The FBI's Clinton email disclosure and its search of Anthony Weiner's computer right before the election: a violation of the law?

"FBI director James Comey’s disclosure on Friday that the bureau will investigate a Clinton aide’s emails has politicians and experts considering whether any laws were broken or whether any rights were violated.
Senate Minority Leader Harry Reid, D-Nevada, said in a letter on Sunday that Comey’s disclosure 11 days before the election may have violated the Hatch Act, which restricts political activities of government workers, the Washington Post reports. And the Volokh Conspiracy’s Orin Kerr, a law professor at George Washington University, says it’s possible the new investigation will be found to violate the Fourth Amendment. . . .
University of Minnesota law professor Richard Painter, a former White House ethics lawyer, sees some merit in Reid’s argument. In a New York Times op-ed, he said he filed a complaint on Saturday with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics.
“The FBI’s job is to investigate, not to influence the outcome of an election,” he wrote. . . ."
More.


Originally posted in the ABA Journal

Posted Oct 31, 2016

By Debra Cassens Weiss

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Mortgages, child support, excessive force, and organic fennel, rosemary cream, and Kalamata olives on a bed of handmade posta

Appeals -- Sanctions -- Failure to timely file initial brief -- Failure to obey court orders -- Appellate counsel referred to Local Professionalism Panel

NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS FARGO BANK, N.A., et al., Appellees. 3rd District.

  Bankruptcy -- Claims -- Objections -- Rule 3001(c) objections, asserting that proofs of claim did not attach a copy of writing upon which claims are based, lack merit -- Creditor was not required to prove that its claims are based on an open-end or revolving consumer credit agreement -- Objections to claims, which were scheduled as undisputed in amounts identical to amounts asserted by creditor in its proofs of claim, are not good faith objections -- Objections to claims on grounds that account summary statement attached to each proof of claim includes a notation that debt was “charged off” are legally insufficient -- Mere fact that proof of claim includes reference to a charge-off date is not, standing alone, a legal basis for a claim objection -- Even if court followed decisions disallowing claims where debtor received a Form 1099-C reflecting the cancellation of debt, validity of proofs of claim remain unrebutted and claims will be allowed where debtors did not present evidence that they received a Form 1099-C for any of debts subject of charge-off objections In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida.   Williams v. Poarch Band of Creek Indians Court: U.S. Court of Appeals for the Eleventh Circuit Docket: 15-13552 Opinion Date: October 18, 2016 Areas of Law: Constitutional Law, Native American Law Plaintiff filed suit against the Poarch Band of Creek Indians, alleging that she was terminated from her job because of her age pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621-634. The district court adopted the Magistrate’s Report and Recommendation to grant the Poarch Band's motion to dismiss the suit based on the doctrine of tribal sovereign immunity. In this case, there is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. The court rejected plaintiff's comparison of the definitions of the term "employer" found in the ADEA and Title VII, in conjunction with the Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the ADEA is a statute of general applicability is foreclosed by the court's precedent; and other circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. Accordingly, the court affirmed the district court's decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction. http://j.st/46tR    Bankruptcy -- Discharge -- Fraudulent transfer -- Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor transferred property within one year before his bankruptcy petition with intent to hinder, delay, or defraud his creditors -- Debtor transferred property where debtor liquidated his pension fund, deposited the net proceeds of fund in his individual checking account, and within the two months between the deposit and filing of his bankruptcy petition made a number of transactions which had the effect of significantly diminishing his bank account -- Debtor cannot claim that proceeds of liquidated pension account were exempt from his Chapter 7 estate where he voluntarily withdrew funds from his pension plan, funds were never placed in designated individual retirement account or any other investment vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for funds after they were paid to debtor and deposited into his checking account, and debtor did not claim an exemption for his checking account under that statute -- False oath or account -- Discharge should be denied pursuant to Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy schedules -- Where Statement of Financial Affairs signed by debtors did not disclose liquidation of pension fund; income received as a result of fund's liquidation; or gifts that debtor wife made from proceeds of fund, even though she was aware that the transactions had occurred within two months before bankruptcy petition was filed, debtors' nondisclosures constitute false oaths -- Debtors were obligated to disclose assets and transactions, despite their claim that pension proceeds were exempt -- Circumstantial evidence shows that debtors intended to hinder, delay, or defraud their creditors by disposing of proceeds of pension fund and misrepresenting the transactions on their bankruptcy schedules -- Based on circumstances, court could conclude that debtor husband had prior knowledge of bankruptcy process, that debtors were aware of claims of mortgage creditors who had foreclosed on their home, that husband liquidated his pension fund in effort to remove it from reach of creditors, and that debtors thereafter attempted to spend pension proceeds or otherwise conceal them from bankruptcy estate -- Failure to satisfactorily explain loss of assets or deficiency -- Discharge should be denied pursuant to Section 727(a)(5) because debtor experienced a loss of assets and failed to provide a satisfactory explanation for the loss -- Debtor's bank accounts were significantly diminished in weeks before bankruptcy petition was filed, and he was unable to provide even vague or speculative explanations of many transactions that took place on eve of his bankruptcy In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division.

