arriving at scene plaintiff continued to videotape and audiotape officers after being told to stop and obstructed officers' investigation and processing of her son's detention, there was probable cause for her arrest for obstruction without violence. SHARRON TASHA FORD, Appellant, v. CITY OF BOYNTON BEACH, a Florida municipal corporation, Appellee. 4th District.

Torts -- Jurors -- Challenge -- Trial court erred in denying plaintiff's motion to excuse prospective juror who specifically stated that his previous negative experience with a similar type of claim in an accident involving juror's son made it difficult for juror to remain impartial in his evaluation of facts and evidence in plaintiff's case -- Juror's later answer that he would keep an open mind because “every case is different” was not sufficient to rehabilitate juror -- New trial required where plaintiff was forced to use peremptory challenge against this prospective juror and trial court later denied plaintiff's request for additional peremptory challenge of juror over whom plaintiff expressed concern. ALEJANDRA RIVAS, Appellant, v. ALICIA SANDOVAL, Appellee. 3rd District.

Torts -- Negligence -- Excessive use of force -- Duty of care -- Amendment of complaint -- Appeals -- Action alleging that detention officers used excessive force during incident in which plaintiff was restrained and seriously injured after inmate medical services failed to conduct a mental evaluation -- Trial court erred in dismissing negligence counts against sheriff -- Plaintiff alleged an independent, common law duty of reasonable care by sheriff and the detention officers charged with his supervision -- Although plaintiff's negligence count did reference sheriff's use of force policy which does not create an independent duty of care, plaintiff's complaint stated a cause of action against sheriff for negligently failing to fulfill its independent duty of care because the detention officers allegedly used excessive force -- Sovereign immunity does not bar action against sheriff where allegations appear to be regarding sheriff's negligence in performance of established duties and failure to follow the policies already established -- These are operational level activities for which sheriff is not immune from suit -- No error in dismissing negligence claims against inmate medical services which alleged that inmate medical services had breached duties imposed upon it through its contract with the sheriff -- Contract clearly provides that it creates no right or cause of action to a third party -- Plaintiff waived any claim that he was entitled to amend his complaint for a third time because he failed to request leave to amend before or after court dismissed the complaint. CHARLES WILLIAMS, Appellant, v. GREGORY TONY, as Sheriff of Broward County Florida, ARMOR CORRECTIONAL HEALTH SERVICES, INC., and WANDA LOWES, R.N., Appellees. 4th District.

Torts -- Product liability -- Restaurants -- Service of contaminated food -- Action alleging that raw oysters served by defendant was legal cause of plaintiff's Guillain-Barré Syndrome -- Trial court erred in granting defendant's posttrial motion for entry of judgment in accordance with defendant's motion for directed verdict, which had been filed in a prior trial that had resulted in a deadlocked jury, based on determination that plaintiff's expert's testimony was based on impermissible inference stacking -- Defendant was required to move for directed verdict during second trial where parties did not stipulate that defendant's motion for directed verdict made during the prior trial would carry over to the second trial -- Additionally, motion for directed verdict made in prior trial could not apply to second trial where inferences identified by defendant in its motion in limine, which served as the premise for the motion for directed verdict, were stipulated facts in second trial -- While the legal theory might have been the same, the evidence upon which it would have been based was different -- Even if trial court could have considered posttrial motion for judgment in accordance with the motion for directed verdict, the trial court misapplied law with regard to directed verdicts -- Trial court's findings improperly evaluated testimony in favor of the moving party rather than the nonmoving party, and either disregarded conflicts in the evidence or resolved them in favor of defendant -- There was no stacking of inferences in this case -- Singular inference made by plaintiff's expert was the ultimate conclusion that GI infection, the stipulated cause of which was defendant's defective food, caused plaintiff's GBS -- Because plaintiff's expert did not simply provide a summary conclusion without a factual basis, jury was entitled to determine that the defective food was the legal cause of plaintiff's GBS. ANGEL MARTINEZ and MARIA ELENA MARTINEZ, Appellants, v. LOBSTER HAVEN, LLC, Appellee. 2nd District.

Wrongful death -- Nursing homes -- Arbitration -- Selection of arbitrator -- Appeals -- Certiorari -- Petition seeking review of order compelling plaintiff to select a nominating arbitrator to act along with defendant's chosen nominating arbitrator for the single purpose of selecting a sole arbitrator in plaintiff's action against defendant -- Trial court departed from essential requirement of the law in rewriting parties' agreement in defendant's favor by allowing defendant to choose a nominator despite having forfeited its right to do so by missing the express deadline set forth in its own residency agreement -- Trial court's conclusion that plaintiff's arbitrator selection was somehow impermissible because it was transmitted near the end of the business day on the day it was due is not supported by the agreement or any legal authority -- Relief granted by trial court was not appropriate under either section 682.031 or 682.04 where defendant presented no good cause to rewrite agreement, and parties' chosen method of appointing arbitrators did not fail -- Because plaintiff will be able to challenge eventual arbitration award on appeal, it cannot establish irreparable harm -- Petition denied. THE ESTATE OF GRACE QUINN, by and through BARBARA ECK, Personal Representative, Petitioner, v. CCRC OPCO FREEDOM SQUARE LLC; BKD TWENTY-ONE MANAGEMENT; BROOKDALE SENIOR LIVING, INC.; and SHELLY CRADDOCK, ADMINISTRATOR, (AS TO THE INN AT FREEDOM SQUARE), Respondents. 2nd District.

