Monday, April 22, 2013

Certiorari, offers of judgment, prevailing parties, mortgage foreclosure, and herbed Southern biscuits with goat cheese rolled in lavender-bee pollen-tupelo honey, and homemade strawberry jam and fig preserves

Appeals -- Certiorari -- No basis for certiorari review regarding grant of motion for protective order as to interrogatories and order declaring plaintiff a “vexatious litigant” -- Jurisdiction -- Appeal of dismissal for failure to state a cause of action with leave for plaintiff to amend is dismissed for lack of jurisdiction because the dismissal is a non-final order
PATRICK NEPTUNE, Appellant, v. VERONICA BONCROFT and SCOTT RUBINCHIK, Appellees. 4th District.

Arbitration -- Trial court erred in denying motion to dismiss and to compel arbitration on ground that there are five other cases between the parties in the same probate division, where this case is based on an operating agreement containing an arbitration clause, and the other five cases are not
BARRY BERK, et al., Appellants, vs. HONEY BERK, Appellee. 3rd District.

Attorney's fees -- Offer of judgment -- Ambiguities in “apostrophe-challenged” offer of judgment render the judgment unenforceable -- Final judgment reversed

Child custody -- Time sharing -- Order modifying parenting plan to suspend mother's time-sharing during father's week to remedy her noncompliance with previous parenting plan is reversed because it fails to reflect that the change is temporary as the oral pronouncement held -- Remand for clarification that remedial custody arrangement is temporary -- Attorney's fees -- Trial court abused discretion in awarding fees incurred in domestic violence cases involving the parties which were not part of this family law case
MARISOL S. FERNANDEZ, Appellant, v. LEWIS C. WRIGHT, Appellee. 2nd District.

Child custody -- Visitation -- Order establishing summer visitation affirmed where arguments were not preserved by proper objection and issues are moot for previous summer's visitation -- Restrictions regarding possession of guns by child or by father in presence of child are overly broad because no evidence showed child should be disallowed to play with toy guns
ALTON INGRAM, Appellant, v. LISA INGRAM, Appellee. 4th District.

Civil procedure -- Sanctions -- Dismissal -- Trial court abused its discretion in dismissing case as sanction for discovery violations without making express factual findings demonstrating such a severe sanction was warranted
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of MSAC 2007-HE6, Appellant, v. METAL SELA, Appellee. 4th District.

Contracts -- Attorney's fees -- Prevailing party -- Asset purchase agreement -- Comprehensive service agreement -- Action by physician alleging defendant breached terms of comprehensive service agreement by mismanaging practice, with counterclaim by defendant alleging breach of contract and for money had and received, seeking return of excess funds plaintiff allegedly received in advance against expected earnings -- Prevailing-party attorney's fees provision in asset purchase agreement applied to claims brought pursuant to comprehensive service agreement where the two contracts were executed by same parties at same time, referenced each other, and dealt with same overarching transaction -- Although trial court properly found that plaintiff prevailed on breach of contract claim, trial court erred in reversing its initial finding that plaintiff was entitled to award of prevailing party attorney's fees because net judgment plaintiff received was less than 75 percent of offer of settlement proposed by defendant -- Plaintiff is entitled to attorney's fees incurred in connection with breach of contract claim up to date of defendant's offer -- Trial court erred in finding that defendant was prevailing party on its counterclaim for money had and received where, although this claim arose outside of provisions in asset purchase agreement and customer service agreement, the claims were tied to the same facts that the parties relied upon in prosecuting and defending causes of action for breach of contract
LEON F. COHN, M.D., P.A., Appellant, v. VISUAL HEALTH AND SURGICAL CENTER, INC., a Florida corporation, ANTONIO BOLET, individually, Et. Al., Appellees. 4th District.

Contracts -- Conveyance of real property -- Limitation of actions -- Where agreement between school board and property owner clearly and unambiguously required owner to deed to school board by a specified date forty acres of land meeting certain outlined conditions, owner breached the agreement on the specified date when owner failed to deed a compliant forty-acre parcel to the school board -- Statute of limitations not tolled by intervening lawsuit brought by school board against property owner when property owner objected to conveying a particular irregularly-shaped parcel -- School board's action for breach of contract and specific performance was not filed within applicable limitations periods and is time-barred

