Monday, June 2, 2014

Mortgage foreclosures, standing, jurisdiction, and sweet potato-Vidalia onion frittatata with sharp cheddar cheese, fresh rosemary, sage, and thyme

Appeals -- Motion for relinquishment of jurisdiction to trial court in order for appellant to file rule 1.540 motion for relief from judgment denied
DORIS MCNULTY, Appellant, vs. BANKUNITED, Appellee. 3rd District.

Attorneys -- Discipline -- Dishonest conduct -- Failure to return client funds or to communicate with client -- Referee's findings of fact, regarding attorney's failure to provide former client with accounting of retainer funds despite repeated requests over three years and failure to return any of the funds until client finally filed complaint with Florida Bar, and regarding attorney's forging a signature on legal papers filed with a United States District Court, are approved -- Recommended sanction of six-month suspension is disapproved in favor of a three-year suspension
THE FLORIDA BAR, Complainant, vs. DAVID LEONARD ROSS, Respondent. Supreme Court of Florida.

Attorney's fees -- Appellate -- Certiorari proceedings -- Rule of Appellate Procedure 9.400(b) does not apply to rule 9.100 original proceedings -- Procedure to request attorney's fees in rule 9.100 original proceeding is governed by rule 9.300, which governs appellate motions and states that, “Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor” -- Motion for attorney's fees filed six days after district court granted petition for writ of certiorari was timely

Child custody -- Hague Convention on the Civil Aspects of International Child Abduction -- Return of children to Brazil after mother had moved children to Florida -- Where Brazilian court had ruled that father has right to prohibit mother from changing children's country of residence, father has “rights of custody” under Convention and is entitled to have children returned to Brazil -- Trial court erred in denying father's petition for return of children to Brazil
JOSE I. SANCHEZ, Appellant, vs. RUTH E. SUASTI, Appellee. 3rd District.

Contempt -- Error to find party in contempt for failing to produce documents where underlying order that served as basis for contempt finding merely denied a motion for a protective order and stated that certain information should be redacted from discovery, but did not expressly require production of documents
OASIS BUILDERS, LLC, a Florida limited liability company, and RICK P. CALPITANO, individually, Appellants, v. BRENDA McHUGH, individually, SIGNATURE PLUMBING CO. OF SOUTH FLORIDA, INC., and THOMAS WATLEY, Appellees. 4th District.

Contracts -- Arbitration -- Waiver -- Active participation in litigation -- Party to indemnification agreement containing arbitration clause did not waive right to compel arbitration by filing motion to dismiss, for lack of subject matter jurisdiction, an indemnification claim asserted in Office of Judges of Compensation Claims, which had no authority over claim, or by filing motion to dismiss a subsequently-filed circuit court action based on the merits of the claim before filing its motion to compel arbitration in circuit court
AMS STAFF LEASING, INC., Appellant, vs. OCHA ENGINEERING CORP., Appellee. 3rd District.

Creditors' rights -- Impleader of third parties -- Jurisdiction -- Non-residents -- Record on appeal did not establish basis for dismissal of creditor's impleader complaint for lack of personal jurisdiction or its basis for denying rehearing -- Sworn proof submitted by both creditor and third parties in support of their respective jurisdictional positions was in conflict in material respects and could not be reconciled without evidentiary hearing -- Remand for limited evidentiary hearing to resolve disputed facts and determine jurisdictional issue
REDWOOD RECOVERY SERVICES, LLC, Appellant, vs. ADDLE HILL, INC., Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Income -- Trial court erred in not imputing income where wife, despite having once been promised by husband she would not have to work again, admitted her unemployment was self-imposed and expert testimony established she qualified for available jobs -- Sale of marital home -- On remand, if marital home, in which wife was residing at time of trial, has been sold, trial court should consider whether wife has leftover funds, not used to purchase a new home, which can now be used to acquire income-generating investment assets, and whether wife is still required to pay homeowners' association fees -- Income for both husband and wife from husband's retirement funds, and from both parties' non-marital bank accounts, should have been included in court's calculation of need for alimony
ARTHUR W. ADELBERG, Appellant, v. LISA SHEPROW ADELBERG, Appellee. 4th District.

