Sunday, October 16, 2011

Appeals, business law, torts and sea bass with spinach lightly sauteed with garlic

Appeals -- Preservation of issue -- Appeal alleging that circuit court had no procedural basis to enter final order -- Where nothing in plaintiff's appendix suggests he raised his procedural argument to the circuit court, and plaintiff has not provided a transcript of the hearing which led to the final order, the appellate court is forced to conclude that the plaintiff has not preserved his procedural argument -- Based on circuit court's factual findings, it cannot be concluded that the final order was fundamentally erroneous on its face
WILLIS MORGAN, Appellant, v. CHADWICK E. WAGNER, Chief of Police of the City of Hollywood, Florida, MICHAEL J. SATZ, State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, and JOSEPH MATTHEWS, Appellees. 4th District.

Appeals -- Timeliness -- Appellant's notice of appeal failed to timely invoke court's jurisdiction to review final administrative order -- Premature -- Agency order on appellant's motion to vacate final order has not been rendered by agency and therefore the appeal from this order is premature -- Dismissal of premature appeal is without prejudice

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Loan agreement -- In action on claim of personal loan that was poorly documented and never repaid by defendants who claim it was a gift, trial court abused discretion in awarding attorney's fees against plaintiff and her attorney based on defendant's claim that plaintiff and her attorney knew or should have known that no admissible evidence existed to support claim of money lent and related claims -- In noting its deliberation about the evidence and testimony from both sides, trial court expressly recognized that plaintiff's testimony, along with cancelled checks, constituted evidence supporting her claims although insufficient to meet her burden of proof -- Statute does not penalize losing parties and their attorneys when they present competent, substantial evidence simply because the trier of fact resolves conflicting testimony against the losers -- Contracts -- Statute of Frauds -- Trial court erred in ruling Statute of Frauds barred claim for money lent because there was no signed memorandum evidencing the loan where the claim was for a direct promise to pay, not for a promise to pay another's debt, and hence the claim for money lent is not within the purview of the statute

Attorney's fees -- Contracts -- Contingency fee agreement -- Termination of services clause -- Representation agreement between attorney and client was unenforceable as matter of law where provision of agreement providing for immediate payment of accrued hourly rates upon discharge constituted a penalty clause, in violation of Bar rule -- Argument that trial court should have severed offending language from agreement rather than finding entire agreement unenforceable was not preserved for review where argument was not raised below -- Quantum meruit -- Attorney not entitled to any quantum meruit recovery where contingency did not occur

Bankruptcy -- Estate property -- Chapter 7 debtor's annual salary received post-petition is not property of estate under 11 U.S.C. section 541(a)(6) and is exempt from administration by trustee as earnings from services performed by an individual debtor after commencement of case -- “Five percent bonus,” which is calculated by taking 5% of net profit for the particular month, is actually a distribution of profit from property of estate and, therefore, constitutes property of estate as “proceeds, product, offspring, rents or profits of or from property of estate” under Section 541(a)(6) and should be turned over to trustee -- Debtor's annual salary is properly exempt wages under Section 222.11, Florida Statutes, and “5% bonus” does not fall within definition of earnings as defined in statute
In re: HOYT WILLARD COOK, JR., & GLENDA ANN COOK, Debtors. U.S. Bankruptcy Court, Northern District of Florida, Panama City Division.

Bankruptcy -- Unclaimed funds -- Release of funds -- Funds locators as alleged assignees of former debtors, whose assets were fully administered and distributed in Chapter 11 liquidating plans confirmed several years ago, filed applications to withdraw funds deposited into court's registry, representing distributions in liquidating plan unclaimed by creditors entitled to the funds -- After confirmation of liquidation plan of reorganization in which debtor is dissolved, all of its assets are liquidated, and no entity acquires the assets of debtor under the plan, neither funds locators as alleged assignees of former debtors nor former officers or directors who executed the assignments to funds locators are entitled to recover unclaimed funds in court's registry on behalf of long ago dissolved debtors -- A former debtor whose assets were fully administered in chapter 11 liquidating plan, is not a debtor under 11 U.S.C. section 347(b) with a right to recover unclaimed funds; instead, money will be treated like unclaimed funds in Chapter 7 case and remain available only to rightful claimants -- A corporation that is dissolved pursuant to a chapter 11 liquidating plan has no right to recover unclaimed funds in court's registry; rather, funds remain in registry subject to withdrawal only by creditors who were entitled to distributions under plans -- State statutes cited by applicants, which authorize dissolved corporations to take actions to wind up their affairs, do not support distribution of unclaimed funds to applicants following liquidation of a company's assets in Chapter 11 case

