Sunday, May 31, 2015

Contracts, imputed income, and grilled shrimp on avocado with basil pesto dollops

Contracts -- Statute of frauds -- Oral agreement not to be performed within one year of the making of the agreement -- Terminable-at-will oral agreement to purchase lottery tickets and to equally share in the proceeds of any winning lottery ticket is outside statute of frauds, and is enforceable, because agreement could have been performed within one year
HOWARD BROWNING, Petitioner, v. LYNN ANNE POIRIER, Respondent. Supreme Court of Florida.

Deceptive and unfair trade practices -- Sovereign immunity -- Florida State Lottery -- Action against Florida Lottery based on its refusal to pay $500,000 prize where ticket, which initially appeared to be a winning ticket, was on closer inspection a “misprint” which was not a winner and was not able to be validated through the Lottery's system -- No merit to any of plaintiff's several claims -- Although sovereign immunity has been waived for breach of contract claims against the state and its agencies, it has not been waived for the unfair and deceptive trade practices and misleading advertising claims asserted by plaintiff -- Even if the claim were not barred by sovereign immunity, claim lacks merit because summary judgment evidence establishes the ticket was not a winner -- Contracts -- Trial court properly held Lottery did not breach contract embodied in lottery ticket where relevant statute provides that no prize may be paid arising from tickets that are produced or issued in error -- Promissory estoppel -- Trial court properly concluded promissory estoppel claim was a recasting of breach of contract claim

Dissolution of marriage -- Alimony -- Modification -- Imputed income -- Trial court erred in failing to impute to former wife income for earnings that could reasonably be projected based on her liquid assets while imputing the same type of income to former husband -- Remand for recalculation of alimony
ALBERT JOSEPH WINNIER, Appellant, v. CAROL ANN WINNIER, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion in awarding attorney's fees to wife where parties were equally able to pay their own fees -- Amounts husband was obligated to pay in alimony and child support should have been deducted when determining husband's ability to pay

Garnishment -- Circuit court acting in its appellate capacity departed from essential requirements of law when it affirmed county court order dismissing judgment creditor's garnishment action against judgment debtor's employer based on bankruptcy discharge of the underlying debt owed to creditor by the judgment debtor -- Discharge of judgment debtor's liability to creditor did not eliminate employer's independent liability under garnishment statute -- Under clear terms of garnishment statute, garnishee was independently liable for amounts that it should have retained for creditor's benefit between date writ of garnishment was served and date debtor filed for bankruptcy protection -- Circuit court's departure from essential requirements of law resulted in miscarriage of justice when circuit court also affirmed county court's sua sponte dismissal of creditor's garnishment action in response to motion for judgment on pleadings -- Dismissal was not only improper response to the denial of a motion for judgment on pleadings, but dismissal was form of relief not requested by either of the parties and, accordingly, violated creditor's due process rights
PAUL DAVID DANIELS, Petitioner, v. SORRISO DENTAL STUDIO, LLC, Respondent. 2nd District.

Real property -- Homeowners associations -- Impairment of contracts -- In granting summary judgment to homeowners' association, enforcing payment by foreclosure sale purchaser of assessments accrued under previous owner, trial court's reliance on statute providing that parcel owners are jointly and severally liable with previous owners for unpaid assessments, rather than on provisions of association's declaration providing that obligation for delinquent assessments shall not pass to successors in title, violated new owner's constitutional right against impairment of contract, where new owner was a third-party beneficiary of the declaration -- No merit to homeowners association's claim that the statute amended the declaration -- Remand for entry of summary judgment in favor of new owner
PUDLIT 2 JOINT VENTURE, LLP, a Florida limited liability partnership, Appellant, v. WESTWOOD GARDENS HOMEOWNERS ASSOCIATION, INC., a Florida corporation not-for-profit, Appellee. 4th District.

