Wednesday, February 2, 2011

Settlement, releases, indemnification and wild quail with cornbread, currant and pecan stuffing drizzled with raspberry gravy

Contracts -- Releases -- Trial court erred in entering summary judgment finding that release sent by plaintiff to defendant extinguished any and all claims against defendant where release contained latent ambiguities, and there was factual issue as to whether release was withdrawn or revoked prior to defendant's acceptance

Dissolution of marriage -- Equitable distribution -- Error to charge husband with money withdrawn from marital IRAs and to classify as husband's nonmarital debt money that had been borrowed from parties' equity line of credit based on magistrate's finding that husband's postseparation expenditure of funds from these sources was in excess of reasonable and necessary living expenses husband paid for both parties and was for husband's sole use and benefit where magistrate also found that there was no substantial competent evidence that husband's dissipation of assets was willful, deliberate, or intentional
WILLIAM A. BELFORD, Appellant, v. DEBORAH BELFORD, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Unequal distribution -- Marital home -- In supplemental final judgment, trial court erred in awarding former wife half interest in loan from a line of credit secured by the marital home as well as equity in the marital home after the proceeds from its sale were used to satisfy the loan, without findings to justify the unequal distribution -- There is no merit to former husband's claim that trial court lacked jurisdiction to alter the terms of the consent final judgment -- By seeking a special equity in the proceeds of the sale of the marital home, former husband sought to vary the terms of the consent final judgment, and the disposition of the marital home was contested and tried by consent
KEVIN ANTHONY DYBALSKI, Appellant, v. ANGELA LYNNE DYBALSKI, Appellee. 5th District.

Indemnification -- Trial court properly dismissed with prejudice a complaint seeking common law indemnification based on an assignment of rights contained in a settlement agreement entered into in a different case where assignor, in fact, had no right to indemnification from the defendants in this case -- Trial court did not err by considering contents of settlement agreement in ruling on motion to dismiss where complaint referred to the agreement and plaintiff's standing to bring instant suit was premised on terms of that agreement ROY VEAL, as representative of the class certified at No. 8:04-CF0-0323 (U.S.D.C. M.D. Fla.), assignees of certain rights of Crown Auto Dealerships, Inc., Appellant, v. VOYAGER PROPERTY AND CASUALTY INSURANCE COMPANY; VOYAGER SERVICE PROGRAMS, INC.; and PRO-TEC DEALER SERVICES, INC., Appellees. 2nd District.

Municipal corporations -- Code enforcement liens -- City ordinance granting its code enforcement liens superpriority over a prior recorded mortgage conflicts with section 695.11, Florida Statutes, and ordinance must yield to statute -- Trial court properly entered summary judgment finding that prior recorded mortgage had priority over code enforcement liens
CITY OF PALM BAY, Appellant, v. WELLS FARGO BANK, N.A., Appellee. 5th District.
Civil rights -- Speech -- Association -- County and fire department officer did not violate a firefighter's First Amendment right to intimate association when they demoted him for an extramarital affair with one of his subordinates, because county's interest in discouraging intimate, extramarital association between supervisors and subordinates is so critical to effective functioning of fire department that it outweighs firefighter's interest in extramarital association with a subordinate in workplace, even assuming arguendo that First Amendment protects intimate, extramarital associations as fundamental right
RANDOLPH STARLING, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, PALM BEACH COUNTY, KEN FISCHER, in his official and individual capacity, Defendants-Appellees. 11th Circuit.

Contracts -- Airlines -- Contract of carriage -- Breach by airlines -- Federal preemption -- Airline Deregulation Act -- Female passenger filed suit against airline alleging state law contract and tort claims, based on allegedly unprofessional conduct and sexually explicit comments made to her by male employees following discovery of vibrator in her checked luggage -- District court correctly determined that breach of contract of carriage claim was preempted by Air Deregulation Act, as claim related to “services” within meaning of ADA's preemption clause -- Punitive damages claim based on alleged misconduct of carrier's employees must be dismissed because neither airline carrier nor its management participated in, ratified, condoned, or consented to action of lower level employees accused of misconduct -- Claim for intentional infliction of emotional distress was properly dismissed for failure to state a cause of action, where sexual comments alleged to be made by employee, while distasteful in nature, were insufficient to support claim of intentional infliction of emotional distress
RENEE KOUTSOURADIS, Plaintiff-Appellant, v. DELTA AIR LINES, INC., a foreign corporation, Defendant-Appellee. 11th Circuit.

Due process -- Attorneys -- Certification in field of legal specialization -- Board certified attorney who was denied recertification as marital and family law specialist on basis of unsatisfactory peer reviews sued Florida Bar asserting as-applied and facial challenges to confidential peer review part of Bar's certification rules and seeking injunctive and declaratory relief under Due Process Clause -- Jurisdiction -- Rooker-Feldman doctrine clearly deprived district court of subject matter jurisdiction to decide attorney's as-applied challenges to Florida Bar's confidential peer review rules, where Florida Supreme Court had denied her petition for review of Bar's decision denying recertification -- Facial challenge on due process grounds to Florida Bar's rules regarding confidential peer reviews as part of recertification process fails because neither certification nor recertification in a field of legal specialization amounts to cognizable property or liberty interest
LAWYER DOE, Plaintiff, CAROLYN S. ZISSER, Plaintiff-Appellant, v. THE FLORIDA BAR, Defendant-Appellee. 11th Circuit.

