Sunday, January 22, 2012

Attorneys' fees, child support, medical malpractice and cornish game hen roasted with maple syrup, mustard, thyme and Port


Attorney's fees -- Prevailing party -- Error to award fees to attorney who failed to testify at hearing
DAVID E. NEITLICH and CAROLE C. NEITLICH, Appellants, v. THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee. 4th District.


Child support -- Paternity -- Child born during intact marriage -- Department of Revenue petition to establish paternity and child support, filed against legal father and against putative biological father -- Trial court erred in granting putative biological father's motion to dismiss without considering child's best interests -- Remand for hearing to determine whether, in light of fact that child's legitimacy will remain intact, it would be in best interests of child to allow DOR to pursue its paternity action against putative father
DEPARTMENT OF REVENUE on behalf of CAROLINA SURAPA GARCIA, Appellant, v. JORGE IGLESIAS and ARIEL GARCIA, Appellees. 4th District.


Civil procedure -- Default -- Error to grant motion to vacate 1992 default final judgment on ground that plaintiffs were unable to provide a return of service without first conducting evidentiary hearing to determine whether defendant was served with process prior to entry of default judgment -- Return of service is not the only means by which plaintiff can prove that there has been valid service of process on defendant prior to entry of default judgment -- Certified printout of clerk's progress docket and certified copy of final judgment on default together constituted evidence which afforded a reasonable basis for the conclusion that more likely than not service of process on defendant was properly perfected before final default judgment was issued -- On remand, trial court should treat this documentary evidence as creating a rebuttable presumption affecting the burden of producing evidence -- Accordingly, defendant will have burden of introducing credible and admissible evidence showing he was not properly served with process prior to entry of default judgment, and if he is able to do so, trial court will then weigh evidence and resolve the question of fact at issue
NANCY C. BLOCK and JOHN E. STEPHENS, JR., as Trustees of the Jackson Martindell Trust dated December 30, 1988, Appellants, v. RIP TOSUN, Appellee. 4th District.


Insurance -- Automobile -- Homeowners -- Circuit court properly found that homeowner's insurer, not issuer of automobile policy, was liable for indemnity and defense of claims against an insured who, while passenger in car driven by girlfriend and owned by girlfriend's parents, repeatedly reached over and grabbed steering wheel without altering direction of vehicle -- Accident which occurred when driver swerved as she was trying to push insured away was not covered by automobile policy -- Passenger's grabbing of steering wheel to annoy driver was not “use of . . . a non-owned auto” within meaning of automobile policy; and damages claimed did not fall within provision of homeowners policy excluding claims for bodily injury or property damage arising out of ownership, maintenance, or use of motor vehicle -- Further, because vehicle was non-owned auto within meaning of automobile policy, coverage was available only if insured was “driving” “with the permission, or reasonably believed to be with the permission of the owner,” and it was not reasonable to believe that insured's horseplay was in any way sanctioned by owners of vehicle
SUNSHINE STATE INSURANCE COMPANY, Appellant, v. CHRISTOPHER JONES, DEBRA WATSON-JONES, NICHO WATSON, MICHELE BALDASTI, by and through her mother and legal guardian, STACY BALDASTI, and KAYLA MINEO, by and through her mother and legal guardian, CHERYL MINEO, and GEICO GENERAL INSURANCE COMPANY, Appellees. 4th District.


Torts -- Medical malpractice -- Provision of medical care and services -- Limitation of actions -- Claim that injuries resulting from a fall from a test table at hospital were a result of nurse failing to exercise reasonable care in assisting plaintiff onto a gurney -- Negligence alleged arose out of the provision of medical care and services where injury occurred while nurse was trying to move plaintiff from test table to gurney after it was thought that plaintiff was suffering from an allergic reaction to dye given to plaintiff for CT scan -- No error in granting defendants' motion for summary judgment where, because claims were determined to be ones of medical negligence, claims were barred by two-year statute of limitations and plaintiff's failure to comply with presuit requirements
CHRISTINE D. STUBBS, Appellant, v. SURGI-STAFF, INC. and LORENZO RIVERA, Appellees. 4th District.


The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.