In re: A.G.A. FLOWERS, INC., et al., Debtors. U.S. Bankruptcy Court, Southern District of Florida.
Bankruptcy -- Sanctions -- Violation of automatic stay and discharge injunction -- Debtor moved for sanctions against state agencies for willfully violating automatic stay and discharge injunction by issuing collection letters and suspending debtor's Florida driver's license for alleged child support arrearages -- Debtor is entitled to award of actual damages and sanctions pursuant to court's statutory and inherent powers, where debtor established by preponderance of evidence and by clear and convincing evidence that state agencies knowingly, intentionally, and repeatedly violated automatic stay, discharge injunction, and numerous orders of court -- Sovereign immunity -- Where state agencies voluntarily waived sovereign immunity pursuant to Section 106(b) by filing proofs of claim for child support debt, Bankruptcy Court may impose sanctions and award of attorney's fees and costs -- Doctrines of collateral estoppel and res judicata preclude respondents from attempting in this sanction proceeding to relitigate the adjudication of the claim objection, plan confirmation, and payment satisfaction of its allowed claim through debtor's fulfillment of plan -- Respondents were afforded due process where they had full and fair opportunity to litigate claim objection, confirmation of plan, discharge, trustee's final report, and closing of case -- Respondents are not entitled to reconsideration of order finding that attorney's fees and costs debtor incurred are relevant to determination of sanctions motion and that cause existed for reopening evidence regarding such fees and costs, where they presented no newly discovered evidence or manifest errors of law or fact warranting the reconsideration or amendment of order
In re: MIGUEL A. DIAZ, Debtor. U.S. Bankruptcy Court, Middle District of Florida, Orlando Division.

Civil procedure -- Certiorari -- Depositions -- Subpoena -- Insurance adjuster who resided and worked in Hillsborough County, and who was not designated a corporate representative, erroneously compelled by county court to attend deposition in Broward county -- Petition for second-tier certiorari is denied where circuit court's dismissal of certiorari petition did not constitute a miscarriage of justice

Civil procedure -- Default on motor vehicle lease -- Summary judgment -- Trial court properly entered summary judgment where there were no issues of material fact -- Remand for correction of scrivener's error

Civil rights -- Municipal corporations -- Ordinance -- Constitutionality -- Four homeless plaintiffs challenge constitutionality of municipal ordinance, which authorizes city agents to issue temporary trespass warning for city property on which warning recipient violates city or state law, and second ordinance, which prohibits storage of personal property on public property -- Due process -- Trespass ordinance is unconstitutional facially, and as applied, under Due Process Clause of Fourteenth Amendment, because ordinance lacks constitutionally adequate procedural protections as the ordinance is presently written and allegedly enforced -- Plaintiffs possess constitutionally protected liberty interest in lawfully visiting city property that is open to public generally, plaintiffs will be deprived of that interest by issuance of trespass warning, and ordinance causes a substantial risk of erroneous deprivation of liberty because it provides a lot of discretion to a variety of city agents to issue trespass warning for wide range of acts, and because no procedure is provided for recipient of trespass warning to challenge the warning or for warning to be rescinded -- Overbreadth -- Plaintiffs have not stated claim for relief that trespass ordinance is substantially overbroad in the discretion it gives city employees to issue trespass warnings, which ban access to traditional public fora uniquely dedicated to expressive activities -- Right to travel -- Plaintiffs stated claim for relief that city's customs and practices of enforcing trespass ordinance on public sidewalks surrounding public parks burdens their protected right to intrastate travel under Florida Constitution -- City asserted no compelling governmental interest in alleged enforcement of trespass ordinance on sidewalks and did not argue that alleged enforcement policies are narrowly tailored to meet city's goals -- Based on allegations and arguments presented, city's alleged policy of enforcing trespass ordinance on public sidewalks does not pass strict scrutiny test under Florida law -- Vagueness -- District court properly dismissed claim that storage ordinance is facially void for vagueness under Due Process Clause because it fails to define sufficiently the term “unlawful storage,” term “unattended,” or both -- Because ordinance is not impermissibly vague in all its applications, court cannot conclude that ordinance is facially unconstitutional in its definitions of “unlawful storage” and “unattended” items
ANTHONY CATRON, JO ANNE REYNOLDS, WILLIAM SHUMATE, on behalf of themselves and all others similarly situated, RAYMOND YOUNG, Plaintiffs-Appellants, CHARLES R. HARGIS, et al., Plaintiffs, v. CITY OF ST. PETERSBURG, Defendant-Appellee. 11th Circuit.

