Monday, October 30, 2017

Civil rights, contracts, equitable distribution, trespass, and bison meatballs, tomatoes and fresh rosemary over herbed pasta and olives

Appeals -- Extension of time to file initial, answer, or reply brief -- Agreed notice – Procedure.  ADMINISTRATIVE ORDER 17-2. 1st District.

Arbitration -- Waiver -- Active participation in litigation -- Dispute arising out of partnership agreement containing arbitration clause -- By pursuing relief in trial court based upon partnership agreement, plaintiff waived its right to compel arbitration of defendant's counterclaims, which were also based upon the partnership agreement -- Plaintiff's argument that amended complaint was solely based on breaches of employment agreement and employee handbook, neither of which contained arbitration clause, is incorrect.  JORDAN L. CHAIKIN, Appellant, v. PARKER WAICHMAN LLP, a Florida limited liability partnership; and JERROLD S. PARKER, individually, Appellees. 2nd District.

Attorney's fees -- Because record is devoid of evidence supporting award of attorney's fees, award is properly reversed without remand for taking additional evidence.  B and H Miracle, LLC, a Florida limited liability company; FRANCIS L. BAKER, an individual and JAMES E. HOLLIS, SR., an individual, Appellants, v. WELLS FARGO BANK, N.A., a national banking association f/k/a WACHOVIA BANK, N.A., a national banking association, Appellee. 1st District.

Attorney's fees -- Proposal for settlement -- Trial court erred in denying motion for attorney's fees on ground that proposals for settlement failed to apportion settlement amount to each defendant -- Sufficient apportionment was set forth where plaintiff sent identical proposals for settlement to two defendants indicating the total settlement amount sought, and each proposal contained a footnote clarifying the total amount sought and indicating that if each of the two defendants accepted and tendered the full settlement amount to the plaintiff, the plaintiff would return half of the amount to each of the defendants.  GOLISTING.COM, INC., d/b/a PALM BEACH PREMIER REAL ESTATE, a Florida corporation, Appellant, v. JOHN PAPERA, individually, and CHRISTINE PAPERA, individually, Appellees. 4th District.

Contracts -- Unjust enrichment -- Claim for unjust enrichment cannot be pursued where there is an express contract concerning the same subject matter.  BRENDA WILLIAMS, et al., Appellants, vs. MARYE JOHNSON, et al., Appellees. 3rd District.

Dissolution of marriage -- Appeals -- Issues either not preserved for appellate review or expressly waived -- Absence of statutory findings in written judgment -- Adoption of former wife's proposed final judgment.  SCOTT A. BROCK, FORMER HUSBAND, Appellant, v. CAROLYN ANN BROCK, FORMER WIFE, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Trial court did not err in modifying timesharing by awarding primary residence and majority timesharing to former husband -- Trial court was not required to set forth specific steps by which former wife might reestablish majority timesharing -- Conflict certified.  RACHEL D. DUKES, F/K/A RACHEL D. GRIFFIN, FORMER WIFE, Appellant, v. TIMOTHY R. GRIFFIN, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Income -- Imputed income -- Trial court erred in imputing $80,000 of income to former husband on assumption he could secure a job as a corporate pilot where there was no evidence that there are any corporate pilot positions available in area for which former husband is qualified and that would work with equal timesharing plan -- Attorney's fees -- Trial court's award of attorney's fees to former wife for first appeal and all post-remand proceedings is reversed where award was based on imputed income decision which is reversed -- Further, trial court failed to make findings of fact distinguishing between costs of litigation attributable to improper vexatious litigation and costs that would have been incurred absent any such inappropriate litigiousness, and failed to determine whether former husband had ability to pay fee award.  GLENN ROBERT BROGA, Former Husband, Appellant, v. LINDA MARIE BROGA, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court erred in awarding former husband a dollar-for-dollar credit for contributions he made to mortgage encumbering former wife's premarital duplex -- Credit awarded should be based upon the amount by which the use of marital funds to pay down the mortgage reduced the indebtedness on the property.  BRIDGETT BETTS, Appellant, v. RICKY BETTS, Appellee. 2nd District.

Paternity -- Disestablishment -- Trial court erred in denying father's petition to disestablish paternity based on newly discovered evidence in form of recent DNA test showing that he was not child's biological father on ground that court could not disestablish paternity unless another putative father was willing to “step in” and establish paternity.  L.G., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 4th District.

Torts -- Civil rights -- Trial court abused its discretion by dismissing with prejudice counts asserting claims against assistant state attorneys in their individual capacities for tortious interference with a business relationship and Fourth Amendment violations after determining that amendment of claims would be futile -- Moreover, allegations against ASAs in individual capacities fall within Florida's limited waiver of sovereign immunity, and face of complaint did not otherwise conclusively establish that ASAs were entitled either to sovereign immunity or qualified immunity -- Remand with instructions to afford plaintiff opportunity to amend these counts to clearly identify particular defendant to which plaintiff attributes a particular improper act.  CHRISTINA PAYLAN, Appellant, v. DARRELL DIRKS, CHRISTINE BROWN, and MARK OBER, Appellees. 2nd District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Torts -- Real property -- Trespass -- Trial court erred in entering judgment for civil trespass damages where none of defendants occupied subject property without authority, and plaintiff had no interest in property sufficient to support a trespass claim -- Defendant became equitable owner of property when defendant and plaintiff entered into contract for purchase and sale of the property, and that ownership continued notwithstanding defective execution of warranty deed -- Damages -- Proper measure of damages for trespass is the value of the loss of use and enjoyment of or the injury to the land trespassed upon.  RANDALL GUNNING, individually, CASTLE CONSULTING I LTD., INC., a Florida corporation; and RIVER OF LIFE INTERNATIONAL OUTREACH CENTER, INC., a Florida corporation, Appellants, v. EQUESTLEADER.COM, INC., a Virginia corporation; and DONALD PIERCE, individually and president of Equestleader.Com, Inc., Appellees. 2nd District.

Wrongful death -- Product liability -- Tobacco -- Fraudulent concealment -- Jury instructions -- Trial court abused its discretion in giving requested special instruction related to claim for fraudulent concealment, which stated that plaintiff need not provide direct evidence of plaintiff's reliance on any specific statement by defendant or defendant's co-conspirators and that reliance could be inferred if evidence as a whole supported such an inference -- Issue was adequately covered by standard instruction on inferences, and proposed instruction was potentially confusing -- Moreover, instruction was requested on sole basis that it was necessary to prevent defendant from making certain closing arguments, which was not proper basis for request -- Reversal not required -- Prejudice to defendant was not apparent from record where jury instruction on causation permitted jury to find causation under either a reliance theory or an omission/concealment theory, or both, and the special instruction only impacted the reliance theory.  R. J. REYNOLDS TOBACCO COMPANY, Appellant, v. COLETTE S. O'HARA, as Personal Representative for the Estate of GARRY L. O'HARA, Appellee. 1st District.

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