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Monday, March 8, 2021

Prescriptive easements, wrongful death, contracts and green curry lentil soup with shaved coconut

Appeals -- Jurisdiction -- District court -- Appeal from nonfinal order of county court ordering arbitration in small claims litigation and staying action until arbitration was completed, which appeal was transferred from circuit court to district court following statutory change in circuit court's appellate jurisdiction -- Motion to dismiss appeal, which was pending in circuit court at time of transfer and was premised on circuit court's lack of jurisdiction to review nonfinal orders, is denied, as district court has jurisdiction to hear appeal from nonfinal order compelling arbitration. DAVID L. MALLORY and PAULINE MALLORY, Appellants, v. ROBERT BRINCKERHOFF, individually, and MORGAN STANLEY SMITH BARNEY LLC, Appellees. 4th District.

Child custody -- Modification -- Competent substantial evidence supported trial court's modification of time-sharing -- Trial court did not abuse its discretion by giving mother ultimate decision-making authority as to medical issues if parties were unable to agree where court found that parties did not communicate and that their relationship was beyond acrimonious and considered other factors relating to father's conduct in connection with child's health care and knowledge of details concerning child's health care. CASSIO S. AIALA, Appellant, v. JAIME R. LARKIN, Appellee. 4th District.

Civil procedure -- Default -- Relief from judgment -- Appeals -- Timeliness -- Appeal of order denying motion to set aside default is dismissed as untimely -- Motion for rehearing of order did not toll the time for the filing of notice of appeal. KEVIN RHODY, Appellant, v. VEECO INSTRUMENTS, INC., Appellee. 5th District.

Civil procedure -- Default -- Vacation -- Trial court abused discretion in denying motion to vacate clerk's default where, prior to entry of default, there was correspondence between counsel for parties that indicated that defendant was represented by counsel and intended to defend suit. ACE FUNDING SOURCE, LLC, Appellant, v. A1 TRANSPORTATION NETWORK, INC., Appellee. 3rd District.

Civil procedure -- Summary judgment -- Affidavit in opposition to motion -- Declaration -- Where declarations submitted in opposition to summary judgment were based upon personal knowledge and sworn under penalty of perjury, and motion to exclude these documents was not made until summary judgment hearing, trial court erred in denying movant's motion for continuance to correct technical differences between a declaration and an affidavit in opposition -- Whether declarations, which are admissible under federal rules of civil procedure, are admissible in Florida summary judgment proceedings need not be decided in instant case. MICHAEL KING, Appellant, v. STANISLAV ZASLAVSKIY, Appellee. 3rd District.

Condominiums -- Assessment liens -- Foreclosure -- Damages -- Trial court erred when it adjudicated amount of damages owed to condominium association as a matter of law where there were genuine issues of material fact as to whether association was estopped from seeking pre-purchase assessments, fees, and costs based on purported representations regarding amount of outstanding assessments made by association's manager and president prior to defendant's purchase of unit. SVI TRUST, Appellant, v. WILLIAMS WALK CONDOMINIUM ASSOCIATION, INC., Appellee. 1st District.

Contracts -- Noncompete agreement -- Injunctions -- Temporary -- Temporary injunction order is facially deficient because it fails to include specific findings on each of the four required elements needed for issuance of an injunction -- Trial court erred in setting bond amount without conducting an evidentiary hearing. JOHN THOMAS PHELAN, JR., Appellant, v. TRIFACTOR SOLUTIONS, LLC, Appellee. 2nd District.

Corporations -- Injunctions -- Temporary -- Bond -- Replevin -- Monies -- Appeal of non-final orders denying defendants' motion for prejudgment replevin seeking to recover corporate funds that were intercepted by plaintiff and deposited in an undisclosed bank account, and granting a temporary injunction in favor of plaintiff which required defendants to provide plaintiff with health insurance -- Trial court erred in issuing temporary injunction where plaintiff did not request injunctive relief requiring the provision of health insurance -- An injunction entered in the absence of proper pleading and without an evidentiary hearing is a violation of due process -- Furthermore, injunction did not meet requirements of rule 1.610 -- Error to require plaintiff to pay bond without holding an evidentiary hearing -- While replevin was not available to recover deposited funds, defendants are entitled to possession of the checkbook and check card of the bank account where the funds were deposited -- Defendants established an immediate right to possession of the check card and checkbook where the bylaws of defendant corporation provided that the treasurer shall retain custody of corporate funds, and annual report shows that one of defendants was the treasurer -- Trial court improperly reasoned that alleged set-offs between plaintiff and defendants made forcing prejudgment conveyance of monies premature -- Recourse for potential set-off is money damages, not retention of property subject to replevin -- Additionally, trial court erred in analyzing defendant's motion for replevin under section 78.068 -- Section 78.068 was inapplicable because there was notice and hearing. THOMAS G. HINNERS, MARY J. WAMSER, and FLORIDA AFFORDABLE HOUSING, INC., Appellants, v. BRIAN J. HINNERS, Appellee. 4th District.

