Sunday, November 21, 2010

Wild boar with juniper berries, cranberry orange sauce and legal stuffings

Criminal law -- Sentencing -- Motion to file a supplemental brief to assert, for the first time, a challenge to defendant's sentence under Blakely v. Washington should be denied where defendant waived the right to file supplemental brief attacking his sentence by failing to raise issue in his initial brief, and court can discern no miscarriage of justice that would result on account of defendant's inability to raise proposed Blakely issue -- Long-standing rule in Eleventh Circuit that issues not properly raised in initial brief are deemed abandoned applies in context of a Blakely-based claim sought to be raised by way of supplemental briefing
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARLAND GEORGE CURTIS, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Unopposed motion for continuance of resentencing hearing pending review in United States Supreme Court of decision of United States Court of Appeals which obligates trial court to impose 30-year sentence rather than 17-and-a-half-year sentence initially imposed for offense of production of child pornography for transportation into this country -- Motion granted -- Response to order of Court of Appeals to detail sentencing factors considered by trial court in sentencing defendant in order to assist Supreme Court in determining whether petition for writ of certiorari ought to be granted
UNITED STATES OF AMERICA vs. WILLIAM IREY. U.S. District Court, Middle District of Florida, Orlando Division.

Criminal law -- All writs petition seeking order directing Florida Department of Law Enforcement to either upload DNA profile from semen and secretions found at crime scene into Combined DNA Index System and Florida statewide DNA database for comparison, or perform a one-time manual keyboard search comparing DNA profile to profiles in CODIS and Florida DNA database -- Petition is not procedurally barred -- Jurisdiction relinquished to circuit court to hold evidentiary hearing on specified issues
PAUL CHRISTOPHER HILDWIN, Petitioner(s), vs. STATE OF FLORIDA, Respondent(s) Supreme Court of Florida.

Criminal law -- Murder -- Attempted murder -- Armed robbery -- Death penalty -- Evidence -- Prior bad acts -- No abuse of discretion in permitting testimony of victims' daughter, who was present at scene of crimes, to testify that she had prior relationship with defendant which was built around drugs and that the two bought from and sold drugs to one another -- Evidence was not similar fact Williams rule evidence, but dissimilar fact evidence which established relevant context leading up to charged crimes -- Probative value was not substantially outweighed by prejudicial effect -- Jury question -- No error in trial court's response to guilt-phase jury's question seeking clarification of conscious intent element of “principal” jury instruction -- Sentencing -- No abuse of discretion in denying motion for mistrial based on prosecutor's isolated reference to World Trade Center attack during penalty-phase closing argument, as any error was harmless in light of evidence of aggravation presented against defendant -- Victim impact evidence -- Claim that victim impact evidence was excessive and inflammatory was not preserved for review, and defendant failed to establish fundamental error or due process violation as result of admission of victim impact evidence in this case -- Aggravating circumstances -- No error in finding that murder was committed to avoid arrest, that murder was cold, calculated and premeditated, and that murder was heinous, atrocious or cruel -- Challenge to constitutionality of Florida's capital sentencing scheme based on Apprendi v. New Jersey and Ring v. Arizona is without merit -- Florida's capital sentencing scheme does not violate federal constitutional rights to due process and fair jury trial -- Death penalty is proportionate
RENALDO DEVON McGIRTH, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Probation revocation -- Claim of scoresheet error on initial Criminal Punishment Code sentencing scoresheet utilized when defendant is placed on probation may be raised for first time after revocation of probation -- If claim of error is timely raised in rule 3.800(b)(2) motion during appeal from revocation of probation, claim is preserved for review in that appeal
JAMIE LEE TASKER, Petitioner, v. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Rules of Juvenile Procedure -- Amendment -- Detention hearing -- Presence of counsel

Manuel v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant's sentences of life in prison without parole for armed robbery and attempted murder were unconstitutional.
Defendant's sentences of life in prison without the possibility of parole for the non-homicide offenses of robbery with a firearm and attempted first- degree murder with a firearm were unconstitutional as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Defendant was 13 years old at the time the offenses were committed, and juveniles could not be sentenced to life in prison without parole for non-homicide offenses.

This decision may not yet be released for publication.

Fessenden v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant whose convictions were reversed because his acts were not criminal was not a "wrongfully incarcerated person."
The Florida District Court of Appeal's earlier legal opinion that the acts committed by defendant did not constitute grand theft or violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which resulted in defendant's convictions of those offenses being vacated, did not constitute "exonerating evidence" establishing the defendant's actual innocence of the offenses. Therefore, as a matter of apparent first impression, the District Court of Appeal held that the defendant was not a "wrongfully incarcerated person" entitled to compensation under the Victims of Wrongful Incarceration Compensation Act. The error that resulted in defendant's convictions was one of law, rather than one of fact.

This decision may not yet be released for publication.
R.I. v. Department of Children And Families ,(Fla.App. 4 Dist.)
Government - Agency was not required to pay any fees for establishment of special needs pooled trust for developmentally disabled teenager.
In a matter of first impression, the District Court of Appeal of Florida has held that the Department of Children and Families, as trustee of a master trust into which a developmentally disabled teenager's Social Security disability benefits were paid, was not required to pay any administrative fees or costs for the establishment of a special needs pooled trust for the teenager, who had attained the age of 18. The Court held that the Department was authorized by statute to expend the teenager's trust assets for his benefit, including the payment of fees to establish a special needs pooled trust for the teenager. The Court explained that the teenager's joining the special needs pooled trust allowed him to conserve his assets and ensure continued eligibility for public assistance. Thus, paying the $500 administrative fee to join the special needs pooled trust was an appropriate expenditure of trust funds.

This decision may not yet be released for publication.

Civil rights -- Action against deputy sheriff alleging use of excessive force when plaintiff was brought to county jail and deliberate indifference to plaintiff's serious medical needs while plaintiff was detained in jail -- District court properly denied defendant's motion for summary judgment and qualified immunity on excessive force claim -- District court erred in denying defendant's motion for summary judgment on claim of deliberate indifference to serious medical needs where plaintiff received reasonably prompt medical attention and received continuous medical care from jail nurse until she was taken to hospital -- Even if a constitutional violation based on deliberate indifference was shown, defendant is entitled to qualified immunity -- No preexisting law clearly established that an approximately two-to-five minute delay of medical care is a constitutional violation
MARCELLA POURMOGHANI-ESFAHANI, Plaintiff-Appellee, v. DAVID GEE, Sheriff of Hillsborough County, individually, SHANNA MARSH, Hillsborough County Deputy, individually, Defendants-Appellants, JOHN DOES, Numbers 1 through 7, individually, et al., Defendants. 11th Circuit.

Insurance -- Breach of contract action by insured against insurer to determine whether insured suffered covered damages under property insurance policy -- Evidence -- Insurer's motion in limine to prevent insured from presenting evidence of insurer's bad faith or claims handling practices -- Motion granted -- Evidence of insurer's claims handling procedures is irrelevant to determination of coverage and damages -- Insurer's motion in limine to preclude insured from introducing evidence of other claims against insurer including affirmative defenses used by insurer in other cases -- Motion granted, but insured will be permitted to cross-examine insurer's experts about their involvement in other cases, and insurer will be permitted to question insured's witnesses about their involvement in other cases
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Disability -- Evidence -- Where the only damages to which plaintiff would be entitled if he prevailed in his breach of contract claim against disability insurer are benefits that accrued through the date suit was filed, and the sole issue is whether plaintiff can meet his burden of establishing that he was totally disabled, evidence regarding defendant's bad faith and claims handling and business practices, evidence of plaintiff's emotional distress during claims handling process, evidence regarding consequential damages, and evidence of plaintiff's post-suit mental condition is all irrelevant and inadmissible -- Defendant's motion in limine to exclude such evidence granted
LOWELL D. KENNEDY, M.D., Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Insured's claims against property insurer related to damage to insured property allegedly caused by hurricane -- Evidence -- Hearsay -- Insured's motion in limine to bar insurer from introducing examination under oath testimony of insured's corporate representative -- Motion denied -- Examination under oath testimony is an admission by a party opponent through its designated corporate representative, and is deemed to be not hearsay -- Testimony during examination under oath is not admissible as former testimony so long as witness remains available to testify at trial
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Torts -- Maritime law -- Jurisdiction -- Arbitration -- Action by Nicaraguan seaman alleging claims for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide adequate medical care was properly removed from state court to federal court pursuant to Convention on Recognition and Enforcement of Foreign Arbitral Awards -- Because a party may remove a matter under the Convention at any time prior to trial, removal was timely -- There is no merit to plaintiff's contention that employment contract containing arbitration provision is void as against public policy because he would be required to arbitrate his claims in Nicaragua applying Bahamian law, and will be unable to pursue his Jones Act claims -- A Jones Act claim is subject to arbitration under the Convention -- There is no merit to plaintiff's contention that he may avoid arbitration agreement because the costs of arbitration are prohibitive
HAROLD LEONEL PINEDA LINDO, Plaintiff, vs. NCL (BAHAMAS) LTD. d/b/a NCL, Defendant. U.S. District Court, Southern District of Florida, Miami Division.

