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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