Dissolution of marriage -- Child support -- Income -- Requirement that former husband pay private school tuition for the parties' children reversed where evidence did not support former husband's ability to pay -- Trial court erred in failing to deduct rehabilitative alimony award from former husband's gross income for purposes of computing child support. RAMIZ MAALI, Appellant, v. GHARAM MAALI, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Businesses -- Valuation -- Goodwill -- Alimony -- No competent, substantial evidence supported trial court's valuation of the parties' insurance company -- Trial court's exclusion of company's liabilities in its determination of fair market value led to significant overvaluation of the company in equitable distribution plan -- Trial court's valuation of former husband's personal goodwill was not supported by competent evidence -- Expert's analysis of selected insurance company transactions contained in database and the reported values of the related noncompete clauses did not provide competent evidence to support trial court's determination of the amount of former husband's personal goodwill in company where expert did not provide any specific knowledge about the particulars of the insurance businesses that reported transactions in the database; did not disclose whether the owners of those businesses also sold insurance as former husband did; how involved the owners of those businesses had been with the companies; or anything about the day-to-day operations of those businesses -- Additionally, record showed that many transactions expert analyzed took place outside Florida, with some dating back almost twenty years -- Trial court erred in determining that former husband had the ability to pay amount of alimony awarded because, when determining former husband's gross income, trial court erroneously included all undistributed pass-through income from insurance company. MALCOLM C. KING JR., Appellant, v. KELSI KING, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Valuation -- Liabilities -- Alimony -- Trial court erred in classifying personal injury settlement funds received during the marriage as former husband's nonmarital asset where former husband did not overcome statutory presumption that the funds were marital in nature -- Although it was former husband and not former wife who was injured in accident underlying personal injury settlement, that fact alone does not transform the nature of the funds from marital to nonmarital -- Trial court abused its discretion by including the personal injury funds in equitable distribution because they had been dissipated by the time of the dissolution hearing and there was no evidence that dissipation resulted from either party's intentional misconduct -- Trial court abused its discretion by awarding marital home, which was parties' only significant remaining marital asset, to former husband without making any specific finding of fact to justify the unequal distribution of the marital residence -- On remand, trial court should reconsider both the unequal distribution of the marital home as well as the award of credit to former husband for postseparation payments on the marital home where trial court gave no reason for awarding the former husband a credit for half of mortgage payments made since date of parties' separation -- Absent evidence to support former wife's passive-appreciation argument, former wife failed to establish an abuse of discretion in trial court's selecting of the parties' date of separation as the valuation date of the marital home based on finding that parties had been separated for three years, and that former husband had remained in the home making improvements without assistance from former wife -- Error to treat vehicle title loan taken out by former husband as a marital liability because former husband incurred the debt after petition for dissolution was filed -- Error to decline to award alimony to former wife without making statutorily required findings regarding need and ability to pay. MARY P. ROTH, Appellant, v. MARTIN R. ROTH, Appellee. 2nd District.

Dissolution of marriage -- Interim partial equitable distribution -- Roth and traditional IRAs -- Trial court erred by distributing parties' traditional IRA where neither party requested its distribution and there was no good cause to support it. BRIAN CALVARESE, Appellant, v. JOANNE KENNEDY CALVARESE, Appellee. 4th District.

Dissolution of marriage -- Marital settlement agreement -- Enforcement -- Contempt -- Failure to make lump sum alimony payments to spouse as required by marital settlement agreement -- Trial court erred in finding husband in contempt for failing to make lump sum alimony payments because, under MSA's plain language, payments were non-modifiable alimony payments to effect the equitable distribution of marital property and therefore not subject to enforcement by contempt -- Trial court erred in considering parol evidence regarding parties' intent where language of MSA was unambiguous -- Trial court properly found that former wife's claim was not barred by laches. ANDRES SUAREZ, Appellant, v. ELSA SUAREZ, Appellee. 3rd District.

Injunctions -- Contempt -- Trial court abused its discretion by finding that respondent was in contempt of injunction every time respondent traveled to respondent's property because the action brought respondent within 500 feet of petitioner's property -- Because original trial court's ore tenus explanation of its order imposing the injunction implied that respondent would not violate the 500-foot perimeter by merely passing petitioner's property while traveling through the neighborhood, injunction could not have effectively noticed respondent that said conduct would be prohibited. FRANCES OGDEN, Appellant, v. DONNA MINDREBO, Appellee. 1st District.

 Injunctions -- Domestic violence -- Due process -- Error to grant injunction for protection against domestic violence solely on basis of objected-to testimony that was not the subject of the petition for injunction. SKYLER P. WYNTER, Appellant, v. JAELYN GUTIERREZ, Appellee. 5th District.

Injunctions -- Mandatory -- Portion of injunction requiring respondent to immediately perform remediation measures is reversed where parties did not have a full opportunity to present their evidence on remediation issue -- Furthermore, remediation provision is deficient in that it fails to describe with reasonable detail the act or acts required to comply with the injunction. CENTER STATE TRANSPORTATION, INC., Appellant, v. MOTOR TREND ORLANDO SERVICE, LLC, Appellee. 5th District.

