Tuesday, July 23, 2013

Arbitration, breach of fiduciary duty, negotiable instruments, and fresh rosemary pasta with wilted arugula and Thai basil pesto

Arbitration & Mediation, Class Action, Consumer Law
This case involved arbitration proceedings stemming from plaintiff's class action suit alleging, among other things, that SouthernLINC's termination fees were unlawful penalties under Georgia law. SouthernLINC, a wireless provider, appealed the district court's denial of its motion to vacate two arbitration awards. Under the standard set forth by the Supreme Court in Oxford Health Plans LLC v. Sutter, the court concluded that the arbitrator did not exceed his powers under section 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., either in construing the arbitration clause as he did or in certifying a class. Accordingly, the court affirmed the judgment of the district court.
Southern Communications Serv. v. Thomas, U.S. 11th Circuit Court of Appeals, Docket: 11-15587, July 12, 2013, Judge: Tjoflat

Contempt -- Indirect criminal -- Where party appeared at show cause hearing without counsel, court neither advised party that he was entitled to be represented by attorney, as provided by rule 3.840(d), nor informed him that attorney could be appointed for him if he could not afford one, and party did not knowingly waive right to counsel, it was fundamental error to adjudicate party guilty of indirect criminal contempt and sentence him to six months in jail
CHRISTOPHER PODOLSKY, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to distribute entire value of husband's 401(k) account to wife in part as sanction for husband's acts of domestic violence against wife in front of minor children -- Although trial court also cited private school tuition arrearage as basis for award, judgment provided neither valuation for the 401(k) account nor amount of any arrearage in tuition -- Remand for further proceedings -- Value of 401(k) above tuition arrearage should be equitably distributed
MAHMOUD NASSIROU, Appellant, v. NELLIE BORBA NASSIROU, Appellee. 1st District.

Insurance -- Liability -- Trial court should have dismissed third-party complaint for declaratory judgment brought against liability insurer where there had been no settlement or verdict against insured -- Party who was allegedly injured as result of insured's negligence, but who has not obtained a settlement of verdict against insured, has no beneficial interest in insured's policy with insurer and no cause of action against insurer has accrued -- When an insurer demonstrates that the pre-suit requirements of section 627.4136, Florida Statutes, have not been met, certiorari review of an order denying a motion to dismiss is appropriate

Inverse condemnation -- Limitation of actions -- Trial court properly ruled that stabilization doctrine did not hold statute of limitations on inverse condemnation claim in abeyance until county abandoned its efforts to remediate flooding on property which property owner claimed was result of county road improvement activity that altered existing drainage pattern -- Limitations period commenced running at time county completed the road improvements which allegedly caused the flooding that rendered property unusable, regardless of county's promise to repair the problem -- Although owner may have been able to avoid statute of limitations by pleading and proving equitable estoppel, property owner did not raise estoppel and, therefore, the issue was waived
SHARI K. JUDKINS, Appellant, v. WALTON COUNTY, a political Subdivision of the State of Florida, Appellee. 1st District.

Municipal corporations -- Public employees -- Termination of chief of police -- Administrative proceedings -- Discovery -- Public records -- Exemptions -- Criminal investigative information -- Appeal from circuit court's ruling on amended petition in which state, in connection with pending administrative proceedings in which police chief contested termination, sought to quash subpoena of investigator with state attorney's office who had conducted an investigation into allegations raised by the police chief against some members of the city council and allegations against police chief that he had improperly deleted information from his work computer and also sought protective order preventing another subpoena from being issued to the investigator -- Circuit court, sitting in its appellate capacity, improperly held that portion of written investigative report containing mental impressions of investigator was not admissible in administrative hearing -- Where investigator's investigation and any related criminal proceedings had concluded, and no charges were filed against any of the parties mentioned in the report, the statutory exemption no longer applied and the investigator's report was a public record -- Circuit court order, which granted in part and denied in part state's amended petition, is otherwise affirmed
CITY OF AVON PARK, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee, and MICHAEL ROWAN, Appellee/Cross-Appellant. 2nd District.

Torts -- Abuse of process -- Malicious prosecution -- Litigation privilege applies to claims for abuse of process and malicious prosecution against attorneys who filed complaint and briefly prosecuted case against plaintiff -- Trial court properly granted defendants' motion for judgment on the pleadings
HAROLD E. WOLFE, JR., et al., Appellants, v. JEFFREY T. FOREMAN, et al., Appellees. 3rd District.

