Admiralty -- Mortgages -- Preferred mortgage -- In rem
admiralty action to foreclose a first preferred ship mortgage claimed by
mortgagee bank on defendant vessel, which was assigned second identification
number after execution of mortgage, documented under different name, and sold
to third-party purchaser for value, all without notice to bank -- Third-party
purchaser for value claims competing ownership interest in defendant vessel as
subsequent innocent purchaser for value -- Validity of mortgage -- Bank is not
entitled to preferred ship mortgage status under Ship Mortgage Act because
mortgage was invalid to create a security interest in defendant vessel where
mortgagor did not hold good and valid legal title to vessel on day he executed
the mortgage -- Only a valid mortgage is eligible for preferred status under Ship
Mortgage Act -- Notwithstanding mortgagor's failure to permanently affix the
HIN to vessel, in violation of federal law, at time of application for initial
issue of certificate of documentation, substantial compliance with recordation
requirements of Ship Mortgage Act is adequate to show eligibility for preferred
status, where there was no evidence of fraud or purposeful intent to evade or
mislead on part of mortgagee -- Irregularities in recorded mortgage documents
or failure to comply with minutiae of recording will not result in loss of
preferred status of mortgagee where there is “honest and substantial
compliance” with recordation requirements of Ship Mortgage Act -- Equitable
subordination -- Bank's conduct justifies the equitable subordination of its
claimed preferred ship mortgage to interest claimed by third-party purchaser
for value gross, where bank deviated from acceptable banking practices when it
decided to forego a declaration of default on loan and granted a five-year
extension of loan term without inspecting or reevaluating the collateral or
insisting on proof of insurance and where bank failed to insist that mortgagor
permanently affix the HIN on the vessel before initial documentation
BRANCH
BANKING & TRUST CO. of VIRGINIA, Plaintiff, v. M/Y “BEOWULF,” Official No.
1137719, etc., in rem, Defendant. U.S. District Court, Southern District of
Florida.
Attorney's fees -- Proposal for settlement -- Circuit court,
in its appellate capacity, departed from essential requirements of law in denying
motion for entitlement to recover a conditional award of appellate costs and
attorney's fees under section 768.79, on ground that petitioner's success in
obtaining a reversal of the county court order on appeal was not itself a money
judgment -- Statute plainly encompasses all costs and attorney's fees incurred
leading up to a final judgment -- If proposal for settlement statute is
ultimately satisfied, petitioner will be entitled to recover its appellate
costs and fees
STATE
FARM FIRE AND CASUALTY COMPANY, Petitioner, v. REMBRANDT MOBILE DIAGNOSTICS,
INC. a/a/o NERECE FRANCOIS, Respondent. 4th District.
Attorney's fees -- Proposal for settlement -- Timeliness of
proposal -- Proposal for settlement which was served on the 45th day before
trial date was timely under rule 1.442(b), which provides that “No proposal
shall be served later than 45 days before the date set for trial or the first
day of the docket on which the case is set for trial, whichever is earlier” --
Because the proposal for settlement was required to be served 45 days before
the date set for trial, the proper method for counting the 45 days is to
include the day the proposal for settlement was served and to exclude the date
set for trial
R.T.G.
FURNITURE CORP. d/b/a ROOMS TO GO, Appellant, v. FRANKLIN COATES and LORIE A.
COATES, Appellees. 4th District.
Banks -- Checking accounts -- Disputed transactions --
Electronic Fund Transfer Act -- Bank customer sued her bank to recover for
unauthorized withdrawals from her checking account, made using her check card
and personal identification number, alleging bank failed to conduct reasonable
investigation of her claim, failed to follow EFTA's claim-resolution
procedures, and unlawfully held her liable for unauthorized transactions -- In
denying EFTA claims against bank, district court did not err in finding that
transactions were authorized because they were part of scheme to defraud the
bank and, consequently, that bank had not violated EFTA
CARLINE MERISIER, Plaintiff-Appellant, v. BANK OF AMERICA,
N.A., a national association, Defendant-Appellee. 11th Circuit.