Insurance -- Bad faith -- Civil remedy notice -- Deficient notice -- No error in dismissing complaint against insurer based on finding that insured's civil remedy notice, which cited thirty-five statutory provisions and listed nearly every provision in insurance policy, failed to satisfy statutory requirement that an insured state with specificity the policy language and statutory provisions at issue -- Court rejects argument that notice was sufficient because the Department of Financial Services has statutory authority to return deficient notices but failed to do so -- Department's discretionary grant of authority did not determine the legality of the notice, nor is there evidence that the department even considered the issue -- Even if department made specific determination about notice's legality, the courts must independently review the notice. JUNIOR JULIEN, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Personal injury protection -- Civil procedure -- Discovery -- Non-parties -- Action seeking declaration that plaintiff is entitled to recover from defendant insurer payments made by plaintiff's assignors that should have been made by insurer -- Trial court departed from essential requirements of law in finding that insurer had no standing to challenge plaintiff's non-party discovery requests where items sought belong to insurer pursuant to master agreement between insurer and non-party. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Insurance -- Personal injury protection -- Declaratory action seeking declaration that plaintiff is entitled to recover from PIP insurer payments made by plaintiff's assignors that should have been made by insurer -- Jurisdiction -- Prohibition -- Petition for writ of prohibition seeking to prohibit court from exercising jurisdiction denied -- Where circuit court has jurisdiction of count of complaint for pure bill of discovery, court has jurisdiction of other counts which are limited to less than circuit court jurisdictional threshold -- Appeals -- Certiorari -- Discovery -- Defendant is not entitled to writ of certiorari to review order denying motion for protective order, as defendant has not demonstrated requisite irreparable harm. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Mortgage foreclosure -- Conditions precedent -- Notice of default -- Error to enter summary judgment in favor of lender because issue of fact remains regarding whether lender complied with standard notice requirements contained in paragraphs 15 and 22 of mortgage -- Copy of default letter and unauthenticated “letter log history file” attached to motion for summary judgment were insufficient to prove that letter was mailed to borrower. MICHAEL J. PARKIN, JR., Appellant, v. EAGLE HOME MORTGAGE, LLC, Appellee. 5th District.

Nursing homes -- Residents' rights -- Settlement of daughter's action against nursing home concerning access to her 92-year-old mother -- Trial court acted reasonably in addressing daughter's concerns regarding enforcement of access provisions of settlement agreement in light of executive and administrative orders curtailing that access because of COVID-19 pandemic. ELIZABETH SNYDER, as the daughter and authorized agent of Judith Goldstein, Appellant, v. MERIDIAN PARK VILLAGE LIMITED PARTNERSHIP, Appellee. 4th District.

Patents -- Licensing -- Infringement -- Jurisdiction -- Subject matter -- Action brought by plaintiff with exclusive license to third-party patents used to create software stating causes of action against defendant for unjust enrichment for benefiting from its patrons' use of software that violates plaintiff's exclusive license; temporary and or permanent injunctive relief to enjoin defendant's violations of its exclusive rights; conversion by way of receiving illicit compensation for the unauthorized use of plaintiff's software; and violations of Florida's Deceptive and Unfair Trade Practices Act -- Trial court erred in dismissing complaint based on determination that it did not have subject matter jurisdiction because plaintiff's claims necessarily required a determination of the scope, validity or infringement of a patent -- Where it is clear that none of plaintiff's claims are created by federal law, those claims must meet all four factors set forth in Gunn v. Minton for federal court to have exclusive jurisdiction over plaintiff's proffered state law claims -- All of plaintiff's claims necessarily raise an issue of federal law where trial court would be required to evaluate the validity and scope of the patents to some extent -- Appellate court is unable to determine whether an issue of patent or copyright law is “actually disputed” because no answer has been filed to the complaint -- Defendant's anticipatory belief that an issue of federal law will be “actually” disputed is not sufficient -- Issue of patent infringement, while necessarily raised, is not substantial enough to confer federal jurisdiction over state law claims where deciding a pure issue of federal law will not be dispositive to any of plaintiff's four causes of action; trial court's resolution will not control numerous other cases; and, because the resolution of the case will not control numerous other cases, the government has no direct interest in the dispute between the parties -- Because issues of federal law within the four counts were not substantial, court also finds that bringing these claims in federal court would disrupt Congress's intended division of labor between state and federal courts. POINT CONVERSIONS, LLC, Appellant, v. WPB HOTEL PARTNERS, LLC, Appellee. 4th District.

Real property -- Prescriptive easement -- Motion to enforce judgment -- Appeals -- Non-final orders -- Appeal of interim order which had found a prescriptive easement appurtenant but did not determine whether to enforce prescriptive easement in final judgment -- To extent interim order was appealable based on theory that it determined immediate possessory rights to the easement, appellant had thirty days to appeal from it as a nonfinal order -- To the extent the trial court's interim order either was not appealable at all or was not timely appealed, it still would have been subject to review on appeal from the final order disposing of the motion to enforce the final judgment -- Since neither party appealed final order and time to file an appeal has expired, the subject appeal is dismissed as untimely. WINBAR, L.L.C., Appellant, v. RABIA ARDAN MORRIS, Appellee. 1st District.