Class actions -- Action filed by physician claiming that defendant inflated its expenses through a “phantom” expense line, “Other Physician Benefits,” which reduced profits available for bonus payments, although written bonus provisions in physicians' contracts contained no obligation to pay percentage of profits to bonus pool -- Petition for writ of prohibition seeking to prevent trial court from considering second amended complaint to certify a class action after appellate court determined that no class action could be maintained is granted where trial court allowed plaintiff to proceed with one count of its amended class action complaint after appellate court mandated that class action was inappropriate because individual issues predominated over common issues -- Although second amended complaint alleged only that profits were improperly reduced by way of “Other Physician Benefits” and did not claim entitlement to percentage of profits, it is obvious from appellate court's previous decision that any claims pertaining to the alleged improper expense of “Other Physician Benefits” must proceed on an individual basis
INPHYNET CONTRACTING SERVICES, INC., and TEAM HEALTH, INC., Petitioners, v. DAVID M. SORIA, M.D., Respondent. 4th District.

Contracts -- Offer of judgment -- Where individual and corporation of which individual was sole shareholder were both plaintiffs in action alleging breach of several contracts, it was error to require corporate plaintiff to file third amended complaint and to dismiss corporate plaintiff's third amended complaint based on individual plaintiff's acceptance of defendants' offer of judgment which was made only to individual plaintiff -- Individual plaintiff's acceptance of offer of judgment did not bar corporate plaintiff's separate and distinct claims

Creditors' rights -- Garnishment -- Exemptions -- Wages of head of family -- Waiver -- Statement in promissory note signed by judgment debtor that, “I consent to the issuance of a continuing writ of garnishment or attachment against my disposable earnings, in accordance with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part, any money judgment entered in favor of [the Bank],” was sufficient to waive the exemption for the disposable earnings of a head of a family to the extent that the disposable earnings exceed $500 a week -- Trial court erred in blocking judgment creditor's attempt to collect judgment against judgment debtor by garnishing his wages
USAMERIBANK, a Florida corporation, Appellant, v. RICHARD NELSON KLEPAL, JR., and CB RICHARD ELLIS, INC., Appellees. 2nd District.

Dependent children -- Placement -- Jurisdiction -- Modification -- Uniform Child Custody Jurisdiction and Enforcement Act -- Foreign state in which father resided with child pursuant to placement order entered by Florida court was authorized to exercise emergency jurisdiction to protect child, who was allegedly abused by father while in foreign state -- Trial court properly applied statutory factors enumerated under UCCJEA in terminating jurisdiction over child in Florida and transferring case to foreign state after concluding that it was more convenient forum and that it was in child's best interest to be in custody of her paternal aunt in foreign state -- However, where Florida court relied upon facts obtained in foreign state hearing and it was undisputed that mother did not have notice of that hearing, on remand, after due notice to all appropriate parties, including mother, father, and foreign court, trial court should then rule on whether retaining jurisdiction in Florida is proper based on its factual findings
K.I., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 4th District.

