Saturday, June 22, 2013

Fraudulent inducement, garnishment, reformation of mortgage, and rosemary-sage sausage with heirloom tomatoes and fresh angel hair pasta

Contracts -- Sale of business -- Fraudulent inducement -- No error in entering summary judgment against plaintiff on claim against buyers for breach of contract -- Error to enter final judgment in favor of buyers on counterclaim for fraudulent inducement where counterclaim was based on alleged fraudulent misrepresentation regarding payroll costs of business, and estimated labor costs in pro forma document prepared by one of the buyers before purchase indicated that buyers were either aware of falsity of alleged misrepresentation or its falsity would have been obvious to them

Creditors' rights -- Garnishment -- Trial court erred in vacating clerk's certificate of dissolution of writ of garnishment where judgment creditor did not file sworn objection to judgment debtor's claim of exemption within three business days after claim had been hand delivered
CARLOS MARQUEZ, Appellant, vs. BLUECARE HOME HEALTH SVCS., INC., et al., Appellees. 3rd District.

Dissolution of marriage -- Attorney's fees -- Neither marital settlement agreement nor section 57.105(7) provided basis for attorney's fees awards in this case -- Attorney's fees provision in marital settlement agreement, which tied the obligation to pay attorney's fees to circumstances in which party defaulted on duty or obligation arising under the agreement, did not apply in instant case in which neither party defaulted on an obligation under the agreement -- Attorney's fees provision in marital settlement agreement applied to both parties equally and, accordingly, was not a unilateral provision necessitating the application of section 57.105(7) for reciprocity purposes -- Remand for redetermination of wife's entitlement to attorney's fees for work performed on emergency motion for temporary sole custody and parental responsibility using statutory standard for attorney's fees awards
JENNIFER SACKET, Appellant, v. KEVIN M. SACKET, Appellee. 4th District.

Dissolution of marriage -- Relief from judgment -- Error to find that 2010 order entitled “Final Judgment of Uncontested Dissolution of Marriage with Minor Children” was not a final judgment where the judgment dismissed the wife's dissolution petition and ordered the payment of alimony and child support unconnected with dissolution pursuant to section 61.09 -- Remand for consideration of merits of husband's motion to vacate
ZAHEER KHAN, Appellant, v. SHAZIA ZAHEER KHAN, Appellee. 4th District.

Guardianship -- Incapacitated persons -- Counsel -- Error to fail to appoint counsel for incapacitated person when guardian of property filed renewed petition to determine incapacity and petition to appoint guardian of ward's person -- Error to fail to appoint counsel for an alleged incapacitated person upon determining that guardian needed to be appointed on an emergency basis -- Claim that appointment of counsel was not necessary because no “summary” proceeding was held is without merit -- Trial court's decision to appoint an emergency temporary guardian after hearing evidence presented at hearing on motion for temporary injunction to prevent removal of purportedly incapacitated person from residential facility converted the hearing into a “summary proceeding” for purposes of section 744.3031(1)
GLENDA MARTINEZ, as healthcare surrogate, attorney-in-fact, and wife of J. ALAN SMITH, the Ward, Appellant, v. JOHN CRAMER, as emergency temporary guardian of the Ward, Appellee. 4th District.

Insurance -- Uninsured motorist -- Damages -- Future medical expenses -- Collateral source benefits -- Medicare benefits of developmentally disabled adult plaintiff -- Trial court erred in excluding from jury evidence of plaintiff's receipt of medical services under Medicare program for purpose of determining future medical expenses -- Because there is no evidence that plaintiff contributed to the financing of the Medicare program, the program's benefits are unearned and not subject to exclusion under the collateral source rule
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JOHN JOERG, JR., Individually, and as natural father and guardian of Luke Augustine Joerg, Appellee. 2nd District.

Mortgage foreclosure -- Civil procedure -- Summary judgment -- Rehearing -- Excusable neglect -- Error for trial court to deny mortgagor's motion for rehearing where mortgagor's attorney had failed to attend hearing on bank's request for summary judgment because of a secretarial error -- Secretarial error is excusable neglect
BRIAN KELLY a/k/a BRIAN K. KELLY, Appellant, v. BANKUNITED, FSB, Appellee. 4th District.

