Monday, October 14, 2013

Attorney's fees, standing, dissolution of marriage, judges, and grilled squash with goat cheese and basal-balsamic vinaigrette over wild spinach

Appeals -- Appeal is premature where related indemnity claim is pending in trial court

Attorneys -- Attorney's fees contract -- Trial court erred in denying petition for approval of a straight 40% contingency fee contract for representation of petitioner in a medical malpractice action -- Trial court is required by rule to approve petition as long as it finds that petitioner understood the rights that she was waiving and the terms of the fee contract

Attorneys -- Disqualification -- Conflict of interest -- Trial court did not depart from essential requirements of law in determining that a conflict of interest existed and in disqualifying law firm representing both defendants in negligence suit and plaintiff's employer with respect to its workers' compensation lien against any judgment awarded to plaintiff as result of his lawsuit

Attorney's fees -- Appellate -- Trial court did not abuse discretion in using a fee multiplier of 1.5 in awarding appellate attorney's fees where the court had determined that a multiplier of 1.5 was appropriate in awarding trial court attorney's fees -- Claim that prevailing party attorney's fees provision in sections 175.061(5) and 185.05(5), Florida Statutes did not apply to a local government pension fund established pursuant to special law was not preserved where issue was not raised before trial court or argued on appeal

Civil procedure -- Attorney's fees -- Timeliness of motion -- Tolling -- Pending post-judgment motion to set aside a final default judgment does not toll thirty-day time requirement for serving motion for attorney's fees and costs -- Trial court properly denied motion for attorney's fees and costs filed more than thirty days after final default judgment was filed
ASAP SERVICES, LLC, a Florida limited liability company, Appellant, vs. S A FLORIDA INTERNATIONAL, LLC, a foreign limited liability company, d/b/a OEC LATIN AMERICA, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to prosecute -- Error to grant motion to dismiss for lack of prosecution where movant did not provide required sixty-day notice required by revised rule and neither movant nor trial court recognized three instances of record activity preceding dismissal -- Any filing of record during applicable time frame is sufficient to preclude dismissal without requiring that court find that the filing is intended to affirmatively move case toward resolution on merits
AEGIS, LLC., ETC., Appellant, v. MOHAMED MAWJI, FATEMA MAWJI, et al., Appellees. 5th District.

Contracts -- Action by manager of aircraft fleet against fixed base operator seeking damages pursuant to fixed base services agreement for damage caused to plaintiff's aircraft by defendant -- Claims for damage caused to some aircraft more than four years before breach of contract action was filed were barred by Texas statute of limitations -- Under Texas law, it was error to find that plaintiff was not entitled to recover damages for other damaged aircraft because plaintiff made an unreasonable pre-suit demand -- Remand for new trial on damages -- On remand, existence of, or amount of insurance coverage, is not relevant to issue of damages, and is not a proper matter for jury's consideration -- Similarly, defendant may not assert as an affirmative defense the duty to cooperate, which is an implied condition in the performance of a contract and, thus, relates solely to the issue of liability, not damages
BOMBARDIER AEROSPACE CORPORATION, Appellant/Cross-Appellee, v. SIGNATURE FLIGHT SUPPORT CORPORATION, Appellee/Cross-Appellant. 5th District.

Contracts -- Staffing agreement -- Indemnification -- Error to dismiss with prejudice fifth amended complaint alleging defendant breached duty to indemnify plaintiff for claims against plaintiff which were caused by defendant's employees -- Although defendant contended that plaintiff was not party to contract, plaintiff alleged the agreement extended coverage to contracting corporation's subsidiary, referred to on the contract's signature page as the plaintiff, and fifth amended complaint also alleged that the plaintiff was the contracting corporation's subsidiary and that defendant had contracted with the plaintiff for temporary employment services -- Further, although defendant alleged its duty to indemnify was limited to temporary employees listed in certain schedule, the contract required defendant to indemnify plaintiff for claims caused by the defendant's employees in general -- Accordingly, plaintiff adequately pled that the defendant breached contract by refusing to indemnify plaintiff for claim caused by defendant's employee
REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a ALL SERVICE REFUSE a foreign limited partnership, Appellant, v. WORKERS TEMPORARY STAFFING INC., a Florida corporation, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Error to fail to include in final judgment findings relating to all factors listed in statute -- Equitable distribution -- Error to distribute marital assets and liabilities without stating value of each asset and amount of each liability -- Attorney's fees -- Award of attorney's fees to be reevaluated after clarification of equitable distribution scheme and alimony
RALPH PATINO, Appellant, v. YOLANDA PATINO, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Where marriage fell in “gray area” between a short-term and long-term marriage, it was an abuse of discretion to award wife nominal alimony without factual findings regarding statutory factors for award of alimony
EMMANUEL TURCOTTE, Appellant, v. MICHELLE TURCOTTE, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of child -- Final judgment denying former wife's petition to relocate with child born of marriage is well-supported by evidence -- No merit to argument that trial court erred in applying factors enumerated in section 61.13001(7) to find that former wife failed to prove by preponderance of evidence that relocation was in best interest of child, but instead should have required former husband to prove that there had been a substantial change in circumstances since entry of initial judgment determining time-sharing, pursuant to section 61.13 -- Former husband was not required to prove a substantial change in circumstances because he was merely seeking enforcement of time-sharing schedule set forth in initial judgment, not a modification of time-sharing schedule
MISTIE FETZER, Appellant, v. KYLE T. EVANS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Qualified domestic relations order -- 401(k) -- Valuation -- In calculating one-half share of husband's 401(k) plan to be awarded to wife under terms of mediated settlement, trial court erred in including value of outstanding loans taken out by former husband to support parties' lifestyle -- Including outstanding loan balances in amount to be distributed to former wife would result in inequitable distribution and windfall to her and would leave undisposed marital liabilities represented by the loans -- Remand for modification of QDRO to provide that outstanding unpaid loans, as they existed on date of valuation, will not be included in distribution to former wife
JOEL C. TEAGUE, Appellant, v. LORA L. TEAGUE, Appellee. 4th District.