Tuesday, January 17, 2012

D.C. Joins 11 states and the Virgin Islands in Amicus Brief Supporting Constitutionality of Health Care Law

"The Office of the Attorney General for the District of Columbia announced today that the city has joined 11 states and the Virgin Islands in signing an amicus brief (PDF) to the U.S. Supreme Court that supports the constitutionality of the 2010 federal healthcare law. The brief, according to the statement released today by the D.C. attorney general’s office, contends that “the federal commerce power, by design, includes the power to regulate individual conduct so long as the individual’s conduct, combined with others’ conduct, may have a significant effect on interstate commerce.”" More.
From The BLT Jan. 17, 2012

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.

Monday, January 16, 2012

Criminal law, sentencing, arbitration and medical malpractice, with roast duck served on fresh blackberry and cranberry sauce


Criminal law -- Attempted murder -- Jury instructions -- Giving of standard jury instruction on attempted manslaughter is not fundamental error in prosecution for attempted first degree murder where defendant is convicted of lesser included offense of attempted second degree murder -- Conflict certified
JEAN L. CORIOLAN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Counsel -- Ineffectiveness -- Defendant convicted of sexual battery by digital penetration and oral penetration of a child under 12 after two counts for lewd or lascivious molestation against a second victim were severed subsequent to the jury being informed of the crimes, and second victim was permitted to testify as a Williams Rule witness -- Ineffectiveness was apparent on the face of the record, and no conceivable tactical strategy would justify conduct of counsel, where counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes; abandoned his client's rights by agreeing to waive ten-day notice requirement for Williams Rule evidence; failed to object to trial court's refusal to permit counsel to introduce witnesses whose testimony may have persuaded trial court that evidence sought to be admitted under theWilliams Rule standard was unreliable; and failed to object when judge left a position of neutrality by making suggestions to the state on theories for admitting Williams Rule evidence and obtaining counsel's waiver of defendant's right to notice -- Ineffectiveness was so serious as to have affected outcome where there was no evidence other than testimony of the two victims, and proper objections may have prevented victim in severed counts from testifying as Williams Rule witness
ARCHIE HILLS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- First-degree grand theft -- Jury instructions -- Good faith defense -- Trial court erred in refusing to give requested special instructions on good faith, the lack of criminal implications for a disagreement regarding contract interpretation, and the definition of “petroleum contaminated water” (PCW) set forth in the Florida Administrative Code, where defendants, under contract to remove water contaminated with jet fuel from airport's fuel farm, were charged with stealing jet fuel contaminated or uncontaminated with water, but claimed they believed that, under two contracts which referred to PCW but which left the term inadequately distinguished from jet fuel, they were entitled to remove all the contents of a tank which contained both water and jet fuel in various mixture proportions -- Trial court's use of a standard instruction on the element of intent did not relieve it of the duty to give the good-faith instruction because the good-faith theory was adequately supported by evidence at trial, the standard instruction on the element of intent is insufficient to adequately cover the effect of a good-faith claim, and the requested special instructions constituted a correct statement of law and were not confusing or misleading -- No merit to state's argument that defendants were not entitled to an instruction giving the Administrative Code's definition of PCW because the definition itself is not a valid theory of defense -- Definitions are routinely included in jury instructions, and because the term defined is beyond the scope of common experience, the trial court had an affirmative responsibility to give the instruction -- Allowing defense counsel to argue the definition of PCW to the jury in closing was not an adequate substitute -- Trial court erred in failing to give special instruction on disputed contract interpretation because where, as here, the interpretation involves the possibility of criminal conviction, the rule of lenity requires that doubt be resolved in favor of the accused, and the failure to give the instruction left the jury free to resolve the contract's ambiguity against the defendants -- Evidence -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct a Richardson hearing upon being alerted by defense counsel to possible discovery violation where state witness's testimony departed dramatically from his pretrial deposition, it is clear the state was aware this would happen, and no disclosure was produced until the witness had already taken the stand -- Defense counsel was not obligated to make an objection based on Richardson or to request a Richardson hearing -- By defense counsel's merely bringing the state's non-compliance to the trial court's attention, the issue is preserved -- State's failure to disclose the changed testimony constituted a violation of its duty under rules of criminal procedure imposing a continuing duty to disclose -- Post-trial inquiry was not an adequate Richardsonhearing because it was untimely and because even if it had been timely, it improperly shifted the burden to the defense to demonstrate prejudice
CLIFF BERRY, INC., and JEFFREY CLINT SMITH, Appellants, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Appeals -- Mediation -- Failure to appear -- Sanctions imposed on parties who failed to appear at court ordered appellate mediation where no motion seeking to excuse personal appearance was filed -- Appearance of parties' insurance company representative cannot take parties' place
CARDEN & ASSOCIATES, INC. AND LENWOOD HOLLISTER, JR., Appellants, v. C.O.D. TREES PARTNERSHIP, Appellee. 5th District.