Child custody -- Jurisdiction -- Uniform Child Custody Jurisdiction Enforcement Act -- Florida is home state of child who was born in Florida and lived in Florida until mother relocated to New York when child was less than two weeks old -- Trial court erred in dismissing putative father's petition for determination of paternity, parental responsibility, child support, and related relief on basis that court lacked jurisdiction under UCCJEA because Florida was not child's home state -- Fact that child was born out of wedlock has no bearing on child's home state

JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY, Appellee. 5th District.

Child support -- Income -- Deductions -- Administrative support order erroneously allowed deductions for expenses against gross income that were not permitted by statute -- Remand for recalculation of parents' respective net incomes for purposes of child support guidelines

DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS, Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.

Civil procedure -- Proposal of settlement -- Attorney's fees -- An offer of settlement is not invalid for failing to state, as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim, where attorney's fees are not sought in the pleadings

SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.

Civil rights -- Search and seizure -- Arrests -- Excessive force -- Officer's multiple tasings of suspect, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated suspect's clearly established constitutional right to be free from excessive force -- Where law enforcement officers handcuffed and pinned down the suspect following a struggle and then tased him five times with at least two of those tases occurring after suspect had ceased resisting, a reasonable officer in arresting officer's position and under circumstances would have had fair warning that repeatedly tasing handcuffed suspect after he had ceased struggling and resisting was unreasonable and unconstitutionally excessive under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates that suspect was not flight risk or a threat to safety of officers or public prior to conclusion of tasings -- Officer was not entitled to qualified immunity on excessive force claim at summary judgment stage of proceedings

PATRICIA JUANITA WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.

Consumer law -- Mortgage foreclosure -- Real Estate Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to evaluate an application for loss mitigation options submitted by borrowers when, at time application was submitted, a foreclosure sale of borrowers' property was scheduled to occur in two days -- Under Regulation X, which implements RESPA, a loan servicer's duty to evaluate a borrower's loss mitigation application is triggered only when borrower submits the application more than 37 days before the foreclosure sale -- Borrowers' application was untimely, even where servicer postponed the foreclosure sale such that sale actually transpired more than 37 days after they submitted their complete loss mitigation application -- To evaluate the timeliness of an application, Regulation X requires counting the number of days between date a complete loss mitigation application is received and date of foreclosure sale, and directs using scheduled date of foreclosure sale as of date complete application was received to determine date of foreclosure sale -- It is irrelevant if servicer subsequently reschedules foreclosure sale to a later date -- Because borrowers completed their application too late to trigger servicer's duty to evaluate the application, summary judgment was properly granted to servicer on loss mitigation claim -- Notice of error -- Borrowers were not entitled to summary judgment on separate claim that loan servicer failed to respond adequately to their subsequent notice of error as required by Regulation X, because borrowers failed to present evidence that they suffered actual damages or were entitled to statutory damages based on pattern or practice of RESPA noncompliance -- Use of a template to respond to borrowers' notice of error was insufficient evidence from which to infer that servicer had a pattern or practice of issuing form letters that were unresponsive to borrowers' notices of error

JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.

Mortgages -- Satisfaction -- Failure to timely record certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real estate sale to satisfy a mortgage owned by defendant lacks standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied -- Because plaintiff has not alleged that the violation of New York law that occurred when defendant failed to timely record the discharge of mortgage caused or could cause him harm that could constitute a concrete injury in fact, appeal from dismissal of complaint must be dismissed for lack of jurisdiction

ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee. 11th Circuit.

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Certiorari, civil procedure, and linguine with fresh pineapple sage, fresh rosemary, organic cream, and shaved asiago

Attorney’s fees -- Offer of judgment -- Although complaint made passing reference to equitable relief, action was one for damages, and plaintiff would be entitled to attorney’s fees under offer of judgment statute if he recovers a judgment in an amount at least 25 percent greater than the offer
FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Certiorari -- Jurisdiction -- Petitioner is not entitled to second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of PIP policy language where there was no violation of a clearly established principle of law resulting in a miscarriage of justice by circuit court -- There was no clearly established principle of law where there are conflicting decisions of district courts of appeal on issue, and Florida Supreme Court has accepted jurisdiction to resolve the conflicting decisions
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o ALEXIA BLAKE, Respondent. 3rd District.

