Sunday, January 14, 2018

Civil procedure, product liability, and dissolution of marriage, with wild boar and venison Swedish meatballs with lingonberries and curry cream sauce, wild baby red sorrel with bacon

After months of a very busy work schedule, followed by some time off for cooking, hiking, and winter gardening, the Appellate Gourmet's (c) Newsletters and Recent Decisions of Interest updates resume. We're back! Thank you for your patience. Enjoy.

Civil procedure -- Appeal from circuit court order denying petition for relief from order appointing receiver and motion for rehearing filed by entity that was served with process in underlying lawsuit and later served with post-judgment motion to establish equitable lien, but failed to put in any appearance until it sought relief from order at issue -- Arguments were waived by failure to contest the relief sought prior to issuance of final order.  PENNYMAC CORP., Appellant, v. OCEAN PLACE AT SILVER BEACH ASSOCIATION, INC., a Florida Not for Profit Corporation; and FPR FORCE, LLC, a Florida Limited Liability Company, Appellees. 4th District.

Civil procedure -- Relief from judgment -- Service of process -- Non-residents -- Defects -- Substitute service on Michigan-based defendant through the Florida Secretary of State under section 48.181(1) was insufficient where defendant provided sworn unrefuted testimony that he was not conducting business in Florida and was not avoiding service -- Final default judgment entered against defendant was void, and trial court should have granted motion to vacate the judgment -- Remand for vacation of both the judgment and default against defendant.  SILVIO COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Marital settlement agreement -- Enforcement -- Provision of MSA that “if the former husband continuously and timely exercises timesharing with minor child for a period of six consecutive months, the parties shall exercise equal timesharing” is ambiguous as to whether “period of 6 consecutive months” began immediately after entry of dissolution judgment or could apply to any six consecutive months after entry of dissolution judgment -- Hearing to consider extrinsic evidence of parties' intent is required.  JULIE WOHLBERG, Appellant, v. MICHAEL CONNER, Appellee. 4th District.

Dissolution of marriage -- Conflict within final judgment between amount of bridge-the-gap alimony needed by wife and amount actually awarded to be resolved on remand.  MICHELLE KHETARPAL, n/k/a MICHELLE BOOTH, Appellant, v. SUNIL KHETARPAL, REX & REX LIMITED, INC., a Florida corporation, and KHETARPAL HOLDINGS, LLC, Appellees. 4th District.

Mortgage foreclosure -- Standing -- Civil procedure -- Substituted plaintiff -- Trial court properly held that, pursuant to rule 1.260, party substituted as plaintiff acquired the standing of the original plaintiff, and established its standing at the time of judgment by presenting a copy of the original note endorsed in blank.  LUTHER EDWARD SPICER and CLARA JEAN MAY, Appellants, v. OCWEN LOAN SERVICING, LLC, RIVERWALK OF THE PALM BEACHES HOMEOWNERS ASSOCIATION, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for RESOURCE FUNDING GROUP, LLC., Appellees. 4th District.

Mortgage foreclosure -- Trial court erred in entering summary judgment in favor of plaintiff where defendant sufficiently pleaded affirmative defense that plaintiff failed to comply with federal housing regulations incorporated into mortgage, including defendant's right to face-to-face interview at least 30 days before commencement of foreclosure, and plaintiff conceded that it failed to refute defense.  DANIEL N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee. 4th District.

Public records -- Counties -- Exemptions -- Trade secrets -- Trial court correctly determined, after in camera inspection, that aggregate number of airport pick-ups by transportation service company and sums of money paid by company to county as airport usage fee pursuant to license agreement between company and county did not constitute trade secret information which was exempt from public disclosure.  RASIER-DC, LLC, Appellant, v. B&L SERVICE, INC., a Florida corporation and BROWARD COUNTY, FLORIDA, a Political Subdivision, Appellees. 4th 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.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Plaintiff to be permitted on remand to seek leave from court to add claims for punitive damages on negligence and strict liability counts.  PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants, v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER, Appellee. 4th District.

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