Wrongful death -- Torts -- Railroads -- Action against railroad for deaths and personal injury of occupants of automobile which was struck by train at railroad crossing where warning lights were flashing, but often flashed when no train was coming -- Jury instructions -- False activation of warning system -- Trial court properly instructed jury that a false activation is one caused by a condition that requires repair -- Court's instruction accurately defined “false activation” under federal law and accurately stated that plaintiff had not presented evidence of an activation matching that definition -- Court did not err in instructing jury not to consider train's speed because the train was in compliance with federal law -- Installation and maintenance of warning light system at crossing -- Taking all instructions together, jury was properly instructed that railroad could not be held liable for decision about which warning device to put in place or continue in place, but it could be held liable for any failure to repair an existing warning light -- Evidence -- Trial court did not err in excluding evidence of another train-car collision that had occurred at the crossing ten years before on the grounds that the prior collision was too remote in time and that the conditions were too dissimilar -- Further, court allowed evidence of another collision which occurred much closer in time and under similar circumstances -- Court did not err in allowing defendant to perform a demonstration of a train headlight for the jury
MARY MARGARET WRIGHT, Administrator of the Estate of Kevin Francis Wright, Jr., JILLIAN ALYCE WRIGHT, b.a.t. Mary Margaret Wright, Plaintiff-Consolidated-Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee. 11th Circuit.

Liens -- Judgment lien -- The re-recording of a certified copy of a judgment lien after the expiration of the original judgment lien imposes a new lien on real property held by the judgment debtor -- County court properly authorized levy on real property owned by party who purchased property from judgment debtor after re-recording of judgment

Torts -- Medical malpractice -- Hospitals -- Presuit requirements -- Corroborating expert medical opinion -- Although she had not been a hospital floor nurse for the preceding three years, the curriculum vitae and affidavits of nurse established that she had actively engaged in the practice of nursing and nurse consulting in the preceding three years, and that she was qualified to offer opinion regarding the prevailing professional standards of care for hospital nurses and an opinion on causation for purposes of presuit notice -- Trial court did not depart from essential requirements of law in denying defendant's motion to dismiss for failure to comply with presuit requirements
HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. DAVID WIRTH and RENEE WIRTH, Respondents. 5th District.

Administrative law -- Child support -- Administrative law judge did not have jurisdiction to require child's mother, on whose behalf Department of Revenue had initiated a proceeding under section 409.2563, Florida Statutes, to pay child support to child's maternal grandmother with whom child had been living -- ALJ lacked jurisdiction to order payments from “the parent from whom support is not being sought” -- ALJ did have jurisdiction to order that child's father, the parent from whom support is being sought, to pay child support to child's maternal grandmother
DEPARTMENT OF REVENUE, obo WENDY R. SMITH, Appellant, v. EPHRAIM SELLES, Appellee. 1st District.

Administrative law -- Rule challenge -- Administrative law judge erred in exercising jurisdiction to entertain a challenge to a rule as being an invalid exercise of delegated legislative authority where the rule had expired by repeal of its enabling statute

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Act -- Failure to provide purchasers with property report in advance of signing of contract -- No error in allowing purchasers to rescind contracts to purchase homes -- Exemption from ILSA's requirements applicable when contract obligates seller to erect building on property within two years did not apply where contract limited purchasers' remedy of specific performance by requiring purchasers to perform two conditions precedent before suing for specific performance -- Although circuit court incorrectly found that restrictions on remedy of specific performance were “invalid and unenforceable,” it correctly found that contract's savings clause did not apply -- Conditions themselves were valid and enforceable, and the only effect of including them in contract was to disqualify contract as being exempt from ILSA's requirements -- Error to calculate prejudgment interest from date purchasers demanded rescission, rather than from date purchasers paid their deposit
KOLTER SIGNATURE HOMES, INC., a foreign corporation, and VILLAGER REALTY LTD., L.P., a foreign limited partnership, Appellants, v. GLENN G. SHENTON and PAMELA A. SHENTON, husband and wife, and MAURICIO MARTINEZ and ELIRAN ASSULIN, tenants in common, Appellees. 4th District.

Estates -- Wills -- Where testator's will provided for a bequest of the entire estate to her brother and her brother-in-law in equal shares, and provided that if either of them did not survive testator, the share of the deceased shall be given to their surviving spouse, and testator's brother and his spouse both predeceased testator, testator's brother-in-law was entitled to the entire estate because the bequest to the brother and his wife lapsed -- Trial court erred in awarding half of estate to the children of testator's brother and his wife

Mortgages -- Foreclosure -- Default judgment -- No error in summarily denying relief from default judgment of foreclosure rendered after homeowner failed to answer complaint to foreclose mortgage on her home where motion does not demonstrate fraud, show that amounts due and owing are incorrect, or show why any of alleged facts would entitle her to relief sufficient to set aside default judgment -- Argument first raised on appeal that affidavit of indebtedness attesting to amounts due on mortgage and note was insufficient to satisfy requirements for admissibility under business records exception to hearsay rule was not preserved for appellate review

Mortgage foreclosure -- Limitation of actions -- Error to enter summary judgment for defendant in foreclosure action by assignee of federal government agency on ground that action was barred by statute of limitations -- Federal government may file to foreclose on mortgaged property at any time, and assignee of mortgage acquired the benefit of federal government's unlimited time to foreclose

Torts -- Action by chief engineer on yacht asserting claims for unseaworthiness against owner of vessel, maintenance and cure under admiralty law against owner and operator of vessel, and negligence against operator -- No abuse of discretion in denying motion to dismiss for fraud on court based on failure of plaintiff to disclose 1991 injuries -- Error to exclude evidence of these prior injuries from trial -- Error was exacerbated when plaintiff's counsel, who had succeeded in excluding evidence, commented on lack of evidence supporting defendants' claims that plaintiff sustained bad neck or shoulder injury in the past -- New trial required -- Damages -- Whether operator was entitled to set off plaintiff's recovery for cure with insurance payments from operator's insurer may be revisited on remand, as record indicates facts were not sufficiently developed to determine entitlement to set-off -- Error to award prejudgment interest to plaintiff
JVA ENTERPRISES, I, LLC and ENTERPRISES, INC., Appellants, v. JAMES S. PRENTICE, Appellee. 4th District.

Torts -- Interference with contract -- Error to deny seller's motion for directed verdict as to liability on claims of intentional interference with contract -- Prospective buyer of commercial real estate failed to offer any competent evidence of tortious conduct before contract failed to close -- Because circumstances could be reasonably understood as making the property once again available when closing failed to consummate, offer to purchase on same terms and conditions, made by trustee of trust on day after closing failed, was not competent to prove an act capable of interfering with an executory contract -- No error in finding that there was no evidence of mutual agreement to extend closing until the following day where buyer contended that closing agent appeared to acquiesce in such an extension for purpose of allowing buyer to tender funds necessary to close, but there was no evidence of any representation or acknowledgment by seller that closing agent was authorized to do anything other than conduct the closing, particularly since it was undisputed that the day of closing was made essential by the seller -- Specific performance -- Trial court did not err in denying specific performance after finding that buyer failed to tender necessary funds on closing date and finding that there was no clear, definite and certain proof of an extension of closing

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Tuesday, November 2, 2010

Tricked or treated, we got some things good and heated

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- Failure to investigate and present mitigating evidence concerning petitioner's mental health at time of crime -- State court's determination that petitioner's trial counsel was not constitutionally ineffective in preparing for sentencing phase of trial was neither contrary to nor an unreasonable application of clearly established federal law -- Court cannot say that state court unreasonably rejected claim in face of unanimous death-penalty recommendation from jury; finding of four statutory aggravators, including that murder was especially heinous, atrocious and cruel; finding that petitioner was triggerman; petitioner's boasting and detailed statement to a friend; weaknesses highlighted in petitioner's “new” mitigating evidence; and further aggravating evidence that this “new” mitigating evidence may have revealed

Criminal law -- Medicare fraud -- Conspiracy to defraud United States, to cause submission of false claims, and to pay health care kickbacks -- Conspiracy to commit health care fraud -- Evidence -- Trial court improperly excluded, as hearsay, videotape which arguably showed coconspirators assuring defendant that there was no fraudulent scheme at clinic which employed defendant and which was established as front for massive Medicare scam -- Error was harmless because videotape was duplicative of witness testimony discussing the exculpatory content of videotape, which testimony was stressed by defendant's counsel in closing argument -- District court did not abuse discretion by refusing to exclude evidence that individual who provided funding and personnel necessary to start clinic was once defendant's ex-husband -- Evidence was sufficient to support convictions of both defendants on all counts -- Sentencing -- Reasons given by district court justified sentencing physician-defendant above the guidelines and imposing sentence which was far greater than that imposed on coconspirators who were more deeply involved in fraudulent scheme -- District court did not err in assigning little weight to post-verdict polygraph examinations after finding that evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway district court's decision to apply obstruction of justice enhancement -- Mandatory Victim Restitution Act -- Term “victim” as used in MVRA includes government -- Amount of loss -- No error in attributing entire loss to defendant-nurse, notwithstanding her argument that she knew clinic was providing medically unnecessary treatment, but there was no evidence that she knew clinic was billing Medicare for infusions that were not provided at all -- Risk of death or serious injury -- No error in applying two-level enhancement based on finding that nurse-defendant's offense involved “conscious or reckless risk of death or serious bodily injury”
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. 11th Circuit.