Rules of Juvenile Procedure -- Rules of Appellate Procedure -- Amendments -- Abortions -- Minor's petition for judicial waiver of parental notice and consent to termination of pregnancy -- Forms -- Court adopts proposed amendments to Florida Rules of Juvenile Procedure which delete language regarding judicial waiver of notice only and clearly distinguish between seeking a waiver of notice and consent and consent only -- Title of form 8.987 amended to read “Petition for Judicial Waiver of Parental Notice and Consent or Consent only to Termination of Pregnancy” -- Paragraph in form 8.987 addressing appointment of counsel amended to inform minor that appointment of counsel will be at no cost to the minor as contemplated by section 390.01114(6)(a) -- Form 8.990 amended to eliminate possibility that the court could grant a waiver of notice only because waiver of consent will always be required if court grants petition -- References to petition for judicial waiver in Rules of Appellate Procedure amended to reflect amended title. IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420, THE FLORIDA RULES OF JUVENILE PROCEDURE, AND THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 JOINT FAST-TRACK REPORT. Supreme Court of Florida.

Torts -- Discovery -- Denial -- Judicial estoppel -- Attorney-client privilege -- Appeals -- Certiorari -- Parties stipulating in federal court that no further discovery was required in order to resolve defendant's summary judgment motion asserting that plaintiff's claims against her had been settled -- Trial court departed from essential requirements of the law by relying on judicial estoppel to prohibit parties from engaging in any discovery related to defendant's affirmative defense that the underlying personal injury claims were settled prior to suit being filed -- In judicial proceedings, a party is not estopped from asserting a later inconsistent position unless the party's initial position was successfully maintained -- Defendant did not successfully maintain position that all facts had been successfully developed and presented where, although both parties stipulated that no further discovery was needed, federal judge disagreed by finding too many unanswered factual questions to permit entry of summary judgment in defendant's favor -- A party such as defendant is not estopped from relying upon such an adverse ruling and asserting any position consistent with that ruling -- Furthermore, trial court erroneously treated federal court's denial of defendant's motion for summary judgment as though it was a binding, substantive ruling -- Because federal court ultimately determined that it lacked subject matter jurisdiction, it could not make binding, substantive rulings -- Plaintiff cannot demonstrate that he was prejudiced by the parties' stipulation -- Trial court also departed from essential requirements of the law by applying attorney-client privilege without consideration of its waiver as a basis for banning discovery into settlement defense -- Prohibiting all discovery on settlement issue eviscerated defendant's settlement defense, resulting in irreparable harm. ALEYSSA MARIE ARROYO MARRERO, Petitioner, v. TERENCE REA, Respondent. 5th District.

Wrongful death -- Damages -- Limitation -- For purposes of section 768.24, which provides that survivor's death before final judgment limits the survivor's recovery to lost support and services to the date of his or her death, the term “final judgment” means the moment the trial court's judgment becomes final; and this finality is reached when trial court's judicial labor ends -- Survivor who died while defendant's motion for new trial was pending died before final judgment and, accordingly, recovery of damages was limited to lost support and service to date of death -- Because there was no claim for lost support or services, trial court correctly reduced damages awarded by jury to zero dollars. MICHAEL HAMBLEN, as Personal Representative of the Estate of Samantha Hamblen, Appellant, v. PILOT TRAVEL CENTERS, LLC, d/b/a FLYING J, Appellee. 1st District.

Wrongful death -- Product liability -- Tobacco -- Engle-progeny case -- Punitive damages -- Trial court properly applied pre-1999 version of section 768.73 in wrongful death action which arose upon decedent's death in 2000 -- Wrongful death complaint related back to Engle class-action complaint, and plaintiff's right to file the wrongful death action was based on decedent's status as an Engle class member -- Conflict certified. R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. JANICE DURRANCE JONES and JULIAN DALE DURRANCE, as personal representative for the Estate of Dorothy Watson Durrance, Appellees. 2nd District.

 

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Monday, February 22, 2021

Dissolution of marriage, personal injury, Bosc pears with herbed goat cheese, creamy angel hair pasta with shrimp and rosemary

 Appeals -- Certiorari -- Discovery orders -- Mortgage foreclosure -- Circuit court order allowing defendant to videotape deposition of substituted plaintiff's corporate representative but prohibiting petitioner from disseminating the video -- Petition dismissed for failure to demonstrate irreparable harm that cannot be remedied on direct appeal -- With respect to argument that lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials. MARTHA L. VALENCIA, Petitioner, v. PENNYMAC HOLDINGS, LLC, et al., Respondents. 3rd District.

Appeals -- Order denying motion for reconsideration and rehearing of non-final order compelling arbitration is not an appealable order and does not toll rendition of an appealable order -- Appeal dismissed. MONICA SAMARA, Appellant, v. TENET FLORIDA PHYSICIAN SERVICES, LLC, etc., et al., Appellees. 3rd District.

Consumer law -- Warranties -- Magnuson-Moss Warranty Act -- Federal Trade Commission's “single document rule,” which requires that a warrantor disclose certain warranty-related items of information clearly and conspicuously in a single document, does not require disclosure of a binding arbitration agreement. LES KROL, Petitioner, v. FCA US, LLC, et al., Respondents. Supreme Court of Florida.

