Wednesday, April 6, 2016

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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Tuesday, April 5, 2016

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


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


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


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


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


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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