Dissolution of marriage -- Marital home -- Remand for trial court to address issue of whether former wife is entitled to future credit for expenses she will pay on taxes, insurance, and maintenance of marital home during her exclusive possession upon sale of home

Eminent domain -- Inverse condemnation -- Trial court properly determined that city's refusal to change comprehensive plan's designation of two parcels, a golf course parcel and a condo parcel within the golf course parcel, did not deprive the owners of all economically viable use of property -- City rebutted presumption that the two parcels should be treated separately -- Expert testimony that the parcels, treated as a single tract, retained an economically beneficial use, supported finding that a total taking did not occur -- Regulation did not result in a partial taking
OCEAN PALM GOLF CLUB PARTNERSHIP, Appellant, v. THE CITY OF FLAGLER BEACH, etc., Appellee. 5th District.

Jurisdiction -- Non-residents -- Fraudulent transfers -- Trial court improperly denied motion to dismiss for lack of personal jurisdiction a complaint filed against defendant, an out-of-state resident, under Uniform Fraudulent Transfers Act, because a fraudulent transfer is not a tortious act for the purposes of Florida's long-arm statute, and additionally because plaintiff failed to specify where the alleged fraudulent transfer occurred or that defendant was transferred any property that was located in Florida, preventing a determination of whether any act was committed in Florida

Legislation -- Reapportionment of congressional districts -- Challenge to constitutional validity of 2012 plan apportioning Florida's congressional districts under “Fair District Amendments” -- Evidence -- Documents produced by non-parties to redistricting litigation, which documents are allegedly relevant to constitutional claims being argued in trial -- Confidentiality -- Emergency petition for review of order in which district court of appeal reversed circuit court orders providing that documents furnished by non-parties in underlying litigation would remain confidential, even if offered as exhibit in witness examination or entered into evidence in trial, but that proceedings “shall remain open” during use of documents by any party at trial -- Enforcement of district court's order stayed pending conclusion of ongoing trial -- Circuit court is not precluded from admitting documents at issue into evidence, subject to proper showing of relevancy, but shall maintain confidentiality of documents by permitting any disclosure or use only under seal of court and in a courtroom closed to the public
THE LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, vs. DATA TARGETING, INC., et al., Respondents. Supreme Court of Florida.

Mortgage foreclosure -- Error to enter judgment of foreclosure where plaintiff presented insufficient evidence to support amount of indebtedness -- Testimony of case resolution representative that total amount of debt on a proposed final judgment seemed accurate was insufficient to establish amount of indebtedness -- Defendants were not required to make contemporaneous objection to sufficiency of evidence in non-jury trial in order to preserve issue for appeal -- Because plaintiff had over four years to produce business records that could prove amount of indebtedness, and it had opportunity at trial to prove case but relied on unauthenticated document prepared in anticipation of litigation, dismissal of complaint is appropriate

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- No abuse of discretion in admitting printouts of loan payment history, which were properly authenticated by records custodian who demonstrated his familiarity with plaintiff's record-keeping system and the process for uploading payment information -- Printout was not a “summary” within meaning of section 90.956 -- Printouts of data prepared for trial may be admitted under business records exception even if printouts themselves are not kept in ordinary course of business, so long as qualified witness testifies as to manner of preparation, reliability, and trustworthiness
LOYAL R. CAYEA, JR., a/k/a LOYAL R. CAYEA and LORI J. CAYEA a/k/a LORI CAYEA, Appellants, v. CITIMORTGAGE, INC., Appellee. 4th District.

Mortgage foreclosure -- Judicial sale -- Trial court erred in failing to vacate judicial sale where property subject to sale was owned by husband and wife as tenants by the entireties, but foreclosure was entered only against the wife -- Trial court must cancel certificate of title issued to third party, to whom nothing passed because only the wife's interest in the property was foreclosed, and direct clerk to return the third party's bid monies
ROCKETRIDER PICTURES, LLC, Appellant, vs. BANKUNITED, et al., Appellees. 3rd District.

Mortgage foreclosure -- Standing -- Original lender had standing to file suit at its inception because it owned note and mortgage at time suit was filed
JOYCE L. LEWIS, Appellant, v. J.P. MORGAN CHASE BANK, AS TRUSTEE, Appellee. 4th District.

Mortgage foreclosure -- Standing -- Trial court departed from essential requirements of law in finding that plaintiff who possessed original note endorsed in blank lacked standing -- Plaintiff was not required to prove ownership of loan documents to establish standing to foreclose
ONE WEST BANK, F.S.B., Petitioner, v. CHRISTINE BAUER and THOMAS BAUER, Respondents. 2nd District.

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