Mortgage foreclosure -- Civil procedure -- Summary judgment -- Summary judgment resulting in final judgment of foreclosure was error where mortgagee failed to present competent evidence it had provided mortgagors with requisite notice and opportunity to cure default before acceleration -- Trial court's reliance on unauthenticated copy of notice was error -- Trial court erred in finding no issues of material fact remained where, despite its having stricken defendants' affirmative defenses, it had not stricken their legally sufficient denials of the allegations in the complaint -- No merit to mortgagee's argument that the property owners failed to file any affidavits or other materials in opposition to the motion for summary judgment, because there is no requirement for a party to do so in order to defeat a motion for summary judgment
JOE DiSALVO, III, and ELIZABETH ANN DiSALVO, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee. 2nd District.

Mortgage foreclosure -- Error to grant final summary judgment of foreclosure where affirmative defenses were not conclusively refuted on the record -- Allegations in verified complaint were not sufficient to refute defenses where complaint was not based on personal knowledge

Mortgage foreclosure -- Reformation of mortgage -- Error to reform mortgage to add legal description when granting plaintiff's motion for summary judgment of foreclosure where issue of reformation was not raised as issue to be addressed at summary judgment hearing

Mortgage foreclosure -- Res judicata -- No error in denying motion to vacate final judgment of foreclosure on ground that mortgagor's participation in federal modification program rendered foreclosure inequitable where mortgagor failed to raise this claim in a prior motion to vacate

Paternity -- Child support -- Medical expenses -- Where trial court imposed flat-rate obligation on father to cover unreimbursed medical expenses and factored that amount into father's total child support obligation, it was error to then order father to pay a percentage of unreimbursed medical expenses in addition to this flat rate -- Income -- Where appellate court remanded for recalculation of father's income for particular year based on finding that trial court erroneously attributed wife's income to him, trial court exceeded scope of mandate by going beyond deletion of wife's income and completely recalculating father's income by crediting him with business losses previously considered and rejected by trial court in original proceedings -- Error to fail to consider cost of father's medical insurance in calculating income -- Attorney's fees -- Trial court to reconsider whether, in light of erroneous calculations that more than doubled father's income, there is still significant disparity in parties' incomes to warrant requiring father to pay mother's attorney's fees
HAROLD ROBERT RUSSELL, Appellant, v. HOLLY A. MCQUEEN, Appellee. 5th District.

Paternity -- Child support -- Trial court abused its discretion by failing to take into consideration economic effects of father's other two children and anticipated costs of travel associated with fact that father lives in New Jersey and child lives with primary custodial parent in Florida -- Child custody -- Parenting plan -- Inconsistencies and apparent typographical errors in parenting plan to be corrected on remand
MICHAEL POPE, Appellant, v. REBECCA J. LANGOWSKI, n/k/a REBECCA J. SMITH, Appellee. 4th District.

Torts -- Damages -- Past lost earnings -- Future lost earning capacity -- Trial court properly denied defendant's motions for directed verdict, remittitur, or new trial as to awards of past lost earnings and future lost earning capacity, although evidence regarding these damages was not corroborated by any income tax returns or other documents -- There is no requirement that a claim for lost past earnings must be supported by documentary evidence or income tax returns -- Issues were for jury to weigh in assessment of plaintiff's credibility
MAGGOLC, INC., Appellant, vs. ROBERT ROBERSON, Appellee. 3rd District.

Torts -- Indemnity -- Third-party action by lessor of business premises against lessee, asserting claims for common law indemnity and breach of contract after lessor had been sued in premises liability action by lessee's employee who was injured during course and scope of employment at the leased premises -- Lessor's third-party complaint was not barred by workers' compensation immunity -- A third party's claim for common law indemnification against a negligent employer is not barred by workers' compensation law -- In seeking indemnification against lessee, lessor is not bound by allegations of injured employee's complaint against lessor that lessor was actively negligent, or by the fact that injured employee did not allege negligence on part of lessee -- Trial court properly dismissed with prejudice lessor's common law indemnity claim because lessor failed to show the existence of any special relationship between himself and lessee that would make lessor vicariously, constructively, derivatively, or technically liable to injured employee because of lessee's negligence or fault -- Trial court properly dismissed lessor's related claim that lessee breached contract by failing to have lessor named as an additional insured on commercial general liability insurance policy -- Because lessor's common law indemnification claim failed to state cause of action, related breach of contract claim may not be maintained as a third-party claim -- Dismissal of breach of contract claim should have been without prejudice because claim may be asserted in a separate action against lessee

Torts -- Product liability -- Tobacco -- Venue -- Trial court properly transferred case from Miami-Dade County Circuit Court to Orange County Circuit Court where plaintiffs have been residents of Orange County throughout history of smoking and the treatment for its results, and Miami-Dade County has no relevant connection to case
ROY E. HALL, et al., Appellants, vs. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellee. 3rd District.

