Wednesday, August 19, 2020

We're back blogging with more Recent Decisions of Interest in Dissolution, Attorney's Fees etc. and Garlic White Pizza with Chanterelles and Arugula

I want to apologize to all for being so busy with work and our Recent Decisions of Interest Newsletters that have tripled over the last 6 months.  But I am back!  Stay healthy and safe everyone.

Attorney's fees -- Civil rights -- Prevailing party -- Award of prevailing party attorney's fees and expenses to plaintiff under 42 U.S.C. section 1988 must be vacated and remanded for additional proceedings where jury awarded only nominal damages for defendant's violation of plaintiff's Fourth Amendment right to be free from illegal seizure and district court in determining reasonableness of a fee award misapplied the law in measuring significance of the substantive issue on which plaintiff prevailed or public purpose served by totaling up number of times that Gray II, which was decided in plaintiff's favor, had been cited -- It was error of law for district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which plaintiff prevailed must be significant and public purpose served by her victory must be substantial -- When citation-counting is used as a method for assessing the significance of a decision in plaintiff's favor, citation of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation -- On remand, district court to decide whether plaintiff is entitled to award of attorney's fees and expenses, even though she recovered only nominal damages; and if so, whether she is entitled to enhancement for delay in payment of expenses and for delay in payment of attorney's fees; and if so, how much -- Calculation errors to be avoided on remand noted
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant, EDMUND SEXTON, etc., et al., Defendants. 11th Circuit.

Elections -- Campaign financing -- Excess spending subsidy -- Injunctions -- Candidate for Republican Party for Governor of State of Florida, who is not participating in Florida system of public campaign financing, moved to preliminarily enjoin enforcement of provision of Florida Election Campaign Financing Act, which provides participating candidates with a subsidy to spend on their campaigns when a nonparticipating opponent spends in excess of statutory expenditure limit or $2 for each registered Florida voter -- Plaintiff is entitled to preliminary injunction enjoining State from releasing funds to opposing candidate under excess spending provision because he is likely to succeed on merits of First and Fourteenth Amendment claim that excess spending subsidy severely burdens his constitutional rights to spend unlimited sums of personal funds and private donations in furtherance of his campaign, burden on his right to free speech is irreparable, and, as district court concluded, balance of harms and public interest do not counsel against an injunction -- Under Davis v. Federal Election Commission, excess spending subsidy imposes substantial burden on nonparticipating candidate's right of free speech and is thus subject to strict scrutiny, which requires that Florida justify the subsidy by establishing that it furthers a compelling state interest -- Even if subsidy furthers stated interest of Florida by encouraging participation in public financing system and indirectly preventing corruption or appearance of corruption, excess spending subsidy is not least restrictive means of furthering the anticorruption interest -- Severability -- Even if issue of severance is premature, excess spending subsidy is severable from $500 contribution limit
RICHARD L. SCOTT, Plaintiff-Appellant, v. DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. 11th Circuit.

Contracts -- Third-party beneficiaries -- Action by homeowners association seeking declaration of rights under crossing agreement between railroad and another homeowners association -- Trial court properly dismissed action on ground that plaintiff homeowners association is not a party to the agreement at issue and not a third-party beneficiary of the agreement -- Plaintiff is not entitled to relief as a third-party beneficiary where parties to agreement did not intend that the agreement be for the benefit of plaintiff, and agreement expressly excludes third-party beneficiaries

Counties -- Injunctions -- Trial court erred in finding that county denied property owner due process by not giving proper notice of administrative hearing on code violation citation -- Record indicates that notice of hearing was sent to owner at both his address of record with county and the address listed at the top of his request for administrative hearing -- Further, it is evident from record that owner had actual notice of hearing -- Trial court erred in granting owner's motion for temporary injunction on ground that owner had been denied due process through administrative hearing process on citation, and trial court was therefore entitled to intervene in administrative hearing process
MIAMI-DADE COUNTY, Appellant, vs. KEITH WILSON, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Modification -- Jurisdiction -- Uniform Interstate Family Support Act -- Trial court had no authority to transfer Florida post-final-judgment dissolution case to foreign state in which both former spouses now reside -- Under UIFSA, Florida court has continuing exclusive jurisdiction over spousal support order throughout the existence of the support obligation -- Correct procedure under UIFSA is to register spousal support judgment in another state for enforcement there; and even after registration, foreign state must send the case back to Florida court to consider any modification order
ANA ALVAREZ SOOTIN, Appellant, vs. JOHN SOOTIN, Appellee. 3rd District. Opinion filed August 4, 2010.

Guardianship -- Trial court abused discretion in appointing ward's son-in-law as her plenary guardian where ward had executed a declaration naming her three daughters as preneed guardians -- There was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian
MARIANNE MAGILL ACUNA & MARILYN MAGILL, Appellants, vs. JACK DRESNER, ET AL., Appellees. 3rd District.

Jurisdiction -- Service of process -- Substitute service -- Service of process was defective where process server failed to note time of service on copy of complaint delivered to the person served -- Requirement to note time on copy of complaint is statutory requirement of service, and strict compliance with statutory requirements of service is mandated -- Second service of process while appeal was pending did not render appeal moot
JOSE E. VIDAL, Appellant, v. SUNTRUST BANK, Appellee. 4th District.

Receiverships -- Ex parte -- Mortgage foreclosure -- Error to appoint receiver for property involved in mortgage foreclosure action without providing notice and opportunity to be heard where mortgagee failed to establish that ex parte receivership was necessary to avoid immediate irreparable harm to mortgaged property or that giving notice and holding a hearing would accelerate or precipitate any injury -- Although loan documents contained provision for appointment of receiver as matter of right and without notice if foreclosure proceedings were instituted, this alone is not dispositive of whether to grant ex parte receivership and provisions of rule 1.610 are not thereby bypassed -- Argument that ex parte receivership was necessary to assist in sale of property rejected -- Argument that ex parte receivership was appropriate because mortgage documents contained assignment of rents provision which provided for appointment of receiver in that context was not raised as basis for appointing receiver; and, moreover, mortgagee did not present verified allegation that any rents were actually being collected on the property or that any such rents were being dissipated -- Trial court also failed to enter appropriate ex parte order where order did not contain any factual findings
JOHN R. DeSILVA, Appellant, v. FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee. 2nd District.

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes
BERNARD WINKLER, ET AL., Appellants, vs. LAWYERS TITLE INSURANCE CORP., ETC., Appellee. 3rd District.

Torts -- Automobile accident -- Damages -- New trial is required where plaintiff's counsel made an improper appeal to passion and sympathy of jury in opening statement, improperly convinced trial judge to limit defense counsel's cross-examination of plaintiff's expert, improperly attacked character of main defense expert during cross-examination, and made improper and prejudicial closing argument

Torts -- Damages -- Future medical expenses -- Abuse of discretion to deny defendants' motion for new trial and motion for remittitur where there was no competent substantial evidence presented at trial that plaintiff was reasonably certain to need future medical treatment -- Remand for new trial or, in the alternative, entry of amended final judgment remitting award for future medical expenses -- Past medical expenses -- Setoff -- Error to fail to determine and apply setoff for personal injury protection benefits to award of past damages

Torts -- Nuisance -- No error in dismissing with prejudice complaint in which plaintiff sought to recover damages to property allegedly caused by overhanging branches and roots of neighbor's trees encroaching on her property and damages resulting from plaintiff's removal of portions of neighbor's tree intruding on her property
VIRGINIA T. SCOTT, Appellant, v. JULIE L. McCARTY, M.D., Appellee. 4th District.


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