The "Appellate Gourmet (c)" . . . . . . . . .: September 2010

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
MIGUEL J. LARACH and GREAT AMERICAN CORPORATION, Plaintiff, v. STANDARD CHARTERED BANK INTERNATIONAL (AMERICAS) LIMITED and STANCHART SECURITIES INTERNATIONAL, INC., Defendants. U.S. District Court, Southern District of Florida, Miami Division.

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
FLORIDA ELECTIONS COMMISSION, Appellant, v. SUSAN VALLIERE and A. JAMES VALLIERE, Appellees. 4th District.

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
TRAVELERS OF FLORIDA F/K/A FIRST FLORIDIAN AUTO & HOME INSURANCE COMPANY, Appellant, vs. RAY CLYDE STORMONT, JR., Appellee. 3rd District.

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
KENDAHL DIANE HUTCHESON, Appellant, v. STEPHEN GREGORY TAYLOR, Appellee. 1st District.

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
VICTOR WHITEHEAD, d/b/a WHITEHEAD CONSTRUCTION, Appellant, v. TYNDALL FEDERAL CREDIT UNION, Appellee. 1st District.

Thursday, September 23, 2010

Judiciary Approves Pilot Project for Cameras in District Courts

Wednesday, September 22, 2010

Wash. AG’s Settlement with LegalZoom

Thursday, September 16, 2010

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

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