Civil procedure -- Default -- Trial court abused discretion by entering default judgment after defendants filed motion to dismiss and motion to clarify instead of an answer
SILAS PIERCE AND ESTATE SALES STARS, Appellants, v. CHRISTOPHER KROHA, Appellee. 5th District.

Civil procedure -- Dismissal of complaint -- Action by condominium unit owner against another unit owner and condominium association alleging that improper installation of carpet on roof of condominium building resulted in water damage to plaintiff’s unit -- Appeals -- Order dismissing five of six counts against association is a non-final, non-appealable order where the remaining count arises out of the same facts as the dismissed counts -- Where claims were filed against unit owner individually and as trustee, it was error to dismiss claims against trustee where motion to dismiss was filed solely by individual, and trustee was not a movant -- Trial court erred in dismissing claims in amended complaint as barred by statute of limitations where claims in amended complaint arose from same conduct, transaction, or occurrence alleged in initial timely complaint, so that amended complaint relates back to initial complaint
BROOK ANDERSON, Appellant, v. IRA EPSTEIN, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Trial court abused discretion in failing to award wife permanent alimony -- Because marriage was long-term marriage, there was an initial presumption in favor of permanent alimony, and husband did not present sufficient evidence to rebut this presumption -- Court erroneously denied request for permanent alimony on basis of figures set forth in wife’s most recent financial affidavit where affidavit was based on wife’s current living arrangements -- Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage

CINDI B. CLEMENS, Appellant, v. MICHAEL P. CLEMENS, Appellee. 5th District.

Dissolution of marriage -- Child custody -- Trial court did not exceed its discretionary authority by including in final judgment on parenting plan and timesharing a provision prohibiting father’s discussion of any religious matters during visitation with children where there was “clear, affirmative showing” on the record that father’s actions towards children, which he adamantly believed were religiously motivated, have been harmful to children
MICHAEL KOCH, Former Husband, Appellant, v. EMILY A. KOCH, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court’s prospective-only award to former wife of her share of former husband’s pension on remand did not depart from appellate court’s mandate directing trial court to reconsider the proper disposition of the marital portion of pension by considering the factors in section 61.075, Florida Statutes -- Appellate attorney’s fees -- Trial court erred in denial of award of appellate attorney’s fees to former wife who prevailed on appeal -- Court’s finding that former husband was unable to pay appellate attorney’s fees contradicted its prior attorney’s fee award without any additional evidence or hearing, and was unsupported by record, given the large disparity in the parties’ incomes
ARVITA M. COLEMAN, Appellant, v. MICHAEL BLAND, Appellee. 5th District.

Dissolution of marriage -- Prohibition -- Intervenor’s claim did not survive parties’ voluntary dismissal of dissolution of marriage proceedings
CATHERINE CLAFLIN, Petitioner, vs. CLARENCE CHRISTOPHER CLAFLIN, Respondent, vs. MSP RECOVERY SERVICES, LLC, Intervenor. 3rd District.


Dissolution of marriage -- Provision characterizing award of attorney’s fees and costs as a form of support that is not dischargeable in bankruptcy or by any other means was improper -- Remand with instructions to strike this provision
FELIX DE JESUS GUERRA, Appellant, v. ANGELA GUERRA, Appellee. 2nd District.

Employer-employee relations -- Retaliatory discharge for filing workers’ compensation claim -- Damages -- Award of damages was excessive in light of absence of medical evidence that employer’s conduct caused employee’s medical condition to worsen or caused employee to suffer past or future psychological harm -- Remand for remittitur or new trial -- Judgment improperly awarded post-verdict interest -- Error to deny leave for employee to assert claim for punitive damages where there was a reasonable showing of a basis for recovery of such damages –

FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Family law forms -- Amendment -- Memorandum for Certificate of Military Service
IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Family law forms -- Amendments -- Name change petitions
IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Florida Bar -- Rules -- Amendment -- Competence -- Minimum continuing legal education standards
IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR 4-1.1 AND 6-10.3. Supreme Court of Florida.

Insurance -- Homeowners -- Sinkhole claims -- The statutory presumption of correctness afforded to an insurer’s internal report during the investigation process in the sinkhole statutes does not extend to later trial proceedings -- Attorney’s fees -- Insured prevailing in action against insurer -- A prevailing insured’s recovery of attorney’s fees under section 627.428, Florida Statutes, requires only an incorrect denial of benefits, not a showing of bad faith on the part of the insurer -- Insurer’s payment of policy proceeds after suit has been filed constitutes the functional equivalent of a confession of judgment, thereby entitling insured to an award of attorney’s fees
KATHY JOHNSON, Petitioner, v. OMEGA INSURANCE COMPANY, Respondent. Supreme Court of Florida.