Arbitration -- Arbitrable issues -- Credit card agreement -- Class action by credit card holders alleging violations of Credit Repair Organizations Act largely based on defendants' allegedly misleading misrepresentation that credit card could be used to rebuild poor credit and defendants' assessment of multiple fees upon opening of the accounts, which greatly reduced advertised credit limit -- Because CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act requires arbitration agreement at issue to be enforced according to its terms
COMPUCREDIT CORPORATION, ET AL., Petitioners v. WANDA GREENWOOD ET AL. U.S. Supreme Court.


Attorney's fees -- Prevailing party -- Injunction -- Trial court erred in awarding prevailing party attorney's fees to homeowners association in action seeking injunction to require that homeowner obtain insurance on home in accordance with subdivision declaration where association had adequate remedy at law by obtaining insurance coverage on home and assessing the cost against the homeowner -- Because association had adequate remedy at law, trial court should have dismissed complaint for injunctive relief
ROBERT ALORDA and DANIELLE ALORDA-McKINNON, Appellants, v. SUTTON PLACE HOMEOWNERS ASSOCIATION, INC., Appellee. 2nd District.

Child support -- Child custody -- Intervention -- Where Department of Revenue initiated proceedings to establish paternity and require father to pay medical support and child support; father filed petition seeking custody of child and child support from child's mother; custody petition was transferred to a new lower court case number; mother and father ultimately entered into agreement providing that father would consent to termination of parental rights and mother would agree to withdraw action for support; and thereafter trial court entered order in custody case approving the agreement and terminating the father's parental rights, trial court did not err in denying motions to intervene in the two cases, filed by mother on behalf of minor child for purpose of challenging the agreement and order terminating parental rights on ground that agreement and order had deprived child of support and a father/child relationship -- Although parents' agreement for termination of parental rights and subsequent order adopting agreement are void and subject to challenge, trial court correctly ruled that intervention was not appropriate vehicle for mother or child to challenge agreement and resulting order -- Affirmance of order denying intervention is without prejudice to rights of mother or child to challenge agreement and order approving agreement in a motion for relief from judgment or in a newly-initiated proceeding
KELLEY LYNN REED, both individually and o/b/o ABBY LYNN REED, a minor child, Appellant, v. ROLLIN F. BLANSHINE and DEPARTMENT OF REVENUE, Appellees. 4th District.


Civil procedure -- Service of process -- Condominiums -- Registered agent -- No merit to argument that service of process on registered agent of corporation qualified to transact business in Florida must comply with hierarchical provisions of section 48.081(1)(a)-(d)
VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.


Contracts -- Condominium sale -- Preconstruction agreement -- Action arising out of buyer's refusal to close due to seller's failure to complete the condominium within two years of the contract as provided by the contract -- Trial court properly found breach of contract by buyer where, although court erred in determining that the unit could be permissibly conveyed on date permitted in the contract pursuant to 718.104(4)(e), purchase contract provided that the period for completing the unit could be extended beyond two years if certain delays occurred, and trial court's finding that certain delays did occur was supported by competent and substantial evidence
SOMMAI BREAZEALE, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee. 1st District.

Contracts -- Condominium sale -- Return of deposit to buyer -- Withholding portion of deposit -- Action by buyer seeking to void contract for developer's violation of section 718.202, Florida Statutes, by conditioning return of buyer's deposit upon its lender's consent to return the deposit -- Error to enter summary judgment for defendant developer where there was factual issue as to whether buyer had defaulted under the contract
FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.


Dissolution of marriage -- Alimony -- Imputed income -- Trial court erred, as a matter of law, in concluding that it could not impute income to wife because husband's vocational expert did not place wife in a job and there was no evidence that wife had turned down specific employment -- Instead, court should have considered wife's work history, occupational qualifications, and prevailing earnings in the community for class of available jobs -- Remand for reconsideration of issue of imputing income and, if necessary, recalculation of permanent alimony
SHARON BOOTH MIDDLETON, Appellant/Cross-Appellee, v. JAMES W. MIDDLETON, Appellee/Cross-Appellant. 5th District.

Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery
MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.


Dissolution of marriage -- Judges -- Disqualification -- After having granted motion to disqualify, judge was prohibited from directing former husband to submit his objections to former wife's motion to compel sale of former husband's residence to satisfy arrearages or a proposed order -- Trial judge is generally prohibited from taking any action in a case once disqualified, and exception in the case of ministerial acts is inapplicable
RICHARD S. ROSS, Petitioner, v. SHERI LYNN ROSS, Respondent. 4th District.


Dissolution of marriage -- Temporary alimony -- Temporary pre-dissolution attorney's fees -- Waiver -- Marital settlement agreement -- Agreement between parties that waives or limits right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is violation of public policy -- Error to strike notice of hearing on wife's motion for increase in temporary alimony and attorney's fees and costs based on provisions of a marital settlement agreement which parties entered into during prior dissolution proceeding which was ultimately dismissed after parties reconciled and which contained allegedly unmodifiable alimony provision and provision requiring each party to pay for their own legal fees
LISA KHAN, Appellant, v. ASLAM KHAN, Appellee. 4th District.


Dissolution of marriage -- Settlement agreement -- Enforcement -- Post-dissolution agreement in which it was agreed that mother's new husband would file for formal adoption of child, husband would pay half the original amount of child support, former husband would continue payments on life insurance policy, and former husband would have access to his son for life -- Circuit court, which was asked to determine validity and enforceability of agreement in light of adoption of child, erred in closing case on ground that family division did not have jurisdiction and that motions for enforcement and contempt should be heard in adoption court -- Even though child was subject of adoption, judge sitting in family division would have authority to rule on issues connected to the agreements reached in family court proceedings; and, in fact, court in this case reserved jurisdiction of parties and subject matter in final order incorporating the post-judgment agreement -- Further, no jurisdiction was reserved in final judgment of adoption and, accordingly, the issues regarding the post-judgment agreement could only be litigated in court retaining jurisdiction for that purpose
DONNA M. BAUDANZA, n/k/a DONNA M. DUNNE, Appellant, v. DENNIS BAUDANZA, Appellee. 4th District.


Judges -- Disqualification -- Prohibition -- Where judge has disqualified herself from case, prohibition is not appropriate for that case -- Blanket motion for recusal -- Attorneys are not entitled to writ of prohibition to disqualify judge in other pending cases in which attorneys are counsel of record
R.M.C., GRANDMOTHER, Petitioner, v. D. C., FATHER, Respondent. 1st District.


Jurors -- Post-trial interview -- Plaintiffs not entitled to interview jurors after trial to demonstrate that jurors' nondisclosure of information regarding their involvement with court system justified new trial where jurors' failure to disclose information, if any, was attributable to plaintiffs' lack of diligence in uncovering the information during voir dire
JANET RODGERS and DOUGLAS CARL RODGERS, as co-personal representatives of the estate of CARL SHANE DOUGLAS RODGERS, deceased, Appellants, v. AFTER SCHOOL PROGRAMS, INC., Appellee. 4th District.


Mortgage foreclosure -- Default -- Vacation -- Civil procedure -- Defendant who defaulted cannot thereafter contest allegations of complaint that plaintiff was the owner and holder of the note and mortgage -- With respect to remaining contentions that documents submitted in support of complaint and motion for summary judgment were faulty or inadmissible, rule 1.540(b) motion cannot be used as substitute for a motion for rehearing or an appeal
JO-ANN T. BEAULIEU, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee. 4th District.

 
Life Insurance: RESCISSION OF LIFE INSURANCE POLICY ISN'T BAD FAITH, Salkin v. United Servs. Auto. Ass'n, 7 No. 18 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith January 10, 2012
A life insurance carrier did not act in bad faith when it rescinded a policy based on material misrepresentations that a policyholder made about his medical history during the application process, a California federal judge has ruled. U.S. District Judge Virginia A. Phillips of the Central District of California held that summary judgment in favor of the insurer is warranted where the policyholder's statements "discouraged" the carrier from seeking his medical records.