Bankruptcy -- Exempt property -- Debtor's bank account and
household furniture owned with his non-debtor spouse as tenants by entirety are
non-exempt in their entirety under Section 522(b)(3)(B), and proceeds of such
property may be distributed by Chapter 7 trustee to joint creditors of debtor
and his spouse to extent of the joint unsecured claims, with any remainder to
be returned to debtor and his spouse -- Only joint unsecured creditors of debtor
and his non-debtor spouse are entitled to a distribution from property --
Allowing all unsecured creditors to reach entireties property would give
non-joint creditors a right in bankruptcy estate that does not exist under
Florida law
In
re: JAMES T. HELM, Debtor. U.S. Bankruptcy Court, Southern District of Florida,
West Palm Beach Division.
Civil rights -- Handicapped persons -- Employment --
Arbitration -- Federal district court is required to stay pending arbitration
action against employer alleging disability discrimination in violation of the
Americans with Disabilities Act where arbitration agreement required plaintiff
to submit to mandatory arbitration certain types of disputes, including ADA
claims -- Arbitration agreement is enforceable pursuant to Federal Arbitration
Act -- Employer's overall employment practices constitute activity involving
commerce sufficient to satisfy FAA's threshold requirement of interstate
commerce, even though plaintiff's individual work and contacts may have been limited
to Florida -- Arbitration agreement, which purports to shift responsibility for
half of costs of arbitration to plaintiff, is not unenforceable for limiting
remedies that plaintiff would otherwise have available to her under ADA or for
shifting costs to plaintiff, where employer stipulated that it will pay all
costs associated with arbitration
STACY LIPSCOMB, Plaintiff, v. PAYROLL
MANAGEMENT INC.; PAYROLL MANAGEMENT INC. of DELAWARE; and PMI EMPLOYEE LEASING,
INC., Defendants. U.S. District Court, Northern District of Florida, Pensacola
Division.
Dissolution of marriage -- Contempt -- Trial court erred in
holding former husband in contempt for failure to provide health insurance for
children as required by mediated marital settlement agreement, where husband
did provide health insurance for children, but the insurance provided was
deemed to be inadequate -- Settlement agreement required husband to provide
health insurance for children, but did not specify any particular attributes of
the insurance to be provided -- Trial court erred in holding former husband in
contempt for failure to pay for children's extracurricular activities as
required by agreement where such expenses have increased since time agreement
was entered into and there has been no consent to payment of additional
expenses -- Former wife's motion for contempt was premature in the sense that
post-agreement additional, increased obligations were required to be addressed
in motion for modification before any enforcement action relating to the
obligations could be commenced
GEOFFREY ALEXANDER COLE, Appellant, vs. NANCY COLE,
Appellee. 3rd District.
Estates -- Assets -- Joint property -- Antenuptial agreement
allowing decedent to acquire separate property after the marriage -- Trial
court erred in modifying its initial determination that a watch and ring
purchased by decedent were assets of the estate, not the sole property of
decedent's wife, due to the fact that items were purchased with funds from the
spouses' joint checking account -- The joint tenancy nature of the funds in the
joint account with right of survivorship was terminated upon their withdrawal
by the decedent -- Moreover, the fact that the wife was with the decedent at
the time of purchase does not make the items joint property -- It is for whom
the items were purchased rather than how they were purchased that is important
-- Unity of possession was not present for either the watch or ring where
decedent had exclusive use and possession of the items, items were designed for
a man, and wife only took possession to store them for safekeeping while
decedent was in hospital
WILLIAM P. CONNELL, as Personal Representative of the
Estate of Peter W. Connell, Deceased, Appellant, v. FANA CONNELL, Appellee. 2nd
District.
Jurisdiction -- Prohibition -- Torts -- Automobile accident
-- Third-party complaint against liability insurance carrier -- Trial court
lacked jurisdiction over third-party bad-faith complaint against defendant's
liability insurer, which was labeled by plaintiff as a crossclaim, where
pleading was filed after trial court had entered final judgment in tort case
and after time for filing motions for rehearing or new trial had passed --
Order denying insurer's motion to dismiss quashed, without prejudice to
plaintiff's raising claim as separate and independent cause of action
LIBERTY
INSURANCE CORPORATION, Petitioner, v. SUSAN M. MILNE and TIMOTHY P. LITERSKY,
Respondents. 4th District.