Insurance -- Personal injury protection -- Sufficiency of language in PIP policy to put insureds on notice that reimbursement of medical bills will be limited by statutory schedule -- Appeals –

Mortgage foreclosure -- Error to grant summary judgment in favor of plaintiff where plaintiff failed to demonstrate legal insufficiency of affirmative defense that plaintiff failed to comply with paragraph 22 of mortgage regarding notice of acceleration -- Affidavit addressed to whether notice was actually sent to defendants did not address allegation that notice did not comply with requirements of mortgage
BALBINA A. YOUNG and LAWRENCE E. YOUNG, SR., Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee. 2nd District.

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court abused its discretion in excluding bank’s business records, which included records from prior servicer, where bank’s witness demonstrated sufficient familiarity with boarding process which occurred after purchase of prior servicer’s assets and witness’s testimony established trustworthiness of prior servicer’s records
OCWEN LOAN SERVICING, LLC, Appellant, v. ROBERT GUNDERSEN and JOAN GUNDERSEN, Appellees. 4th District.

Promissory notes -- Power of attorney -- Trial court erred in dismissing counts of complaint filed by plaintiff as attorney-in-fact under powers of attorney executed by family members seeking to recover on promissory notes given to members of plaintiff’s family -- Although notes contained language barring assignment or transfer of notes without maker’s prior written consent, powers of attorney giving plaintiff the right to collect the sums due under the notes on behalf of the owners did not constitute an assignment or transfer of the notes -- Under the powers of attorney, plaintiff was acting as an agent of the owners of the notes
LUIS ANTONIO NIETO VILLAMIZAR a/k/a LUIS NIETO, individually and as Attorney in Fact, Appellant, v. LUNA DEVELOPMENTS GROUP, LLC, etc., et al., Appellees. 3rd District.

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The Expert Institute's 2nd Annual Best Legal Blog Contest is now accepting nominations. Thank you!

The Expert Institute's 2nd Annual Best Legal Blog Contest is now accepting nominations. You can find the nomination form, as well as a full rundown of the competition's rules and requirements, on our website at this address: https://www.theexpertinstitute.com/blog-contest/

If you like our blog, please let the Expert Institute know and nominate The Appellate Gourmet.  Thank you!


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Governor who blocked public-defender budget increases is ordered to represent indigent defendant

"Taking aim at the government official who has blocked budget increases for indigent defense, the top public defender in Missouri has appointed Gov. Jay Nixon to represent a poor defendant in an assault case.
Michael Barrett, director of the Missouri State Public Defender, posted to his office’s website his Aug. 2 letter (PDF) informing Nixon of the appointment, report the Washington Post, the Kansas City Star and the St. Louis Post-Dispatch."  More.
Original Posted ABA Journal News, Aug. 4, 2016 by Debra Cassens Weiss

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South Florida man hurt by SWAT team as he tried to cash check can seek new $3.3M award from Bank of America

Originally  Posted on the ABA Law Journal June 3, 2016
By Martha Neil

“When Rodolfo Valladares went to a Florida branch of the Bank of America in 2008, he was just trying to cash a $100 check. But after he was mistaken for a robber by a teller, a SWAT team was called, and Valladares was kicked in the head by responding law officers, allegedly sustaining life-altering permanent injuries." The bank could be liable because "mistaking Valladares for the robber, the teller triggered a silent alarm and engaged him in conversation, even though he did nothing, then or later, to suggest that he intended to rob the bank, the supreme court says in its written opinion (PDF).. . . .Public policy supports a limited immunity for those who make innocent, simple mistakes, but that limited immunity cannot extend to conduct that recklessly disregards the rights of others,” the majority wrote, explaining its 5-2 decision. “In the case of Valladares, the bank had ample information and ample time to know the true facts and to correct the false report, but failed to do so. Once there is information indicating that a crime is not being committed, this limited privilege should not extend to a person’s failure to alert law enforcement that a reported crime is a mistake or simply wrong.”  More.

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Easley named to Elite Women Worldwide 2016

Easley Appellate Practice founder Dorothy Easley has been recognized in the Elite Women Worldwide, the premier source for prominent and successful female leaders.

Elite Women Worldwide recognizes outstanding female professionals in their specific fields, and lists only professionals that have achieved a high level of recognition and achievement in their chosen profession.