Medicaid Cuts: LA. CLASS ACTION CHALLENGES REDUCTION OF MEDICAID HOME-CARE SERVICES, Pitts v. Greenstein, 13 No. 9 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home October 22, 2010
A class of disabled Medicaid recipients in Louisiana has alleged the state health department's plan to reduce benefits for home-based care violates federal disability law and might unnecessarily force thousands into nursing homes. Lead plaintiffs Helen Pitts and Kenneth Roman asked the U.S. District Court for the Middle District of Louisiana to grant preliminary and permanent injunctions enjoining the state's Department of Health and Hospitals from denying long-term personal-care services.

Health Care Reform: STATES GET $49 MILLION TO BUILD INSURANCE EXCHANGES, 13 No. 9 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home October 22, 2010
The federal government has awarded $49 million in grants to 48 states and the District of Columbia to help them research and develop health insurance exchanges aimed at helping consumers shop for coverage. The state-based exchanges will make buying health insurance easier by providing eligible consumers and small businesses "one-stop shopping" where they can compare and purchase health insurance coverage, according a Sept. 30 statement released by the U.S. Department of Health and Human Services.

Health Care Reform: DOCTOR-OWNED HOSPITALS URGE COURT TO STRIKE BAN ON NEW FACILITIES, Physician Hosps. of Am. v. Sebelius, 13 No. 9 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home October 22, 2010
An industry group representing physician-owned hospitals has asked a federal judge to allow it to proceed with a lawsuit seeking to block part of the new health care reform law that limits the growth and construction of new doctor- owned facilities. Physician Hospitals of America, along with the Texas Spine and Joint Hospital, a 20-bed private facility in Tyler, Texas, are challenging the constitutionality of Section 6001 of the Patient Protection and Affordable Health Care Act.

Civil rights -- Municipal corporations -- Employment discrimination -- Retaliation -- Title VII -- Error to dismiss Title VII retaliation claim based on determination that factual findings of county personnel board, an independent state agency, were entitled to preclusive effect over the federal action -- District court improperly failed to draw distinction between Title VII and section 1983 with regard to preclusive effects of state administrative proceedings on actions brought thereunder
PATRICK L. BISHOP, SR., Plaintiff-Appellant, v. BIRMINGHAM POLICE DEPARTMENT, CITY OF, Defendant, BIRMINGHAM, CITY OF, THE, Defendant-Appellee. 11th Circuit.

Federal jurisdiction -- Torts -- Removal of state court action to federal court -- Timeliness -- Appellate court need not decide whether defendant's notice of removal was timely in instant case because any error in failing to remand case to state court on ground that notice of removal was untimely would be procedural error and would be insufficient to warrant vacating judgment and remanding for new trial in state court where it was undisputed that requirements for diversity jurisdiction were met by time district court entered judgment
BRIAN MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA TRIATHLON, a foreign company, Defendants-Appellees. 11th Circuit.

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal
JOSE ALEJANDRO PINEDA AND MARTHA PINEDA, Appellants/Cross-Appellees, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant. 3rd District.

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where plaintiff failed to file with court the original note, evidence of assignment of mortgage and note, or affidavit of ownership and filed no other admissible evidence establishing plaintiff's status as holder and owner of note and mortgage -- Appellate court unable to determine whether trial court considered copy of original note and affidavit of ownership presented by plaintiff at summary judgment hearing, as these documents were not part of record at time the motion for summary judgment was granted -- Moreover, the documents were not authenticated, filed, and served more than twenty days before hearing, as required by procedural rules
GUISEPPE SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure of commercial mortgage loan where lender accepted a substantial paydown after an initial default and acceleration, and the parties entered into an agreement to reinstate the mortgage after the entry of an earlier judgment -- Summary judgment was improper where there exists a triable issue regarding the reinstatement agreement and the parties' performance under it
ONE 79TH STREET ESTATES, INC. and DARRELL WILSON a/k/a Keith D. Wilson, a single man; PO BOY REALTY INVESTMENT, INC., Appellants, vs. AMERICAN INVESTMENT SERVICES, Appellee. 3rd District.

Mortgage foreclosure -- Receivership -- Trial court erred in allowing receiver to sell mortgaged property, over objection of record owner, before final judgment foreclosing owner's interest in the property -- Contracts -- In absence of statute authorizing court-appointed receiver in foreclosure case to sell mortgaged property before mortgage is foreclosed by final judgment, such authority must be provided in loan agreement between lender and borrower represented by promissory note and mortgage -- Receivership provision in instant case did not purport to give receiver any power of sale of mortgaged property before entry of final foreclosure judgment, but instead explicitly limited receiver's powers to a caretaker role, which included the authority only to operate the property and collect rents -- Under common law, mere appointment of receiver does not itself confer any of the owner's power or authority to sell property -- Finally, recognizing general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene mortgagor's statutory right of redemption
SHUBH HOTELS BOCA, LLC, and ATUL BISARIA, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Mutual Bank (Illinois); and NEIL MERIN, as Court Appointed Receiver for Mortgaged Property, Appellees. 4th District.

Unfair labor practices -- School boards -- Public Employees Relations Commission properly affirmed General Counsel's summary dismissal of teacher's unfair labor practices complaints, where General Counsel found that teacher failed to prove by preponderance of evidence that his protected conduct was a substantial and motivating factor in school principal's retaliatory actions -- There was not sufficient evidence of animus, or relation of adverse events to employee's participation in protected activity, to sustain allegations of unfair labor practices

Torts -- Action against corporate defendant and county by plaintiff who claimed that she was injured when escalator at airport stopped short, causing her to fall -- Error to enter directed verdicts in favor of defendants on ground that there was insufficient evidence of negligence on their part where plaintiff presented evidence showing that defendants were notified that subject escalator stopped running earlier on the day of plaintiff's fall and there was no evidence that any work was performed on the escalator, allowing jury to reasonably infer that defendants negligently failed to determine what was causing it to stop running and correct the problem -- Jury instructions -- Error to refuse to give jury instruction on negligence per se as to county -- Error to overrule plaintiff's objection to defense closing argument that there was no evidence of prior problems with subject escalator where trial court had excluded such evidence -- Plaintiff's treating physician was not required to be an expert back surgeon in order to testify to his belief that plaintiff would need surgery in the future, and it was error to exclude this testimony -- Accordingly, it was error to deny plaintiff's motion for new trial

Torts -- Civil theft -- Complaint which alleged that plaintiffs made a loan to defendant pursuant to an oral agreement, and that at the time of the loan, defendant had no intention to repay it and/or intended not to repay the funds, stated cause of action for civil theft -- Error to grant defendant's motion for judgment on pleadings -- Allegation that defendant had no intention to repay the funds and/or intended not to repay the funds is sufficient to state claim for common law fraud, and common law fraud is explicitly included in the theft statute -- Economic loss doctrine does not bar statutory claim for civil theft -- There is no merit to defendant's contention that it is impossible to have an action for civil theft where there has been a failure to repay money unless there has been a conversion of a specific fund
WILLIAM P. WALKER, III AND GEMMA M. WALKER, HIS WIFE, Appellants, vs. JAIME A. FIGAROLA, Appellee. 3rd District.

Torts -- Res judicata -- Action by insurance company against attorney who had litigated personal injury protection lawsuits against company on behalf of insureds, alleging claim for restitution and fraud based on monies company paid out in connection with the PIP suits -- Trial court erred in dismissing complaint on ground that it stemmed from PIP lawsuits, and had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements -- Application of res judicata was not appropriate because neither the parties nor the cause of action were the same -- Application of collateral estoppel was not appropriate where issues were not the same as those adjudicated in PIP suits

Wrongful death -- Negligent entrustment -- Negligent undertaking -- A defendant cannot be held liable for negligent entrustment or negligent undertaking based on his having taken his alcohol-impaired brother's car keys and then put the keys in a place where his brother easily found them, resulting in his brother causing a fatal collision
GERALD CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. PAUL J. LEWIS, Appellee. 4th District.

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Saturday, October 16, 2010

Blue skies and cappucino with attitude while enjoying the latest in interesting law

Coton v. Televised Visual X-Ography, Inc. ,(M.D.Fla.)
Torts - Photographer was entitled to compensatory damages for company's unauthorized use of her image on cover of pornographic movie.
A photographer was entitled to compensatory damages of $100,000 for a video company's defamation by implication, under Florida law, via the unauthorized use of her self-portrait on the packaging of a pornographic movie. The photographer stated that the use of the photograph was humiliating and distressing, and caused her to become depressed. She also stated that she was shocked, disgusted, and ashamed when she saw the image being used in association with a pornographic movie, and that the use of the photograph caused her stress and problems with her family and friends. The photographer worried that being associated with a pornographic movie would harm her career. The photographer's humiliation and distress was compounded by the company president's offensive and belittling email responses to her requests to remove the photograph from the movie packaging. The photographer gave up photography for several months. She had trouble sleeping and eating.