Dissolution of marriage -- Attorney's fees -- Appeals -- Non-final orders -- Portion of judgment determining entitlement to attorney's fees without determining amount is non-final and non-appealable. FLOYD MARLAND TYSON, Appellant/Cross-Appellee, v. TONYA P. TYSON, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion by denying former wife's motion for attorney's fees without making any findings as to former wife's need and former husband's ability to pay -- Even if trial court had intended to sanction former wife for her actions during litigation by making her pay her own fees, as argued by former husband, the fee order must contain sufficient findings to support the trial court's decision -- Where there was no finding by trial court of bad faith on former wife's part, there was no basis on which the court could have denied former wife's motion for attorney's fees on basis of inequitable conduct doctrine. JULIE SHAW, Appellant, v. ROBERT MARK SHAW, Appellee. 1st District.

Dissolution of marriage -- Contempt -- Settlement agreement -- Modification -- No error in holding former husband in contempt for failing to deliver child's passport as required by parties' mediated settlement agreement and parenting plan where findings were supported by competent, substantial evidence that former husband willfully refused former wife's reasonable request for passport -- Purge provision which requires former husband “to comply with former wife's prospective written requests for the child's passport” did not modify agreement's provision that request be reasonable. THOMAS EARL HARRINGTON, III, Appellant, v. JEANETTE MARIE POSPISHIL, f/k/a JEANETTE MARIE HARRINGTON, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Home owned prior to marriage was properly considered a marital asset where debt incurred during marriage as result of advances from equity lines of credit secured by home used to fund family business dwarfed estimated premarital value, and marital income was used to satisfy repayment of the obligations -- Unequal distribution based on intentional misconduct of husband in secreting and dissipating assets, all purportedly in preparation for future dissolution filing, was supported by competent, substantial evidence, and valuations of marital property were grounded upon expert opinion -- Alimony -- Given evidence regarding length of marriage, needs of wife, and disparity in income and earning ability, along with lavish marital lifestyle, there was no abuse of discretion in retroactive and ongoing alimony awards. CELSO CORRALES, Appellant, v. JEANETTE CORRALES, Appellee. 3rd District.

 

Dissolution of marriage -- Jurisdiction -- Default -- Out of state service of process on husband was valid to confer jurisdiction on court although return did not list time of day that service was effected -- Amended statute removes requirement that out of state return of service forms include the time, manner, and place of service -- Trial court did not err in entering default judgment dissolving marriage, but it was error to determine child custody by default -- Best interest of child standard precludes determination of child custody based on parent's default. KEVIN CHRISTOPHER CORRIDON, Appellant, v. GRACE-ELIZABETH CAROLYN CORRIDON, Appellee. 3rd District.

Dissolution of marriage -- Marital home -- Sale -- Distribution of proceeds -- Prejudgment interest -- Trial court's factual determinations relating to distribution of sale proceeds, which took into consideration former husband's mortgage, insurance, and tax payments that former wife was required to make, were supported by competent substantial evidence -- Former wife was afforded due process -- Court lacks jurisdiction to address portion of order determining that former husband is entitled to attorney's fees where order merely grants entitlement to fees without liquidating the amount -- Trial court erred by awarding prejudgment interest to former husband for the total amount of his mortgage, insurance, and tax payments -- Prejudgment interest should be calculated separately for each payment made by former husband that, pursuant to settlement agreement, should have been made by former wife. DULCE SCHUENZEL, Appellant, v. JOHN SCHUENZEL, Appellee. 3rd District.

Insurance -- Bad faith -- Denial of coverage -- Failure to defend -- Assignment of claim -- Limitation of actions -- Action brought against insurance company after plaintiff and insured entered into Coblentz settlement, assigning plaintiff the right to collect judgment against insurer -- Error to enter summary judgment in favor of insurer based on finding that plaintiff's action was barred by statute of limitations because insured, whose claim plaintiff asserted, was required to file action against insurer within five years of denial of coverage -- Statute of limitations began to run not at time insurer refused to cover or defend insured, but at time plaintiff's bad faith claim became cognizable. LARRY D. BUTLER, Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Homeowners -- Conditions precedent -- Failure to comply -- Waiver -- Insurer waived its defense that insured failed to comply with conditions precedent where insurer failed to plead non-compliance with specificity as required by rule 1.120(c). JUAN SAAVEDRA, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 5th District.

Insurance -- Homeowners -- Water damage -- Error to enter summary judgment in favor of insurer where disputed issues of material fact remain as to whether covered peril caused opening in door of home, allowing rain water to enter and damage interior. YOANI FERNANDEZ and YADIRA SOMOZA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Paternity -- Contempt -- Failure to pay attorney's fee award -- Remand for trial court to make required findings as to whether failure to pay was willful and whether he has the present ability to pay fees as ordered. JAMES LESTER WILLIAMS, JR., Appellant, v. JAMAI F. SAMUELS, Appellee. 2nd District.

Torts -- Personal injury -- Dismissal -- Fraud on the court -- Trial court abused discretion by setting aside jury verdict in plaintiff's favor and dismissing case based on plaintiff's giving of inconsistent testimony regarding prior medical treatment -- Inconsistent testimony was known to defense counsel and was tested via cross-examination so that jury was able to determine whether plaintiff had lied or provided a reasonable explanation -- Defense counsel could have sought pretrial or in-trial remedy, but made tactical decision to present issue to jury, and jury returned verdict in favor of plaintiff despite inconsistencies. JEAN CARLOS SALAZAR, Appellant, v. MIGUEL ROGELIO GOMEZ, Appellee. 3rd District.