Dissolution of marriage -- Marital home -- Alimony -- Trial court erred in crediting husband for one-half of the marital home mortgage payments and other household expenses during the parties' period of separation where husband never requested such credit in his pleadings, husband was responsible for those payments during the marriage, and trial court had specifically ruled that the expenses husband paid toward the home were temporary alimony
LAUREN L. CORTESE, Appellant/Cross-Appellee, v. CHARLES J. CORTESE, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Child custody -- Appeals -- Jurisdiction -- Trial court's final order changing the primary residential parent to the mother is reversed because trial court was divested of jurisdiction to enter order where order was entered while husband's appeal of the trial court's first non-final order was pending
NAPOLEON HUNTER, JR., Appellant, v. LATRAILYA HUNTER, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Child support -- Foreign judgment -- Uniform Interstate Family Support Act -- Limitation of actions -- Trial court improperly concluded that former wife's motion to register and enforce New York judgment against former husband's estate for alimony and child support arrearages was barred by New York's statute of limitations, and that she failed to comply with the Uniform Reciprocal Enforcement of Support Act -- Florida's unlimited time period for enforcing alimony and child support orders applies because the UIFSA has replaced the URESA, and the UIFSA states that, as between the forum and issuing state, the longer statute of limitations applies in proceedings for arrearages -- While wife's action for enforcement may still be limited by laches, because trial court failed to hold an evidentiary hearing, the trial court had no evidentiary basis to conclude that former husband's estate had proven laches -- Reversed and remanded for lower court to conduct evidentiary hearing
CAROLYN JACKMORE, Appellant, v. WILLIAM JACKMORE, and THE ESTATE OF WILLIAM JACKMORE, Deceased, c/o SCOTT JACKMORE, as Personal Representative, Appellees. 1st District.

Dissolution of marriage -- Child custody -- Relocation with child -- Time-sharing -- Order granting wife's motion to relocate children to foreign state is affirmed but remanded with directions to formally adopt the time sharing plan in the order itself and to set deadline for payment of former wife's portion of expert's fee
WILLIAM A. KISH, JR., Appellant, v. EMILY J. KISH N/K/A EMILY J. WHELAN, Appellee. 5th District.

Dissolution of marriage -- Contempt -- Error to enter contempt order requiring mother to enroll child in a specific private school where the underlying order did not explicitly state how the child's tuition was to be paid, and where there was no finding regarding mother's ability to comply
LASHAWN P. HARRIS, Appellant, v. FEASTER BERNARD HAMPTON, Appellee. 4th District.

Estates -- Wills -- Post-nuptial agreement -- Probate court did not err in determining that surviving spouse waived her right to be a beneficiary under deceased husband's will when she executed, after husband's will had been executed, a post-nuptial agreement in which she waived “all rights” on several occasions -- Section of post-nuptial agreement providing for gifts between the parties “hereafter” unambiguously refers to transfers of property after the post-nuptial agreement and does not reserve for the wife beneficiary rights under the will
ANDREA S. STEFFENS, as surviving spouse of decedent, and as Personal Representative of the Estate of JEFFREY E. STEFFENS, Appellant, v. DENISE EVANS, as parent and natural guardian of S.S. and A.S., minors, Appellee. 4th District.

Insurance -- Real property -- Coverage -- Diminution in value of insured building in addition to costs of repair -- Question certified to Supreme Court of Georgia: For an insurance contract providing coverage for “direct physical loss of or damage to” a building that allows the insurer the option of paying either “the cost of repairing the building” or “the loss of value,” if the insurer elects to the repair the building, must it also compensate the insured for the diminution in value of the property resulting from stigma due to its having been physically damaged?
ROYAL CAPITAL DEVELOPMENT, LLC, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Defendant-Appellee. 11th Circuit.

Insurance -- Residential property -- Coverage -- Hurricane damage -- Discovery -- Dispute about disclosure reports of insured's experts -- Additional reports of insured's experts would be stricken and insured would not be allowed to use the experts to supply evidence where insured's “supplemental” reports are not supplements, but rather, are untimely expert disclosures based upon belated investigations and an attempt to bootstrap reports of witnesses who have already been stricken -- Further, allowing such late disclosures would thwart the established deadlines in case and would cause harm and prejudice to insurer in its ability to defend this action -- Insured failed to comply with extended deadline to file its experts' reports; and any claimed prejudice is of its own doing
LA GORCE PALACE CONDO. ASSOC., INC., Plaintiff, v. QBE INSURANCE CORP., Defendant. U.S. District Court, Southern District of Florida.