Dissolution of marriage -- Alimony -- Error to fail to award retroactive alimony dating back to date dissolution petition was filed and to fail to award prejudgment interest on husband's alimony arrearage -- Trial court's finding that award of retroactive alimony would overlap with temporary alimony award failed to account for interim between date dissolution petition was filed and date temporary award was entered
BILLIE LUTZ GREMEL, Appellant, v. KIRK ALLAN GREMEL, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Pension -- Where facts showed that husband, under partnership agreement with law firm, received credit for 100 months of service that occurred prior to marriage, trial court erred in ruling that 100% of the pension was marital in nature -- Commingling of withdrawals as they were received and use of those funds by the parties jointly did not change nature of entire asset from non-marital to marital -- Remand for further proceedings to determine value of marital portion of pension -- Error to include in final judgment conflicting provisions as to marital residence or farm expenses where parties had a clear agreement regarding these expenses which was made in and accepted in open court
EGERTON K. VAN DEN BERG, Appellant/Cross-Appellee, v. CAROLINE M. VAN DEN BERG, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Temporary alimony and child support -- Trial court erred by awarding wife temporary alimony and child support in an amount which exceeded husband's net income
ATEF AZIZ, Appellant, v. SHEREEN AZIZ, Appellee. 2nd District.

Child support -- Where Department of Revenue had filed action for child support on behalf of mother, and trial court determined, after evidentiary hearing, that no child support payments were necessary because child spent equal time with each parent, and mother neither appealed that order nor filed a petition for modification of chid support based on change of circumstances, trial court erred in entering order changing prior child support determination and directing father to pay child support -- Absence of transcript does not preclude appellate court from reviewing lower court judgment for error apparent on its face
RICHARD ALLEN HILL, Appellant, vs. VANESSA MARIA CALDERIN, Appellee. 3rd District.

Dissolution of marriage -- Arbitration -- Parties were not entitled to arbitrate post-judgment dispute regarding financial matters -- Arbitration provision in parties' assets agreement regarding financial issues was not enforceable
FAUSTINO MARTINEZ, Appellant, vs. FULYA KURT, Appellee. 3rd District.

Dissolution of marriage -- Child support -- Modification -- Error to enter summary judgment, as recommended by hearing officer, ordering husband to make monthly child support payments to former wife on ground that parenting plan in final judgment called for child to spend at least 40 percent of overnights of the year with wife where there were disputed issues of material fact as to whether grounds existed for deviating from presumptive support award under the guidelines -- Under parenting plan, time parties' child would spend with wife was speculative, depending entirely on wife's willingness and ability to satisfy significant advance conditions; and evidence was presented showing that wife had failed to meet the conditions and had actually exercised very few overnight visitations with child -- Moreover, marital settlement agreement required husband to shoulder almost total financial responsibility for child and wife agreed to provide child's health and dental insurance; and court must have considered this agreement to be an equitable deviation from child support award called for under the guidelines, whether calculated in usual manner or as adjusted for substantial timesharing, since it approved agreement and incorporated it in final dissolution judgment -- Finally, hearing officer's child support calculation was based solely on financial affidavits, notwithstanding husband's protestations that wife had failed to make complete financial disclosures and the fact that wife's financial claims were significantly impeached in sworn filings in opposition to motion for summary judgment -- Remand for further proceedings

Dissolution of marriage -- Jurisdiction -- Residency requirement -- Error to deny husband's motion to dismiss wife's dissolution petition, in which he alleged that circuit court did not have subject matter jurisdiction because husband did not meet residency requirement, without making any findings regarding where husband resided before wife petitioned for divorce in Florida -- Wife, as party petitioning for dissolution, has burden of proving that the residency requirement is satisfied
CONRAD S. MIKULEC, Petitioner, v. PATRICIA HIGGINS MIKULEC, Respondent. 4th District.

Torts -- School boards -- Action against school board seeking damages for injuries suffered by student when she walked into traffic at school bus stop and was struck by vehicle -- Because school board did not have control over student at time of accident, trial court did not err in dismissing complaint with prejudice
JULIE WINSLOW, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY, Appellee. 1st District.

Gear Shift: LOUISIANA APPEALS COURT AFFIRMS $5 MILLION VERDICT IN CHILD-DEATH CASE, Guillot v. DaimlerChrysler Corp., 30 No. 8 Westlaw Journal Automotive 1, Westlaw Journal Automotive October 12, 2010
A Louisiana appeals court has affirmed a $5 million verdict to the family of a child taken off life support after being removed from his pregnant mother following an automobile accident that crushed her midsection. A 2-1 majority of the state's 4th District Court of Appeal said the damages were not excessive given the circumstances of the case and the emotional trauma the parents suffered.The record says August and Juli Guillot and their 3-year-old daughter, Madison, got into the family's 1999 automobile.

Gear Shift: GEORGIA GRANDMOTHER RUN OVER BY OWN CAR WINS $1 MILLION, Roper v. Chrysler Motors, 30 No. 8 Westlaw Journal Automotive 2, Westlaw Journal Automotive October 12, 2010
A state court jury in Fulton County, Ga., has awarded a 77-year-old woman $1.1 million after she was run over by her own 1994 Dodge Intrepid when the gear shift slipped out of the park position. Plaintiff's attorney Lance A. Cooper of Marietta, Ga., said in a press statement that several jurors had mothers who were about the same age as the plaintiff, Ramona Roper."They were very concerned about my client's future and wanted to make sure that she was taken care of," Cooper said.

Birth Injury: APPEALS COURT REJECTS 'SHOCKINGLY LOW' DAMAGES AWARD IN BIRTH INJURY CASE, Worden v. Injured Patients & Families Comp. Fund, 6 No. 10 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice October 8, 2010
Calling a jury award "shockingly low," a Wisconsin appeals court has ordered a new trial on noneconomic damages only in a malpractice action brought by a family whose child suffered a catastrophic brain injury at birth. The jury's $150,000 award for Autumn Worden's pain and suffering and $150,000 to her parents for the loss of their daughter's society and companionship and its failure to award anything for Autumn's future loss of earning capacity was "so unreasonably low as to shock our conscience."

Wrongful Death: PLASTIC SURGEON MUST PAY NEARLY $2 MILLION OVER YOUNG MOM'S DEATH, Lopez v. Galumbeck., 6 No. 10 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice October 8, 2010
A jury has awarded $1.95 million in the case of Virginia woman who died following cosmetic surgery, finding the plastic surgeon negligently sent her home less than an hour after completing the procedures even though she was having trouble breathing. Maritess Lopez, 36, died from aspiration pneumonia less than 40 hours after Dr. Matthew A. Galumbeck performed a "mommy makeover" July 30, 2008, according to the complaint filed in the Virginia Beach Circuit Court.

Wrongful Death: INADEQUATE EXPERT REPORT DOOMS ESTATE'S WRONGFUL-DEATH CLAIMS, Christus Spohn Health Sys. Corp. v. Lackey, 6 No. 10 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice October 8, 2010
A Texas appeals panel has dismissed wrongful-death claims a deceased woman's estate brought against a nursing home and a hospital, finding deficiencies in the estate's expert reports. Reports filed by a registered nurse and a doctor about the care Margaret Baker Lackey received at the facilities failed to demonstrate a causal link between the facilities' alleged negligence and her death, the Court of Appeals held.Although it reversed a trial court's denial of summary judgment to Christus Spohn.

News in Brief: NEWS IN BRIEF, 17 No. 17 Westlaw Journal Medical Devices 10, Westlaw Journal Medical Devices October 11, 2010
Wright Medical pays $7.9 million in kickback settlement Wright Medical Technology will pay $7.9 million to settle federal allegations it engaged in marketing practices that resulted in the submission of fraudulent reimbursement claims to the federal Medicare program. In a deal announced Sept. 30 by the U.S. attorney's office in Newark, N.J., the medical device maker also agreed to 12 months of federal monitoring in the wake of criminal charges it violated anti-kickback laws by paying surgeons.

Johnson v. State ,(Fla.)
Criminal Justice - It was per se reversible error when trial judge preemptively instructed jury that it could not have testimony read back.
It is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. In so holding, the Supreme Court reasoned that a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury.

Criminal law -- Prisoners -- Presumptive parole release date -- Prisoner Indigency Statute -- An action challenging the Florida Parole Commission's determination of an inmate's presumptive parole release date is a collateral criminal proceeding for the purposes of section 57.085(10), Florida Statutes (2009), which exempts such proceedings from the fee and lien provisions of section 57.085 -- It was error to impose lien on inmate's trust account for costs associated with inmate's non-frivolous petition for writ of mandamus challenging Commission's determination of his presumptive parole release date
FLORIDA PAROLE COMMISSION, Petitioner, vs. JOSEPH ROBERT SPAZIANO, Respondent. Supreme Court of Florida.

Criminal law -- Lewd and lascivious molestation -- Jury instructions -- Trial court did not err in refusing to give jury instruction on simple battery as lesser included offense where information did not allege that touching of victim was against will of victim -- Evidence -- Hearsay -- No error in sustaining state's hearsay objection to questions which defense attempted to ask victim's mother regarding victim's alleged recantation where defense did not question victim about alleged recantation when she was on stand, and thus failed to lay proper foundation for impeachment -- Trial court did not abuse discretion in denying motion for mistrial on basis of allegedly improper closing argument regarding consistency of victim's testimony
RONALD BARNETT, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Opinion filed October 13, 2010.