 

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Friday, November 13, 2020

Child support, standing, appeals, and red lentil penne with goat cheese, garlic tomatoes, and fresh herbs

 

Appeals -- Appellant lacks standing to appeal trial court's order denying motion to vacate final judgment entered against appellant's wife where appellant was not named as party and did not move to intervene in lower court proceedings -- Appeal dismissed for lack of jurisdiction. GABOR SIMMONDS, Appellant, v. IN RE: GRACE OLAECHEA VS. LIZETTE OLAECHEA, Appellee. 3rd District.

 

Child support -- Administrative order -- Assertions that Department of Revenue erred in calculating amount of child support obligation without considering father's ability to pay and that Department improperly considered child care costs in absence of competent, substantial evidence relating to those costs were not preserved for review where father failed to request administrative hearing -- Further, claims were raised on appeal that were unrelated to calculation of statutory child support -- Order affirmed without prejudice to father seeking relief as outlined in section 409.2563. RAYMOND FELICIANO, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, and STEFFANIE DANIELLE CACCIATORE, Appellees. 4th District.

 

Civil procedure -- Intervention -- Trial court did not abuse discretion by denying motion to intervene in action where party seeking to intervene would interject new and independent claims that would predominate over issues shared with main action. MARIA SOLEDAD LARRAIN TRONCOSO, et al., Appellants, v. MANUEL ANTONIO OSSANDON LARRAIN, Appellee. 3rd District.

 

Civil procedure -- Jurors -- Voir dire -- Challenge -- Cause -- Torts -- Product liability -- Tobacco -- Trial court committed reversible error by granting defendant's motion to exclude eight prospective jurors based solely on their written responses to particular question on jury questionnaire without first allowing counsel to question those jurors as permitted under rule 1.431(b) where it was not “conclusively clear” from their written answers that the excused prospective jurors could not be impartial -- New trial required -- Evidence -- Admission of individual photograph depicting decedent not smoking was not probative of how much decedent did or did not smoke -- Testimony that decedent could go into hotels owned by her family and “sign for things without paying” was also not relevant to any material fact. SHAN FROGEL, as personal representative of the Estate of Bette J. Cash, Appellant, v. PHILIP MORRIS USA, INC., Appellee. 4th District.

 

Declaratory judgments -- Trial court erred in dismissing declaratory judgment action where complaint stated cause of action for declaratory relief -- Allegation that plaintiff is in doubt as to right to distribution of certain royalties states real and substantial justiciable controversy, so that there is a need for declaration of rights as to distribution of royalties. MUSIC ROYALTY CONSULTING, INC., Appellant, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP) and JK ENTERTAINMENT, LLC, Appellees. 3rd District.

 

Dissolution of marriage -- Alimony -- Modification -- Change in circumstances -- Trial court erred in concluding that former husband failed to prove substantial change in circumstances with respect to his ability to pay alimony following entry of dissolution judgment where evidence showed that former husband's current available take-home pay as financial advisor had been substantially reduced due to certain deductions from his paycheck made by his current employer -- Decrease in income was not voluntary, but instead stemmed from factor outside husband's control -- Although trial court properly concluded that change in circumstances was not permanent, as deductions from paycheck would eventually end, husband failed to preserve for review his argument that trial court should have considered a temporary modification -- Order denying modification petition affirmed without prejudice to husband seeking temporary modification. PAUL DAVID SJOGREN, Appellant, v. MARY SJOGREN, Appellee. 4th District.

 

Dissolution of marriage -- Attorney's fees -- Trial court erred in including in fees awarded to former wife in connection with child support modification proceedings amounts attributable to clerical and secretarial work. dALBERT STEVEN CORIAT, Appellant, v. ENMA LARISSA CORIAT, Appellee. 3rd District.

 

Dissolution of marriage -- Child support -- Imputed income -- Voluntary underemployment -- No error in finding that former husband was voluntarily underemployed where, although former husband was involuntarily terminated from his logistics job, he pursued a lower paying career in real estate -- Error to impute a salary of $120,000 on former husband where there was insufficient evidence to show former husband had present ability to earn that amount in logistics in his community. YANN GERVILLE-REACHE, Former Husband, Appellant, v. INA GERVILLE-REACHE, Former Wife, Appellee. 1st District.

 

Dissolution of marriage -- Equitable distribution -- Alimony -- Child support -- Life insurance -- Trial court erred in including in equitable distribution a vehicle which was no longer in wife's possession -- Trial court improperly valued husband's vehicle by failing to consider negative equity in the vehicle where affidavit submitted by husband regarding the vehicle's value and outstanding debt was admitted into evidence without objection -- Trial court improperly valued investment accounts as of the date husband petitioned for dissolution rather than date of trial where, although accounts had been considerably depleted by time of trial, there was no finding of misconduct -- Trial court erred in requiring husband to maintain life insurance to secure support obligations where it failed to make findings as to the availability and cost of insurance, and husband's ability to pay -- Evidence was insufficient to support award of child support based on 50/50 timesharing where, although parties stipulated to 50/50 timesharing, husband's testimony established that he could not exercise equal timesharing. JOSEPH WILLIAM O'NEILL JR., Appellant, v. CAROLYN SWINK O'NEILL, Appellee. 4th District.

