Saturday, November 30, 2013

Attorney's fees, condominium associations, future lost profits, and grilled elk wih peppercorn, red onion, and rosemary sauce

Attorney's fees -- Appeals -- Jurisdiction -- Non-final orders -- An order finding entitlement to attorney's fees but not setting an amount is a non-final, non-appealable order -- Appeal dismissed for lack of jurisdiction
KLING CORPORATION, etc., et al., Appellants, vs. HOLA NETWORKS CORPORATION, etc., et al., Appellees. 3rd District.

Attorney's fees -- Prevailing party -- Administrative law -- Counties -- School boards -- Exceptional student education -- Due process hearing -- Statute providing for award of attorney's fees to prevailing party in administrative proceedings under chapter 120 does not apply to proceeding brought under section 1003.57, which is controlled by procedures outlined in section 1003.57(1)(b)
A. L., by his parent P. L. B., and P. L. B. for herself, and Rosemary N. Palmer, attorney, Appellants, v. JACKSON COUNTY SCHOOL BOARD, Appellee. 1st District.

Attorney's fees -- Receiverships -- Attorney for receiver -- Receiver's attorney lacked standing to pursue award of attorney's fees and costs independent of the receiver where order appointing receiver entitled the receiver, not an attorney, to seek award of attorney's fees and costs, and record reflects that no other court order was entered which would have permitted receiver's attorney to independently pursue award of attorney's fees and costs

Civil procedure -- Appeals -- Jurisdiction -- Non-final orders -- Order granting motion for entry of default judgment as to liability only is a non-final, non-appealable order -- This type of order was expressly removed from the list of appealable non-final orders -- Appeal dismissed for lack of jurisdiction
AMMY M. KOGAN, Appellant, vs. MICHAEL MILDENBERGER, Appellee. 3rd District.

Civil procedure -- Dismissal -- Forum non conveniens -- Error to deny motion to dismiss for forum non conveniens based on finding that parties had availed themselves of the jurisdiction of the court -- Finding of personal or subject matter jurisdiction not substitute for existence of convenient forum -- Order granting final summary judgment entered while interlocutory appeal of order denying motion to dismiss was pending also reversed
SERAFIN GARCIA ARMAS, Appellant, vs. BANCO NACIONAL DE CRÉDITO, C.A., etc., Appellee. 3rd District.

Civil procedure -- Sanctions -- Due process -- State v. Spencer, which requires trial court to provide notice and opportunity to respond before enjoining parties from filing further pro se pleadings or motions, applies to all pro se litigants, civil and criminal alike -- Error to prohibit further pro se filings in instant civil litigation without issuing show cause order and permitting reasonable time to respond

Condominiums -- Assessments -- Prior owner is jointly and severally liable with current owner for all past due assessments up to time of transfer of title -- Where condominium association foreclosed on its assessment lien and took title to property while mortgage foreclosure action was pending, mortgage foreclosure action subsequently concluded and third party purchased property at foreclosure sale, association was jointly and severally responsible with former owner back to time when title to property was transferred to former owner, and third-party purchaser at mortgage foreclosure sale was responsible for unpaid assessments back to time when association took title to subject property

Contempt -- Direct criminal -- Father's failure to comply with truancy orders requiring him to ensure daughter's attendance at school -- Truancy court judge improperly acted as judge and prosecutor -- Evidence was insufficient to establish willful noncompliance with truancy court's orders
DAVE MOYERS, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Contempt -- Where court had entered order requiring co-owner of condominium apartment to “vacate” the unit because her occupancy violated the fifty-five and older age restriction for residents, it was error to hold the co-owner in contempt for continuing to spend several hours a day at the unit for the purpose of remodeling and gardening and staying overnight on several occasions -- Court order was ambiguous as to what was required to vacate the unit, and it was improper to hold party in contempt for violation of an ambiguous order

Contracts -- Discovery -- Trial court departed from essential requirements of law in entering order compelling defendant in breach of contract action to produce personal financial records where such records are not relevant to any issues in litigation -- Defendant's personal financial information is not relevant to his affirmative defense of plaintiff's anticipatory breach of contract because defendant is not required to establish his ability to perform under contract to be relieved of his contractual obligations based on plaintiff's anticipatory breach
JOHN M. RYAN, Petitioner, v. LANDSOURCE HOLDING COMPANY, LLC, Respondent. 2nd District.

