Saturday, December 3, 2011

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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