Saturday, May 2, 2015

Deficiency judgments, lis pendens, child support, and cage free eggs over turnip greens, heirloom tomatoes, and manchego cheese

Appeals -- Timeliness -- Appellate court has no jurisdiction of appeal of trial court's denial of award of fees under wrongful act doctrine where notice of appeal was filed more than six months after final judgment -- Letter to court which reargued facts of case, raised rhetorical questions, and asked legal advice, did not constitute a motion for rehearing which would suspend rendition of final judgment

Arbitration -- Contracts -- Settlement agreement -- Under terms of settlement agreement which ultimately provided for merger of two companies, disputes relating to pre-merger loans were subject to two-step process, which required that any dispute be submitted initially to accounting firm for evaluation using “generally accepted accounting principles, consistently applied, and past practices” as parameters and then, if a party disagreed with accounting firm's application of accounting principles or past practices, required that dispute be resolved through binding arbitration -- Trial court's order submitting case to accounting firm for a binding decision as an arbitrator was contrary to parties' settlement agreement -- Remand for entry of order submitting case to accounting firm and ordering arbitration in event that either party disputes resolution reached by accountants
ROBIN RESNICK, Appellant, v. J. WEINSTEIN AND SONS, INC., a Florida corporation, and ABRAHAM RESNICK, individually, Appellees. 4th District.

Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify defendant's counsel in action for breach of non-disclosure agreement where defendant's counsel had represented plaintiff in other non-disclosure agreement matters ten years earlier -- Trial court erred in denying motion for disqualification on grounds of the time that had passed since the prior representation of plaintiff and the circumstances of the non-disclosure agreement -- Attorney's representation of parties involved substantially related matters

Attorney's fees -- Prevailing party -- Action for unpaid wages -- Award of prevailing party attorney's fees in action for unpaid wages is discretionary rather than mandatory -- Trial court did not abuse discretion in denying award of attorney's fees to plaintiff in her action for unpaid bonuses where plaintiff prevailed on some of her claims, and defendant prevailed on other claims -- Award of costs to prevailing party in action for unpaid wages is also discretionary, and trial court did not abuse discretion by denying award of costs to plaintiff
FILOMENA RUFFA, Appellant, v. SAFTPAY, INC., Appellee. 3rd District.

Attorney's fees -- Proposal for settlement -- Proposal which clearly announced that it addressed any and all claims and causes of action resulting from accident giving rise to lawsuit brought by injured plaintiff against driver of vehicle and which included and described all relevant conditions of the proposal was unambiguous and sufficient to meet particularity requirements of statute and rule -- Proposal did not need to address spouse's separate and distinct loss of consortium claim -- Trial court erred in characterizing proposal as a joint proposal and in denying claims for attorney's fees based on finding that the proposal failed to state amount and terms attributable to each party -- Requiring that codefendant/owner of vehicle be dismissed was merely condition attached to acceptance of offer and did not render proposal joint or invalidate it in any other way
GLENN MILEY and KYLE MILEY, Appellants, v. MARTHA NASH, Appellee. 2nd District.

Civil procedure -- Dismissal -- Two-dismissal rule -- Under two-dismissal rule, which provides that a notice of voluntary dismissal operates as an adjudication on the merits when served by a plaintiff who has previously dismissed the action, a notice of voluntary dismissal does not operate as an adjudication on the merits when it is preceded by an “agreed order” granting a defense motion to dismiss the case with leave to amend

Civil procedure -- Discovery -- Deposition of opposing counsel -- Order compelling litigant's in-house attorney, who is not the attorney of record but is directly involved in the litigation, to be deposed, is quashed because respondents failed to satisfy case law requirements for taking deposition of opposing counsel
ELLER-I.T.O. STEVEDORING COMPANY, L.L.C., Petitioner, v. LAZARO PANDOLFO and OLGA ALVAREZ a/k/a Olga Alvarez Sarria, Respondents. 3rd District.

Civil procedure -- New trial -- Abuse of discretion to grant defendant a new trial on the basis of cumulative unfair surprise where defendant either declined court offered continuance, or failed to request continuance, after each incident of claimed unfair surprise
RUVIM LONDON, Appellant/Cross-Appellee, v. VLADIMIR DUBROVIN, et. al., Appellees/Cross-Appellants. 3rd District.