Dissolution of marriage -- Attorney's fees -- General magistrate erred in awarding attorney's fees associated with motion to compel delivery of quit-claim deed for a share of the marital home where husband did not plead that basis for his entitlement to fees in his original motion to enforce final judgment -- Equitable distribution -- Magistrate properly determined money withdrawn from joint checking account by husband to pay for minor child's criminal defense was spent on marital obligations and thus was not subject to equitable distribution -- Magistrate improperly determined money withdrawn to pay for an adult child's tuition was spent on marital obligations, because there is no legal obligation to support a grown child -- Magistrate improperly determined money withdrawn for miscellaneous family expenses was spent on marital obligations where the only evidence showing how the funds were spent was the argument of counsel -- Pension -- Interest -- On remand trial court must correct pension fund award to include interest and cost-of-living adjustment
PAULA KUNSMAN, Appellant, v. JOEL WALL, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Modification -- Final judgment on husband's petition for modification entered after judge had granted wife's motion to disqualify was void -- Exception which allows trial judge to retain authority to perform ministerial act of reducing a ruling to writing did not apply to judgment entered in instant case
CHRISTINA PARNELL, Appellant, v. BRETT ALLEN PARNELL, Appellee. 5th District.

Dissolution of marriage -- Injunction for protection against domestic violence -- Jurisdiction -- Domiciliary of state -- Trial court did not err in determining that it did not have subject matter jurisdiction over wife's dissolution of marriage petition because wife, who was in United States on non-immigrant tourist visa, had not established actual residency with an intent to remain permanently in state -- Contrary to wife's assertion, trial court did not rule as matter of law that wife's tourist visa prevented court from acquiring subject matter jurisdiction -- Claim that under Uniform Child Custody Jurisdiction and Enforcement Act, trial court had jurisdiction over wife's petition insofar as she sought child custody may not be raised for first time on appeal -- Moreover, even if trial court did have jurisdiction, it is apparent trial court dismissed action on grounds that Florida was inconvenient forum where parties and child were German citizens, and husband's suit for dissolution of marriage was pending in Germany -- Trial court prematurely entered final judgment dismissing petition for injunction for protection against domestic violence where wife presented sufficient evidence to require husband to counter that evidence -- Trial court's conclusion that wife lured husband to Florida to serve him with papers did not defeat undisputed evidence of acts of domestic violence -- Remand for new hearing on this issue
DANIELA RUDEL, Appellant, v. THOMAS E. RUDEL, Appellee. 4th District.

Guardianship -- Surcharge -- Surcharge action by guardian to recover loss of consortium award obtained by limited guardian of ward's property in medical malpractice settlement on the theory that monies recovered by limited guardian for loss of consortium belonged to ward because limited guardian's marriage to ward was void -- Error to deny petition for surcharge with prejudice where guardian may be able to state a cause of action -- Remand for guardian to be provided opportunity to amend petition -- As a surcharge would be a recovery for a breach of fiduciary duty by limited guardian, guardian would need to show both the existence of a fiduciary duty and the breach of that duty such that it is the proximate cause of damages to the ward
MICHELLE REED, as Guardian of the Person and Property of Frances Reed, Appellant, v. ROBERT LONG, Appellee. 4th District.

Injunctions -- Contracts -- Consulting agreement -- Restrictive covenants -- Action seeking to enforce noncompetition, non-solicitation, and confidentiality provisions of consulting agreement -- Suit predicated on actions taken by defendants more than two years after expiration of consulting agreement was not viable unless restrictive covenant was predicated upon the protection of trade secrets, which would be subject to agreement's thirty-six month post-term restriction, a period of restraint which is presumed reasonable under statute relating to restraints intended to protect trade secrets -- Plaintiff waived right to argue that thirty-six-month restriction relating to protection of trade secrets applied where plaintiff stipulated at hearing that it would not rely on misappropriation of trade secrets to support injunction

Injunctions -- Protection against dating violence -- Trial court failed to afford party against whom injunction was imposed due process when it did not permit him to call witnesses or cross-examine the petitioner
RALPH WILLIAM McNULTY on behalf of G. M., Appellant, v. TIM R. DOUGLAS on behalf of K.D., Appellee. 2nd District.

Insurance -- Automobile -- Theft -- Non-renewal of policy -- No error in denying coverage for theft of automobile which occurred after non-renewal of policy -- U.S. postal proof of mailing of notice of intention not to renew addressed to insured at address shown in policy was sufficient proof of notice as matter of law, and mere denial of receipt by insured was not sufficient to establish lack of notice -- Trial court correctly concluded that insurer did not act arbitrarily or capriciously in refusing to renew policy after insurer discovered that insured's husband's driver's license was suspended, given unrebutted evidence that insurer had internal policy prohibiting driver exclusions on a spouse of an insured -- Promissory estoppel -- Driver Exclusion Agreement, which excluded certain coverages while insured's spouse was operating a vehicle, did not constitute a promise that policy would provide coverage that would extend beyond its expiration -- Moreover, insured failed to raise genuine issue of material fact regarding reasonableness of her reliance on Driver Exclusion Agreement as a promise that policy would extend beyond the policy's stated expiration date, especially after insurer sent non-renewal notices for policies on two different vehicles
JESSICA TOME, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Appellee. 4th District.

