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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Wednesday, September 9, 2020

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


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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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