Dissolution of marriage -- Attorney's fees -- Error to award attorney's fees to wife without making requisite written findings on husband's ability to pay and basis for specific payment plan imposed by court -- Judgment contained requisite findings on reasonableness of hours expended and hourly rate -- Husband cannot argue that trial court failed to make findings to support requirement that husband secure life insurance policy where husband agreed to purchase $100,000 life insurance policy and included such a provision in his proposed final judgment
CHRIS BECKSTROM, Appellant, v. JULIE BECKSTROM, Appellee. 4th District.

Dissolution of marriage -- Child support -- Modification -- Appeal from supplemental final judgment that modified husband's timesharing and child support based primarily on his relocation to foreign state -- Trial court abused its discretion in denying husband's requests for continuance based on late disclosure of wife's financial affidavit the day before final hearing -- Under controlling rule, requirement to provide financial affidavit in supplemental proceedings cannot be waived by parties; and in any event, there was no evidence of record that husband waived requirement -- Husband was prejudiced by late filing where he was unable to procure his own expert to review the alleged permanent decrease in income reflected in wife's affidavit -- Trial court erred in awarding retroactive support in absence of evidence that husband had ability to pay the amount ordered during the time period at issue -- No merit to husband's argument that trial court erred in including children's private school tuition as component on child support guidelines worksheets -- New hearing required on issue of child support
BRIAN K. GILROY, Appellant, v. PATRICIA A. GILROY, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Errors regarding amount of debt and tax liability
MARGARET LEVITT, Appellant, v. ADAM LEVITT, Appellee. 5th District.

Injunctions -- Demolition of building by city -- Portion of injunction finding that city did not give proper notice of proposed demolition proceeding affirmed -- Error to enjoin city from demolishing building until pending foreclosure action is concluded -- Injunction erroneously fails to specify reasons for its entry, and there is no record support for injunction that prevents city's exercise of its right to demolish property once property owners have received proper notice
CITY OF MIAMI, Appellant, v. JP MORGAN CHASE BANK NATIONAL BANK, et. al., Appellees. 3rd District.

Injunctions -- Repeat violence -- No error in denying motion to dissolve injunction where motion challenged merits of injunction rather than alleging change in circumstances since injunction was entered
ALFRED WASHINGTON, Appellant, v. THELMA S. WASHINGTON, Appellee. 1st District.

Landlord-tenant -- Guarantors -- Summary judgment granted in favor of tenant and guarantors reversed as to guarantors because the motion only sought relief on behalf of tenant -- Appeals -- Jurisdiction -- Remainder of appeal dismissed because it is not an appealable partial final judgment
KENDALL COMMERCIAL ASSOCIATES, LLC, etc., Appellant, v. DRAKES, LLC, et. al., Appellees. 3rd District.

Limitation of actions -- Amended complaint -- Relation back -- Trial court erred in granting substituted defendant's motion for summary judgment on ground that statute of limitations had run where mistake in naming proper defendant was merely a misnomer, all the parties knew which entity the plaintiff intended to sue, and there was substantial identity of interest between the original defendant and substituted defendant -- Moreover, incorrectly named defendant engaged in extensive discovery and did not reveal that it was not the proper defendant until after statute of limitations had run -- Plaintiff not at fault for failing to inquire further after original defendant made conclusory statement in its first affirmative defense that it was “not a proper party to this action,” an assertion which was legally insufficient and inconsistent with its conduct in engaging in discovery
PAUL MAY, individually and as legal guardian of Jean May, Appellant, v. HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center; FRANCISCO ESPARZA, M.D.; DAVID DIVITA, M.D.; and PINNACLE MEDICAL GROUP, P.A., Appellees. 2nd District.

Mortgage foreclosure -- Deficiency -- Action at law by mortgagee to recover damages for breach of note after mortgagee had included prayer for deficiency judgment in foreclosure complaint and trial court reserved jurisdiction in foreclosure judgment to enter deficiency judgment -- Trial court did not err in entering judgment for damages on note after consolidating the action at law and the foreclosure action
ROBERT G. REID, Appellant, v. COMPASS BANK, Appellee. 1st District.

Mortgage foreclosure -- Jury trial -- Where lender brought promissory note count against defendants in conjunction with mortgage foreclosure suit, defendants were not entitled to jury trial on promissory note action -- Legal remedy on promissory note in this context is deficiency judgment, and foreclosure courts are explicitly granted authority to enter this remedy -- Moreover, mortgage at issue contained jury trial waiver for any action related to mortgage or note -- Argument that plaintiff was not entitled to enforce jury trial waiver because it was not party to original contract is without merit, as plaintiff was holder of note and mortgage by virtue of an endorsement
TRENDA KINNEY f/k/a TRENDA BOUTIN and PETER KINNEY, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., et al., Appellees. 4th District.

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