Criminal law -- Manslaughter -- Self-defense -- Evidence -- Where defendant claimed that he shot victim in self-defense, trial court did not abuse discretion by prohibiting defendant from introducing evidence of victim's reputation in the community for carrying firearms unless defendant could first demonstrate that, prior to the shooting, he was aware of victim's reputation in the community for carrying firearms
LEONEL MUNOZ, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- District court committed no error, plain or otherwise, in imposing 10-year mandatory minimum sentences on three counts of indictment, notwithstanding any disparity created by 100:1 crack-to-powder cocaine ratio -- District court was not authorized to impose sentence below statutory mandatory minimum where government did not file substantial assistance motion under Section 3553(e) and defendant did not qualify for safety-valve exception of Section 3553(f)
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GREGORY ANTHONY GOMES, Defendant-Appellant. 11th Circuit.

Criminal law -- Possession of firearms and ammunition on school property -- No error in denying motion to dismiss charge on ground that firearms at issue were located in private conveyance and securely encased and not immediately available -- Subsection of statute permitting possession of a securely encased firearm for “lawful purpose” within interior of private conveyance did not apply in defendant's case where he was on probation at the time, and condition of probation required that defendant not possess any weapons
STEPHEN MICHAEL BELCHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

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Sunday, October 3, 2010

Family law, child custody, consumer protection, foreclosure and assorted desserts

Dissolution of marriage -- Equitable distribution -- Error to treat an IRA account inherited by husband from his mother as a marital asset and to award it to wife -- Where parties entered into a stipulation to sell a commercial marital property, with wife to receive $250,000 from the sale proceeds, which she was to use as temporary support for herself and children, it was error for trial court to decline to treat the funds given to wife as either previously paid support or as a distributed asset -- Child support -- In calculating child support award, it was error to fail to deduct the amount of periodic alimony payable to wife in determining husband's net income
RANDY V. HEYSEK, Appellant/Cross-Appellee, v. MARY L. HEYSEK, Appellee/Cross-Appellant. 2nd District.
Taylor v. Homecomings Financial, LLC ,(N.D.Fla.) Real Property - Lender's disclosure of effects of negative amortization met Truth in Lending Act (TILA) requirements. Under Florida law, the plain language of a residential mortgage note, which repeatedly and unmistakably indicated that a mortgagor's monthly payments might not be sufficient to cover the interest, and that any deficiency would be added to the note's principal, did not require a mortgagee or a loan servicer to apply at least a portion of each monthly mortgage payment to the principal. Although the mortgagee made Truth in Lending Act (TILA) disclosures in a form that varied from sample language in a staff interpretation, the language was found to sufficiently notify the borrower of the effects of negative amortization.
Liens -- Home builder's equitable lien on undisbursed construction funds held by construction loan lender -- Where lender retained final construction draw after owner refused to proceed with required end closing on completed home construction, it was error to award builder an equitable lien on the undisbursed construction funds held by lender -- Because parties' written agreement authorized lender to retain the final construction draw if the owner did not proceed with the end closing, lender's retention of undisbursed construction funds was not inequitable under the circumstances, and builder failed to establish unjust enrichment necessary to establish its equitable lien claim
CTX MORTGAGE COMPANY, LLC, Appellant, v. ADVANTAGE BUILDERS OF AMERICA, INC., a Florida corporation, Appellee. 2nd District.
Mortgage foreclosure -- Intervention -- Trial court properly denied motion to intervene filed by parties who sought to intervene more than twenty days after mortgagee had filed foreclosure complaint and filed notice of lis pendens -- Section 48.23(1)(b), Florida Statutes (2008), which allows the holders of unrecorded property interests only twenty days from the recording date of a lis pendens to intervene in an action affecting property does not unconstitutionally violate the principle of separation of powers by infringing on the rulemaking authority of the Florida Supreme Court -- Statute is substantive, and any procedural provisions contained within it are intimately related to the definition of those substantive rights
Torts -- Premises liability -- Slip and fall on slippery substance in grandstand of greyhound track operated by defendant -- Trial court abused discretion in denying plaintiff's motion to amend complaint to allege breach of a nondelegable duty by defendant -- Court erroneously found that proposed amendment would be futile because statute of limitations on plaintiff's claims had run and proposed amendment would not relate back to original pleading which alleged active negligence -- Claim based on breach of nondelegable duty is not a separate and distinct cause of action from cause of action based on active or direct negligence -- Trial court erred in entering summary judgment for defendant on ground that complaint failed to state cause of action against defendant for breach of its nondelegable duty to maintain premises in reasonably safe condition because plaintiff had not specifically alleged either a breach of a nondelegable duty by defendant or a basis to impose vicarious liability on defendant for actions of cleaning company which had contracted to clean and maintain the facility, and that there was no basis for a claim against defendant for active negligence -- Cause of action for breach of a nondelegable duty and cause of action for vicarious liability have different rationales, and liability for breach of nondelegable duty is a direct liability
Wrongful death -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of estate's wrongful death claim against nursing home pursuant to arbitration provision in admission agreement -- Nursing home arbitration agreement executed by a patient is binding on his estate and survivors in wrongful death claim -- Question certified: Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient's estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement?
Dissolution of marriage -- Equitable distribution -- Error to allocate parties' marital assets without accounting for decrease in value of husband's stock portfolio at time of final hearing -- Husband did not invite error by stipulating to amounts which were potentially subject to equitable distribution at time husband petitioned for dissolution where husband then requested court to account for decrease in stock portfolio's value by time of final hearing -- Husband's argument that final judgment is deficient because its form does not comply with statute is moot given reversal of final judgment, but trial court should insure on remand that form of final judgment complies with statute
KEVIN TILLMAN, Appellant, v. SEBILA ALTUNAY, Appellee. 4th District.
Dissolution of marriage -- Judgment -- Although trial court's verbatim adoption of husband's proposed final judgment, standing alone, did not establish that judgment did not reflect judge's independent decision-making, final judgment contained errors and omissions which created appearance that this was the case and reversal is required -- Child custody -- Error to order rotating custody where record was devoid of evidence that would support change in parenting schedule in effect at time of final hearing -- Moreover, parties reached mediation agreement which included stipulation to allow mental health therapist who was counseling children to recommend husband's visitation schedule, and therapist recommended against expanding visitation schedule that was in effect at time of hearing -- Equitable distribution -- Depleted assets -- Error to assign to wife funds withdrawn from her 401(k) account where testimony was uncontradicted that the depleted funds were used for marital expenses, and trial court made no finding of misconduct with respect to wife's use of funds -- Marital home -- Value assigned to marital home was not supported by findings of fact or competent substantial evidence -- Award of lump sum equalizing payment was apparently result of overvaluation of marital home and improper assignment to wife of her depleted 401(k) assets and must be reversed -- Moreover, even if assets had been valued and assigned properly, neither would have provided ability for wife to make the cash equalizing payment ordered
VICTORIA LYNN BISHOP, Appellant, v. TODD CAMERON BISHOP, Appellee. 2nd District.
Insurance -- Uninsured motorist -- New trial -- Trial court did not abuse discretion in granting insured plaintiff a new trial in action against insurer where court had entered summary judgment for plaintiff on liability, and jury awarded plaintiff zero damages upon finding that automobile accident was not a legal cause of any injuries to plaintiff -- Trial court did not abuse discretion by finding that jury verdict was contrary to manifest weight of evidence that plaintiff required some reasonable diagnostic testing where no evidence was presented that any of the diagnostic tests that were performed were not reasonable or necessary to determine whether the accident caused plaintiff's complained of injuries
Insurance -- Windstorm -- Authority of agent to bind insurer -- Where insurance application clearly provided, on page two, actual notice of limitations on insurance agent's authority to bind the insurer; applicant did not receive page two of application, but a printed line directly above the signature line on page one of application stated, “I further understand and agree to the terms as set forth on page 2”; and applicant's principal admitted that when he signed the application, he understood page two was part of the entire application but never asked to review the page, applicant was placed on inquiry notice and therefore subject to limitations imposed on agent by insurer -- Trial court erred in finding there was no evidence that applicant was ever put on notice of any limitations on agent's authority to bind coverage -- Trial court did not err by failing to apply incorporation by reference doctrine as to page two of insurance application as a matter of law where language on page one of application neither made it subject to terms and conditions on page two nor expressly referred to or described the agency disclaimer on page two
CITIZENS PROPERTY INSURANCE CORPORATION, a Florida corporation, Appellant, v. EUROPEAN WOODCRAFT & MICA DESIGN, INC., a Florida corporation, and GLOBAL INSURANCE SERVICES, INC., a Florida corporation, Appellees. 4th District.
Torts -- Cruise ship -- Punitive damages -- Discovery -- Trial court departed from essential requirements of law by granting plaintiffs leave to amend complaint to assert claim for punitive damages without conducting evidentiary inquiry to determine whether a reasonable basis exists for recovery of punitive damages -- Certain of plaintiffs' discovery requests are barred by appellate court's prior decision quashing discovery order and limiting scope of discovery, and trial court improperly denied defendant's motion for protective order as to those requests -- Remand with directions to assign case to a different judge
Wrongful death -- Medical malpractice -- Error to rule that medical malpractice presuit requirements did not apply to negligence claim against hospital arising out of incident in which decedent, after having been admitted to hospital emergency room purportedly in a disoriented and confused state, fell off stretcher and suffered head injuries that caused his death where complaint asserted claims relating to hospital's standard of care in evaluating condition of patients admitted to emergency room and adequacy of hospital's procedures for managing and supervising patients admitted to emergency rooms
INDIAN RIVER MEMORIAL HOSPITAL, INC., Petitioner, v. KATHLEEN BROWNE, as Personal Representative of the ESTATE OF THOMAS BROWNE, Respondent. 4th District.
Landlord-tenant -- Eviction -- Standing -- Plaintiff lost standing to file eviction action for possession when final judgment of foreclosure was entered for leased premises and certificate of title was issued to lender

