Saturday, December 31, 2011

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

Contracts -- Noncompetition covenant -- Liquidated damages -- Provision for liquidated damages for breach of noncompetition agreement was unenforceable where damages were readily ascertainable, and provision constituted a penalty
RICHARD GOLDBLATT, individually and VALERIE GOLDBLATT, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee. 3rd District.

Child custody -- Where two women who were involved in lesbian relationship and wished to have a baby which they would raise together paid a reproductive doctor to withdraw ova from one, the biological parent, have the ova artificially inseminated with the sperm of a donor, and have the ova inserted into the womb of the other, the birth parent, both women have parental rights to the child -- Woman who provided her ova to her lesbian partner was not a donor of her ova -- Section 742.14, Florida Statutes, as applied by trial court to eliminate rights of biological mother to child, renders statute unconstitutional as violation of rights to equal protection and privacy -- Section 63.042(3), Florida Statutes, which prohibits gay and lesbian couples from adopting children, does not deprive biological mother of her parental rights -- Biological mother did not waive parental rights by executing informed consent document in reproductive doctor's office -- Question certified: Does the application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?
T.M.H., Appellant, v. D.M.T., Appellee. 5th District.

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

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

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

Dependent children -- Termination of parental rights -- Evidence was insufficient to establish that continued interaction with mother threatened children's life, safety, or health based on the alleged insufficiency of her attempts to keep children's mentally ill and highly abusive father away from home and away from children
A.H. the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees. 3rd District.

Dissolution of marriage -- Relief from judgment -- Denial -- Appeals -- Motion for rehearing did not toll time for filing appeal from order denying rule 1.540(b) motion -- Child support -- Error to deny request for child support through date of child's high school graduation
MARTIN EDWARD MESSIER, Appellant, vs. LESLEY J. MARTIN-MESSIER, Appellee. 3rd District.

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

Mortgage foreclosure -- Relief from judgment -- Absence of sworn motion or evidence
NOVASTAR MORTGAGE, INC., Appellant, vs. OSCAR VARGAS, ET AL. Appellees. 3rd District.

Paternity -- Disestablishment -- Trial court erred in granting petition to disestablish paternity on ground that mother failed to produce child for DNA testing without determining whether mother's failure to submit child for testing was willful
DEPARTMENT OF REVENUE, o/b/o M.J.W., Appellant, v. G.A.T., JR., Appellee. 2nd District.

Public employees -- Drug testing -- Discovery -- Subpoena duces tecum -- Non-profit advocacy organization moved to quash subpoenas for documents in connection with action challenging constitutionality of mandatory drug testing of state employees -- Motion to quash is denied in part with respect to documents that are publicly available on the organization's website and responsive to defendant's request -- Authentication of these documents by deposition of records custodian for documents is unnecessary; rather, sworn declaration of records custodian shall be sufficient for authenticity purposes -- Motion to quash is granted with respect to documents or deposition testimony as to organization's “knowledge and position” on employer drug testing and public approval of employer drug testing, as well as prevalence of drug use and harmful effects of drug use in workplace, where defendant has not shown that information sought is truly relevant, that no other means exist to obtain the information, and that it is crucial to his defense of case -- Even if scope of subpoenas, which are exceedingly broad and burdensome on their face, have been narrowed by defendant's response, motion should nevertheless be granted as such testimony from legal advocacy organization that is specifically acting as counsel of record for a party in case raises unnecessary burden and privilege issues that far outweigh any relevance of information sought
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