The Elite Women Worldwide selection process is a comprehensive and detailed attempt to produce a list of professionals that have demonstrated some degree of achievement in their field. The selection process involves many factors, including an assessment of a professional’s years of service and unique contributions. This, combined with a comprehensive interview of the professional yields the appropriate decision regarding inclusion in the Elite directory.  More.

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Contempt case unusual because judge bypassed Florida Bar, attorney says

A case like that of a Palm Beach County assistant public defender battling professional misconduct allegations is exceptionally rare but it’s not unheard of in more conventional channels, a Miami attorney said during a recent interview.

"The Ramsey matter seems odd at first blush," Dorothy Easley of the law firm Easley Appellate Practice in Miami said in an email interview with the Florida Record. "It is not unprecedented. And there are cases where appellate courts will also refer attorneys to the Florida Bar for litigation misconduct or lack of candor observed during an appeal. Attorneys are aware that any misconduct on their part may be referred to the Florida Bar to answer for. Attorneys also understand that contempt is one of the court mechanisms to compel respect for court orders and the judicial system." More.


Originally Posted in  FLORIDA RECORD, written by Karen Kidd, May 2, 2016
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Highly recognized Florida attorney has advice for women attorneys, life path and resilience

MIAMI – Easley Appellate Practice Managing Partner Dorothy F. Easley, recognized earlier this year by Rue Ratings for being in the top 1 percent of Best Attorneys in America, believes that female lawyers face more work-life balance issues than their male colleagues.. . .
Despite the challenges she faces as a female lawyer, Easley has great passion for her profession. 

'The legal profession is a noble profession that exists to speak for those who cannot speak and to protect them and their interests,' Easley said." More.

Originally Posted in  FLORIDA RECORD, written by Karen Kidd, April 4, 2016

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Contempt, limitation of actions, indemnity, and beef medallions with portobello mushroom-fresh rosemary sauce on a bed of cauliflower mash

Adoption -- Circuit court erred in entering order requiring adoption agency to conduct a diligent search for putative father of child placed with agency for adoption -- Adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date the mother signs her consent for adoption -- Agency is not required to conduct a diligent search for the putative father unless the mother has identified a potential father by the time she signs the consent for adoption -- Court's sua sponte questioning of mother as to identity of potential father five months after she had consented to termination of parental rights and adoption was a violation of mother's privacy rights

CHILDREN'S HOME SOCIETY OF FLORIDA, Appellant, v. V. D., IN RE: THE MATTER OF TERMINATION OF PARENTAL RIGHTS FOR THE PROPOSED ADOPTION OF A MINOR CHILD, Appellee. 1st District.

Appeals -- Belated appeal of order dismissing petition for writ of mandamus -- Court has no authority to grant belated appeal in civil proceeding

MORRIS FAIN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.

Civil procedure -- Relief from judgment -- Motion for relief from judgment on basis of fraud, misrepresentation, or other misconduct was untimely where it was brought more than one year after entry of judgment -- Motion for relief from judgment on basis that judgment was void fails where judgment was not void -- So long as court has jurisdiction over the subject matter and over defendant, a procedural defect occurring before entry of judgment does not render the judgment void

LIDIA E. CONTRERAS, Appellant, vs. NELSON E. MENDEZ, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Notice of summary judgment evidence on which adverse party intends to rely -- Trial court properly interpreted rule 1.510 as requiring adverse party to file notice in response to a motion for summary judgment even if the evidence upon which it seeks to rely is already in the record -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court did not err in finding that insurer did not satisfy rule 1.510(c) by filing, during discovery, a doctor's affidavit stating affiant's conclusion that portions of treatment were not reasonable, related, or medically necessary, which was accompanied by notice stating insurer's intent to rely upon the affidavit “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code” -- Circuit court acting in its appellate capacity did not depart from essential requirements of law by affirming county court ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FIGLER FAMILY CHIROPRACTIC, P.A., A/A/O LINDA MANNERS, Respondent. 4th District.

Contracts -- Asset purchase agreement -- Sale of insurance agency -- Unjust enrichment -- Conversion -- Trial court should have directed verdict on seller's claim for unjust enrichment against buyers where there was express agreement between seller and buyers -- Individual defendant could not be held personally liable for breach of agreement by buyers' agency where evidence did not establish that she personally benefitted beyond the amount awarded for buyers' agency's breach of contract or that she benefitted separate and apart from the agency -- Trial court should have granted defendants' motion for judgment notwithstanding verdict on conversion claim where jury awarded finite amount of damages for defendants' breach of contract, and there was no evidence that seller sustained any additional damages as result of conversion of other assets

VALERIE FULTON, FULTON INSURANCE AGENCY, INC., and DEAN C. FULTON, Appellants, v. JUDITH BRANCATO, Appellee. 4th District.