Landlord-tenant -- Breach of commercial lease -- Summary judgment -- Trial court erred in granting summary judgment after improperly shifting burden regarding absence of genuine issues of material fact to nonmoving party, the tenant, where tenant had alleged affirmative defenses on which the landlord's motion for summary judgment was silent -- Breach of covenant of quiet enjoyment -- No merit to landlord's claim that tenant cannot maintain breach of covenant of quiet enjoyment defense without proving a claim of constructive eviction -- A tenant may claim such damages even where the landlord's actions do not rise to the level of eviction
CORAL WOOD PAGE, INC.; TINA WOODS, and DEREK WOODS, Appellants, v. GRE CORAL WOOD, LP, a Florida limited) partnership, Appellee. 2nd District.

Mortgage foreclosure -- No abuse of discretion in denying mortgagor's motion to set case for mediation pursuant to judicial circuit administrative order, which granted trial court the exclusive discretion to decide whether to compel parties to mediate in homestead mortgage foreclosure actions which were filed prior to specified date -- Given confession that trial court committed procedural errors relating to summary judgment hearing and evidence presented, final summary judgment of foreclosure reversed -- Remand for further proceedings
TRUDY DIEDRICK-CLARKE, Appellant, v. WASHINGTON MUTUAL BANK, Appellee. 4th District.
Mortgage foreclosure -- Error to grant motion to set aside foreclosure judgment and sale where motion was untimely filed more than one year after it was entered
FNS4, LLC, Appellant, vs. SECURITY BANK, N.A., Appellee. 3rd District.

Paternity -- Disestablishment -- Newly discovered evidence -- No error in dismissing petition to disestablish paternity alleging newly discovered evidence in form of DNA test results showing that petitioner was not biological father of child -- Plain language of statute requires showing of newly discovered evidence in addition to DNA test results indicating that a male is not the father of the child, and petitioner provided no newly discovered evidence as defined by statute -- Further, petitioner did not exercise due diligence to discover whether he was biological father at the time he voluntarily acknowledged paternity, although he was aware that there was only a fifty percent chance that he was biological father
PAUL HOOKS, Appellant, v. LAYTOYA QUAINTANCE, Appellee. 1st District.

Torts -- Automobile accident -- Contracts -- Proposal for settlement -- Trial court erred in concluding that a binding settlement agreement had been reached before suit was filed where the purported acceptance of the settlement offer did not mirror the offer and, therefore, did not create a binding contract of settlement -- Where plaintiff's offer of settlement to defendant's insurer stated that actual performance was required for acceptance and required a general bodily injury release ready for plaintiff's signature, the release tendered by insurer that encompassed all claims arising from the accident, and included indemnification language and a new term not contained in the offer, was a counter-offer which plaintiff was not bound by in absence of manifestation of assent to additional terms