Insurance -- Property -- Condominiums -- Hurricane damage -- Appraisal -- Reduction -- Exclusions -- Provisions of policies excluding from coverage “other structures on the demised locations, set apart from the building by clear space” did not conflict with statute requiring insurers that issue condominium policies to provide coverage for all portions of condominium property located outside the units and all portions of condominium property for which declaration of condominium requires coverage by the association -- Statute, read as a whole, reflects purpose of regulating insurance obligation of condominium associations and was not intended to impose mandatory insurance obligation upon carriers -- Accordingly, trial court erred in failing to reduce appraisal award by amounts related to damages excluded from coverage -- Trial court erred in entering summary judgment confirming appraisal award without considering insurer's contention that parties reached pre-appraisal agreement that settled amount due for roof repairs and water extraction for two of the insured buildings -- This defense, which was in the nature of accord and satisfaction, should have been adjudicated by court, as it raised claim not encompassed by appraisal clauses in the policies as well as one that appraisers are ill-equipped to decide -- Trial court did not err in refusing to address insurer's defense that certain items awarded were duplicative, as this issue was solely within province of appraisers -- If appraisers improperly duplicated itemized losses, it was incumbent upon insurer to seek clarification and/or modification of appraisal -- Trial court did not err in refusing to entertain insurer's claim that it properly removed amounts from the appraisal award that represented losses to property the unit owners were responsible for insuring pursuant to section 718.111(11) where insurer did not contend that policies did not actually cover these losses -- Appraisal should be further reduced by amounts previously paid by insurer
CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity, Appellant, v. RIVER MANOR CONDOMINIUM ASSOCIATION, INC., Appellee. 4th District.

Jurisdiction -- Dissolution of marriage -- Torts -- Deceptive and unfair trade practices -- Where plaintiff, who was divorced from defendant, filed petition for modification of child support as well as various counts of fraud, deceptive and unfair trade practices, and negligence against defendant's company, company's managers, and company's accountant for their alleged assistance in helping defendant hide his income so as to lower his child support, trial court presiding in family division of circuit court erred in dismissing, for lack of jurisdiction, all fraud, statutory violation, and negligence counts without prejudice to plaintiff filing them in civil division -- Proper remedy where action is filed in incorrect division of circuit court is to transfer case to correct division, subject to payment of any filing fee and subject to requirements of any local administrative rule
LESLEY CHANIN, Appellant, v. JOEL FEIGENHEIMER, individually, SHARI GHERMAN, individually, JACH, INC., a Florida domestic corporation, and CHINA GRILL MANAGEMENT, INC., a Florida domestic corporation, I. SALVER CPA, a Certified Public Accountant, and JOHN POLSENBERG, individually, Appellees. 4th District.

Jurisdiction -- Forum non conveniens -- Trial court order denying motion to dismiss action on ground of forum non conveniens reversed and remanded so that trial court may articulate its findings on Kinney factors

Jurisdiction -- Non-residents -- Where a New York limited liability company and its chief operating officer, who was a New York resident, were sued by a British Virgin Islands company, and the only contacts defendants had with Florida were the acceptance in New York of a phone call from plaintiff's representative, who was temporarily in Florida, defendants' allowing plaintiff's representative to remotely access defendants' computer, and the exchange of emails between defendant in New York and plaintiff's representative in Florida, there were insufficient minimum contacts with Florida to satisfy due process requirements for Florida jurisdiction -- Trial court erred in denying defendants' motion to dismiss complaint for lack of personal jurisdiction
SWANKY APPS, LLC, a New York limited liability company; and DAREN HORNIG, Appellants, vs. ROONY INVEST & FINANCE, S.A., a British Virgin Islands company, Appellee. 3rd District.

Liens -- Equitable -- Foreclosure -- Appeals -- Partial summary judgment of foreclosure reversed and remanded with directions to trial court to first resolve issues raised in affirmative defenses
PAMELA RUPPERT and JASON RUPPERT, Appellants, v. RBC CENTURA BANK, Appellee. 4th District.

