Sunday, April 20, 2014

Pregnancy discrimination, alimony, injunctions, and rosemary-sage-infused pot roast

Banks -- Contracts -- Custody agreement -- Torts -- Under facts as alleged, custodian bank breached no duty, contractual or otherwise, by accepting on behalf of its customer securities that later turned out to be fraudulent and listing those securities on monthly account statements issued to the customer -- Allegations, accepted as true, failed to state claims for breach of contract based on custodian bank allowing customer's funds to be disbursed as payment for fake notes, allowing cash to be diverted from customer's account without receiving an asset in exchange, or without timely receiving an asset in exchange, issuing monthly statements to customer listing fraudulent securities with false or inflated market values, and charging excessive fees based on market values that later turned out to be inflated -- Court of Appeals would address the merits of tort claims against custodian bank because custody agreement specifically left open possibility that bank could be liable for losses caused by its negligence, and it appears alleged conduct relating to performance of custody agreement amounts to an independent tort under Florida law -- Negligence -- Duty of care -- Customer failed to state valid negligence claims where customer failed to establish that custodian bank, which had no discretionary role in investing customer's assets, owed him an independent duty to monitor the investments of his account, verify their market value, or ensure they were in valid form -- Aiding and abetting -- District court correctly concluded that customer's aiding and abetting claims against custodian bank fail -- Allegations that custodian bank accepted worthless securities, some of which had facial defects, were insufficient to establish, or allow one to fairly infer, bank's knowledge of underlying fraud or breach of fiduciary duty by investment advisor, as required by Florida law -- Alleging that a bank disregarded “red flags” such as “atypical activities” on a customer's account is insufficient to establish knowledge -- Breach of fiduciary duty -- Although customer may have unilaterally relied on custodian bank for protection from misconduct of investment advisors, the custody agreement and facts alleged in complaint establish an arm's length bargain imposing limited obligation on parties, not a relationship of “trust and confidence” or “special circumstances” as required to make out a fiduciary duty claim -- Negligent misrepresentation -- Customer failed to plead facts sufficient to establish that custodian bank intended to induce him to rely on its alleged representations as to validity of his securities as required to state a claim for negligent misrepresentation under Florida law
DOUGLAS LAMM, Individually and on behalf of Douglas Lamm IRA, Plaintiff - Appellant, v. STATE STREET BANK AND TRUST, Defendant - Appellee. 11th Circuit.

Civil procedure -- Error to dismiss complaint because of failure to perfect service on one defendant -- Whether the unserved defendant was an indispensable party to lawsuit was not addressed below or on appeal and is not self-evident -- Error to dismiss complaint for failure to timely file joint status report without appropriate evidentiary hearing and appropriate findings where counsel for both parties denied receiving order requiring joint status report -- Moreover, order does not say that case was dismissed without prejudice and could be refiled, although that appeared to have been court's intent, and there was no explanation of status of counterclaim, which appeared also to have been dismissed -- Remand for further proceedings
RICHARD W. TAYLOR, P.A., Appellant, v. CHRISTOPHER N. BAVARO, et al., Appellees. 5th District.

Civil rights -- Florida Civil Rights Act prohibits pregnancy discrimination in employment
PEGUY DELVA, Petitioner, v. THE CONTINENTAL GROUP, INC., Respondent. Supreme Court of Florida.

Dissolution of marriage -- Alimony -- Long-term marriage -- Error to deny wife's request for permanent alimony following dissolution of 18-year marriage without making findings regarding factors enumerated in statute -- Inconsistent provisions of final judgment requiring former wife both to bear sole responsibility for certain utilities and service contracts associated with marital residence and to split all utilities and service contracts with former husband to be clarified on remand
LISA WRIGHT, Appellant/Cross-Appellee, v. HENDON O. WRIGHT, III, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Attorney's fees -- Justiciable issues -- Error to grant former wife's motion for section 57.105 attorney's fees on basis that there was no justiciable issue of either law or fact in former husband's request to set aside stipulated oral settlement which resolved parties' cross-petitions to modify child custody and visitation provisions contained in final judgment of dissolution -- Best interests of child take predominance over any agreement between parents and must be independently determined by trial court, and it cannot be concluded that former husband's attempt to set aside custody agreement prior to issuance of final judgment, on the basis that the trial court had independent obligation to determine children's best interests and repudiate the couples' “preliminary” agreement to the extent it was inconsistent with this standard, warranted award of attorney's fees
ROBERT MICHAEL PUGLISI, Appellant, v. TERI ANNE PUGLISI, Appellee. 5th District.

Injunctions -- Temporary restraining order -- Inexcusable delay -- Motion for TRO to prevent the sale of counterfeit merchandise outside concert venue is denied where plaintiff's decision to wait until seven days prior to concert to seek injunctive relief constituted inexcusable delay resulting in a manufactured emergency violative of local rules and Federal Rules Of Civil Procedure -- TRO is also deniable on basis that plaintiff neglected to estimate the number of “bootleggers” expected, value of seized merchandise, or a reasonable amount of security -- TRO is unreasonably broad where it names unknown and unnamed “John Doe” defendants, seeks to extend injunction to a ten mile radius around concert venues, and unacceptably permits federal, state, and local law enforcement to assign service and seizure of the unauthorized merchandise to “anyone acting under their supervision”
BRAVADO INTERNATIONAL GROUP MERCHANDISING SERVICES, INC., Plaintiff, v. MIKE SMITH, JOHN DOES 1-100, JANE DOES 1-100, XYZ COMPANY, Defendants. U.S. District Court, Middle District of Florida, Tampa Division.