Child custody -- Modification -- Venue -- Error to transfer venue on mother's supplemental petition to modify child custody order where venue was proper where petition was filed and no showing was made that another proper venue was more convenient
JESSICA RESOR, Appellant, v. CHRIS WELLING, Appellee. 5th District.
Dissolution of marriage -- Child support -- Error to fail to include in final judgment awarding child support any findings concerning incomes of parties -- Error to fail to address health care coverage for minor child, child care costs, and noncovered medical, dental, and prescription medication expenses
GLORIA L. WHITTINGHAM, Appellant, v. CHRISTOPHER A. WHITTINGHAM, Appellee. 2nd District.
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Thursday, September 23, 2010

Judiciary Approves Pilot Project for Cameras in District Courts

From The Third Branch Newsletter, September 2010:
"The Judicial Conference, at its biannual meeting in September, approved a pilot project to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings. The pilot, which will be national in scope, will last up to three years. It will evaluate the effect of cameras in district court courtrooms, video recordings of proceedings, and publication of such video recordings. Details of the development and implementation of the pilot will be determined by the Conference’s Committee on Court Administration and Case Management (CACM)."

Read more here.

Wednesday, September 22, 2010

Wash. AG’s Settlement with LegalZoom

Wash. AG’s Settlement with LegalZoom Bars Fee Comparisons Absent Disclosure

Excerpts: A settlement bars the company from comparing its document costs to attorney fees unless it discloses that its service isn’t a substitute for a law firm, a press release says.
In an “assurance of discontinuance,” LegalZoom also promises to refrain from:
• Failing to offer estate-planning forms that conform to Washington law.
• Engaging in the unauthorized practice of law by providing individualized legal advice about a self-help form.
• Selling consumer information to third parties, unless they are given a chance to opt in.
Writing at his eLawyering blog, ABA Journal legal rebel Richard Granat says other state attorneys general should take notice. He sees value in having trained paralegals help consumers complete legal forms, but he doesn’t like LegalZoom’s promise that it will “put the law on your side.” “It is time to level the playing field by requiring LegalZoom to disclose clearly the limitations of the services it provides,” he writes.

Read more.

From the ABA Journal Law News Now -- Sept. 21, 2010
Posted Sep 21, 2010 8:06 AM CDT
By Debra Cassens Weiss

Thursday, September 16, 2010

The Appellate Gourmet(c) is back and open for feasting on more law morsels

Sorry all for not posting in a while. I have been underwater with work. But I've been reading all along and I'm back into posting. Below are a few of the recent decisions that I found interesting. If you want to receive more of these and more often, just email to be added to the email list.

Criminal law -- Limitation of actions -- Where initial information charging defendant with resisting officer with violence was filed within statute of limitations, but amended information which added new charge of fleeing or attempting to elude officer at high speed was filed outside statute of limitations for offense of fleeing or eluding, defendant was erroneously convicted of fleeing or eluding -- Because new charge broadened and substantially amended original charge and alleged a new and distinct crime with different elements, the amended information was not a continuation of the timely filed information -- Appeals -- Although statute of limitations issue was not properly preserved for appeal, appellate court considers issue as being one in which ineffective assistance of trial counsel appears on face of record
ANTWYNE HARPER, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Speedy trial -- Recapture period -- When the state sufficiently attempts to notify a defendant of a refiled charge before speedy trial period expires, state is entitled to recapture period contained in rule 3.191(p), even if defendant does not receive actual notice of refiled charges until after speedy trial period expires -- Determining what constitutes “sufficient” attempt to notify a defendant of a refiled charge before speedy trial period expires will require case-by-case factual determinations -- On facts of case, state sufficiently attempted to notify defendant of refiled charge before speedy trial period expired, where state attempted to notify defendant of refiled charge through clerk's notice of arraignment sent to address which defendant gave when he originally was arrested, but state was unable to do so because defendant had moved to new address -- State did not properly preserve for appellate review argument that defendant requested continuances and, therefore, waived his right to speedy trial, where state did not raise argument to trial court -- Even if state preserved issue, argument is without merit.
STATE OF FLORIDA, Appellant, v. KEITH INGRAHAM, Appellee. 4th District.

Criminal law -- Jury request for read-back of testimony -- Where jury, during deliberations, posed question to court regarding when photograph on defendant's driver's license was taken, court did not abuse discretion in responding that jury would have to use best recollection of evidence -- Court did not commit fundamental error by failing to inform jury about availability of read-back of portions of testimony.
CEDRIC FRASILUS, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Sentencing -- Mandatory minimum -- No error in including mandatory minimum sentence in written sentence for offense of robbery with firearm, although mandatory minimum sentence was not orally pronounced -- Court recedes from prior decision in which it held that oral pronouncement of sentence controls in this context
ANDRE ISAIAH DUNBAR, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Sentencing -- Mandatory minimum -- Armed Career Criminal Act -- Predicate convictions -- Prior felony possession of short-barreled shotgun was not violent felony under ACCA -- District court properly declined to sentence defendant under ACCA
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ROBERT L. MCGILL, Defendant-Appellee. 11th Circuit.

Criminal law -- Evidence -- Statements of defendant -- Private safety or rescue exception to Miranda rule where suspect is questioned by police officers when the suspect is confronted with a life-threatening medical emergency -- Where officers observed defendant chewing and attempting to swallow several pieces of crack cocaine, tried to stop defendant from swallowing too much of the substance, and asked defendant if he had any more crack cocaine in his system, trial court properly admitted defendant's pre-Miranda statement that he did not have any more crack cocaine in him under private safety exception or rescue doctrine
BERNARD SMITH, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Guilty plea -- Vacation -- Failure of trial court to advise defendant of immigration and deportation consequences of plea -- Trial court erred in granting defendant's motion to vacate guilty plea on ground that state failed to carry burden of proving that plea colloquy informed defendant of consequences of plea -- Burden of proof was on defendant to prove that colloquy did not inform him of consequences of plea
THE STATE OF FLORIDA, Appellant, vs. MAYKEL AVILA, Appellee. 3rd District.

Contracts -- Loan pledge agreement -- Securities -- Deceptive and unfair trade practices -- Torts -- Corporation and its sole shareholder filed complaint against bank and registered broker-dealer alleging defendants are civilly liable under various theories for their actions in pledging assets of accounts that plaintiffs hold with defendants' banks as security on loan made to shareholder's son without plaintiffs' authorization -- Hypothecation of securities -- Count alleging violations of Section 8 of Securities and Exchange Act fails to state a claim upon which relief can be granted because there is neither express nor implied private right of action to enforce Section 8 in civil litigation -- There is no clear evidence of congressional intent to create a private right of action in Section 8 of Exchange Act where text and structure of Section 8 lack any rights-creating language that would signal a legislative intent to create a private right of action on behalf of investors who give control of their securities to brokers, like plaintiffs in instant case -- Further, while legislative history of Section 8 is silent as to private right of action, legislative history surrounding passage of Section 7 and Exchange Act weigh against implying a private right of action -- Plaintiffs sufficiently alleged claim under Florida Deceptive and Unfair Trade Practices Act to withstand motion to dismiss -- Plaintiffs sufficiently alleged required elements for claims of breach of contract, breach of duty of good faith and fair dealing, and conversion, with supporting factual allegations, to survive motion to dismiss -- Plaintiffs sufficiently pled elements of claim for fraud, breach of fiduciary duty, and negligence to survive motion to dismiss

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion in denying wife's requests for attorney's fees and costs where husband has ability to pay and requiring wife to pay her own fees would result in diminution of her equitable distribution funds -- Equitable distribution -- Marital/nonmarital assets -- Trial court erred in finding that property acquired by limited liability company formed during the marriage by husband and a business partner was marital asset where evidence at trial established that property was acquired entirely through non-marital funds, and there was no evidence to support trial court's finding that husband contributed marital labor through active management and maintenance of the property
ALICE DIANE CONLAN, Appellant, v. ARTHUR JAMES CONLAN, Appellee. 4th District.

Evidence -- Hearsay -- For purposes of statute requiring commission to investigate certain election law violations after having received sworn complaint or information reported to commission by Division of Elections and further providing that sworn complaint must be based upon personal information or information other than hearsay, administrative law judge properly interpreted “hearsay” according to its common usage, rather than applying technical definition of “hearsay” in evidence code -- No error in rejecting argument that complaint could not be based upon campaign treasurer's report because report is “classic example” of hearsay

Dissolution of marriage -- Child custody -- Visitation -- It was error for trial court to delegate to a counselor the authority to establish visitation between mother and minor daughter
KRISTIN LAROCKA, Appellant, v. JOHN LAROCKA, Appellee. 5th District.

