Friday, June 22, 2012

Business and criminal law, health care reform, and chicken mole poblano and rosemary mashed potatoes

Attorney's fees -- Estates -- Appeals -- Law of the case -- Appellate court's denial of appellate attorney's fees in this case during original appeal on the merits precluded trial court from awarding attorney's fees at trial level based upon the same statutory provisions asserted as basis for fee award in appellate courtBARBARA L. LANGER, individually, and as Co-Personal Representative of the Estate of Edward B. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007; and JUDITH ANN WOLFE, individually, and as Co-Personal Representative of the Estate of Edward V. Walton, deceased, and as Co-Trustee of the Edward B. Walton Second Restated and Amended Revocable Trust Agreement dated October 10th, 2007, Appellants, v. RICHARD FELS, as attorney in fact for and on behalf of IRENE FELSENFELD, Appellee. 4th District.

Civil rights -- Torts -- District court properly dismissed action against hospitals and state agency brought by Medicaid “medically needy” program beneficiaries alleging they were illegally billed for medical services provided by hospital defendants when defendants billed and received payment from agency which administers Florida's Medicaid program and billed plaintiffs for the same services and in excess of the amount to which defendants were entitled, in violation of “balance billing” provision of federal Medicaid Act and similar Florida statute -- Three-party test for determining whether Spending Clause legislation, such as Medicaid Act, creates private right of action under section 1983 -- Text and structure of federal statute at issue do not focus on individual's right to be free of improper balance billing, but instead speak to obligations of State and Medicaid service providers vis-a-vis third party liabilityYOLANDA MARTES, MARIA RAMIREZ, PAULA NEHER, FELIX RAPALO, SHAWNEEQUA ELLIOTT, as Guardian for J.A., a minor, Plaintiffs-Appellants, v. CHIEF EXECUTIVE OFFICER OF SOUTH BROWARD HOSPITAL DISTRICT, SECRETARY, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, SECRETARY, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, SOUTH BROWARD HOSPITAL DISTRICT, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Defendants-Appellees. 11th Circuit.

Criminal law -- Ineffective assistance of appellate counsel -- Petition granted as to ground claiming counsel was ineffective for failing to raise the issue of whether defendant's convictions for first degree grand theft and making a false insurance claim greater than $100,000 violate double jeopardy where both allegedly stemmed from the same actionSTEVE B. CLARK, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Allegations that counsel failed to communicate plea offer of ten years' imprisonment, that defendant would have accepted the plea had he been informed, and that plea would have resulted in lesser sentence than twenty-year sentence that was ultimately imposed were sufficient to require evidentiary hearing -- Defendant was not required to detail when offer was made, who made it, and who he heard it from after trial, as those are type of questions to be determined at evidentiary hearingANGEL LOPEZ, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Dissolution of marriage -- Postnuptial agreement -- Trial court erred in deviating from the specific procedure for division of artwork contained in postnuptial agreement where language of provision providing for the division of the artwork was clear and unambiguousERIC A. SIMON, Appellant, v. JANIE NOBLE SIMON, Appellee. 4th District.

Insurance - Insurer did not act in bad faith by failing to tender policy limits to personal representative of decedent's estate.
An automobile insurer did not act in bad faith by failing to tender offer of $10,000 policy limits to estate of victim of automobile accident. The insurer concluded thatinsured was solely at-fault in the accident. Judgment was eventually entered against insured for $2.8 million. The insurer's adjuster attempted five times to obtain the name of the attorney for decedent's mother who brought the action in her capacity as personal representative and individually, but the adjuster was repeatedly put off. There was no evidence in the record which demonstrated that insurer placed its interests above the interests of insured. This decision may not yet be released for publication.
Goheagan v. American Vehicle Ins. Co. ,(Fla.App. 4 Dist.)
Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 17 No. 12 Westlaw Journal Health Care Fraud 9, WestlawJournal Health Care Fraud June 20, 2012
Primary care physicians could see a pay raise in the next two years for treating Medicaid patients under a rule proposed May 9 by the Obama administration. The Department of Health and Human Services said the increase would bring service fees for Medicaid primary care in line with those paid by Medicare. Under the rule, physicians would see a 34 percent increase in average Medicaid primary care payments, according to the HHS.

Legislation: HEALTH CARE COURT RULING COULD PARALYZE MEDICARE, 17 No. 12 Westlaw Journal Health Care Fraud 7, Westlaw Journal Health Care Fraud June 20, 2012
CHICAGO, June 5 (Reuters) - Opponents of President Obama's health care lawhave been predicting dire consequences for seniors on Medicare ever since the legislation was signed last year. The warnings are mostly political spin, but there could be real problems if the U.S. Supreme Court strikes down the Affordable Care Act. The ACA, a cornerstone of Obama's health care plan, would extend healthinsurance to an additional 23 million Americans by 2019.

Mortgage foreclosure -- Relief from judgment -- Standing may not be raised in motion for relief from final judgment where no affirmative defense of lack of standing was raised in original proceeding -- Moreover, complaint in this case was filed by original payee and mortgagee, who assigned its interest in note and mortgage and substituted the assignee as party plaintiff during suit -- With respect to claim that note was not properly indorsed, although original note was not indorsed, record shows that both mortgage and note were assigned to plaintiff by original payee by recorded assignment, and original note was filed in court -- Accordingly, assignee became non-holder in possession of the instrument, entitled to enforce it -- Although copy of note filed in proceedings appeared to have endorsement on it, even though original note filed in the proceedings had no endorsement, this does not affect determination of substantive issues in the caseJOHN W. MILLER and CHARLENE M. MILLER, Appellants, v. KONDAUR CAPITAL CORPORATION, Appellee. 4th District.

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