Torts -- Attorney's fees -- Proposal for settlement -- Law of the case -- Exceptions -- Manifest injustice -- Under circumstances, trial court did not abuse its discretion in denying plaintiff's request for trial level attorney's fees based on proposal for settlement although appellate court, in prior appeal, had awarded appellate attorney's fees based on the same proposal for settlement -- When appellate court issued order granting the motion for appellate fees and remanding to fix amount, instant appeal of trial court's order denying plaintiff entitlement to attorney's fees was pending before appellate court and, accordingly, the order granting appellate fees should have been conditioned upon plaintiff's ultimately prevailing in this appeal -- Because trial court did not abuse discretion by determining that plaintiff was not entitled to attorney's fees based on its proposal for settlement, reversal of that order based on law of the case doctrine would result in manifest injustice -- Trial court did not abuse its discretion in denying motion for attorney's fees where plaintiff initially sought damages for business income losses due to defendant's negligence, but by the time plaintiff served its proposal for settlement, it knew that it would be closing its business and also knew that it would be seeking damages for destruction of its business, not merely for its business losses, but failed to inform or notify defendant as to the change in the nature of its claimed damages

Torts -- Banks -- Conversion -- Negligence -- Negotiable instruments -- Action by automobile dealer against depository bank and financing banks alleging mishandling of financing checks issued in connection with dealer's provision of vehicles to rental car company which ultimately went out of business without repaying money owed to dealer -- Single-payee checks -- Dealer's claim for statutory conversion of single-payee checks, which was based on allegations that, without dealer's knowledge, financing banks delivered to rental company, for the use and benefit of dealer, checks which were payable only to dealer fails for lack of delivery where there was no allegation or evidence that rental company was acting as dealer's agent -- Portion of final judgment awarding dealer damages for the face amount of single-payee checks reversed -- Two-payee checks -- Dealer failed to establish that it suffered damages with respect to several of the two-payee checks on which rental company had forged dealer's endorsement, as record showed that dealer had received payment in full for the amount of these checks -- Record supported award of damages with respect to one two-payee check for which dealer had not received payment -- Prejudgment interest -- No error in awarding prejudgment interest from date money was due until date of judgment, although interest should be recalculated on remand, consistent with appellate court's opinion
REGIONS BANK, etc., et al., Appellants, v. MAROONE CHEVROLET, L.L.C., Appellee. 3rd District.

Torts -- Contracts -- Civil theft -- Fraud -- Breach of fiduciary duty -- Trial court grossly abused discretion in vacating default final judgment against financial services company, its owner, and employee, as void for plaintiff's failure to state a cause of action -- Although civil theft complaint does not use the words “criminal intent,” allegations in the complaint sufficiently support a claim for civil theft and sufficiently allege company owner's personal involvement with failure to return funds he admitted to being escrow funds -- Final judgment as to civil theft claim to be reinstated -- Trial court did not err in holding fraud claim failed to state cause of action where fraud allegation lacked specificity -- Trial court did not err in holding breach of fiduciary duty claim failed to state cause of action where the complaint's allegations were conclusory and no ultimate facts were alleged to support that defendant owner personally misled plaintiff
LOIS RHODES, Appellant, v. O. TURNER & COMPANY, LLC, OTHEL TURNER and BYRON RAINER, Appellees. 4th District.

Torts -- Medical malpractice -- Action against defendant that provided Medicare health insurance benefits to plaintiff -- Claim that defendant's administrative personnel failed to provide authorization for plaintiff to be transported promptly to hospital for an urgent procedure to prevent a second major stroke was not a claim for medical negligence -- Medical malpractice presuit notice requirements were not applicable -- Even if claims were claims for medical malpractice, claims related back to first amended complaint, which was filed within the statute of limitations, rather than second amended complaint, which was filed after the statute of limitations had passed -- Defendant waived presuit notice requirement by failure to raise the issue in its response to first amended complaint -- Trial court erred in entering summary judgment for defendant
ANGEL ACOSTA, et al., Appellants, vs. HEALTHSPRING OF FLORIDA, INC., etc., et al., Appellees. 3rd District.