Contracts -- Leases -- Damages -- Where lessor breached lease and constructively evicted lessee, ultimately causing the destruction of lessee's business, by failing to repair leaking roof, trial court properly found that prospective lost profits was the correct measure of damages -- Awarding market value for a business that has been slowly reduced to nothing due to defendant's breach would be inequitable -- There was no clear error in trial court's factual finding that awarding prospective lost profits beyond the initial lease term would be too speculative -- Trial court did not err in dismissing lessee's equitable foreclosure and lis pendens where lessee had no interest in underlying realty -- In awarding attorney's fees to lessee, trial court did not err in denying a contingency fee multiplier where evidence showed that any number of attorneys would have agreed to take case on an hourly or contingent basis
KATZ DELI OF AVENTURA, INC., Appellant, vs. WATERWAYS PLAZA, LLC, etc., Appellee. 3rd District.

Creditors' rights -- Supplementary proceedings -- Fraudulent transfers -- Attorney's fees -- Impleaded parties are not liable for attorney's fees and costs in proceedings supplementary -- In such proceedings, attorney's fees and costs may be awarded only against original judgment debtor -- To extent final judgment against impleaded parties purports to reserve jurisdiction to award attorney's fees and costs against the impleaded parties jointly and severally with judgment debtor, judgment is reversed -- Final judgment awarding attorney's fees and costs for proceedings supplementary reversed to extent that it purports to permit writs of execution against all of the assets of the impleaded parties, rather than solely the assets of judgment debtor now in the hands of the impleaded parties as result of fraudulent transfers

Dissolution of marriage -- Alimony -- Modification -- Substantial change in circumstances -- Trial court abused its discretion in finding no change in circumstances warranting reduction in alimony where husband presented unrebutted evidence establishing a forty-percent drop in income from business which he owned and operated, the unavailability of additional money from the business, the lack of substantial assets to liquidate, grim job expectations, and monthly expenses which exceeded his income -- Contempt -- Finding husband was in contempt for failing to pay alimony was not supported by competent, substantial evidence
HENRY M. DRIGGERS, Appellant, v. ROBIN Y. DRIGGERS, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Trusts -- Trial court did not err in granting continuing writ of garnishment over any disbursements made from discretionary trusts to former husband for payment of alimony upon finding that traditional remedies for enforcement of alimony obligation were not effective -- Although trusts contained spendthrift provision, a spendthrift provision is unenforceable against a beneficiary's former spouse who has a judgment or court order against the beneficiary for support or maintenance
BRUCE D. BERLINGER, Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Dissolution of marriage -- Child support -- Modification -- Foreign state support order -- Jurisdiction -- Under provisions of the Uniform Interstate Family Support Act, Florida court does not have jurisdiction to modify a Michigan child support order which was registered in Florida under UIFSA where Michigan no longer has continuing, exclusive jurisdiction over the order; party seeking modification is a Florida resident; and opposing party is a nonresident who objects to Florida's assumption of jurisdiction -- UIFSA is not preempted by federal Full Faith and Credit for Child Support Orders Act -- Petition for writ of prohibition granted -- Circuit court required to refrain from exercising modification jurisdiction
JYRKI TUONO JUHANI PULKKINEN, Petitioner, v. KAREN ELAINE PULKKINEN, n/k/a Karen Elaine Brautcheck, Respondent. 1st District.

Dissolution of marriage -- Equitable distribution -- Court's valuation of marital assets and liabilities was not supported by competent substantial evidence -- On remand, trial court must reconsider other orders that stemmed from erroneous equitable distribution schedule -- Trial court did not err in valuing marital assets and liabilities as of the date of filing dissolution petition -- Building that was nonmarital asset of husband at time of marriage was transformed into marital asset where wife was instrumental in improvements made to building during marriage
JORDAN H. JORDAN, Appellant, v. LAURA JORDAN, Appellee. 4th District.