Torts -- Conspiracy -- Fraudulent transfers -- Action by shareholder and creditor of corporation alleging that defendants improperly transferred assets to another corporation, which did not pay reasonably equivalent value in exchange for the assets -- Trial court erred in entering summary judgment for corporate defendant on count alleging fraudulent transfer -- Plaintiff was creditor for purposes of fraudulent transfer statute where he classified his contributions to first corporation as loans, not equity -- Accordingly, trial court erred in finding that plaintiff needed to bring derivative action as opposed to a direct action -- Trial court erred in concluding that plaintiff sued wrong entity -- Suit was not premised on agency relationship between corporate defendant and wholly-owned subsidiary which employed the individual who actually transferred the assets at issue -- Trial court erred in finding that record was devoid of evidence that transfer was made with intent to hinder, delay, or defraud plaintiff -- Genuine issues of material fact exist as to existence of two “badges of fraud” -- In light of appellate court's reversal of summary judgment on fraudulent transfer claim, it was error to enter summary judgment on conspiracy count, which was premised on existence of actionable claim for fraudulent transfer
MARK S. YARALLI, individually and as 50% shareholder of Digiplot, Inc., Appellant, v. AMERICAN REPROGRAPHICS COMPANY, LLC, a Florida limited liability company, Appellee. 4th District.

Torts -- Legal malpractice -- Discovery -- Depositions -- Non-party material witness -- Trial court did not depart from essential requirements of law by denying non-party's motion for protective order to prevent continuation of deposition -- As material witness, the fact that certain financial information may be disclosed is not sufficient reason, standing alone, to preclude deposition -- Trial court properly issued order limiting subject matter of pending deposition to those specific issues framed by amended complaint
CARLOS KAUFFMAN, Petitioner, vs. FRANKLIN DURAN, Respondent. 3rd District.

Torts -- Malicious prosecution -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Trial court erred in awarding attorney's fees pursuant to section 57.105, Florida Statutes, in favor of defendant, an unlicensed contractor who had filed an invalid lien against plaintiff's property, on the basis that plaintiff's malicious prosecution action against defendant was not supported by material facts or applicable law -- Evidence was sufficient to establish all elements required for a prima facie case of malicious prosecution, including legal malice and damages
COLLEEN J. MacALISTER, Appellant, v. BEVIS CONSTRUCTION, INC., and MICHAEL BEVIS, Appellees. 2nd District.

Torts -- Negligence -- Contractors -- Unlicensed contractor -- To be considered licensed under contract for construction of home for plaintiffs, defendant, as of date of contract, had to have a primary or secondary qualifying agent in accordance with statute concerning scope of work to be performed under the contract -- Trial court erred in entering judgment in favor of plaintiffs based on finding that defendant was acting as unlicensed contractor where defendant met this requirement -- Statute precludes considering events that occur after the contract date by instructing that a contractor be considered unlicensed “only if” the contractor is unlicensed at that specific time -- Licensure question under section 489.128(1) turns on whether the business organization is associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract, irrespective of whether that person ultimately obtains the permit and supervises the construction under the contract -- Evidence that defendant may have violated law by building home with a contractor other than the one whose name appeared on building permit, by using former agent's license when she was not affiliated with project, and by conducting project with inadequate supervision was irrelevant to narrow issue of whether defendant was licensed on date of contract
TAYLOR MORRISON SERVICES, INC. f/k/a Morrison Homes, Inc., Appellant, v. CAROL ECOS AND SUSAN BESSING, Appellees. 1st District.

Wrongful death -- Sovereign immunity -- State university's Athletic Association, a university direct-support organization, is entitled to limited sovereign immunity because the university has the right to control the association and exercises actual control over association -- Remand for entry of judgment corresponding to jury's award of damages but limiting athletic association's liability for payment to $200,000 pursuant to section 768.28(5), Florida Statutes
ENOCK PLANCHER, etc., Petitioner, vs. UCF ATHLETICS ASSOCIATION, INC., et al., Respondent. Supreme Court of Florida.

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