Public employees -- Drug testing -- Challenge to constitutionality of Executive Order directing all state agencies to amend their drug-testing policies to provide for pre-employment and random drug testing for all state employees, as a violation of Fourth Amendment's prohibition against unreasonable search and seizure -- Jurisdiction -- Standing -- AFSCME union for state employees has standing to sue where union demonstrated an injury in fact, that alleged Fourth Amendment violation is fairly traceable to EO, and that a judgment that EO is unconstitutional would redress complained of injury -- Claim is fully ripe for adjudication because issues are sufficiently defined and concrete -- Claim is not moot where one state agency is currently undertaking EO's implementation and voluntary cessation with respect to other agencies is not likely to endure -- Union has organizational standing to sue on behalf of its members because they could sue individually, and further union has an interest in representing rights of its members -- Motion to join as necessary party treated as motion to intervene -- Intervention -- Secretary of Department of Corrections, who moved to intervene as party-defendant based on intervention as matter of right or permissive intervention when governor suspended implementation of EO for all agencies except DOC, cannot intervene based on intervention as matter of right where secretary has not demonstrated direct interest in constitutionality of EO, has failed to show that existing parties cannot adequately represent his interest, and court will not lose subject matter jurisdiction absent secretary's intervention -- Alternatively, secretary cannot intervene based on permissive intervention
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, and RICHARD FLAMM, Plaintiffs, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

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

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

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

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Wednesday, December 28, 2011

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

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

Posted originally by Andrew Frisch Dec. 15, 2011

On December 15, 2011 the Department announced that it will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes:
  • To more clearly define the tasks that may be performed by an exempt companion
  • To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

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Sunday, December 11, 2011

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

Arbitration Agreement: FLORIDA HIGH COURT REJECTS DAMAGES CAPS IN ARBITRATION AGREEMENTS, Gessa v. Manor Care of Fla., 14 No. 11 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home December 2, 2011
Provisions in a nursing home's arbitration agreement that limit a resident's potential noneconomic damages to $250,000 and bar the recovery of punitive damages violate public policy and are unenforceable, the Florida Supreme Court has ruled. The court's 4-2 majority said the limitation-of-liability provisions in the contract "directly frustrate" the remedies created by Florida's Nursing Home Resident's Rights Act.

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls
FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee. 2nd District.

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

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

Dissolution of marriage -- Mediation agreement -- Where initial mediation agreement, which was incorporated into final judgment, stated that parties were to share equally in a note receivable if any money was paid pursuant to the note, the only issue pending when parties entered into second mediation agreement was former husband's petition for modification of custody, and the second mediation agreement provided that, in all other respects the previous final judgment shall remain unmodified and in full force and effect, it was error for court to find that under the second agreement former wife was not entitled to a portion of the funds received pursuant to the note -- By changing the disposition of the funds received pursuant to the note, court modified the final judgment contrary to the plain language of the second agreement -- It was also error for court to deny former wife's motion to hold former husband in contempt for failure to pay child support without establishing amount of arrearage
KERRY HARVELL IRVIN, Appellant, v. MARCUS LANE IRVIN, Appellee. 2nd District.

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

Trusts -- Accounting -- Error to enter final summary judgment ordering trustee to file accountings for various trusts where there were disputed issues of material fact and where affirmative defenses, including estoppel and waiver and statute of limitations defenses, were not negated -- Trustee waived reliance on New York law with respect to two trusts where trustee did not raise this issue in trial court -- Fact that one of those two trusts was not in record would not prevent summary judgment for an accounting where trustee did not dispute the fact that the trust was in existence and that moving party was a beneficiary -- With respect to two other trusts, each of which had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account,” moving party did not conclusively show that he was a beneficiary eligible to receive distributions from these trusts -- Although Florida statute requiring an annual accounting now overrides trust provision to the contrary, movant would still be required to show his eligibility as a beneficiary for those periods prior to enactment of statute
DORIS RICH CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and DORIS RICH CORYA and PAUL J. RICH SANDERS as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and DORIS RICH CORYA, as Trustee of other trusts presently unknown, Appellants, v. ROY SANDERS and PAUL J. RICH, JR., Appellees. 4th District.

