Friday, August 16, 2013

Contempt, condos, wrongful death, and broccolini with garlic, tomatoes, and organic goat cheese

Attorney's fees -- Prevailing party -- Condominiums -- Where bank obtained foreclosure judgments on condominium units, condominium association claimed assessment liens in excess of the statutory limit of bank's liability for condominium assessments, and bank filed post-judgment motions against association in foreclosure actions requesting application of the statutory cap to association's liens and an award of attorney's fees pursuant to statute which provides that prevailing party is entitled to attorney's fees in disputes between unit owners and condominium associations, trial court properly found that it had jurisdiction to entertain bank's post-judgment motions on the merits, but erred in finding that post-judgment procedure was not a proper forum to litigate the request for fees -- Having accepted post-judgment process as proper forum to decide the merits of disputes over unpaid assessments, association cannot now argue that post-judgment proceedings were an improper forum to award prevailing party attorney's fees -- Bank was not barred from recovering award of attorney's fees by the “no pleading, no fees” rule where entitlement to fees did not exist from the outset of bank's foreclosure actions against condominium unit owners

Contempt -- Dissolution of marriage -- Error to hold husband in indirect civil contempt for failing to pay substantial child support arrearages where all agreed husband did not receive proper notice of wife's motion and hearing date -- Error to set a purge amount without imposing a coercive sanction that the purge would remove -- Error to order husband to pay $25,000 within four weeks without sufficient evidence of ability to comply -- Gross receipts of business in which husband owned roughly a one-third interest not sufficient basis for valuation
GHASSAN MANSOUR, Appellant, v. DALAL HELMI MANSOUR, Appellee. 2nd District.

Wrongful death -- Nursing homes -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration without an evidentiary hearing where there was a substantial issue as to the making of the arbitration provision in admission agreement -- Trial court erred in ruling that agreement was void as against public policy because it required arbitration under the American Arbitration Association Commercial Arbitration Rules or the JAMS Comprehensive Arbitration Rules -- Trial court erred in finding that agreement violated public policy because it limited plaintiff's statutory remedies where agreement did not contain language limiting compensatory or punitive damages -- Information provided by plaintiff was insufficient to invalidate arbitration agreement due to prohibitive cost of arbitration
FI-EVERGREEN WOODS, LLC, ET AL., Appellants, v. THE ESTATE OF VIRGINIA A. VRASTIL, ETC., Appellee. 5th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Manifestation of disease for purpose of inclusion in Engle class membership -- Trial court did not err in instructing jury that decedent's manifestation of peripheral vascular disease occurred when he had symptoms of the disease, instead of when decedent was on notice of the causal connection between his smoking and the disease -- Conflict certified -- Trial court did not err in denying defendant's motion for directed verdict on the basis that plaintiff failed to introduce reliable medical evidence demonstrating that decedent experienced symptoms of PVD prior to class membership cutoff date -- Trial court erred in allowing plaintiff to recover punitive damages under theory of gross negligence since that cause of action was not pled in original Engle class case and jury found for defense on concealment and conspiracy claims
R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. PAMELA CICCONE, as Personal Representative of the Estate of GEORGE N. CICCONE, deceased, Appellee. 4th District.

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