Friday, August 30, 2013

Dissolution of marriage, estates, Engle "manifestation", and brick oven pizza with prosciutto, fig, arugula, and 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.

Creditors' rights -- Proceeding supplementary in aid of execution -- Discovery -- Business records -- Trial court departed from essential requirements of law, causing material injury for which there was no adequate remedy on appeal, by requiring non-party corporation with which one of judgment debtor's subsidiaries had loan agreement to divulge extensive business records that were tenuously related to litigation -- Trial court erred in denying corporation's motion for protective order limiting creditor to seeking information regarding assets of judgment debtor that were possibly subject to execution
GENERAL ELECTRIC CAPITAL CORP., Petitioner, v. RICHARD NUNZIATA, as Personal Representative of the Estate of ELVIRA NUNZIATA; TRANS HEALTH MANAGEMENT, INC.; and RUBIN SCHRON, Respondents. 2nd District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Written judgment regarding timesharing schedule to be corrected to conform to oral pronouncement -- Percentages for parties' overnights with children should also be corrected
JEFFREY LANCE BUTLER, father, Appellant, v. STEPHANIE HALL f/k/a STEPHANIE BUTLER, mother, Appellee. 1st District.

Estates -- Trusts -- Action against trustee, his son, and their law firm by beneficiaries of trust, alleging breach of fiduciary duties -- Trustee breached fiduciary duty resulting in damages by failing to diligently ascertain the value of real property which was the sole asset of trust, by undervaluing the property for federal estate tax purposes, by failing to post bond and to render annual accountings to beneficiaries, and by making unilateral payment to himself from trust monies without prior disclosures of alleged entitlement and amount to beneficiaries or the court -- Trial court did not abuse discretion in refusing to strike testimony of beneficiaries' expert appraiser -- Trial court did not abuse discretion in requiring disgorgement of trustee's and attorney's fees previously paid -- Trial court did not abuse discretion in removing trustee or in granting beneficiaries' preemptive request to preclude trustee's sons from serving as successor trustee
ARTHUR F. MCCORMICK, etc., et al., Appellants, vs. GAIL C. COX, et al., Appellees. 3rd District.

Estates -- Wills -- Revocation -- Error to dismiss second amended petition for revocation of probate of will in which petitioner alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusions, all wills executed by decedent after a 1983 will in which petitioner was beneficiary were invalid -- Petitioner pleaded sufficient allegations of standing
MARLENE GORDON, Appellant, v. LAURIE KLEINMAN, individually, and as Personal Representative of the Estate of JOEL H. DAVIS, Deceased; and M. TAMARA RIMES as Curator, Appellees. 4th District.

Foreclosure -- Jurisdiction -- Error to enter final judgment while appeal of non-final order was pending -- Error to enter final judgment when related counterclaim was pending

Injunctions -- Mortgage foreclosure -- Trial court acted within its inherent authority to sanction abusive litigant when it issued omnibus order granting permanent injunction barring future filings relating to foreclosure proceeding or filing future actions arising out of foreclosure proceedings in the circuit

Torts -- Municipal corporations -- Law enforcement officers -- DUI arrestee's action against city alleging negligent supervision and retention, failure to protect, battery, and negligent infliction of emotional distress based on conduct of police officers while plaintiff was in holding cell and while plaintiff was in police station garage awaiting transport to jail -- Trial court erred in denying city's motion for new trial on claim of negligent retention/supervision of particular police officer where jury found that officer acted within course and scope of his employment at all times -- City cannot show it was prejudiced by this ruling because of two-issue rule -- Although jury was asked to determine liability on four separate negligence claims, three of which were based on city's vicarious liability for officer's actions, damages were determined only once and not apportioned to any particular claim -- Sovereign immunity -- City could be found liable under doctrine of respondeat superior for acts of officer where officer was acting within course and scope of his employment when he committed battery, and jury found battery was not done in bad faith, with malicious purpose, or in manner exhibiting wanton and willful disregard of plaintiff's rights -- City could also be held vicariously liable for negligent infliction of emotional distress where jury found plaintiff had been battered, which by definition requires touching or impact
CITY OF BOYNTON BEACH, Appellant, v. ADAM WEISS, Appellee. 4th 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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