Injunctions -- Contracts -- Non-competition covenant -- Trial court abused its discretion in denying motion for temporary injunction to enforce covenant not to compete and non-solicitation clause included in independent contractor employment agreement -- Presumption of irreparable injury arose where it was undisputed that defendant opened up competing business within seven miles of plaintiff's business less than a year after his termination, in violation of provision prohibiting competition within 15 miles of plaintiff's business for period of one year, and defendant admitted that he took plaintiff's customer list and used it to solicit clients and that about 25% of his customers were former customers of plaintiff; and defendant failed to rebut presumption
ATOMIC TATTOOS, LLC, Appellant, v. JASON E. MORGAN d/b/a SAINTS & SCHOLARS TATTOOS, Appellee. 2nd District.

Insurance -- Automobile -- Appraisal -- Attorney's fees -- Where insurer demanded appraisal of stolen vehicle, and insured failed to comply with appraisal clause but filed suit prematurely, insured was not entitled to award of attorney's fees for that phase of trial court proceedings -- Where insurer failed to pay appraisal award, insured filed motion to enter judgment in accordance with the award, and insurer paid amount of award before motion was ruled on, insured was entitled to award of attorney's fees for that phase of proceedings -- It was error to award a 2.5 multiplier where there was no question from the outset that insured would recover some amount -- Interest -- It was error to award prejudgment interest from date of theft of insured automobile -- Interest should have been awarded from date of appraisal award

Mortgage foreclosure -- Right of redemption -- Trial court did not err in entering judgment of foreclosure, but did err in denying mortgagor's motion for satisfaction of judgment where mortgagor properly exercised right of redemption by tendering the amount of the judgment before clerk filed certificate of sale -- Although trial court reserved jurisdiction to assess attorney's fees, mortgagor was entitled to exercise her right of redemption by tendering full payment of the judgment without attorney's fees
CAROLE H. VERNERET, Appellant, vs. FORECLOSURE ADVISORS, LLC, Appellee. 3rd District.

Mortgage foreclosure -- Notes -- Interest -- Usury -- Error to enter final judgment permitting foreclosure on mortgage that secured a promissory note that was criminally usurious from its inception and, therefore, unenforceable -- Undisputed facts showed that face amount of loan was $250,000 and stated interest was 15%; that amount totaling over $78,000 was withheld at closing; and that lender charged interest on withheld funds, even though substantial portion of that sum was never available to borrower -- Using statutory methodology applicable when some of loan proceeds have been retained by lender at closing, effective percentage rate was greater than 25 percent -- Absent transcript, appellate court has no basis for finding that trial court erred in determining that amount withheld as “origination fee” was interest and not a bona fide payment to a third party for services provided in closing loan -- Proper remedy where note is criminally usurious at its inception is cancellation of debt and return of any amounts paid -- There is no authority for awarding double the interest paid, a remedy available for civil usury, in case involving criminal usury
SUSAN VELLETRI, Appellant/Cross-Appellee, v. THOMAS W. DIXON, Appellee/Cross-Appellant. 2nd District.

Torts -- Airplane crash -- Action against manufacturer of airplane engine by plaintiffs who were injured when airplane they were in crashed, allegedly as result of faulty carburetor -- Evidence -- Prior occurrences -- Substantial similarity -- Error to allow plaintiffs to introduce evidence of more than 100 problem occurrences involving other aircraft engines where plaintiffs failed to show that other incidents were caused by defects substantially similar to defect that allegedly caused engine to fail -- New trial is warranted -- Federal Aviation Administration regulations require an airplane engine manufacturer to report known engine defects to the public, and this disclosure requirement would necessarily include a duty to disclose a known defect in a carburetor certified by the engine manufacturer for use with the engine
MARK GODFREY AND NICHOLAS GRACE, Appellants/Cross-Appellees, v. PRECISION AIRMOTIVE CORPORATION, ET AL., Appellees/Cross-Appellants. 5th District.

Attorney's fees -- Contractual provision -- Mutuality of obligation -- Where contract provided fees for contractor in the event of a collection action, reciprocity provision of section 57.105(7) would allow for homeowner to receive fees if she prevailed in a collection action brought by the contractor -- Circuit court sitting in its appellate capacity departed from essential requirements of law when it applied section 57.105(7) to extend availability of attorney's fees to homeowner who brought breach of contract action against contractor who failed to complete job
FLORIDA HURRICANE PROTECTION and AWNING, INC., Petitioner, v. ETHLYN PASTINA, Respondent. 4th District.

Child custody -- Primary residential responsibility -- Modification -- Error to grant father's supplemental petition for modification of primary residential responsibility where father failed to establish material change in circumstances warranting modification -- Father needed to prove more than merely an acrimonious relationship with mother and a lack of effective communication in order to show substantial change in circumstances justifying custody modification
SANDRA SANCHEZ, Appellant, v. CARLOS A. HERNANDEZ, Appellee. 4th District.
Civil rights -- Retaliation -- An independent contractor states a valid Section 1981 retaliation claim when that contractor, who is qualified to do the work upon which it bids, alleges that a governmental entity refused to award a contract to contractor in retaliation for contractor's filing of a lawsuit charging governmental entity with custom or policy of disparate-treatment racial discrimination that was applied against contractor in violation of Section 1981
DANIEL WEBSTER, PEGGY WEBSTER, et al., Plaintiffs-Appellants, Cross-Appellees, v. FULTON COUNTY, GEORGIA, Defendant-Appellee, Cross-Appellant. 11th Circuit.

Civil rights -- Retaliation -- District court did not err in denying motion for judgment as matter of law on employee's Title VII retaliation claim where plaintiff's evidence that he was “totally blackballed” from overtime constituted adverse employment action, close temporal proximity between denial of overtime and employee's grievance meeting with supervisors to protest his suspension was sufficient for reasonable jury to infer causation, and plaintiff presented sufficient evidence that employer's hiring of additional employees, which it proffered as reasons for denial of overtime opportunities open to other employees, was pretextual -- Reassignment of employee to different geographical area did not constitute adverse employment action, even though employee claimed that new assignment made it more difficult for him to meet employer's performance standards -- Total weight of conduct that plaintiff asserted was retaliatory was sufficient to constitute adverse employment action, even if some of the alleged retaliatory conduct did not individually rise to level of adverse employment action -- Attorney's fees -- Prevailing party -- Where plaintiff prevailed on retaliation claim, but not on underlying discrimination claim, district court did not abuse discretion in reducing attorney's fee award to account for plaintiff's limited success with retaliation claim in comparison to scope of litigation as whole
WILLIAM SHANNON, Plaintiff-Appellee-Cross-Appellant, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellant-Cross-Appellee. 11th Circuit.

Civil rights -- Retaliation -- Family Medical Leave Act -- Employee Retirement Income Security Act -- Employer is entitled to summary judgment on claim of retaliation under FMLA and claim of interference with rights under ERISA where plaintiff failed to present sufficient evidence to create genuine issue of fact as to causal connection between plaintiff's termination and her requests for FMLA leave and short-term disability benefits -- Employer is entitled to summary judgment on FMLA interference claim because unrebutted evidence that decision maker was not aware of plaintiff's request to commence FMLA leave at time of decision to terminate her employment establishes as matter of law that plaintiff's termination was for reasons other than her reuested leave -- FMLA right to non-interference with right to commence FMLA leave is not absolute, and if employee would have been dismissed regardless of any request for FMLA leave, an employee can be dismiss, preventing her from exercising her right to commence FMLA leave, without thereby violating FMLA
BETSY KRUTZIG, Plaintiff-Appellant, v. PULTE HOME CORPORATION d.b.a. Pulte Homes, Defendant-Appellee. 11th Circuit.

Dissolution of marriage -- Alimony -- Child support -- Imputed income -- Finding that wife could become member of Florida Bar and thereby increase her income, over time, beyond the level which court imputed to her was not supported by competent, substantial evidence -- Trial court did not err, however, in imputing income at a level higher than that which wife had been paid to manage husband's law firm based on evidence regarding earning opportunities for law office managers in the community in which wife resided -- Wife cannot seek to decrease her imputed income level by wholly relying on fact that she accepted a below-market salary from husband for several years -- Because circuit court applied its factual finding regarding wife's alleged ability to become a member of the Florida Bar to its legal conclusions regarding amounts of alimony and child support to which wife was entitled, final judgment must be reversed as to those amounts
MONIQUE R. SHAFER, Appellant, v. LEWIS R. SHAFER, Appellee. 4th District.

Labor relations -- Fair Labor Standards Act -- Putative class action seeking relief under FLSA for employer's failure to compensate employees and similarly-situated individuals for mandatory training performed in course of their employment and for “off the clock” work -- Dismissal -- Rule against claim-splitting mandates dismissal of complaint where same parties are involved in both instant matter and earlier-filed suit alleging violations of FLSA requirements for overtime compensation and where allegations in instant suit arise out of same transaction or series of transactions as first suit -- Alternatively, consolidation of instant action and earlier-filed action is inappropriate where consolidation would have unacceptable consequences of allowing additional conditional plaintiffs to join earlier-filed suit beyond court's mandated deadline for doing so -- Dismissal of instant matter does not bar other avenues of recovery by aggrieved plaintiffs -- There are individual rights to sue available to plaintiffs and there is ongoing multi-district litigation in other states regarding defendants' compliance with FLSA, which may afford claimants an opportunity to opt-in to ongoing conditional certification proceedings and, thus, plaintiffs would not lose any justiciable claims through dismissal of instant matter -- Argument that instant case is an attempt to circumvent court's conditional certification in earlier-filed suit is mooted by finding on duplicative nature of instant litigation
RITA GREENE, et al., individually and on behalf of all others similarly situated, Plaintiff(s), v. H&R BLOCK EASTERN ENTERPRISES, INC., H&R BLOCK, INC., H&R BLOCK GROUP, INC., H&R BLOCK TAX SERVICES, INC., H&R BLOCK ENTERPRISES, INC., Defendants. U.S. District Court, Southern District of Florida.