Contracts -- Settlement agreement -- Where, in plaintiff's action against bank for breach of employment agreement, fraud, negligent misrepresentation, and declaratory and injunctive relief, parties reached settlement agreement for certain payments to be made to plaintiff, with proposed payments to be submitted to federal regulatory entities for approval of payment terms within six months, the payment terms of the agreement were not enforceable when regulatory approval was not received within six months -- Trial court erred in granting defendants' motion to enforce settlement agreement upon finding that the six-month period in the agreement referred to a period of non-litigation rather than an expiration date of the agreement

DANIEL T. HESTER, an individual, Appellant, v. FLORIDA CAPITAL GROUP, INC., a Florida corporation; CHARLES E. HUGHES, an individual; and J. MALCOLM JONES, JR., an individual, Appellees. 2nd District.

Creditors' rights -- Fraudulent transfers -- Limitation of actions -- For purpose of Florida Uniform Fraudulent Transfer Act's provision that a claim of fraudulent transfer is extinguished unless brought within 4 years after the transfer was made or, if later, within 1 year after the transfer was or could reasonably have been discovered, the one-year savings clause is triggered by a creditor's discovery of the transfer rather than by the creditor's discovery of the facts showing the transfer to have been fraudulent -- Statute is a statute of repose which is not subject to an assertion of equitable estoppel

NATIONAL AUTO SERVICE CENTERS, INC., a Florida corporation; NATIONAL AUTO PROPERTIES, INC., a Florida corporation; LEONARD D. LEVIN, individually; CAROL LEVIN, individually; DURANT HOLDINGS, LLC; and BEDFORD INVESTMENTS, LLC, Appellants, v. F/R 550, LLC, a Florida limited liability company; and F/R 3329, LLC, a Florida limited liability company, Appellees. 2nd District.

Criminal law -- Contempt -- Jurors -- Competent substantial evidence supports convictions for contempt by juror who, during voir dire, concealed and failed to disclose his ex-wife's DUI arrest and, against the instructions of the trial court that jurors not conduct their own investigations, conducted a drinking experiment on himself to test the impairment effects of alcohol

DENNIS DeMARTIN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Discovery -- Appeals -- Certiorari -- Where defense had issued subpoenas duces tecum to various third parties without permission of trial court and without notifying state of its intent to issue the subpoenas, and state, upon discovering that the subpoenas had been issued, filed a motion to compel production of all evidence produced pursuant to the illegal subpoenas, state is not entitled to writ of certiorari to have appellate court quash trial court order finding that state was not entitled to copies of all documents provided pursuant to the subpoenas, but only to those documents which were intended to be used at any hearing or trial -- State is not entitled to issuance of writ of certiorari because state has failed to demonstrate irreparable harm

THE STATE OF FLORIDA, Petitioner, vs. WESLEY FOLEY, Respondent. 3rd District.

Criminal law -- First degree murder -- Evidence -- Hearsay -- Trial court erred when it admitted into evidence an audio recording of statement made to police by person who implicated defendant in crime -- Admission of testimony violated right to confrontation of witnesses where statement was testimonial in nature and witness was not available or subject to prior cross-examination -- Trial court was within its discretion in finding that witness's refusal to testify rendered him an unavailable witness -- Fact that defendant had opportunity to cross-examine witness during pretrial discovery deposition does not satisfy cross-examination requirement of Crawford v. Washington -- Error not harmless

HECTOR JOSUE VAZQUEZ PADILLA, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Meritless pro se filings -- Clerk of Court directed to reject any future pleadings or other requests for relief submitted by defendant unless such filings are signed by a member in good standing of The Florida Bar -- Clerk of Court directed to forward certified copy of opinion to Department of Corrections institution or facility where defendant is incarcerated

OTIS D. BLAXTON, Petitioner, vs. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Dissolution of marriage -- Child custody -- Although trial court's factual findings supported provision that husband would have sole parental responsibility for decisions relating to children's education and medical care, final judgment failed to include specific finding that shared parental responsibility would be detrimental to children

DENISE COLLINS, Appellant, v. DWAYNE COLLINS, SR., Appellee. 5th District.