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

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

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

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Wednesday, December 7, 2011

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

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

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Saturday, December 3, 2011

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

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

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

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

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

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

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

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

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

Bankruptcy -- Confirmation -- Chapter 13 plan -- Good faith -- Chapter 13 debtors failed to carry their burden to establish confirmation of good faith plan where debtors purchased and financed vehicles shortly before their bankruptcy filings in contemplation of those filings, and then proposed chapter 13 plan which would repay the 910-day car claim at less than contractual interest rates such that plans were not proposed in good faith -- Confirmation denied without prejudice to propose new Chapter 13 plans which would repay creditor in full and at contract interest rates or which would treat creditor outside plan
In re: FREDERICK M. & BEVENA F. BLACKMON, Debtors. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division.

Civil procedure -- Default -- Vacation -- Excusable neglect -- In action for breach of contract, open account and unjust enrichment in which default had been entered for defendants' failure to file answer to original complaint, where trial court first granted defendants' motion for vacation of default judgment on grounds of lack of subject matter jurisdiction based on forum selection clause, then upon plantiff's motion for rehearing determined it did have jurisdiction, it was improper for trial court on its own motion to then set aside default on grounds of excusable neglect without defendants making required evidentiary showing of excusable neglect, a meritorious defense, and due diligence -- Jurisdiction -- Subject matter jurisdiction claim -- Trial court was ultimately correct in concluding the forum selection clause did not deprive it of subject matter jurisdiction -- Nonetheless, trial court could not set aside default judgment based upon excusable neglect where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties -- Personal jurisdiction claim -- Claim by defendants, made for first time in their answer brief on appeal, that trial court properly set aside default judgment because plaintiff failed to properly allege personal jurisdiction over defendants in its complaint, lacks merit because it appears undisputed that defendants were served with process in Florida where they are currently living; and a challenge to personal jurisdiction is waived if it is not raised in a party's first filing in the case, and defendants had already participated in the proceedings without making such objection -- Res judicata -- Claim by plaintiff that it would be improper and fundamental error to allow defendants on remand to establish excusable neglect, a meritorious defense, and due diligence lacks merit because, since it involves remanding the case to the trial court following the reversal of an order granting an initial, rather than a second, motion to set aside a default judgment, there is no res judicata issue
BANK OF AMERICA, N.A., Appellant, v. NANCY A. LANE AND ROBERT G. LANE, Appellees. 1st District.

Civil procedure -- Service of process -- Foreign corporations -- Service of process on defendant corporation quashed -- Plaintiff attempted to perform substitute service pursuant to incorrect Florida long arm jurisdiction statute -- Further, plaintiff did not strictly comply with requirements for substituted service against domestic corporation, which requires notification by registered or certified mail to defendant after service upon Secretary of State
EMILIO PINERO, Plaintiff, v. YAM MARGATE, L.L.C., Defendant. U.S. District Court, Southern District of Florida.

Civil rights -- Americans with Disabilities Act -- Dismissal -- When considering motion to dismiss for lack of subject matter jurisdiction, mere fact that plaintiff lives 200 miles from defendants' facility does not necessarily establish lack of standing to initiate lawsuit -- Consideration of matters beyond four corners of complaint is impermissible under Eleventh Circuit precedent in context of motion to dismiss for failure to state a claim -- Motion to dismiss complaint denied
ROBERT COHEN and ACCESS FOR THE DISABLED, Plaintiffs, v. B.T. FT. MYERS, INC., WENDY'S INTERNATIONAL, INC., DEBORAH R. ROBERTSON, KATHERINE WILDEY, and LAURENCE B. OETH, III, Defendants. U.S. District Court, Middle District of Florida, Tampa Division.

Contracts -- Real property sale -- Torts -- Fraudulent inducement -- Failure to disclose material defects in residence -- Error to find sellers liable to purchaser based on conclusion that, although they had no knowledge of undisclosed material defects, sellers “should have known” of defects -- To hold a seller liable for failure to disclose material defect under supreme court ruling in Johnson v. Davis, buyer must prove actual knowledge of the defect -- Trial court's finding that sellers did not have actual knowledge of asserted undisclosed material defects was supported by substantial, competent evidence
ERIC JENSEN and JOYCE JENSEN, Appellants/Cross-Appellees, v. CYNTHIA BAILEY, Appellee/Cross-Appellant. 2nd District.