Dissolution of marriage -- Trial court abused discretion in requiring former husband to maintain life insurance policy as security for alimony without finding that husband could afford to maintain the policy and without finding that life insurance was necessary to secure alimony obligation
JEFFREY FROESCHLE, Appellant, v. LEONORE FROESCHLE, Appellee. 2nd District.

Judges -- Disqualification -- Challenge to blanket order from judge disqualifying herself from all cases involving a particular attorney employed by the public defender as the supervising division chief for the division in which the judge was the presiding judge -- Although trial judge had authority to disqualify herself in all cases involving a specific attorney under appropriate circumstances, judge departed from essential requirements of law by filing an “order” of blanket disqualification in a specific court file and including in this order the judge's personal opinions regarding the attorney's reputation and professionalism -- Order to be stricken from case in which it was filed -- If judge concludes that her relationship with this lawyer is such that she will be unable to treat lawyer's clients fairly, she can provide written notice of blanket disqualification to chief judge and clerk of circuit court and file typical notice of disqualification without further explanation in any affected court file
JULIANNE HOLT, Public Defender for the Thirteenth Judicial Circuit, Hillsborough County, Petitioner, v. HONORABLE TRACY SHEEHAN, Circuit Court Judge, Hillsborough County, Respondent. 2nd District.

Judges -- Disqualification -- Prohibition -- Disqualification required where, although motion was legally insufficient, judge took issue with facts alleged in motion
ALAN SCOTT MCPHERSON, Petitioner, v. DANA EARLE MCPHERSON, Respondent. 4th District.

Mandamus -- Judges -- Disqualification -- Motion to disqualify should have been deemed granted after expiration of 30-day period following service of motion -- Order denying motion more than three months after it was filed quashed -- Remand with directions to enter order directing clerk to reassign case to different judge
PEARLY BELGRAVE-SIMMONDS, Petitioner, v. CHRISTOPHER BELGRAVE, Respondent. 4th District.

Mortgage foreclosure -- Standing -- Summary judgment in favor of plaintiff, where note attached to complaint contained two allonges signed by the same individual, one of which contained an undated endorsement from original lender to another entity and the second of which contained an undated endorsement in blank from this other entity, was proper because defendants failed to offer any evidence to overcome the statutory presumption that the individual signing the allonges was authorized to do so
VIRGIL M. BENNETT and LISSETTE C. BENNETT, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees. 4th District.

Mortgage foreclosure -- Standing -- Trial court improperly granted summary judgment for mortgagors, holding that to have standing to foreclose, mortgagee must be both holder and owner of the promissory note -- Because party seeking foreclosure is required only to be the holder of the note, mortgagee who holds note but provided no evidence of ownership has standing to foreclose
WELLS FARGO BANK, N.A., Appellant, v. DANIEL P. MORCOM AND SHARON MORCOM, Appellees. 5th District.

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Monday, October 7, 2013

Equitable distribution, arbitration, family law and potato-fresh chive, sage, and rosemary frittata with brie cheese and whole wheat toast with Tupelo honey

Another certiorari petition is filed too late:
Appeals -- Certiorari -- Timeliness of petition -- Appellate court is without jurisdiction to consider petition for writ of certiorari to review discovery order where petition was filed more than 30 days after rendition of order -- Motion for reconsideration was not an authorized motion and did not suspend rendition of order or toll time period for filing petition for writ of certiorari -- Petitioner is not entitled to an additional five days to file petition because of fact that order was e-mailed to petitioner's counsel
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Petitioner, vs. GUY LEWIS, Esquire, et al., Respondents. 3rd District.

Knowing when to appeal is as important as what to appeal:
Appeals -- Court has no authority to grant belated appeal in a civil proceeding
MICHAEL GREEN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent. 1st District.