Torts -- Automobile insurer filed complaint against medical provider and two officers or employees of provider, alleging that billing claim forms submitted by defendants pursuant to assignments from fifteen insured patients contained false and fraudulent statements and that defendants planned and organized a pattern and practice of deception, which included recruiting and paying drivers and insured patients to stage vehicle collisions to produce these fraudulent claims -- Jurisdiction -- Diversity -- Insurer's claims against single medical provider and officers and employees of provider properly included aggregated amounts from fifteen insurance claims submitted to insurer, and aggregated amount satisfies $75,000 jurisdictional requirement -- 28 U.S.C. section 1359, which applies when a party has been improperly or collusively made or joined to invoke jurisdiction, does not preclude diversity jurisdiction in instant case -- Statutory preemption -- Plain language of Section 627.736(12), Florida Statutes does not preempt plaintiff's common law claims -- Nothing in statute provides that cause of action exists only if there is a conviction, or that other causes of action are preempted -- Piercing corporate veil -- Individual defendants can be individually liable on asserted claims where individual liability is not premised upon piercing corporate veil, and complaint alleges direct participation of two individuals in alleged unlawful and fraudulent conduct -- Fraud -- Claim of common law fraud against medical provider is barred by economic loss rule and must be dismissed where obligation of insurer to pay provider was premised solely on assignment of benefits from insured patients to the provider -- Economic loss rules does not bar common law fraud claims against individual officers and employees of corporate employer, where there was no contractual relationship between insurer and individual defendants, in their individual capacities -- Allegations in common law fraud claim sufficiently set forth a claim of fraud as to both individual defendants to comply with heightened pleading requirements for a fraud claim -- Unjust enrichment -- Claim is not barred by Florida economic loss rule and sets forth plausible claim to satisfy federal pleading requirements -- Deceptive and unfair trade practices -- Complaint adequately pleads claim for damages under Florida Deceptive and Unfair Trade Practices Act, even if specificity requirements of Rule 9(b) apply to FDUTPA -- Argument that plaintiff should have reasonably foreseen deception and mitigated damages is, at best, an affirmative defense which will not support motion to dismiss -- Negligent supervision -- Claim was adequately pled and no case has been cited which finds such a claim barred by Florida economic loss rule -- Civil conspiracy -- Intracorporate conspiracy doctrine bars civil conspiracy claim where there are no allegations that individual defendants have interest separate and distinct from their corporate interests as employees of medical provider -- Declaratory relief -- Claim for declaratory relief pursuant to Section 86.01, Florida Statutes, survives motion to dismiss as to pending claims which seek to determine existence or nonexistence of fact upon which insurer's obligations under insurance policy depend -- As to future claims for payment, declaratory relief claim is not ripe and no case or controversy currently exists as to claims which may or may not be filed
NATIONWIDE MUTUAL COMPANY, Plaintiff, v. FT. MYERS TOTAL REHAB CENTER, INC., PETER REITER, DC, DAVID PINTO, Defendants. U.S. District Court, Middle District of Florida, Ft. Myers Division.

Torts -- Cruise ships -- Arbitration -- Appeal by cruise line from denial of its motion to compel arbitration of dispute between cruise line and ship's bar server who was allegedly drugged and raped while unconscious in a cabin with five men -- District court did not err in holding that claims for false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy, and fraudulent misrepresentation do not fall within scope of arbitration provision, where those claims contain allegations that do not arise from, do not relate to, and are not connected with parties' crew agreement or services performed by plaintiff as bar server -- Claims are not the immediate, foreseeable result of performance of parties' contractual duties or plaintiff's services as cruise line employee, and are not within scope of arbitration clause, where claims involve factual allegations about how cruise line and its officials treated plaintiff after learning that she had been raped, including allegations that she was kept on the ship against her will, that she was prevented from getting medical attention off the ship, that her rape kit was destroyed in incinerator, and that her confidentiality as rape victim was intentionally violated -- District court erred by denying motion to compel arbitration on remaining five claims which fall under either Jones Act or general maritime law applicable to seamen, or Seaman's Wage Act, because those claims arise directly from plaintiff's undisputed status as a “seaman” employed by cruise line and the rights that she derives from that employment status, and as a result fall within scope of arbitration provision
JANE DOE, Plaintiff, Counter Defendant, Appellee, v. PRINCESS CRUISE LINES, LTD., a foreign corporation, d.b.a. Princess Cruises, Defendant, Counter Claimant, Appellant. 11th Circuit.

Torts -- Fraudulent misrepresentation -- Securities act violations -- Action alleging that defendants, who had superior knowledge of facts which plaintiffs did not know and could not have discovered through due diligence, induced plaintiffs to purchase stock in corporation was sufficient to plead claims for fraudulent inducement and securities act violations -- Trial court erred in dismissing complaint
GEMINI INVESTORS III, L.P., ET AL., Appellants, vs. MICHAEL NUNEZ, ET AL., Appellees. 3rd District.