Contracts -- Arbitration -- Unless there is a challenge to the arbitration provision in a contract which is separate and distinct from any challenge to the underlying contract, the case should be submitted to arbitration
MARSHALL, AMAYA & ANTON, ETC., ET AL., Appellants, vs. KARIN ARNOLD-DOBAL, D.O., Appellee. 3rd District.

Dissolution of marriage -- Child support -- Modification -- Retroactive -- Change in circumstances -- Failure to exercise visitation -- Trial court erred in only awarding retroactive child support from the date which mother filed an amended counter-petition seeking modification of support where, under section 61.30(11)(c), modification is retroactive to the date non-custodial father first failed to regularly exercise court-ordered or agreed visitation
KAREN J. BUHLER, Appellant, v. JOSEPH H. BUHLER, Appellee. 5th District.

Dissolution of marriage -- Child support -- Modification -- Res judicata -- Where appellate court, in prior appeal, held that orders interpreting parties' divorce agreement and setting child support were entered by a Georgia court of competent jurisdiction and that, accordingly, wife was barred by res judicata from relitigating issue of interpretation of parties' divorce agreement in Florida; and appellate court remanded for determination of child support modification from the date former wife petitioned for domestication and modification in Florida, trial court improperly modified child support and established child support arrearage based upon its interpretation of divorce agreement, which differed from that of Georgia court -- Trial court should have determined modification issue pursuant to Florida's child support guidelines
MACK H. SULLIVAN, JR., Appellant, v. EMILY HOFF-SULLIVAN, Appellee. 1st District.

Dissolution of marriage -- Marital home -- Homestead -- Exemption -- Waiver -- Marital settlement agreement -- Action arising out of first wife's attempt to recover unpaid child support by making a claim against former husband's share of proceeds from sale of husband and second wife's martial home pursuant to martial settlement agreement between husband and second wife -- Husband did not waive homestead protection where husband intended that the proceeds from sale would be used to acquire new homestead property and, although MSA stated that husband agreed to satisfy any “liens or encumbrances” on martial home from his share of proceeds, the child support judgments first wife held against husband did not constitute a lien or encumbrance against the homestead property
RINA KERZNER, Appellant, vs. STUART J. KERZNER AND DANA A. KERZNER, Appellees. 3rd District.

Injunctions -- Order granting permanent injunction was defective for failure to specify reasons for entry of injunction, and failure to make specific findings regarding irreparable harm and an unavailable remedy at law
HAROLD S. KIRKLAND, individually, and MARTHA C. KIRKLAND, individually, Appellants, v. PEOPLESSOUTH BANK, Appellee. 1st District.

Jurisdiction -- Service of process -- Limited partnerships -- Substituted service on Secretary of State -- Plaintiff's single attempt to serve defendant limited partnership in lien foreclosure action at the address of its registered agent did not amount to reasonable diligence -- No merit to plaintiff's contention that section 620.1117 requires only the exercise of reasonable diligence to serve the registered agent at its listed registered office -- Because plaintiff failed to effect service of process, default final judgment was void -- Trial court erred in denying motion to set aside default final judgment
TWIN OAKS VILLAS, LTD., Appellant, v. JOEL D. SMITH, L.L.C., and CON COR CONSTRUCTION, INC., Appellees. 1st District.