Medical malpractice -- Causation -- Evidence -- Expert -- Action alleging that defendant obstetrician was negligent in using fetal vacuum extractor during delivery of plaintiff, and that this negligence caused plaintiff to suffer ischemic stroke which caused brain injury, leaving plaintiff with cerebral palsy -- Trial court did not err in excluding testimony of plaintiff's standard of care expert which would link breach of standard of care to plaintiff's ischemic stroke, because such testimony would go to causation and would exceed the scope of matters on which expert was qualified -- Where defendant's expert had testified regarding his own publications and work in the field of epidemiology and a “huge national experiment” which showed no association between vacuum extraction and stroke, it was not error to allow defense counsel to ask expert, “Have you ever heard of the concept before this lawsuit that a vacuum assist can cause an ischemic stroke?” -- Question was not improper bolstering, but rather a fair follow-up to unchallenged testimony about the “huge national experiment” -- Court did not err in allowing another defense expert to use a National Institutes of Health study to explain why he concluded that the preeclampsia plaintiff's mother developed during pregnancy contributed to plaintiff's brain injury -- It is not improper bolstering to allow an expert to testify about the results of a government study such as the NIH study
DANIEL DUSS, A MINOR CHILD, BY AND THROUGH REGIONS BANK, THE GUARDIAN OF HIS PROPERTY, Appellant, v. MARTIN A. GARCIA, M.D., AN INDIVIDUAL; NORTH FLORIDA OBSTETRICAL & GYNECOLOGICAL ASSOCIATES, P. A., A FLORIDA FOR PROFIT PROFESSIONAL ASSOCIATION, Appellees. 1st District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.

Wednesday, January 11, 2012

Supreme Court Pollard Decision Bars Bivens Actions Against Private Prison Employees


The Minneci v. Pollard decision concerned a Bivens action by a prisoner in a a federal facility operated by a private company.  Justice Breyer writing for the majority refused to authorize a Bivens action because state tort law provides an adequate remedy, not because of immunity.
"Because in the circumstance of this case, state tort law authorizes adequate alternative damages actions—providing both significant deterrence and compensation—no Bivens remedy can be implied here."  The Court continued: "Wilkie v. Robbins, 551 U. S. 537, fairly summarizes the basicconsiderations the Court applies here. In deciding whether to recognize a Bivens remedy, a court must first ask “whether any alternative, existing process for protecting the [constitutionally recognized]interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding” damages remedy. Even absent an alternative, “a Bivens remedy is a subject of judgment: ‘the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed . . . toany special factors counselling hesitation before authorizing a newkind of federal litigation.’ ” Id., at 550." "Pollard cannot assert a Bivens claim, primarily because his Eighth Amendment claim focuses on a kind of conduct that typically falls within the scope of traditionalstate tort law. And in the case of a privately employed defendant, state tort law provides an “alternative, existing process” capable ofprotecting the constitutional interests at stake. Wilkie, 551 U. S., at 550. The existence of that alternative remedy constitutes a “convincing reason for the Judicial Branch to refrain from providing a newand freestanding” damages remedy. Ibid."
  Here is a link to the Opinion.

Vote for Favorite Blogs in the 5th Annual Blawg 100. Thank you!

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.

Tuesday, January 10, 2012

Family law, commercial law issues, and braised kale, garlic and Italian sausage with penne pasta and garlic


Criminal law -- Attempted second-degree murder -- Jury instructions -- Trial judge's instruction on lesser offense of attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State requires reversal and remand for new trial -- Conflict certified -- Inconsistent verdicts -- Jury instructions -- Even were attempted manslaughter instruction not erroneous, defendant's conviction as principal to attempted second-degree murder and, in another count, as accessory after the fact for the same offense, would require reversal -- While there is no standard instruction for this circumstance, defendant was entitled to an instruction explaining that the jury could convict him of only one of these offenses -- Trial court's handling of inconsistent verdicts by sentencing defendant only on the greater offense of attempted second degree murder and dismissing the related accessory charge was improper because it cannot be declared beyond reasonable doubt that jury's inconsistent verdict is harmless and that jury would have selected the greater offense if forced to choose -- Evidence -- Statements of defendant -- It was error to admit, as evidence of consciousness of guilt, defendant's statement that he contacted an attorney and had been advised to “lay low”
ERIC BAZEMORE, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Sentencing -- Resentencing -- Appellate counsel was not ineffective for failure to argue that imposition of consecutive sentences after defendant had filed motion to correct initially imposed illegal concurrent sentences was vindictive -- Because overall length of defendant's imprisonment before and after resentencing remained unchanged, there was no presumption of vindictiveness -- Appellate counsel was ineffective for failure to argue that trial court violated defendant's double jeopardy rights when it resentenced defendant to consecutive sentences on counts for which defendant had not challenged his sentences in rule 3.800(b)(2) motion, where defendant had begun serving the initial concurrent sentences and the sentences were final by the time defendant filed rule 3.800(b)(2) motion
JESUS RANGEL BERNAL, Petitioner, v. STATE OF FLORIDA, Respondent. 1st District.