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Monday, July 15, 2013

arbitration, wrongful death, trademark infringement, and corned beef, red cabbage, and purple potatoes with fresh mustard seed and thyme

Leslie, et al. v. Hancock County Board of Education, et al.
Docket: 12-13628
Opinion Date: July 12, 2013
Judge: Pryor
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law
Plaintiffs, the superintendent of education and her assistant superintendent, filed suit claiming that the board and its members in both their official and individual capacities terminated the superintendent and demoted the assistant superintendent in retaliation for public comments plaintiffs made about local tax policy. The court concluded that it had jurisdiction over the appeal of the denial of qualified immunity, but lacked jurisdiction over the appeal of the board and its officials. Accordingly, the court dismissed the appeal of the board and its officials for lack of jurisdiction and reversed the denial of qualified immunity for the individual members of the board.

Southern Communications Serv. v. Thomas
Docket: 11-15587
Opinion Date: July 12, 2013
Judge: Tjoflat
Areas of Law: Arbitration & Mediation, Class Action, Consumer Law
This case involved arbitration proceedings stemming from plaintiff's class action suit alleging, among other things, that SouthernLINC's termination fees were unlawful penalties under Georgia law. SouthernLINC, a wireless provider, appealed the district court's denial of its motion to vacate two arbitration awards. Under the standard set forth by the Supreme Court in Oxford Health Plans LLC v. Sutter, the court concluded that the arbitrator did not exceed his powers under section 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., either in construing the arbitration clause as he did or in certifying a class. Accordingly, the court affirmed the judgment of the district court.

U.S. Steel Mining Co., LLC v. Director, OWCP, et al.
Court: U.S. 11th Circuit Court of Appeals
Docket: 11-14468
Opinion Date: June 27, 2013
Judge: Cox
Areas of Law: Constitutional Law, Health Law, Labor & Employment Law
U.S. Steel appealed the award of benefits to plaintiff, the widow of a deceased miner, under the black lung benefits program. The Benefits Review Board affirmed the award, concluding that plaintiff did not need to show the cause of her husband's death. The court concluded that 30 U.S.C. 932(l), as amended by section 1556(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 1556(b), 124 Stat. 119, 260, eliminated the need for survivors who could meet its requirements to prove that their associated miners died due to black lung disease; it applied retroactively to survivors' claims filed in the specified period; and this retroactive application did not violate the Due Process Clause of the Fifth Amendment. Accordingly, the court denied U.S. Steel's petition to review the Board's ruling.