Dissolution of marriage -- Child support -- Trial court erred in ordering that parties be equally responsible for payment of all non-covered medical expenses for children where this allocation conflicts with allocation of parties' relative financial responsibility for child support -- As general rule, if non-covered medical expenses are ordered to be separately paid, absent some logically established rationale in the final judgment to the contrary, they must be allocated in the same percentage as the child support allocation

KELLY M. DEMMI, Former Wife, Appellant, v. MARK S. DEMMI, Former Husband, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Prenuptial agreement -- Error to include as marital asset in equitable distribution scheme the portion of value of former husband's premarital home attributable to appreciation and contribution of marital funds to pay down home equity line of credit and mortgage where prenuptial agreement provided that husband would be entitled to any and all equity in premarital home and that wife would not be entitled to any interest in home unless granted such interest in a formal written instrument -- Child custody -- Parenting plan -- Error to fail to incorporate into amended final judgment the amended parenting plan that trial court ordered on rehearing from original final judgment -- Interrelated issue of attorney's fees may be revisited on remand

ANTHONY FELICE, Appellant, v. MELISSA FELICE, Appellee. 2nd District.

Dissolution of marriage -- Modification of parenting plan -- Service of process -- Error to deny motion to quash service of process and to set aside order granting former wife's motion to modify timesharing and child support on the basis that former husband's counsel's general appearance constituted a waiver of service -- Attorney's filing of general notice of appearance in order to conduct a review of trial court files in case did not constitute a waiver of service of process -- An after-the-fact general appearance does not waive a defect in the service of process related to a supplemental modification petition

MANUEL E. SALINAS, Appellant, vs. KRISTIN N. PASCARIELLO, Appellee. 3rd District.

Employer-employee relations -- Civil rights -- Claims alleging wrongful retaliatory termination of employment under Florida Whistleblower Act and Florida Civil Rights Act -- Trial court properly entered summary judgment for defendant upon determining that plaintiff cannot establish that the grounds for his termination were causally linked to protected activity, and that employer evidenced a pretextual reason for his termination

ELADIO GONZALEZ, Appellant, vs. NORTHWINGS ACCESSORIES CORP., etc., Appellee. 3rd District.

Injunctions -- Dating violence -- Error to enter injunction against dating violence where there was insufficient evidence of reasonable cause to believe that petitioner was in imminent danger of another act of dating violence

VICTOR NUILA, Appellant, v. CRYSTAL STOLP, Appellee. 5th District.

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous notice to insured of insurer's intent to determine reasonableness by reference to Medicare fee schedules -- Language of policy endorsement stating that amounts payable “shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise contained in the law, including but not limited to, all fee schedules” gave insureds and their respective medical care providers legally sufficient notice of insured's election to use Medicare fee schedules

ALLSTATE INDEMNITY COMPANY, Appellant, v. MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC, as assignee of Ilene Chavez, Appellee. 2nd District.

Insurance -- Sinkhole claims -- Multi-building condominium property -- Insured prevailing in action against insurer -- Costs -- Trial court abused its discretion in including reimbursement for public adjuster and property management fees in taxable costs, as property management fees and public adjuster fees were not litigation costs -- Trial court erred in awarding as taxable cost various expenses and fees incurred in appraisal process where policy required insured to pay its own appraiser and bear equal share of umpire and other appraisal expenses -- Attorney's fees -- Multiplier -- Error to apply contingency risk multiplier where fee agreement guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and evidence showed that attorney had been paid under the contract -- Trial court erred by limiting recovery of attorney's fees and prejudgment interest to only one building where suit encompassed other buildings in condominium complex

CITIZENS PROPERTY INSURANCE CORP., Appellant/Cross-Appellee, v. RIVER OAKS CONDOMINIUM II ASSOCIATION, INC., a/k/a RIVER OAKS II CONDO ASSOCIATION, INC., Appellee/Cross-Appellant. 2nd District.

Torts -- Indemnity -- Indemnity provision in agreement between automobile distributor and carrier of automobiles, which included the words “in whole or in part,” did not contain clear and unequivocal terms providing that carrier would indemnify distributor for distributor's own acts of negligence where parties were held jointly liable for the underlying personal injury -- Trial court erred in granting summary judgment finding that language in agreement was sufficiently unequivocal to require carrier to indemnify distributor for distributor's own negligence

ATC LOGISTICS CORPORATION, A/K/A ATC LOGISTICS, INC., Appellant, v. SOUTHEAST TOYOTA DISTRIBUTORS, LLC, et al. Appellees. 1st District.