Knowing when to concede error is vital:
Appeals -- Sanctions -- Maintaining frivolous defense to appeal
M.B., Appellant, vs. AGENCY FOR PERSONS WITH DISABILITIES, Appellee. 3rd District.

How long is the reach of long-arm jurisdiction?
Contracts -- Torts -- Jurisdiction -- Non-residents -- Law firm's action against former client for breach of contract and against former client's attorney for tortious interference with contract -- Allegations that out-of-state client breached contract with Florida attorneys by failing to make payment in state were sufficient to bring former client within ambit of long-arm statute -- Former client had sufficient minimum contacts with Florida where she voluntarily contracted with law firm in Florida to perform services on her behalf -- Error to dismiss claims against former client -- With respect to client's present attorney, complaint did not sufficiently allege that he committed a tortious act within Florida so as to provide basis for long-arm jurisdiction -- Actions giving rise to tortious interference claim against attorney occurred in foreign state, where attorney allegedly convinced former client to breach her contract with plaintiffs -- Fact that this action resulted in breach of a Florida contract and loss of income to a Florida firm is immaterial for purpose of determining jurisdiction
METNICK & LEVY, P.A., Appellant, v. BARBARA SEULING and LAW OFFICES OF ANTHONY J. PIRROTTI, P.C., Appellees. 4th District.

Dissolution of marriage -- Equitable distribution -- Decision regarding equitable distribution of marital home is deficient where no finding awarding equity in home can be discerned from record -- Where request for partition complies with statute, and is not contested by opposing party, failure to divide property is reversible error -- Imputation of income to former wife is not supported by findings or evidence -- Child support -- Error to require noncustodial parent to pay for private school tuition without required findings -- Error to require former husband to obtain life insurance to secure alimony and child support without required findings -- Attorney's fees -- Because equitable distribution award is reversed, it may be appropriate to reexamine attorney's fee award -- Contempt -- Error to require former husband to pay former wife's attorney's fees for enforcement of additional purge amount where former wife did not adequately demonstrate need for attorney's fees -- Because award of alimony and child support is reversed, determination that former husband is in contempt for failure to pay alimony and child support is also reversed -- Remand for more specific findings as to how amount of arrearage was calculated
DANIEL JOSEPH BRENNAN, Appellant, v. MARIANNE K. BRENNAN, Appellee. 4th District.

Why retaining appellate counsel in the trial court before appeal is helpful:
Dissolution of marriage -- No merit to husband's argument, raised for first time on appeal, that guardian ad litem's participation in trial requires reversal -- Although trial court erred when it allowed guardian ad litem to question witnesses, error was not fundamental and husband's failure to object constituted waiver of issue
JONATHAN MILLEN, II, Appellant, vs. ELIZABETH MILLEN, Appellee. 3rd District.

Trial courts can abuse their discretion in deciding injunctions:
Injunctions -- Domestic violence -- Dissolution of injunction -- In dissolving permanent injunction for domestic violence protection, trial court abused discretion by reweighing evidence supporting initial injunction rather than finding a change of circumstances since the injunction was issued
ALESSANDRA BARBIERI, Appellant, v. GLENN MULLER, Appellee. 5th District.

Signing with the express authority to sign is important in nursing home arbitration agreements:
Torts -- Nursing homes -- Arbitration -- Validity of arbitration agreement -- Where husband of nursing home resident signed arbitration agreement without indicating his authority to sign agreement on behalf of resident, it was error for trial court to deny defendants' motion to compel arbitration without holding evidentiary hearing to determine the validity of the agreement -- Trial court is required to conduct evidentiary hearing on motion to compel when there is a substantial issue regarding the making of the agreement -- Trial court should have conducted evidentiary hearing at which it considered parol evidence to determine whether resident assented to arbitration agreement in the absence of her signature, or whether resident's husband had authority to sign on resident's behalf -- Failure to sign an arbitration agreement does not automatically render the agreement invalid

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Tuesday, October 1, 2013

Miami-Dade PD’s office may decline new clients because of case overload Florida Supreme Court says

Posted originally by L. Jay Jackson, Oct. 1, 2013 in ABA Journal Law News

"In May the Florida Supreme Court ruled in favor of the office in Public Defender, Eleventh Judicial Circuit of Florida v. State of Florida, allowing PDs to refuse new cases if their workload precludes them from providing defendants with adequate representation.
“We are struck by the breadth and depth of the evidence of how the excessive caseload has impacted the public defender’s representation of indigent defendants,” the court said, overturning an appellate decision. The supreme court pointed to evidence showing that attorneys were routinely and systematically “unable to interview clients, conduct investigations, take depositions, prepare mitigation or counsel clients about pleas offered at arraignment.”
The case has been remanded to the trial court to determine whether the office remains deluged and is entitled to the relief originally sought.
. . . .The Miami case may have opened a door for more public defender challenges nationwide. Experts are calling the decision the most significant reaffirmation of a defendant’s right to counsel since the U.S. Supreme Court extended the Sixth Amendment guarantee to state felony cases in 1963’s Gideon v. Wainwright.”

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