Bankruptcy -- Adversary proceedings -- Investment fund that had control over original lenders of loan to defendant company to obtain a lottery and gaming license in Jamaica and entity that entered into forward share sale agreement for future right to purchase up to 17% of shares in defendant company filed multi-count complaint against 31 defendants, including debtor and five relief defendants, seeking determination that debts and claims against debtor were nondischargeable and seeking recovery from a variety of defendants based primarily on Federal and Florida racketeering laws -- Jurisdiction -- Related-to -- Severed counts asserting claims against defendants other than debtor should be dismissed for lack of subject matter jurisdiction -- It is not possible to determine either aspect of related-to jurisdiction in absence of an amended complaint, at which time reviewing court will be able to determine what causes of action survive and whether such actions are sufficient to trigger related-to jurisdiction, either by impact or common nucleus of facts -- Motions to dismiss for lack of personal jurisdiction are granted -- Plaintiffs failed to adequately allege personal jurisdiction over foreign defendants on basis that they are each co-conspirators and part of one or more of alleged criminal enterprises described in complaint where complaint fails in its description and allegations of their conspiracy or enterprise -- Standing -- Investment fund lacks standing to bring any action arising under Federal RICO and Florida RICO or the conspiracy claims associated with those actions because, even though RICO claims can be assigned, the assignment of such claims must be specific and complaint does not include any allegations that claims were assigned to investment fund -- Res judicata -- Claims relating to plaintiff's assertion of ownership right to, or interest in, stock and dividends derived therefrom are barred by res judicata with respect to certain defendants and barred by collateral estoppel with respect to other parties to complaint -- Jamaican judgment must be given full comity and recognition where plaintiffs have not argued that Jamaican court was incompetent or that its proceedings were not civilized or that Jamaican judgment violates American public policy notions of what is decent and just, and where allegations of fraud on Jamaican court were not brought before Jamaican courts and plaintiff has not complained that it could not bring this issue before such court -- Extraterritoriality -- Severed counts should be dismissed because there is no basis upon which any of counts, as described, would trigger application of any of Federal or Florida RICO laws or support any Florida state-law claims, where complaint does not allege a significant relationship between Florida or United States and any of the harm allegedly suffered by either plaintiff -- Plaintiffs cannot rely only on money, faxes, and copies of loan documents passing through Florida to overcome problems of extraterritoriality -- Relief defendants -- Claims against relief defendants should be dismissed with prejudice, because no court has recognized that a private party litigant has the right to include relief defendants in a lawsuit and, even if there was such a recognized concept, any cognizable claim against a relief defendant arises only from the claim that such defendant is holding something over which the relief defendant has no legitimate claim -- Claims asserted against relief defendants all relate to stock to which Jamaican court has already ruled plaintiff has no right -- Counts seeking imposition of constructive trusts on all of assets of relief defendants describe actual claims against relief defendants, but complaint fails to state a cause of action for assertion of constructive trust against general assets of relief defendants -- Pleading requirements -- Shotgun pleading -- Complaint fails to comply with requirements of Rule 8, where complaint's use of similar defined terms, and its conflation of facts, defendants, and claims in its various factual recitals, makes it virtually impossible to figure out who is alleged to have done what to whom, when and where -- Racketeering -- Pleading requirements -- Federal and Florida RICO claims and RICO conspiracy claims, which are based on mail and wire fraud, fail to comply with pleading requirements of Rules 8, 9 and 12 -- State law tort claims -- Claims for conversion, civil theft, common law conspiracy, common law fraud, and fraud in the inducement are dismissed with prejudiced, or dismissed with opportunity to amend -- Dischargeable debts -- Claims seeking determination that debts owed by debtor are non-dischargeable based on 11 U.S.C. §523(a)(2) as debt arising from false representation or fraud by debtor, §523(a)(4) as debt arising from embezzlement or larceny, and §523(a)(6) as debt arising from willful and malicious injury by debtor are dismissed, some with leave to amend and others with prejudice
In re: PAUL G. MOUTTET, Debtor. U.S. Bankruptcy Court, Southern District of Florida.

Bankruptcy -- Claims -- Administrative expenses -- Priority -- Conversion of bankruptcy case from chapter 11 case to chapter 7 case does not impact the priority of a chapter 11 super-priority claim granted under Section 364(c)(1) of Bankruptcy Code, whether or not that claim is viewed as administrative claim
In re: NATIONAL LITHO, LLC, Debtors. U.S. Bankruptcy Court, Southern District of Florida, Miami Division.

Civil rights -- Attorney's fees -- Prevailing party -- District court abused discretion by awarding prevailing party attorney's fees under 42 U.S.C. section 1988 to plaintiff who was awarded $1.00 in nominal damages for violation of her Fourth Amendment right to be free from illegal seizure, given the de minimis nature of plaintiff's victory -- Plaintiff's victory is not substantial enough to justify award of attorney's fees, given degree of success obtained, significance of legal issue on which plaintiff prevailed, and public purposes served -- For purposes of measuring degree of success obtained, substantial difference between $25,000 judgment sought and nominal award received suggests that plaintiff's victory is in fact purely technical -- Plaintiff's victory carries very little legal significance, if any at all, given that plaintiff's litigation did not “change the law”, will not aid qualified immunity ligation in future cases, and did not alter landscape of civil rights law in public schools -- Plaintiff's litigation did not serve public purpose where examination of relief sought and obtained makes clear that litigation was commenced to redress private injury -- District court applied improper legal standard in making the determination to award attorney's fees when it misstated potential deterrent effect of plaintiff's litigation, by actually using attorney's fees as the deterrent to future civil rights violations
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, Defendant-Appellant. 11th Circuit.