Dissolution of marriage -- Trusts -- Jurisdiction -- Where court had granted former wife's motion for continuing writs of garnishment over payments to former husband from discretionary trusts for the payment of former husband's alimony obligation, trial court did not err in substituting special trustee of trusts as a party to the family law action -- There is no merit to trustee's argument that court did not have personal jurisdiction over him as special trustee and the trust because the court did not grant the motion for substitution until the same date it granted the continuing writ of garnishment -- Trustee voluntarily submitted himself to the jurisdiction of the family law court when he was appointed as special trustee of the discretionary trusts, filed motions seeking relief in family court, and voluntarily appeared as trustee at hearing in family court
RICHARD K. INGLIS, ESQ., Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Torts -- Contractors -- Failure to maintain premises in safe condition -- Business invitee's action against contractor seeking damages for injuries sustained when he tripped and fell over construction debris as he attempted to enter home through the garage -- Error to enter summary judgment for defendant where there was genuine issue of material fact as to whether contractor, the sole possessor of the property at the time of the incident, failed to satisfy its duty to maintain premises in safe condition -- Whether plaintiff's apparent recognition of open dangers within garage resulted in his assumption of risk of entering house by that route is issue to be decided by jury as part of comparative negligence determination

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Wednesday, November 6, 2013

Fraudulent transfers, habeas corpus, foreclosures and purple spinach with walnuts sauteed in olive oil, greek oregano and garlic

Appeals -- Summary affirmance is appropriate where initial brief fails to demonstrate preliminary legal or factual basis for reversal of the appealed orders
MARTINA SPENCER, Appellant, v. FLORIDA POWER LIGHT/ BROADSPIRE, Appellees. 1st District.

Attorneys -- Discipline -- Referee properly found counsel, in his repeated rude, abusive and threatening behavior, violated Rules Regulating the Florida Bar pertaining to making a statement a lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer; engaging in conduct intended to disrupt a tribunal; violations of the Rules of Professional Conduct; and engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including knowingly or through callous indifference disparaging or humiliating other lawyers -- Referee properly made recommendations as to guilt -- Considering prior similar misconduct, referee's recommended sanction of ninety-day suspension was improper and a two-year suspension is imposed instead
THE FLORIDA BAR, Complainant, v. JEFFREY ALAN NORKIN, Respondent. Supreme Court of Florida.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Liability of transferee -- Chapter 7 trustee may not recover the value of debtors' donation from defendant church as an initial transferee under Section 550(a)(1) of Bankruptcy Code, because donation to church is avoidable as fraudulent transfer under Section 548 and defendant church served as mere conduit for debtors' donation and acted in good faith and as an innocent participant in debtors' fraudulent transfer -- Church did not have control over debtor's donation, even though funds were deposited into church's general operating account, where funds were specifically earmarked for a third-party charitable organization, defendant separately accounted for donation it received from debtors, and defendant ultimately transferred funds to a third-party charitable organization
In re: ULRICH FELIX ANTON ENGLER and PRIVATE COMMERCIAL OFFICE, INC., Debtors. U.S. Bankruptcy Court, Middle District of Florida, Tampa Division.

Civil rights -- Law enforcement officers -- False arrest -- District court properly denied qualified immunity for arresting officer where facts viewed in light most favorable to plaintiff show that he lacked arguable probable cause to arrest plaintiff -- Error to deny qualified immunity to defendant who was not present during alleged false arrest
MONIQUE WILKERSON, Plaintiff - Appellee, v. THEDIOUS SEYMOUR, Dekalb County Police Officer, O.B. PARKER, Dekalb County Police Sergeant, Defendants - Appellants. 11th Circuit.

Child custody -- Jurisdiction -- Trial court erred in finding home state of minor children to be Colorado where children had resided in Florida within six-month period prior to father's filing of petition -- Under Uniform Child Custody Jurisdiction and Enforcement Act, children's home state was Florida
ORION CHRISTIAN BARNES, Appellant, v. LACEY M. MORRISON BARNES, Appellee. 4th District.

Criminal law -- Attempted second degree murder -- Habeas corpus -- Ineffective assistance of appellate counsel -- Sentencing -- Trial court's incorrect statement that there existed “testimonial evidence that drugs were involved” indicated court was considering unsubstantiated allegations in its sentencing decision, and state failed to demonstrate that this improper consideration played no part in sentence imposed -- Prejudice -- Trial court's consideration of unsubstantiated factual claim undermines confidence in fairness, regularity, and propriety of petitioner's sentence -- Appellate counsel's failure to raise error on appeal was deficient performance that prejudiced petitioner -- Remand for resentencing
JUSTIN A. MARTINEZ, Petitioner, v. STATE OF FLORIDA, Respondent. 1st District.

Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Burglary -- Second degree felony murder -- Jury instructions -- Appellate counsel was ineffective for failure to argue fundamental error where jury was provided with the circular instruction that, to commit the offense of burglary, the defendant was required to have a “fully formed, conscious intent to commit the offense of burglary in that structure” -- Remand for new trial
CHRISTOPHER DEAN, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Counsel -- Ineffectiveness claim may not be raised on direct appeal where ineffectiveness is not apparent on face of record
JAMES MICHAEL ZIMMERMAN, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Double jeopardy -- Increase in restitution -- Double jeopardy violation resulted when trial court imposed obligation to pay victim's student loans when original restitution order required restitution only for expenses related to victim's medical costs -- New hearing required
TONY LEMAR FISHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Habeas corpus -- Malice murder -- District court properly denied relief on claim that state trial court's jury instructions on venue, an essential element of crime charged, improperly shifted burden of proof to petitioner and claim that state trial court's 25-year delay in resolving petitioner's motion for new trial violated his due process rights under Fourteenth Amendment -- Venue is essential element of Georgia offense of malice murder -- Instruction that jurors “shall” consider cause of death to have occurred where body was found created mandatory presumption which violated petitioner's constitutional rights -- Error was harmless -- Delay in ruling on motion for new trial -- Supreme Court has never held that there is constitutional right to speedy direct appeal in state criminal case, and appellate court finds no precedent suggesting that constitutional violation arises from untimely ruling on motion for new trial -- It cannot be said that state court's decision denying petitioner's motion for new trial was contrary to, or unreasonable application of, clearly established federal law
CHARLES EDWARD OWENS, Petitioner - Appellant, v. GREGORY MCLAUGHLIN, Respondent - Appellee. 11th Circuit.

Dissolution of marriage -- Alimony -- In awarding alimony, trial court erred by not making findings regarding husband's net income
KARL RENTEL, Appellant, v. SUN RENTEL, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Trial court erred in entering order modifying timesharing agreement which exceeded scope of relief requested, and without notice that modification issue was set for hearing

Foreclosure -- Unpaid homeowners association fees -- Trial court erred in denying request to stay proceedings and to vacate summary judgment of foreclosure where defendant notified court that he was serving on active duty in the U.S. Army, attached copy of his military orders which required him to be in Pennsylvania two weeks before scheduled summary judgment hearing, and requested relief under the Soldier and Sailors Civil Relief Act -- Although defendant did not strictly comply with provisions of SCRA, in that he did not provide a letter or other evidence from his commanding officer stating that his military duty prevented his appearance, court should have given defendant an opportunity to supplement his request for stay before proceeding
DAVID S. HIGGINS, Appellant, v. TIMBER SPRINGS HOMEOWNERS, ETC., Appellee. 5th District.

Garnishment -- Wages -- Dissolution of writ -- Trial court erred in dissolving writ of garnishment served on debtor's employer based solely on debtor's affirmations that, pursuant to a vow of poverty, she had renounced all earnings and paid her wages directly to religious order of which she was a member and for which she was purportedly acting as agent -- Debtor lacks standing to assert religious order's claim to garnished wages -- Debtor failed to prove existence of agency relationship where there was no evidence of religious order's acknowledgment that debtor acted as its agent or that it controlled her actions and no evidence of a contractual agreement between employer and the religious order regarding debtor's employment
MERRIMAN INVESTMENTS, LLC, etc., Appellant, vs. THERESE UJOWUNDU, et al., Appellees. 3rd District.

Jurisdiction -- Civil procedure -- Service of process -- Evidentiary hearing -- Although summons was regular on its face in contradiction of defendant's allegation, trial court erred in not holding an evidentiary hearing after defendant submitted affidavit of non-service alleging summons was improperly left on her apartment doorstep
TIARA DAVIS, Appellant, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2, a Delaware Statutory Trust, Appellee. 4th District.

Receivership -- Condominiums -- Court's inherent, equitable authority to appoint a receiver in cases involving a non-profit condominium association is not restricted by statutes
GRANADA LAKES VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, vs. METRO-DADE INVESTMENTS CO., et al., Respondents. Supreme Court of Florida.

Res judicata -- District court properly dismissed antitrust counterclaim in instant case where claim raised was identical to claim raised and litigated in another antitrust lawsuit between the same parties, and circuit court affirmed dismissal of that complaint -- Appellees' request for award of fees and costs under rule 38 denied

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