 

Employer-employee relations -- Whistle blowers -- Retaliation -- Jury instructions -- Causation -- New trial -- Discussion of proper standard of causation to be applied in cases involving employer retaliation under Whistle Blower's Act -- Trial court abused its discretion in denying defendant's request to instruct jury that it could return a verdict in favor of plaintiff only if it found that plaintiff's termination would not have occurred but for defendant retaliating against plaintiff's protected activity -- United States Supreme Court's decision in Univ. of Tex. Sw. Med. Ctr. v. Nasser requires the use of a “but for” rather than a “motivating factor” causation standard when analyzing claims under the state's Whistle Blower's Act -- New trial on liability and causation is required using “but for” jury instruction -- Damages -- No error in granting defendant's motion to set aside damages for future loss of earning capacity where only speculative testimony was presented to the jury -- There was no competent substantial evidence to support plaintiff's expert's assumption that plaintiff would have been compensated at the same rate as those who were in the top ten percent earning strata of plaintiff's field or who had obtained leadership positions because plaintiff had no such earnings history, no such demonstrated competency, never held any such leadership positions, and those few high paying jobs went to more senior practitioners. DR. AHMAD Z. CHAUDHRY, Appellant/Cross-Appellee, v. ADVENTIST HEALTH SYSTEM SUNBELT, INC., D/B/A FLORIDA HOSPITAL AND/OR FLORIDA HOSPITAL TRANSPLANT INSTITUTE, Appellee/Cross-Appellant. 5th District.

 

Insurance -- Homeowners -- Coverage -- Appraisal -- Waiver -- Trial court erred in compelling appraisal of residential home under policy where there were disputes over coverage and policy specifically precluded appraisal for coverage issues -- Moreover, any right of appraisal was waived where suit was filed and litigated for a year prior to appraisal request. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. EMPIRE MITIGATION RESTORATION AND CONSULTING, LLC a/a/o Steve Wexler and Paula Wexler, Appellee. 1st District.

 

Mortgage foreclosure -- Standing -- Lost note -- Reestablishment -- Res judicata -- Collateral estoppel -- No error in entering final summary judgment in favor of borrowers for lack of standing where there was a break in the assignment of the note prior to the purported assignment to plaintiff -- Previous assignee in chain of assignment had no interest in the note to transfer to plaintiff because the former assignment to previous assignee only transferred interest in the mortgage -- Trial court erred in finding that res judicata barred plaintiff's foreclosure action because, in a prior foreclosure action between the same parties, the trial court made a specific finding that plaintiff failed to reestablish the lost note -- Section 673.3091 does not create an independent cause of action -- The right to enforce a lost note, in foreclosure context, travels with the breach that triggers the need to seek enforcement, a default by mortgagor -- Plaintiff may pursue foreclosure based upon borrower's subsequent defaults, each of which furnishes a separate cause of action -- No abuse of discretion in denying plaintiff's motion for rehearing to present additional evidence regarding the assignment to previous assignee -- Failure of proof is not a basis to reopen evidence -- Court rejects argument that evidence plaintiff sought to produce was newly discovered where the evidence existed well before trial and plaintiff knew borrowers contested its standing. FORTY ONE YELLOW, LLC, Appellant/Cross-Appellee, v. YOEL REMON ESCALONA and NURIA GONZALEZ, Appellees/Cross-Appellants. 2nd District.

 

Rules of Appellate Procedure -- Amendments -- New rules -- General provisions -- Addition of new subdivision requiring every court to publish on its website written opinions not covered by Rule of Judicial Administration 2.420 -- Notice of appeal -- Orders of lower tribunals and orders granting new trial in jury and nonjury cases -- Requirement that notice of appeal indicate that a motion tolling rendition is pending in lower tribunal -- Nonfinal orders and specified final orders -- Orders disposing of motions for rehearing are not reviewable separate and apart from a review of a final order -- Constitutional challenge to state statute or state constitutional provision -- Parties in cases other than criminal and collateral criminal proceedings where constitutionality of statute or constitutional provision is challenged are required to provide notice of such to attorney general -- Attorneys -- Limitation of appearance -- Attorney of record for party in appeal or original proceeding shall be attorney of record unless, at time of appearance, attorney files a notice specifically limiting appearance to one particular matter or portion of proceeding -- Court declines to adopt proposed amendments to rules regarding uniform citation system and notice of supplemental authority. IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 REGULAR-CYCLE REPORT. Supreme Court of Florida.

 

Torts -- Medical malpractice -- Sovereign immunity -- University is entitled to sovereign immunity for services rendered by its employee physician at Public Health Trust teaching hospital where university provides healthcare services -- Pursuant to terms of university's agreement with hospital, it was hospital's agent at time physician treated plaintiff -- University is immune from suit because physician treated plaintiff while acting as hospital's statutory agent. MARIA JOANNA LAZZARI, etc., Appellant, v. PABLO GUZMAN, M.D., etc., et al., Appellees. 3rd District.

 

Torts -- New trial -- Trial court did not abuse discretion by granting plaintiff's motion for new trial where defense counsel intentionally misrepresented to court that Fire Rescue Report had not been admitted into evidence, leading court to remove the report from evidence during closing argument, and made improper and inflammatory remarks during closing argument. WE THE BEST MUSIC, INC., Appellant, v. KENDRICK STAFFORD, Appellee. 3rd District.

 

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