Saturday, November 10, 2012

Health law, child custody, contracts and grilled organic grassfed beef with grilled asparagus and baby squash

Appeals -- Appellate court lacks jurisdiction of appeal of final judgment where no notice of appeal was filed within thirty days of date judgment was final and appealable -- Motion for supplemental final judgment was not an authorized and timely motion that would suspend rendition of final judgment -- Supplemental final judgment ruling on entitlement to attorney's fees is not final or appealable where amount to be awarded has not been determinedCATALINA HALNAT, LLC, et al., Appellants, v. SUN CITY VENDING OF S.F., INC., Appellee. 3rd District.

Appeals -- Nonfinal orders -- Interpleader -- Action brought by plaintiff employed as stock-transfer agent and registrar of corporation's stock against corporation and transferee, alleging there was dispute between transferee and corporation concerning transferee's right to have certain restrictive legends removed from her shares and to have such shares certificated in her individual name -- Order which merely granted summary judgment declaring that transferee was entitled to have shares certificated in her individual name was a nonfinal, nonappealable order did not actually direct stock-transfer agent to do anything and did not dispose of all issues involved in the litigation -- Summary judgment determining entitlement but not actually ordering the transfer of shares did not have effect of granting stockholder the immediate possession of property -- Appeal dismissed for lack of jurisdictionFLORIDA ATLANTIC STOCK TRANSFER, INC., a Florida corporation, Appellant, v. ROBIN L. SMITH and NORTH CAPITAL PARTNERS, INC., Appellees. 4th District.

Attorney's fees -- Interest -- Award of attorney's fees stating that sums would bear interest at rate of 6% per year from date of entitlement -- Award of attorney's fees is reversed where trial court failed to calculate full judgment due as well as pre-judgment interest -- Where entitlement to attorney's fees was established as of January 12, 2011, trial court should have calculated pre-judgment interest on attorney's fees award at 6% through date judgment was actually entered, which was interest rate under version of section 55.03, Florida Statutes, in effect at that time -- Because actual judgment was entered on January 12, 2012, post-judgment interest should be calculated using rate established at that time, and adjusted yearly thereafter until paid in accordance with current version of section 55.03JOAN GENSER and DAVID GENSER, Appellants, v. THE REEF CONDOMINIUM ASSOCIATION, INC., LEWIS KATZ, JANET HUCKABY, and LANG MANAGEMENT COMPANY, INC., Appellees. 4th District.

Civil procedure -- Dismissal -- Service of process -- Timeliness -- Statute of limitations precluding refiling -- Trial court did not abuse its discretion in dismissing action where more than a year had passed without service of complaint or other record activity, and trial court gave full and appropriate consideration to pertinent factorsANTHONY POWELL, Appellant, v. MADISON COUNTY SHERIFF'S DEPARTMENT; DEPARTMENT OF INSURANCE, DIVISION OF RISK MANAGEMENT and DOWN HOME MEDICAL, Appellees. 1st District.

Dissolution of marriage -- Child custody -- Appeals -- Jurisdiction -- Trial court was without jurisdiction to vacate modification order while an appeal of that very order was pendingLOY CAMPBELL, Appellant, v. SADANA CAMPBELL, Appellee. 4th District.

Federal Tort Claims Act: STEPSON WINS $211,000 FOR VA'S NEGLIGENT BEDSORE CARE, Delehant v. United States, 15 No. 9 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home November 2, 2012
A federal judge in Oregon has ordered the federal government to pay $211,000 to the stepson of a deceased patient who developed severe bedsores during his stay at a VA hospital in Portland. U.S. Magistrate Judge John V. Acosta of the District of Oregon entered judgment for plaintiff Robert Delehant on personal injury claims but found for the government on wrongful-death allegations.

Transmissions: BWM PUSHING 'WEAK' SETTLEMENT TO BLOCK BETTER ONES ELSEWHERE, PLAINTIFFS SAY, Bonomo v. BMW, 32 No. 10 Westlaw Journal Automotive 7, Westlaw Journal Automotive November 6, 2012
Eight people who claim that 2005-2008 Mini Cooper convertibles have faulty transmissions say the automaker is pushing a Florida federal court to approve a "weak" settlement in order to preclude their similar class actions in California and New Jersey. The eight petitioners want to intervene in the Florida suit, filed in the U.S. District Court for the Southern District of Florida, and have it transferred to the U.S. District Court for the Central District of California.

Pacemaker: FLORIDA PACEMAKER DEATH CLAIM PREEMPTED BY FEDERAL LAW, McClelland v. Medtronic Inc., 19 No. 19 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices November 5, 2012
Finding the causes of action barred by federal law, a Florida federal judge has dismissed negligence and failure-to-warn claims against Medtronic by the estate of a woman who died after her EnPulse pacemaker failed after five years of use. U.S. District Judge Charlene Honeywell of the U.S. District Court for the Middle District of Florida ruled that plaintiff Peggy McClelland's state-law- based claims are preempted by the Medical Device Amendments to the Federal Food Drug and Cosmetic Act

Regulatory Violations: 6TH CIRCUIT: NURSING HOME PROPERLY CITED FOR SEXUALLY AGGRESSIVE RESIDENT, Somerset Nursing & Rehab. Facility v. U.S. Dep't of Health & Human Servs., 15 No. 9 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home November 2, 2012
A federal appeals panel has ruled that state and federal agencies correctly found a Kentucky nursing home had put its female residents in "immediate jeopardy" by not controlling a sexually aggressive dementia patient. The 6th U.S. Circuit Court of Appeals ruled 2-1 to uphold the citations and immediate-jeopardy finding against Somerset Nursing & Rehabilitation Facility, but the panel reduced the number of days the facility should have been assessed a daily fine of $3,050.

Tires (Wrongful Death): DEATH CASE AGAINST COOPER GOES BACK TO LOUISIANA STATE COURT, Turpin v. Cooper Tire & Rubber Co., 32 No. 10 Westlaw Journal Automotive 6, Westlaw Journal Automotive November 6, 2012
A federal judge in Louisiana has remanded a wrongful-death tire defect case to state court, finding insufficient proof that the plaintiff improperly named an in-state car dealership as a defendant to avoid federal diversity jurisdiction. Under diversity jurisdiction, federal courts are authorized to hear cases when the opposing parties are citizens of different states, as long as the amount in controversy is at least $75,000.U.S. Magistrate Judge Patrick J. Hanna.

Quinn v. Louisiana Citizens Property Ins. Corp.,(La.)
Limitations - Suspension of prescription based on putative class action applies only when class action is filed in state's courts.
A Louisiana statute, providing for suspension of prescription for individual claims of a putative class member arising out of the transactions or occurrences described in a petition brought on behalf of a class, applies only to petitions brought on behalf of a class in the state courts of Louisiana and does not permit "cross-jurisdictional" tolling. Therefore, insureds who brought a state-court action against their homeowner's insurer to recover for alleged underpayment of compensation in connection with property damages from two hurricanes could not rely on a "recently dismissed" class action claim brought in federal district court to establish a suspension of prescription as to their individual claims.

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