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Saturday, April 12, 2014

AIG ordered to pay injured lawyer $7M for insurer’s bad-faith conduct in lawyer's underlying accident case

"Blasting a major insurance company for what he called unfair settlement practices in an egregious case, a Massachusetts judge Tuesday ordered American International Group Inc. to pay at least $7 million to a lawyer hit by a bus making a left turn as a he crossed a street in Boston.
The award in the bad-faith case is in addition to $3.6 million paid in 2008 by AIG to Odin Anderson and his family for his injuries in the 1998 accident, the Boston Globe reports.
Lawyers representing AIG made up claimed facts in the personal injury litigation underlying the bad-faith suit and inappropriately coached the bus driver to change his story, said Associate Justice Brian A. Davis in his written opinion in the Middlesex Superior Court case. An argument that Anderson was partly responsible for the accident because he ran out onto the street between cars was based on “a wholly made-up fact," the judge wrote."  More.

Originally Posted Apr 11, 2014 1:10 PM CDT in ABA Law Journal
By Martha Neil

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Tuesday, April 8, 2014

Fraudulent misrepresentation, child support, equitable distribution, and fire roasted chicken with garden cucumbers and basil-balsamic vinegar

Attorneys -- Discipline -- Bringing of frivolous action -- Knowingly disobeying court order to pay attorney's fees -- Presenting criminal charges solely to obtain an advantage in a civil matter -- Conduct prejudicial to administration of justice -- In light of attorney's conduct, disciplinary history, false statements to referee, and other aggravating factors, three-year suspension is appropriate discipline
THE FLORIDA BAR, Complainant, v. BRUCE EDWARD COMMITTE, Respondent. Supreme Court of Florida.

Child support -- It was an abuse of discretion for trial court to fail to set amount of child support obligation before applying amount of child's derivative social security disability benefit -- Court should have calculated monthly child support obligation, explicitly included that amount in final judgment, and only then applied derivative benefits to reduce or pay that obligation -- Nevertheless, court reached correct result because derivative benefits exceeded amount of child support obligation
DEPARTMENT OF REVENUE on behalf of BRENDA JOYCE JENKINS, Appellant, v. STACY NICOLE PORTER, Appellee. 2nd District.

Condominiums -- Right of access -- Trial court erred in entering summary judgment in favor of condominium association on its right to access owner's unit for pest control purposes -- There were genuine issues of material fact as to the reasonableness and necessity of the association's actions where the owner had lived in the unit for several years without pest service provided by the association and there was no evidence of a pest problem when the dispute arose -- Attorney's fees -- Judgment entered pursuant to aforementioned summary judgment is therefore reversed -- Contempt -- Contempt finding against owner for noncompliance with original final judgment is affirmed because the owner failed to appeal the original contempt finding, appealing only from the enforcement order, and because a contempt order may stand even if it is based on an erroneously entered order
JOYCE SMALL, Appellant, v. DEVON CONDOMINIUM B ASSOCIATION, INC., Appellee. 4th District.

Contempt -- Civil -- Where court found defendant in contempt for failing to file fact information sheet as required by court order, it was an abuse of discretion to impose a per diem fine as a coercive civil sanction without giving defendant a reasonable time to purge its contempt and without considering defendant's ability to pay the sanction
CREATIVE CHOICE HOMES, II, LTD., etc., Appellant, vs. KEYSTONE GUARD SERVICES, INC., Appellee. 3rd District.

Contracts -- Action for breach of contract for sale of business and foreclosure of mortgage on real property on which business is located -- Where concept of sale document did not include all essential elements of agreement, trial court erred in refusing to consider parol evidence of the actual terms of the sale -- Trial court erred in applying amount of overpayment on sale of stock in business as offset to amount due on mortgage where this offset was not requested -- Evidence -- Court should allow use of deposition transcripts for impeachment purposes
MARY ELLEN WRIGHT, Appellant, v. JOHN K. CZARIKI and KIMBERLY S. CZARIKI, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Ability to pay -- Final judgment of dissolution reversed because trial court failed to make necessary findings of fact to enable appellate review of the issue of husband's ability to pay
LARRY J. RUTAN, Appellant, v. VIRGINIA J. RUTAN, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Error to include in order reducing former husband's alimony obligation a provision for alimony obligation to automatically revert to premodification amounts conditioned solely upon the parties' relative income levels returning to what they were at time of 2000 final judgment of dissolution and a subsequent 2009 order denying a prior modification petition
JOHN A. ANDERSON, Appellant, v. JOAN C. ANDERSON, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of children -- Error to enter temporary order granting husband permission to have parties' minor children relocate with him to foreign state where there was no competent, substantial evidence which would support a finding that relocation was in children's best interest
SANDRA LEE ALBANESE, Appellant, v. MAXWELL ALBANESE, Appellee. 5th District.