Mortgage foreclosure -- Arbitration -- Trial court erred in
denying motion to compel arbitration of mortgage foreclosure dispute where
mortgages required arbitration of any claim or controversy between the parties
when requested by either party, despite the fact that there was a clause in
mortgages that might be read otherwise
MDC 6, LLC, a Florida limited
liability company; MEDALLION CONVENIENCE STORES, INC.; and KENNETH L. WOOD,
Appellants, v. NRG INVESTMENT PARTNERS, LLC, Appellee. 2nd District.
Mortgage foreclosure -- Bona fide purchaser without notice
of prior mortgage -- Constructive notice of prior mortgage attached at time
deed and mortgage were recorded by clerk, despite fact that clerk voided the
deed and mortgage from the official records after realizing she made a mistake
in the recording process and subsequently failed to re-record deed and mortgage
in official records book after error was corrected -- Statute does not require
that documents remain in official records to impart constructive notice, but
merely requires that, to be good and effectual against bona fide purchasers, a
document must “be recorded according to law” -- Trial court properly granted
summary judgment of foreclosure on ground that deed and mortgage were recorded
in accordance with section 695.11 and provided constructive notice to
subsequent purchasers and mortgagee
MICHAEL D. MAYFIELD, BONNIE J.
MAYFIELD, AND BRANCH BANKING AND TRUST COMPANY, Appellants, v. FIRST CITY BANK
OF FLORIDA, Appellee. 1st District.
Securities -- Fraud -- Class action -- Appeal arising from
private securities fraud class action brought under Section 10(b) of Securities
Exchange Act and SEC Rule 10b-5 by investors, alleging that class members
purchased stock at prices that were artificially inflated because defendant
holding company and its management fraudulently misrepresented level of risk
associated with commercial real estate portfolio held by its subsidiary and
that those shares lost value when portfolio's deterioration was revealed to
market -- District court erred when it relied on perceived inconsistency
between two of jury's interrogatory answers as ground for discarding one of
them and granted defendants' Rule 50 motion for judgment as matter of law on
the basis of jury's remaining findings, instead of considering whether evidence
was sufficient to support verdict in favor of plaintiff -- When a court
considers a motion for judgment as matter of law, even after the jury has
rendered a verdict, only the sufficiency of evidence matters -- Loss causation
-- In this case, evidence was insufficient to support a finding of loss
causation, an element required to make out a securities fraud claim under Rule
10b-5 -- To support a finding that defendant's misstatements were a substantial
factor in bringing about plaintiff's losses, plaintiff had to present evidence
that would give a jury some indication of how much of the decline in stock
price resulted not from the fraud but from the general downturn in Florida's
real estate mark, the risk of which defendant warned of, and plaintiff failed
to do so -- Because plaintiff failed to adequately separate losses caused by
fraud from those caused by collapse of Florida real estate market, jury did not
have sufficient evidentiary basis to conclude that fraud was substantial
contributing factor in bringing about class's losses -- Defendant was entitled
to judgment as matter of law
JOSEPH C. HUBBARD, individually and on behalf of all others
similarly situated, Plaintiff, STATE-BOSTON RETIREMENT SYSTEM, Plaintiff-Appellant,
v. BANKATLANTIC BANCORP, INC., JAMES A. WHITE, VALARIE C. TOALSON, JARETT S.
LEVAN, ALAN B. LEVAN, Defendants - Appellees. 11th Circuit.
Trusts -- Trustee -- Removal -- Portion of order removing
trustee as a sanction for breach of fiduciary duty is reversed where trustee
was not provided with notice or opportunity to be heard -- While trustee was
aware of a sanction being sought against him for his failure to comply with
discovery, that sanction was for imposition of attorney's fees, not removal --
Additionally, nothing in prior contempt order giving trustee twenty days to
comply with discovery put trustee on notice that removal was possible sanction
-- Furthermore, where order expressly stated sanction was imposed not only for
trustee's failure to provide accounting, but also for failing to comply with
previous court orders, sanction is analogous to indirect contempt order which
requires notice and opportunity to be heard
EDWARD HARRIS KOUNTZE, Individually
and as the Trustee of the Denman Kountze, Jr., Revocable Trust, Appellant, v.
CHARLES DENMAN KOUNTZE, Appellee. 2nd District.
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