Labor relations -- Fair Labor Standards Act -- Overtime -- Back wages -- Trial court properly entered summary judgment in favor of former employer in action for unpaid overtime and back wages pursuant to FLSA, as plaintiff was ineligible for either individual or enterprise coverage -- In order to survive summary judgment with respect to individual coverage for overtime compensation under FLSA, plaintiff needed to produce admissible evidence that he worked directly for an instrumentality of interstate commerce or regularly used the instrumentalities of interstate commerce, and plaintiff failed to do so -- Plaintiff failed to establish that employer was an enterprise subject to FLSA's overtime wage provision where plaintiff produced no concrete evidence that employer had gross sales of at least $500,000 in any one year -- District court did not err in rejecting plaintiff's argument that enterprise coverage was available by virtue of his having performed remodeling work, as part of his employment, for a client which was itself potentially a FLSA-covered entity by virtue of its status as an institution which provided care for the aged -- Civil procedure -- District court did not abuse its discretion with respect to various discovery rulings or by sanctioning plaintiff's counsel for abusing the discovery process
LUIS CARLOS JOSENDIS, and similarly situated individuals, Plaintiff-Appellant, v. WALL TO WALL RESIDENCE REPAIRS INC., a Florida corporation, Defendant-Appellee. 11th Circuit.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure where there was factual issue as to whether plaintiff provided notice to cure prior to accelerating debt as required by mortgage -- Unauthenticated copies of default letters sent to defendant were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on motion for summary judgment -- Letters were not self-authenticating
JAMES D. BRYSON, Appellant, v. BRANCH BANKING AND TRUST COMPANY, Appellee. 2nd District.

Municipal corporations -- Ordinances -- Traffic infractions -- Red light cameras -- Trial court erred in finding that ordinance which allows the issuance of notices of violations for red light infractions on basis of red light cameras is preempted by and in conflict with state law
CITY OF AVENTURA, FLORIDA, Appellant, vs. RICHARD MASONE, Appellee. 3rd District.

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

Receivership -- Corporations -- Action arising out of underlying dispute between two sole shareholders and directors of the corporation which resulted from defendant's attempt to assign corporation's sole assets to another company after plaintiff failed to sell defendant his interest in the corporation as defendant claimed plaintiff agreed to -- Trial court did not abuse its discretion in granting plaintiff's motion to appoint receiver pursuant to section 607.1430(2)(a) where record contains competent evidence to support findings that the directors of the corporation were deadlocked, the shareholders were unable to break the deadlock, and the corporation suffered irreparable harm as a result of the deadlock
PETER WENZEL, ETC., ET AL., Appellants, vs. GARY BURMAN, ETC., ET AL., Appellees. 3rd District.

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

Mortgage foreclosure -- Damages -- Error to hold guarantor liable on note for which guarantor did not execute guaranty -- Trial court instructed to modify final judgment to reflect that default interest rate on note runs through date of final judgment
GROVE ONE REALTY, LLC, ET AL., Appellants, vs. OCEAN BANK, Appellee. 3rd District.

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

Paternity -- Disestablishment -- Error to deny former husband's petition to disestablish paternity of child conceived before parties were married, filed after DNA test results conclusively proved that former husband was not biological father of child, where requirements of section 742.18 were satisfied -- Former husband was “a male ordered to pay child support” for purposes of section 742.18's mechanism for disestablishing paternity where, as part of final judgment of dissolution of parties' marriage, he was ordered to share equally with former wife the child's medical, dental, and childcare-related expenses and he was designated child's primary residential parent, which unquestionably obligated him to contribute to child's support -- Trial court erred in concluding that DNA test results did not amount to newly discovered evidence because former husband knew or should have known that he was not biological father at time he signed child's birth certificate -- DNA test results performed since the initial determination of paternity satisfy the statutory requirement for newly discovered evidence so long as they meet the statute's other time requirements -- Plain language of statute only addresses a petitioner's knowledge since the initial paternity determination and, accordingly, any suspicions a petitioner may have had prior to that initial establishment of paternity are irrelevant -- Conflict certified -- In view of former husband's role as child's primary residential parent, trial court erred in concluding that former husband was estopped from disestablishing paternity because he continued to assert parental responsibility over child after receiving DNA test results
P.G., Appellant, v. E.W., Appellee. 2nd District.