Dissolution of marriage -- Child support -- Modification -- Evidence -- Where only basis for modification pled by former husband was son's reaching majority and graduating from high school, general magistrate erred in awarding relief on basis of parties' changed circumstances, as this relief was not requested -- Magistrate erred in substituting her own experience for former wife's sworn testimony regarding former wife's income from working at a nail salon -- Magistrate erred by taking judicial notice of documents not introduced into evidence without giving reasonable notice to parties -- Trial court erred in striking former wife's amended exceptions to magistrate's report as untimely where original exceptions were timely filed -- Because magistrate's report was clearly erroneous and not supported by competent evidence, trial court erred in adopting the report
DEBRA GLAISTER, Appellant, v. RALPH GLAISTER, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Error to credit husband for full value of contributions toward upkeep of certain home during pendency of divorce, rather than for one-half of the monies expended -- Error to fail to credit wife with one-half of money she spent to maintain property during pendency of divorce -- Wife is entitled to half the 401(k) benefits forfeited to husband from accounts of three employees who were terminated from husband's medical practice prior to date dissolution petition was filed -- Error to fail to credit husband with half of the marital funds wife used during pendency of dissolution to pay her attorney's fees -- Child support -- Final judgment to include month, day, and year that reduction or elimination of child support will become effective -- Trial court erred in ordering parties to split cost of child's uncovered medical expenses 50/50, rather than requiring payment on pro rata basis -- Wife should not be required to pay any part of child's medical expenses that would be covered by insurance but for husband's unilateral decision not to submit expenses for payment by the insurance carrier
VALERIE K. FAIRCHILD, Appellant/Cross-Appellee, v. PATRICK G. FAIRCHILD, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Equitable distribution -- Military retirement benefits -- Trial court's Order for Division of Military Retirement Pay is reversed because, in allowing wife to receive payments based on pension benefits earned by husband after dissolution, it calculates wife's portion of husband's pension in a manner different from what parties orally agreed to and incorporates a coverture fraction contrary to Florida law
JEFFREY FRITZ, Appellant, v. TERRI FRITZ, Appellee. 2nd District.

Mortgage foreclosure -- Dismissal -- Failure to prosecute -- Record activity -- Motion to amend complaint was a sufficient filing to avoid dismissal for failure to prosecute

Mortgage foreclosure -- Error to enter final judgment of foreclosure while counterclaim remained pending

Mortgage foreclosure -- Trial court erred in granting summary judgment to bank because an issue of material fact existed as to when the bank took possession of the note -- Argument that the note followed the mortgage when the mortgage was assigned to bank is flawed because the mortgage follows assignment of the note

Torts -- Fraudulent misrepresentation -- Action by plaintiff who jointly purchased real property with defendant, alleging that defendant, who made mortgage payments for four years, ceased making mortgage payments after four years, and executed quitclaim deed to plaintiff, falsely represented his marital status to plaintiff -- Even if defendant did make a false statement regarding his marital status, it was not material to the written documents obligating plaintiff to pay the mortgage and conferring a property interest in the property in plaintiff -- Further, facts adduced at final hearing did not establish any financial injury to plaintiff resulting from her reliance on defendant's marital status -- Breach of contract action based on defendant's oral agreement to make mortgage payments would be barred by statute of frauds provisions barring lawsuits upon promises to pay another's debt and agreements not to be performed within one year, and plaintiff could not avoid statute of frauds by couching claim in terms of the tort of fraudulent misrepresentation -- Judgment for plaintiff reversed
MARC COHEN, Appellant, v. DONNA B. CORBITT, Appellee. 1st District.

Torts -- Legal malpractice -- Dismissal -- Error to dismiss complaint with prejudice on ground of plaintiff's failure to amend complaint within time granted by court where order did not specify that failure to file amended complaint within that time would result in dismissal with prejudice
DARYL L. MERL, Appellant, vs. JEFFREY S. WEINER, P.A., etc., et al., Appellees. 3rd District.

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Saturday, April 5, 2014

Estate dispute caused by ‘E-Z Legal Form’ is a ‘cautionary tale,’ says Florida Supreme Court Justice

"Ann Aldrich used an “E-Z Legal Form” when she made out her will in 2004, a decision that proved to be a good choice for two nieces who cited the document’s lack of a residuary clause.
In a decision issued last week, the Florida Supreme Court ruled for the nieces, though they weren’t mentioned in the will. The court said money acquired by Aldrich after the will was made out should be distributed under the laws of intestacy, which govern distribution of property for those who die without a will. The reason: The E-Z form did not have a residuary clause providing for the disposition of property not listed in the document. FlascBlog: The Florida Supreme Court Blog reports on the opinion (PDF).
Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’ …"  More.

Originally Posted in the ABA Journal Apr 3, 2014 11:34 AM CDT
By Debra Cassens Weiss

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