Torts -- Fraudulent misrepresentation -- Negligent misrepresentation -- Justifiable reliance -- Due diligence -- Trial court erred in denying relief on claims of fraudulent misrepresentation and negligent misrepresentation based on plaintiff's lack of due diligence, a defense not pled or tried by consent -- Justifiable reliance is not a necessary element of fraudulent misrepresentation -- Justifiable reliance on misrepresentation is a required element of claim of negligent misrepresentation, but justifiable reliance on misrepresentation is not the same thing as failure to exercise due diligence
ROBERT T. BUTLER, Petitioner, vs. HENRY YUSEM, et al., Respondents. Supreme Court of Florida.

Torts -- Civil theft -- Conversion -- Bank customers sued bank for civil theft conversion to recover money that former managerial employee stole from their accounts -- Bank is not entitled to summary judgment as to conversion claim on ground that plaintiffs cannot identify the specific money that was stolen, because such a finding is improper on summary judgment motions where court cannot weigh conflicting evidence to resolve disputed factual issues -- Bank is not entitled to summary judgment as to conversion, where plaintiffs do not simply allege that bank breached a contract, but allege that money they deposited with bank was stolen by bank and/or its agents, an act that clearly goes beyond a mere failure to comply with terms of contract -- Economic loss rule does not bar claim for conversion where plaintiffs alleged a tort that is separate and independent of breach of contract by alleging that bank and/or its agents misappropriated plaintiffs' money for their own use, and that bank refused to return these funds to plaintiffs, despite a demand for the return -- Bank is not entitled to summary judgment on civil theft claim, even though it was bank employee who committed the acts that constitute civil theft, not the bank -- Plaintiffs are not prohibited from recovering treble damages where acts constituting civil theft are separate and apart from breach of contract claim, and bank produced no facts to contradict such a finding -- Viewing evidence in light most favorable to plaintiffs, as non-moving parties, civil theft claim is not barred by five-year statute of limitations -- Bank is not entitled to summary judgment on ground that employee's conduct was outside scope of his employment, because existence of bank's liability for employee's acts under apparent authority doctrine is question of fact where plaintiffs allege that bank at all times held employee out as person in charge of non-resident accounts, created business cards for employee, and encouraged employee to portray himself as person in charge of their accounts -- Second motion for partial summary judgment is prohibited where bank never requested permission to file multiple summary judgment motions
REBECCA NAJMAN DE SZTERENSUS, et al., Plaintiffs v. BANK OF AMERICA, N.A., Defendant. U.S. District Court, Southern District of Florida, Miami Division.

Torts -- Civil theft -- Conversion -- Bank customers sued bank for civil theft and conversion to recover money that former assistant bank manger stole from their accounts -- Scope of employment -- Plaintiffs pled facts that, under Eleventh Circuit and Florida precedent, are sufficient to survive motion to dismiss, even though bank manager obviously was not employed to steal the customers' money, where it is reasonable to infer that bank manager was employed to deal with customers' accounts, suggest accounts with higher interest rates, offer special deals as incentives to keep customers' business at bank, and access customers' accounts to transfer money to ensure higher rate of return -- Apparent authority -- Plaintiffs stated claim under apparent authority doctrine sufficient to survive motion to dismiss where plaintiffs pled facts sufficient o show that bank put bank manager in position that enabled him to have access to plaintiffs' accounts and move plaintiffs' money from one account to another, and that bank manager, in process of discharging his normal duties, defrauded plaintiffs, who reasonably relied on his apparent authority by transferring their funds into one of his own accounts -- Economic loss rule -- Economic loss rule nor purported existence of contract bars plaintiffs' tort claims, where plaintiffs have not alleged breach of contract and a contract is not mentioned in complaint or attached thereto
VISHNU SADARANGANI, a/k/a VISHNU KISHINCHAND SADARANGANI, an individual, and PREETI VISHNU SADARANGANI, an individual, Plaintiffs, v. BANK OF AMERICA, N.A., a national banking association, Defendant. U.S. District Court, Southern District of Florida, Miami Division.

Paternity -- Name change -- Error to change surname of child born outside marriage from mother's name, which was listed on birth certificate, to names of mother and father, separated by a hyphen, where order did not articulate how name change is in child's best interest, and record does not show that name change is required for welfare of child -- Paternity is not a sufficient basis on which to grant change in surname

Liens -- Construction liens -- Lender's responsibilities -- Contractor/lienor's action against construction lender who disbursed balance of construction loan proceeds to subsequent contractor without notice to lienor -- Pursuant to section 713.3471(2)(a), when a lender knows it will stop advancing funds to a contractor or any other lienor, the lender has a duty to notify that contractor of its decision, and if it fails to do so, it may be liable to the contractor -- Where contractor filed lien after disputes arose with property owner and owner indicated no further disbursements would be made to contractor, and contractor continued to work, in hopes that disputes could be resolved, until owner eventually hired another contractor to complete project, lender was required to notify contractor before it disbursed remaining loan funds to second contractor -- Error to enter summary judgment in favor of lender

Wednesday, July 14, 2010

The Women-Led Economy™ for a better world

“The Women-Led Economy™ Changes Everything
Focusing women's financial power to create a better world.” The U.S. Women’s Chamber of Commerce released a cutting-edge report "laying the foundation for a transformative new future for women as market leaders through The Women-Led Economy™. This report challenges the conventional view of women primarily as employees and breadwinners within our families and calls upon women to take the lead by focusing our tremendous purchase power with women-owned firms, building our own economic resources and institutions, and working together as market leaders to advance our objectives." Read more.

Friday, June 11, 2010

Some mortgage foreclosure rules

Although a mortgagee may properly, upon default by the mortgagor, elect to accelerate, Florida courts have consistently noted that acceleration will be denied where the default is merely technical or where the overall equities of a particular case warrant denial. La Boutique of Beauty Acad. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983) (judgment was affirmed in appeal by mortgagee from order granting summary judgment to appellees, mortgagors, in an action to foreclose on a mortgage. The court concluded it would be unconscionable to allow acceleration and appellant, mortgagee, was estopped from exercising its acceleration rights upon default because appellant had not done so after prior defaults.); Jones, 870 So. 2d at 52 (similar); Pearson v. Arthur, 248 So. 2d 227 (Fla. 3d DCA 1971) (Under the maxim that equity will enjoin the unconscionable exercise of a legal right, the right of a mortgagee to exercise an agreement to accelerate the unpaid indebtedness upon a default may be denied by the court when an acceleration of the due date of the debt would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable.).
In Jones v. City of Winter Haven, 870 So. 2d 52 (Fla. 2d DCA 2003), for example, the owner bought real property from a financial corporation. The property had previously been found to be in violation of the city's ordinances and the corporation had been ordered to bring the property into compliance, subject to daily fines. The owner's agent was allegedly assured that a reduction in fines could have been petitioned for after the property was brought into compliance. In reliance on the representations, the owner improved the property. Two orders imposing fines on the property were recorded and a lien was created by operation of law. The city sued the owner to foreclose on the lien and the owner raised two affirmative defenses, one of which was estoppel. The city was granted summary judgment. On appeal, the Second District held that the final summary judgment was improper because genuine issues of material fact existed concerning the issues alleged in the affirmative defenses. As the city did not conclusively refute the estoppel defense, final summary judgment was improper.
Likewise, in Knight Energy Servs., 660 So. 2d at 788, a major supplier of motor fuel loaned a sum of money to some established petroleum franchises operating branded retail stations. When a dispute arose between the parties, they reached an agreement in which the parties executed notes and mortgages on some of appellant's service stations to secure repayment. The service station operators failed to make payments in accordance with the settlement, and appellee filed a foreclosure action. The service station operators asserted affirmative defenses that included unclean hands and estoppel. The trial court granted appellee's motion for summary judgment. On appeal, the Fourth District Court of Appeal determined that the affirmative defenses were legally sufficient to preclude a final summary judgment of foreclosure, reversed, and held that, because the appellee failed to factually refute the allegations, a genuine issue of material fact existed the precluding the entry of the judgment. Knight Energy Servs., 660 So. 2d at 788-89.
Likewise, in Marin v. Seven of Five, Ltd., 921 So. 2d 699 (Fla. 4th DCA 2006), the borrowers claimed that the mortgagee, who was also the builder of their residence, breached it warranty to repair any defects by failing to repair damage caused by water intrusion around the home's windows. In addition, the borrowers claimed that the mortgagee's partner initially agreed to a new financing arrangement, but then failed to honor his commitment. The Fourth District held that the allegations concerning the new financing arrangement were legally sufficient to support both the unclean hands and promissory estoppel defenses and, because the mortgagee failed to present any evidence refuting the alleged factual predicate of the defenses, the trial court erred in granting summary judgment.