Wrongful death -- Medical malpractice -- Limitation of actions -- No error in dismissing complaint as time-barred where plaintiff alleged in her presuit notice of intent to initiate litigation that the family and estate of decedent discovered defendants' negligence on the date of decedent's death, a date which was more than two years prior to date complaint was filed -- Plaintiff was bound by statement in notice of intent -- No merit to plaintiff's contention that complaint was timely filed because she not only served her first notice of intent one day prior to expiration of limitations period, but also petitioned for extensions of the limitations period -- Ninety-day period during which statute of limitations is tolled following service of notice of intent commences on date notice is received, rather than date notice is mailed -- Because none of defendants received notice of intent until after statute of limitations expired, plaintiff could not revive it by filing petition for extension of limitations period

GINA MARIE BOVE, as Personal Representative of the Estate of Anthony Bove, deceased, Appellant, v. NAPLES HMA, LLC, d/b/a PHYSICIANS REGIONAL MEDICAL CENTER-PINE RI

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Full-time female lawyers earn 77 percent of male lawyer pay

"Median pay for full-time female lawyers was 77.4 percent of the pay earned by their male counterparts, according to data for 2014 released earlier this month by the U.S. Census Bureau.
In all law-related jobs, median pay for female workers in 2014 was 51.6 percent of the pay received by male workers, according to the data."  More.

Originally Posted ABA Journal Daily News, Mar 17, 2016 By Debra Cassens Weiss

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Nationally Recognized Author of Federal Appeals Treatise Honored for Expertise and Leadership

Dorothy F. Easley, board certified by The Florida Bar in appellate practice, has been recognized in Rue Ratings' Best Attorneys of America (top 1%), again in Florida Super Lawyers, and again in The South Florida Legal Guide as a top tier appellate lawyer for leadership and excellence in the practice of appellate law.  More.

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Attorney fees, child custody, and grass fed corned beef, purple cabbage, and fresh thyme over a bed of sweet potatoes and rosemary

Attorney's fees -- Appellate -- Prevailing party -- Relief from judgment -- Error to deny rule 1.540(b)(5) motion for relief from judgment for prevailing party appellate attorney's fees where the judgment was predicated on district court's affirmance of the trial court's merits judgment, but the district court's opinion was subsequently quashed by the Florida Supreme Court -- Failure to seek review of initial appellate fee judgment or to move to stay district court's mandate pending review by supreme court did not preclude party from seeking relief from trial court's fee judgment via rule 1.540(b)(5) -- Once district court vacated its award of prevailing party attorney's fees upon remand from supreme court's decision, there was no legal basis for trial court to deny second motion to vacate since opposing party was no longer the prevailing party

TRAVELERS COMMERCIAL INSURANCE COMPANY, AN AFFILIATE OF TRAVELERS INSURANCE CO., AND TRAVELERS CASUALTY AND SURETY COMPANY, Appellants, v. CRYSTAL MARIE HARRINGTON, Appellee. 1st District.

Attorney's fees -- Award of fees pursuant to section 57.105 following dismissal of complaint with prejudice must be reversed in light of appellate court's reversal of the order of dismissal

THE LAKE HAMILTON LAKESHORE OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, on behalf of its Members, Appellant, v. WAYNE L. NEIDLINGER, d/b/a Captain Fred's Airboat Nature Tours; and LAKE HAMILTON COMMERCE & STORAGE CENTER, INC., a Florida corporation, Appellees. 2nd District.

Child custody -- Parenting plan -- Modification -- As constituted, parenting plan set out in final judgment of modification failed to comply with statutory requirements and, accordingly, is legally insufficient -- Remand for trial court to enter more complete plan that complies with statute

PATRICIA MAGDZIAK, Appellant, v. JAMIE SULLIVAN, Appellee. 5th District.

Dissolution of marriage -- Trial court erred in denying husband's motion for reconsideration of order determining temporary needs and child custody issues where order was entered after an evidentiary hearing at which husband's counsel was not present due to a calendaring error

STEVEN WORTMAN, Appellant, v. CHRISTY WORTMAN, Appellee. 1st District.

Employer-employee relations -- Whistleblowers -- Complaint sufficiently alleged causal connection between employee's objection to or refusal to participate in employer's illegal activity, policy, or practice and adverse employment action -- Civil rights -- Age discrimination -- Allegations that defendant was over 40 years of age, that he was employer's oldest engineer at time of termination, that new hires were generally 10-20 years younger, that he was qualified to do job for which he was rejected, and that boss had told him several months before his termination that he didn't “want any of those slow old guys around here any more” were sufficient to withstand motion to dismiss

VAUGHN USHER, Appellant, v. NIPRO DIABETES SYSTEMS, INC., and NIPRO MEDICAL CORPORATION, Appellees. 4th District.

Jurisdiction -- Service of process -- Defects -- Non-final order determining that motion to quash service was moot affirmed -- Before trial court rules on pending motion to quash re-service of process, it must determine validity of original service of process

JOSEPH MICELI and MARIA MICELI, Appellants, v. BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Appellee. 4th District.

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