Mortgage foreclosure -- Default -- Where default judgment was entered against defendant corporation in mortgage foreclosure action, plaintiff obtained a deficiency judgment against defendant corporation, and plaintiff instituted postjudgment proceedings in aid of execution, it was a departure from essential requirements of law for court to deny defendant's motion for protective order seeking to require that deposition of corporation's president be held in county of his residence and to protect him from being required to produce his personal financial records -- Trial court's order ruling that all defendant's postjudgment pleadings would be treated as a nullity because of the default in the underlying action constituted a denial of due process -- Defendant's default in foreclosure action, which admitted the well-pleaded allegations of the foreclosure complaint, does not preclude it from seeking protective order on behalf of its president, a nonparty who is not bound by the default, or from raising issues that are not resolved by the admitted allegation of the complaint
S.W. FLORIDA PARADISE PROPERTY, INC., a Florida corporation, Petitioner, v. GARY D. SEGELKE and CHERYL S. WARNER, Respondents. 2nd District.

Mortgage foreclosure -- Relief from judgment -- Error to deny rule 1.540(b) motion to vacate final judgment of foreclosure and ensuing sale and certificate of title where defendant mortgagors did not receive notice of non-jury trial which resulted in the judgment and orders
JOSE and ARACELLI MENDOZA, Appellants, vs. CHASE HOME FINANCE, LLC, Appellee. 3rd District.

Mortgage foreclosure -- Standing -- Error to enter final summary judgment in favor of bank where bank failed to negate affirmative defense of lack of standing, which was based on argument that note's blank endorsement was undated and bank's evidence was insufficient to establish that it held note and was entitled to enforce note at time suit was filed
WILLIAM A. CROMARTY and MAUREEN CROMARTY, Appellants, v. WELLS FARGO BANK, NA, Appellee. 4th District.

Mortgage foreclosure -- Where bank failed to refute homeowners' affirmative defense of lack of notice of acceleration thirty days prior to filing of complaint as required by the mortgage, summary judgment of foreclosure was improper

Real property -- Homeowners associations -- Restrictive covenants -- Preservation -- Trial court properly entered final judgment granting injunctive and mandamus relief requiring homeowners association's board of directors to take necessary steps to preserve Declaration of Restrictions governing property within the association where, without such action, restrictive covenants would begin to lapse and ultimately expire pursuant to Marketable Record Titles to Real Property Act

Real property -- Subdivisions -- Restrictive covenants -- Homeowners association did not have standing to enforce 1960 deed restrictions where association was not an assignee of developer's right to enforce restrictive covenants or a direct successor of the developer's interests -- Association could not rely on document purporting to assign to it the developer's rights to administer and enforce deed restrictions where developer had previously assigned those rights to a different corporation
ROSALBA ALCAREZ NIETO and FAVIOLA RODRIGUEZ; WALLACE O. FARMER and MELVA JEAN FARMER, husband and wife; LOMA L. OVERMYER; and HARRY W. COMER and SANDRA K. COMER, husband and wife, Appellants, v. MOBILE GARDENS ASSOCIATION OF ENGLEWOOD, INC., a Florida corporation, Appellee. 2nd District.

Torts -- Limitation of actions -- Action against Archdiocese for negligence and vicarious liability related to alleged sexual abuse plaintiff suffered as a child at hands of parish priest -- Trial court properly found that action was barred by statute of limitations where the complaint was not filed until thirty-five years after the alleged abuse occurred -- Equitable estoppel is inapplicable where plaintiff has not alleged any facts indicating the Archdiocese caused or induced him to refrain from filing suit within limitations period
JORGE RUBIO, Appellant, vs. ARCHDIOCESE OF MIAMI, INC., et al., Appellees. 3rd District.

Wrongful death -- Product liability -- Tobacco -- Limitation of actions -- Relation back of amended complaint -- Where initial complaint was filed on behalf of estate by decedent's surviving spouse as decedent's personal representative, although surviving spouse was not the personal representative and was not qualified to be personal representative because of a prior felony conviction, trial court abused discretion in denying motion to amend the complaint to substitute the party who had been properly appointed as personal representative as the nominal plaintiff -- Court further erred in finding that the substitution did not relate back to the date of the filing of the initial complaint which was filed within the deadline established by Engle v. Liggett Group, Inc. -- Although the original nominal plaintiff had no capacity to sue, the original complaint was not a nullity from which there could be no relation back -- Given that the proposed amendment merely substituted one nominal plaintiff for another, involved nominal plaintiffs sharing an identity of interest, resulted in no change to the real parties in interest, did not affect or alter the underlying allegations or claims in the complaint, and caused no resulting prejudice to defendants, the amendment to substitute nominal plaintiffs should have been permitted and should have related back
THE ESTATE OF ROBERTA EISEN, etc., Appellant, vs. PHILIP MORRIS USA, INC., etc., et al., Appellees. 3rd District.

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