Criminal law -- Counsel -- Waiver -- Failure to conduct proper Faretta inquiry at sentencing hearing -- Remand for resentencing following proper inquiry
WILLIAM EARL DUNCAN, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Counsel -- Waiver -- Where defendant expressed that he wanted to represent himself, and court conducted Faretta inquiry and accepted defendant's waiver of counsel, it was error for court to fail to renew offer of assistance of counsel at commencement of trial which was a crucial stage of proceedings -- Trial court's hearing on motion to suppress qualified as an intervening proceeding requiring court to conduct another inquiry, and court was required to renew the offer of assistance of counsel at the next crucial stage when defendant's trial commenced three weeks later
TAJHON BODERICK WILSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Defrauding financial institution -- Aggravated white-collar crime -- Scheme or artifice to defraud financial institution -- Retrial following mistrial -- Trial court properly dismissed counts of third amended information which charged new crimes not included in prior informations, as these crimes were barred by the statute of limitations -- Error to dismiss, as time-barred, count charging defendants with first-degree aggravated white collar crime where charge, which was predicated on series of prior acts of defrauding financial institution, was filed less than four years after date of first predicate act -- The fact that individual predicate offenses would have been untimely if brought as independent charges does not affect timeliness of prosecution for aggravated white-collar crime
STATE OF FLORIDA, Appellant, v. EDWARD DARRELL TRAYLOR and PERRY MICHAEL TRAYLOR, Appellees. 5th 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 -- Service of process -- Condominiums -- Registered agent -- No merit to argument that service of process on registered agent of corporation qualified to transact business in Florida must comply with hierarchical provisions of section 48.081(1)(a)-(d)
VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC. Appellant, vs. CARLOS SOSA, Appellee. 3rd District.

Consumer law -- Deceptive and unfair trade practices -- Challenge to judgment finding defendant in violation of Florida Deceptive and Unfair Trade Practices Act for receiving payments based on phony invoices his company sent to over 1000 corporations -- No error in denying motion to dismiss complaint filed by Office of Attorney General for failure to provide names of defrauded consumers, as Florida law does not require that each consumer be named in complaint for these types of action -- Self-incrimination -- Post-judgment assertion of Fifth Amendment privilege -- Defendant's blanket objection to order requiring defendant to transfer all international assets in his control to the States and provide an accounting of those assets, on ground that repatriation of assets and documents, as well as accounting of those assets, could provide link in chain of evidence that could lead to criminal charges against defendant was insufficient to support application of Fifth Amendment privilege in this case
BERND TAUBERT, Appellant, v. STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, Appellee. 1st District.

Contracts -- Condominium sale -- Return of deposit to buyer -- Withholding portion of deposit -- Action by buyer seeking to void contract for developer's violation of section 718.202, Florida Statutes, by conditioning return of buyer's deposit upon its lender's consent to return the deposit -- Error to enter summary judgment for defendant developer where there was factual issue as to whether buyer had defaulted under the contract
FADIA DANERI, ET AL., Appellants, vs. BCRE BRICKELL, LLC, Appellee. 3rd District.

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.