Contracts -- Licensing agreement -- Appeals -- Jurisdiction -- Eleventh Circuit has jurisdiction over appeal of breach of contract claim that would also require resolution of a claim of patent infringement for the complainant to succeed where the patent infringement issue is heavily fact-bound and is not a “substantial question” of federal law -- Licensing agreement in instant case unambiguously granted plaintiff/licensee the exclusive right to use defendant's patents for blood irradiation system, preserved rights of defendant to exploit patents for products other than the system at issue, and prohibited defendant from infringing patented technology to create a directly competing medical device -- Language prohibiting defendant, during term of the agreement, from developing, manufacturing, distributing, promoting, marketing, selling, or leasing competing medical device embodying, in whole or in part, the patents at issue is not unenforceable restrictive covenant under Florida law -- District court did not clearly err in finding that subsequent medical device developed by defendant did not infringe patent, in whole or in part -- Failure to maintain patent -- District court did not err in finding that, although defendant breached agreement by failing to pay maintenance fees on one of the patents at issue, it was not a material breach because plaintiffs did not show that they suffered any harm -- District court did not clearly err in finding that defendant's refusal to consent to assignment of agreement to licensee's successor was not unreasonable -- Damages -- Although district court held that plaintiff committed first material breach of license agreement by assigning its interests without obtaining required consent of defendant, and assuming this ruling is correct under Florida law, it did not err in concluding that defendant was not entitled to any damages on its counterclaim because defendant/counterclaimant, with knowledge of breach, unreasonably delayed sending default notice and notice of termination until over a year after plaintiffs filed suit; or in finding that, although defendant had breached provision of license agreement which prevented it from competing with plaintiff for seven years, that breach was excused because of plaintiff's previous, first material breach -- Whether plaintiff's sublicense agreement with another entity was tantamount to an unconsented-to assignment under Florida law is unclear -- Question certified to Supreme Court of Florida: When a licensee enters into a contract to transfer all of its interests in a license agreement for an entire term of a license agreement, save one day, but remains liable to the licensor under the license agreement, is the contract an assignment of the license agreement, or is the contract a sublicense?
MDS (CANADA) INC., a Canadian corporation, BEST THERATRONICS, LTD., a Canadian corporation, BEST MEDICAL INTERNATIONAL, INC., a.k.a. Beast Medical International, Inc., Plaintiffs - Counter Defendants - Appellants, v. RAD SOURCE TECHNOLOGIES, INC., a Florida corporation, Defendant - Counter Claimant - Appellee. 11th Circuit.

Trademarks -- Infringement -- Appeals -- Jurisdiction -- Where district court ruled in favor of defendant on charge of trademark infringement but ruled against defendant on its affirmative defense that trademark was not enforceable, defendant is entitled to vacatur of portion of order adverse to him -- Supreme Court precedent clearly prescribes vacatur of district court's jurisdiction on question of validity, as the legal consequences of an appeal by an otherwise successful defendant in an infringement suit on merits of that question
UNIQUE SPORTS PRODUCTS, INC., Plaintiff - Appellee, v. FERRARI IMPORTING COMPANY, d.b.a. Gamma Sports, Defendant - Appellant. 11th Circuit.

Wrongful death -- State sovereign immunity -- Appeal from denial of state sovereign immunity to corrections personnel working at county jail as to state-based wrongful death claims from commission of suicide by inmate while in custody at jail -- Questions certified to Alabama Supreme Court: Whether the immunity granted to sheriffs' jailers pursuant to Alabama Code Section 14-6-1 applies where the conduct at issue occurred before Section 14-6-1's effective date, but the complaint was filed after the statute took effect? Whether Alabama Code Section 14-6-1's requirement that jailers act “in compliance with the law ” in order to receive immunity is intended to encompass only violations of the criminal code or all violations of Alabama law?
SHERRIE JOHNSON, as administratrix of the Estate of Alquwon Johnson deceased, Plaintiff-Appellee, v. RYAN CONNER, SONYA MAYO, GEORGE PARHAM, Captain, Defendants-Appellants, BARBOUR COUNTY, et al., Defendants. 11th Circuit.

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Friday, July 5, 2013

FDIC sues Peninsula Bank, and then sues Akerman Senterfitt for malpractice

After the Federal Deposit Insurance Corp. filed a lawsuit seeking over $48 million in damages against former executives and directors of the failed Peninsula Bank, "Akerman Senterfitt and two of its attorneys are facing a lawsuit by the Federal Deposit Insurance Crop. over their handling of a $7 million loan for Peninsula Bank."   More

                         Originally posted by Paul Brinkmann, Reporter- South Florida Business Journal

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