Employer -- Employee relations -- Family and Medical Leave Act -- Employee who was demoted after returning from statutorily protected maternity leave sued employer, alleging that her maternity leave impermissibly contributed to her demotion -- Employer was entitled to judgment as a matter of law on claims that employer violated Family and Medical Leave Act both by interfering with plaintiff's FMLA rights and retaliating against her for exercising those rights, because reasonable jury would not have legally sufficient evidentiary basis to find in plaintiff's favor on either of her FMLA claims -- District court did not err in granting judgment as matter of law in favor of employer on FMLA interference claim where employer offered evidence showing that plaintiff was demoted as result of her ineffective management style, which revealed itself in full only in her absence, and not because she took FMLA leave, and plaintiff did not offer any evidence to contrary -- Discussion of distinction between but-for and proximate causation in FMLA context -- District court did not err in granting employer's motion for judgment as matter of law on FMLA retaliation claim because, even assuming plaintiff successfully established prima facie case for FMLA retaliation, employer met its burden of articulating a legitimate, nondiscriminatory reason for plaintiff's demotion by producing testimony regarding plaintiff's poor management practices, astringent leadership style, and inability to communicate effectively with her subordinates, and plaintiff failed to demonstrate that employer's reasons were merely pretext for discrimination
ELLEN SCHAAF, Plaintiff-Appellant, v. SMITHKLINE BEECHAM CORPORATION, d.b.a. GlaxoSmithKline, GLAXOSMITHKLINE, Defendants-Appellees. 11th Circuit.

Cannino v. Progressive Express Ins. Co. ,(Fla.App. 2 Dist.)
Insurance - Insured who settled workers' compensation lien by releasing right to future benefits was entitled to collect PIP benefits.
An insured who received workers' compensation benefits for injuries he sustained in an automobile accident that occurred during the course of his employment, and who settled with the third-party tortfeasor for the tortfeasor's policy limits and then released his right to future workers' compensation benefits in exchange for a waiver of the workers' compensation carrier's workers' compensation lien, was entitled to recover personal injury protection (PIP) no-fault benefits from his personal automobile insurer. Although the insurer contended that it was entitled to a credit for the workers' compensation benefits that were never repaid out of pocket, the insured became obligated to reimburse the workers' compensation carrier upon recovering from the tortfeasor, and the insured's settlement with the workers' compensation carrier was the equivalent of repayment of the benefits. <p>This decision may not yet be released for publication.

Combs v. Nelson,(C.A.11 (Ga.))
Civil Rights - Prison officials were not deliberately indifferent to medical needs of prisoner diagnosed with latent TB.
Prison officials were not deliberately indifferent to the medical needs of a prisoner who was diagnosed with latent tuberculosis (TB). The prison had policies mandating, inter alia, TB testing upon an inmate's initial intake screening and an investigation about with whom an inmate with active TB had been in contact. The officials complied with the policies. Although the prisoner stated that the infected inmate was allowed to walk around the general prison population for three months, engaging in close contact with other inmates, the prisoner provided no identity for the inmate, did not explain how or when he learned of the infected inmate, and submitted no documentation of a complaint he filed about such an inmate.

Appeals -- A party may not appeal denial of summary judgment after district court has conducted full trial on the merits -- Civil rights -- Qualified immunity -- Where district court denied defendants' motions for summary judgment based on qualified immunity after finding the existence of factual disputes material to plaintiff's claims and defendants' claims of qualified immunity, defendants could not appeal that ruling after trial on merits
MICHELLE ORTIZ, Petitioner v. PAULA JORDAN et al. U.S. Supreme Court.

Civil rights -- Employment discrimination -- Retaliation -- Employee filing charge with Equal Employee Opportunity Commission against employer and subsequent suit under Title VII, claiming that employer fired him to retaliate against his fiancee for filing with EEOC her sex discrimination charge against employer, was entitled to sue for retaliation under Title VII -- Firing of employee constituted unlawful retaliation, if facts as alleged are true -- Title VII grants employee a cause of action -- For standing purposes, employee falls within zone of interest protected by Title VII where purpose of Title VII is to protect employees from employer's unlawful action and plaintiff was not accidental victim of the retaliation of employer's unlawful act, if facts as alleged are accepted; rather, it was employer's intended means of harming employee's fiancee for filing sex discrimination charge -- Employee is a person aggrieved with standing to sue

Consumer law -- Truth in Lending Act -- Disclosures -- Credit card finance charges -- At time of transactions at issue, Regulation Z, which requires issuers of credit cards to provide cardholders with initial disclosure statements specifying each periodic rate associated with account and subsequent disclosure notice whenever any term required to be disclosed is changed, does not require an issuer to notify a cardholder of an interest-rate increase instituted pursuant to previously-disclosed provision of cardholder agreement giving issuer discretion to increase rate, up to a stated maximum, in event of cardholder's delinquency or default
CHASE BANK USA, N. A., Petitioner v. JAMES A. McCOY, individually and on behalf of all others similarly situated. U.S. Supreme Court.

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