Wrongful death -- Product liability -- Strict liability -- Vehicle tire -- Tread separation, causing driver to lose control of vehicle -- Discovery -- Trade secrets -- No abuse of discretion in limiting document discovery from defendant to those involving tires with the same or similar specifications
MARIO A. ALVAREZ, Appellant, v. COOPER TIRE & RUBBER COMPANY, Appellee. 4th District.

Wrongful death -- Hospitals -- Medical malpractice -- Presuit requirements -- Claim that hospital negligently retained physicians who it knew would not treat patients without insurance, ultimately causing death of decedent due to lack of treatment, was a claim arising under Medical Malpractice Act, even if doctors' motives for refusing to come to hospital to provide treatment were purely economic -- Trial court departed from essential requirements of law when it denied motion to dismiss third amended complaint for failure to follow medical malpractice presuit requirements
PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a PALMS WEST HOSPITAL, f/k/a COLUMBIA PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a PALMS WEST HOSPITAL, Petitioner, v. CHARLES H. BURNS, as Personal Representative of the ESTATE OF ENRIQUE CASASNOVAS, Deceased, for the benefit of the ESTATE OF ENRIQUE CASASNOVAS, Respondent. 4th District.

Attorney's fees -- Contracts -- Prevailing party -- Where appellate court reversed award of damages with respect to one claim in a multicount action and remanded to trial court to vacate that portion of award, thereby reducing prevailing plaintiff's recovery by nearly 85%, trial court erred in denying defendant's motion for relief from attorney's fee judgment without holding evidentiary hearing to determine whether claim which was reversed on appeal was separate, distinct claim or was inextricably intertwined with claims on which plaintiff ultimately prevailed -- Further, even if trial court concludes that claims were not separate, results obtained were drastically changed, and this may or may not require reduction of attorney's fees
RIVER BRIDGE CORPORATION, a foreign corporation and RIVER BRIDGE REALTY CORPORATION, a foreign corporation, Appellants, v. AMERICAN SOMAX VENTURES, a Florida General partnership through its Partners, AMERICAN HOME DEVELOPMENT CORP., SOMAX DEVELOPMENT CORP., MSF INTERNATIONAL, INC., a Florida corporation, MOBIL OIL CORPORATION, a foreign corporation, and MOBIL LAND AND DEVELOPMENT CORPORATION, a foreign corporation, Appellees. 4th District.

Torts -- Contracts -- Exculpatory clauses -- Claim against retailer for damages resulting from trespass, nuisance, and negligence, brought after roof over retailer's store, which was adjacent to plaintiff's store, collapsed as result of weather from hurricane, severing a sprinkler main and causing uncontrolled water flow into mall and plaintiff's store -- No error in entering partial summary judgment limiting plaintiff's recovery to its insurance deductible based on mall operating agreement in which plaintiff and defendant agreed to release each other from liability from any loss or damage to property covered by party's insurance policy, which release applied even if casualty was caused by fault or negligence of a party or anyone for whom a party might be responsible -- Evidence that the roof in another of defendant's stores had sustained damage in a prior hurricane and that defendant's internal memoranda acknowledged potential for damage due to hurricanes and need to perform maintenance prior to such storms did not establish gross negligence which would render exculpatory clause in commercial operating agreement unenforceable under controlling state law -- Trial court erred in finding that plaintiff's insurance recovery for its losses in this case was, in fact, not subject to a deductible because the insurer, for its own purposes, made a unilateral decision to allocate the entire deductible to a different store, rather than apportioning it among three stores to which the deductible applied -- Genuine issue of material fact existed as to how deductible was apportioned and whether application of the deductible was beyond plaintiff's control
J.C. PENNEY COMPANY, INC., Appellant, v. DILLARD'S, INC., Appellee. 4th District.

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

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