Contracts -- Subscription and purchase agreement governing construction and closing of condominium unit -- Trial court erred in finding that developer complied with contract provision requiring timely completion and delivery of unit within two years of date of agreement based on finding that certificate of occupancy, which was issued within two-year period, signaled completion of unit -- Interplay between contract and governing statute leads to determination that recording of surveyor's certificate of substantial completion was relevant event for determining compliance with contract's deadline -- Under plain language of contract, “complete” and “deliver” were related in that duty required to be performed within two years was the delivery of a completed unit, and under plain language of statute, surveyor's certificate of completion must be recorded before a completed condominium unit may be conveyed to purchaser
TRANQUIL HARBOUR DEVELOPMENT, LLC, a Limited Liability Company, Appellant/Cross Appellee, v. BBT, LLC (212 & 311); CLAUDE BROUSSEAU & ANN MARIE DUGRE (303); E & N, INC. (103); JOSEPH FERRARO (211); RICHARD & JANE KISEL (205); LEONARD MARNELL (207); JAR ENTERPRISES, LLC (105 & 108); L. DENNIS PANTER (107 & 206); MARIA COSTOPOLOUS (107); GUY & BARBARA RUVOLO (106); JEFF & DORSEY SHIVER (102); JUDITH ANN WADE (301 & 309); TONY WHITFIELD, PAM MCCLURE, TERESA CARLTON, JANIE SCHMARGE, DARLENE MADDEN, VIC GEORGE, S&S FAMILY PROPERTIES, LLC (101); and, BRYAN & MISTY MORGAN (210), Appellees, and BONNIE STRICKLAND, SYLVIA LANG, NELL WOOTEN, and MIKE NOBLES Appellees/Cross Appellants. 1st District.

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
WINTER PARK IMPORTS, INC. D/B/A LEXUS OF ORLANDO, Appellant, v. JM FAMILY ENTERPRISES, INC., ET AL., Appellees. 5th District.


Dissolution of marriage -- Alimony -- Modification -- Abuse of discretion to modify permanent periodic alimony obligation to an amount which exceeded former husband's ability to pay -- To extent alimony award was based upon finding that husband had ability to borrow funds or to deplete his assets to meet future alimony obligations, trial court erred, especially in light of relative financial position of parties -- Further, trial court may consider assets awarded to husband during distribution for purposes of determining alimony, but may not require him to exhaust those assets to make alimony payments -- Attorney's fees -- Abuse of discretion to require husband to pay portion of former wife's attorney's fees where wife was in superior financial position and could pay her own fees
GARY GALLIGAR, former husband, Appellant, v. TERRIE GALLIGAR, former wife, Appellee. 1st District.

Dissolution of marriage -- Alimony modification -- Attorney's fees -- Error to award attorney's fees to wife without indicating in order that trial court considered any factors to determine whether amount of fees or hours expended were reasonable -- Remand for trial court to make such findings
THOMAS L. LUKE, Former Husband, Appellant, v. SYLVIA J. LUKE, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Trial court did not abuse discretion in requiring former husband to pay for respite nursing care for adult child who suffers a severe seizure disorder and has been declared mentally incompetent
HARRY M. KOSLOWSKI, FORMER HUSBAND, Appellant, v. SUSAN S. KOSLOWSKI, N/K/A SUSAN HARDMAN, FORMER WIFE, Appellee. 1st District.

Torts -- Conversion -- Interference with expected inheritance -- Action by decedent's daughters against their stepmother, alleging manipulative activity by defendant to contravene decedent's wishes with respect to the disposition of his estate -- Trial court properly dismissed action for plaintiffs' failure to present prima facie proof of damages -- Evidence did not establish the value of the assets in question during the relevant time period -- Evidence was insufficient to satisfy the “reasonable certainty” threshold necessary to be considered legally probative of the amount or extent of damages suffered by plaintiffs -- Discovery -- Any failure of counsel for defendant to engage in discovery in good faith was not the cause of plaintiffs' failure to present prima facie case -- Trial court did not err in denying request either to re-open case to allow more evidence on element of damages, or, alternatively, grant a new trial as a sanction against defendant and her counsel for abuse of discovery
MERCEDES R. SAEWITZ, ET AL., Appellants/Cross-Appellees, vs. LYNN SAEWITZ, ETC., Appellee/Cross-Appellant. 3rd District.

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
JOHN GIORDANO, INDIVIDUALLY, AND G & G ADDICTION TREATMENT, INC., A FLORIDA CORPORATION, Appellants, vs. DONNA L. ROMEO, AND XCENTRIC VENTURES, LLC, an Arizona Limited Liability Corporation, Appellees. 3rd District.

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
GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., CUSTOM CRUSHING & MATERIALS, INC., Appellees. 3rd District.

Vote for Favorite Blogs in the 5th Annual Blawg 100. Thank you!

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.