Trusts -- Irrevocable trust -- Modification or reformation -- Error to grant summary judgment excluding 27-year-old adoptee from becoming beneficiary of trust, which provided that words of relationship in any degree included legally adopted persons, on ground that inclusion of this adult adoptee as beneficiary would defeat or substantially impair accomplishment of material purpose of trust -- Absent any provision to the contrary, where trust is created and executed in Florida, law presumes that settlor expected Florida law to apply, and Florida law permits adult adoptions -- Whether adult adoption substantially impaired accomplishment of material purpose of trust is issue inappropriate for resolution on summary judgment -- Trial court also erred in finding, as independent ground for granting summary judgment, that Pennsylvania adoption procedure followed in the adult adoption at issue was not sufficiently similar to Florida law to support a construction of the Trust that would treat adult adoptee as a beneficiary -- Pennsylvania statute, which differs from Florida law in that notice is not required to be given to financially interested parties, is not so repugnant that adoption at issue is not entitled to full faith and credit in Florida, as even under Florida statute petitioner would not have been entitled to notice of Pennsylvania adoption because she had only indirect and contingent interest in the adoption and did not stand to gain or lose by direct legal operation and effect of the judgment

DIANNA ROBIN DENNIS, individually and as Co-Trustee of the Thomas Gordon Dennis Revocable Trust of 1989 as amended and LAUREN KEELY HAWS, Appellants, v. HARRIET D. KLINE and DEUTSCHE BANK TRUST COMPANY, N.A., as Co-Trustee of the Thomas Gordon Dennis Revocable Trust 1989 as amended, Appellees. 4th District.

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Friday, June 21, 2013

Feds allege $180M ‘plantation system’ immigrant fraud at 7-Eleven stores at 54 sites

Originally Posted byABA Journal Law News  Jun 18, 2013 By Martha Neil

"In one of the biggest criminal cases ever brought by the Department of Justice over the employment of immigrants, federal agents have seized the franchise rights of 14 7-Eleven stores and announced charges against nine individuals responsible for their operation.
The feds also seized five homes and are executing search warrants on more than 40 additional 7-Eleven stores, in what is being described as a "modern day plantation system." It allegedly brought in $180 million in revenue by putting illegal immigrants from Pakistan and the Philippines to work, paying them a fraction of required wages for working up to 100 hours per week or more and segregating them in employer-provided "company town" housing, according to the Associated Press and the New York Times (reg. req.). . . .Convenience Store News says the investigation covers at least eight states: Florida, Illinois, Maryland, Michigan, New Jersey, New York, Pennsylvania and Virginia".  More.

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Friday, June 14, 2013

No one believed her, she was accused her of making a false rape report; now-vindicated, the victim sues

"Despite physical evidence that supported her story that a stranger had bound, gagged, raped and photographed her in 2008 in the transitional housing apartment in which she was living, an 18-year-old Washington state woman was disbelieved.
 Pressured by police into recanting, she was criminally charged for making a false rape report in the Lynnwood case and, the woman says, forced to publicly admit, at a group meeting for Cocoon House participants, that she had lied about being raped. If she hadn't done so, she says, she was afraid she would lose her housing under a federally funded shelter program for young adults who had formerly been in foster care.
 But the tide turned when Marc O'Leary, a former Washington state resident, was arrested several years later in Colorado and accused of committing a sexual assault there. In his possession were photos of the young woman and her identification card. O’Leary subsequently admitted he had raped her, and was convicted of that crime after Lynnwood police reopened their investigation. O'Leary was also convicted of three rapes in Colorado and another in Washington state, according to Courthouse News and the Seattle Times, and is serving a 327-year prison sentence in Colorado.
 Now the woman has filed a lawsuit in federal court in Seattle, seeking compensatory and punitive damages for alleged civil rights violations, defamation and negligence." More
Posted  in ABAJournal Jun 11, 2013 3:00 PM CDT
By Martha Neil

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