Wednesday, June 25, 2014

Contracts, liquidated damages, summary judgment, and bison pot roast with rosemary, root vegetables, and purple potatoes

Contracts -- Limitation of actions -- Equitable estoppel -- Action by owner of unit in commercial condominium against condominium association, alleging that association failed to pay for damage to plaintiff's unit caused by hurricane -- Doctrine of equitable estoppel did not preclude consideration of defendant's statute of limitations defense where nothing in defendant's conduct prevented plaintiff from timely asserting claims -- Because plaintiff had all information necessary to file action at time cause of action accrued, and plaintiff was not deprived of ability to bring suit prior to running of statute of limitations, equitable tolling doctrine is inapplicable -- Trial court erred in refusing to consider defendant's statute of limitations affirmative defense
OLEAN MEDICAL CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellant, v. ALI A. AZIMA, Trustee of that certain Living Trust Agreement dated April 17, 2006, Appellee. 2nd District.

Contracts -- Shareholder agreement -- Jurisdiction -- Non-residents -- Error to deny non-resident defendant's motion to dismiss action alleging she breached an agreement that required her to perform duties in Florida when she failed to provide certain information which she was required to share with other shareholders -- Where language of contract did not explicitly require defendant to perform any act in Florida whatsoever, defendant's alleged breach was not of an act that was “required by the contract to be performed in this state,” and long-arm jurisdiction cannot be properly invoked over her under section 48.193(1)(g) -- Undisputed evidence did not support finding of general jurisdiction under section 48.193(2) -- Defendant had not been Florida resident since 1974, owned no property in Florida, and traveled to Florida only irregularly to visit friends -- Status as director of Florida corporation, filing of annual reports, or service as trustee in now-defunct Florida trust were insufficient to establish general personal jurisdiction -- Mere fact that defendant previously availed herself of Florida courts is insufficient where there was no information regarding defendant's choice of Florida as forum, including whether Florida was mandatory or permissive or whether defendant purposefully availed herself of Florida's privileges and protections -- Plaintiffs have not provided any legal authority to support claim that defendant's employment of Florida counsel to assist her in execution of contract was sufficient to invoke general jurisdiction over defendant
DEBORAH R. OLSON, Appellant, v. DANIEL ROBBIE and TIMOTHY H. ROBBIE, Appellees. 4th District.

Dissolution of marriage -- Alimony -- Modification -- Trial court properly dismissed with prejudice husband's petition to terminate or modify alimony obligation on grounds the wife's needs had decreased, because the marital settlement agreement unambiguously limited the ability to modify alimony to situations involving the deterioration of the husband's health or business, conditions not raised in husband's petition
ROBERT F. ELBAUM, Appellant, v. DENISE J. ELBAUM, Appellee. 4th District.

Dissolution of marriage -- Attorney's fees -- Trial court erred in awarding wife attorney's fees without specific findings as to number of hours expended by wife's attorney and whether those hours are reasonable
ROBERT MITCHELL, Appellant, v. CYNTHIA Y. MITCHELL, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Relocation of child -- No error in denying mother's motion for temporary order permitting relocation of child to another county or in granting father's emergency motion for return of child -- Order did not change parenting plan, but instead required mother to return child to county, consistent with previously ordered parenting plan
MELISSA KERSHAW, Appellant, v. VICTOR KERSHAW, Appellee. 4th District.

Dissolution of marriage -- Marital debts -- Where terms of marital settlement agreement clearly and unambiguously required husband to assume wife's credit card debt for certain cards and balances, it was error to enter order requiring wife to pay credit card debt before husband would be required to reimburse her
SHARON R. WHITE n/k/a SHARON R. BUNN, Appellant, v. STEPHEN F. WHITE, Appellee. 4th District.

Dissolution of marriage -- Trial court erred in including in order on wife's motion for temporary relief a requirement that parties comply with “Notice to Litigation Parties with Minor Children,” which concerned husband's financial affairs and the minor child, including contact, parenting, and other aspects of his relationship with the child, where issue of compliance with Notice was not mentioned in wife's motion or at hearings on her motion -- Husband's due process rights were violated when court mandated compliance with Notice without notice to husband
JEFFREY S. GROVE, Appellant, v. KAREN B. GROVE, Appellee. 2nd District.

Garnishment -- Interest in limited liability company -- Trial court erred in entering writ of garnishment upon debtor's interest in a limited liability company -- Statute provides that a charging order is sole and exclusive remedy by which judgment creditor may satisfy a judgment from judgment debtor's interest in or distributions of LLC
DARLENE A. YOUNG, Appellant, v. LESLIE COUTURE LEVY and WEAR IT'S AT, LLC, Appellees. 4th District.

Injunctions -- Order enjoining resident of subdivision from using roads within subdivision to transport or deliver equipment, material, or personnel to improve adjacent property was deficient for failure to specify the reasons for entry of the injunction -- Order granting temporary injunction reversed and remanded for further proceedings
JOHN McCUE and McCUE HOLDINGS, LLC, Appellants, v. HERITAGE FARMS PROPERTY ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee. 2nd District.

Landlord-tenant -- Contracts -- Leases -- Early termination fee -- Liquidated damages -- When a tenant and landlord execute an addendum choosing remedy of liquidated damages or early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease, which does not make provision for the remedy, as part of the same transaction -- Trial court erred in concluding that addendum is unenforceable if lease does not include a similar provision
RAISSA WILSON, Appellant, v. WILLIAM TERWILLINGER, Appellee. 5th District.

Negotiable instruments -- Promissory notes -- Civil procedure -- Summary judgment -- Supporting affidavit -- Best evidence rule -- Plaintiff's failure to file original note at least 20 days before summary judgment hearing in action on promissory note was not fatal to application for summary judgment -- Best evidence rule applies to proceedings wherein evidence is introduced, and a summary judgment hearing is not such a proceeding -- Even assuming best evidence rule applies in summary judgment context, presentment of original note at or before the hearing satisfies the rule -- Although original note must be surrendered before judgment may be entered unless it is properly established that instrument is lost or destroyed, it is not necessary that original note be attached to affidavit in support of summary judgment in order to satisfy surrender requirement so long as it is surrendered to court before judgment is entered on note
SIA-MACK ALAVI AND VALERIE ALAVI, Appellants, v. FRANCISCO A. GARCIA, Appellee. 5th District.

Partnerships -- Corporations -- Dissolution -- Trial court did not err in dissolving partnership which leased a medical office building from a corporation owned by the same parties who own the partnership upon finding that the partners have engaged in conduct which has made it not practical to carry on the business of the partnership -- Court erred in failing to also dissolve the corporation which owned the property where the shareholders are unable to break a corporate deadlock, and absent such a break, the property would continue to decline, resulting in the frustration of the purpose of the corporation

Torts -- Contracts -- Evidence -- Settlement agreement -- In action by Airport District against construction management contractor alleging negligence and contract claims arising out of installation of improper-sized sand in stormwater retention pond, it was error to admit evidence of District's settlement with another defendant -- Settlement agreement was not an improper Mary Carter-style agreement where the settling defendant did not agree to remain a party to the trial -- Airport District's appeal was not rendered moot because it failed to appeal judgment on defendant's counterclaim

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