Torts -- Interference with business relationship -- Defamation -- Damages -- Evidence -- Undisclosed expert testimony -- Action by plaintiff against insurance agency which contracted to market plaintiff's extended warranty service contracts in Puerto Rico, with defendant counterclaiming that plaintiff tortiously interfered with its business relations with dealers and banks, resulting in complete destruction of its business, when it terminated agreement without ninety days' notice and committed various other bad acts -- Trial court erred in denying plaintiff/counterclaim defendant's motion for directed verdict on tortious interference counterclaim where damages were not proven -- Trial court erred in allowing defendant's owner to testify concerning market value of its business on date contract was terminated where owner testified as an expert, owner's testimony was not properly disclosed during pretrial discovery, and owner's testimony was too speculative -- Owner's testimony turned into expert testimony when he claimed to have specialized knowledge regarding the proper mathematical formula which should be used to calculate the market value of a niche insurance agency in Puerto Rico, testified that he acquired this knowledge through thirty years' experience as an agent in the insurance industry, and further testified that he had bought and sold insurance agencies more than ten times in the past using the same valuation methodology -- Mid-trial deposition permitted by trial court was insufficient to cure any prejudice because the only way company could have countered the testimony was through its own expert, and trial court denied company's request for time to consult with an expert and possibly offer rebuttal expert testimony -- Where defendant/counterclaimant claimed that its business was completely destroyed, defendant was required to prove market value of its business on date of loss -- Testimony of properly disclosed expert was too speculative, and was properly excluded, where expert based his opinion on income-based approach to valuation and used projected lost profits for five years into the future, although plaintiff had the right to terminate contract for any reason with ninety days' notice -- Owner's testimony was likewise deficient in that owner used speculative forecasts of future revenue to determine market value -- Defamation -- Trial court erred in denying motion for directed verdict on defamation counterclaim where allegedly defamatory statement by one of plaintiff's salesmen, that defendant's rates were fraudulent, was pure opinion

Torts -- Negligence -- Medical malpractice -- Action by plaintiff who had been a resident of psychiatric facility for young boys, alleging that facility had been negligent for failure to separate plaintiff from another resident who had bullied plaintiff and eventually attacked plaintiff, causing him serious injury -- Action was a negligence action rather than a medical malpractice action -- Trial court erred in entering summary judgment for defendant facility on grounds that plaintiff had failed to comply with medical malpractice presuit requirements and that action was barred by medical malpractice statute of limitations
JAMES JOSEPH, Appellant, v. UNIVERSITY BEHAVIORAL LLC., ET AL., Appellee. 5th District.

Venue -- Insurance -- Commercial vehicle liability -- Forum selection clause -- Trial court improperly denied insurer's motion to dismiss on the basis of improper venue where clear and unambiguous forum selection clause found in policy stated that Georgia shall have jurisdiction and venue over any claims relating to the rights and obligations of the policy, insured freely bargained for and contracted with insurer with full knowledge of the forum selection clause, and insured failed to show that the clause was unreasonable or unjust -- While the compelling reasons exception applies to interstate commercial contracts, cases cited by insured are inapplicable to the instant case because they only address Florida's venue statutes, purely intra-state disputes not governed by forum selection clauses -- Insured's argument that by litigating in Florida and Georgia it would be forced to split its causes of action and that the forum selection clause does not govern all of insured's claims is rejected -- Validity of entire contract must be submitted to the forum chosen by the parties in the contract

Wrongful death -- Federal jurisdiction -- Removal of state court action to federal court -- Remand to state court -- District court did not err in denying motion to reconsider order remanding case to state court, despite movant's claim that in light of recent circuit court opinion issued by court clarifying method for calculating the amount-in-controversy requirement, district court had jurisdiction over the case -- Neither circuit court nor district court has jurisdiction to revisit remand order issued pursuant to section 1447(c)
PEGGY BENDER, Plaintiff-Appellee, v. MAZDA MOTOR CORPORATION, MAZDA MOTOR OF AMERICA, INC., d.b.a. Mazda North American Operations, FORD MOTOR COMPANY, INC., Defendants-Appellants, JIMMY PUGH, et al., Defendants. 11th Circuit.

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