Friday, November 13, 2020

Child support, standing, appeals, and red lentil penne with goat cheese, garlic tomatoes, and fresh herbs


Appeals -- Appellant lacks standing to appeal trial court's order denying motion to vacate final judgment entered against appellant's wife where appellant was not named as party and did not move to intervene in lower court proceedings -- Appeal dismissed for lack of jurisdiction. GABOR SIMMONDS, Appellant, v. IN RE: GRACE OLAECHEA VS. LIZETTE OLAECHEA, Appellee. 3rd District.


Child support -- Administrative order -- Assertions that Department of Revenue erred in calculating amount of child support obligation without considering father's ability to pay and that Department improperly considered child care costs in absence of competent, substantial evidence relating to those costs were not preserved for review where father failed to request administrative hearing -- Further, claims were raised on appeal that were unrelated to calculation of statutory child support -- Order affirmed without prejudice to father seeking relief as outlined in section 409.2563. RAYMOND FELICIANO, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, and STEFFANIE DANIELLE CACCIATORE, Appellees. 4th District.


Civil procedure -- Intervention -- Trial court did not abuse discretion by denying motion to intervene in action where party seeking to intervene would interject new and independent claims that would predominate over issues shared with main action. MARIA SOLEDAD LARRAIN TRONCOSO, et al., Appellants, v. MANUEL ANTONIO OSSANDON LARRAIN, Appellee. 3rd District.


Civil procedure -- Jurors -- Voir dire -- Challenge -- Cause -- Torts -- Product liability -- Tobacco -- Trial court committed reversible error by granting defendant's motion to exclude eight prospective jurors based solely on their written responses to particular question on jury questionnaire without first allowing counsel to question those jurors as permitted under rule 1.431(b) where it was not “conclusively clear” from their written answers that the excused prospective jurors could not be impartial -- New trial required -- Evidence -- Admission of individual photograph depicting decedent not smoking was not probative of how much decedent did or did not smoke -- Testimony that decedent could go into hotels owned by her family and “sign for things without paying” was also not relevant to any material fact. SHAN FROGEL, as personal representative of the Estate of Bette J. Cash, Appellant, v. PHILIP MORRIS USA, INC., Appellee. 4th District.


Declaratory judgments -- Trial court erred in dismissing declaratory judgment action where complaint stated cause of action for declaratory relief -- Allegation that plaintiff is in doubt as to right to distribution of certain royalties states real and substantial justiciable controversy, so that there is a need for declaration of rights as to distribution of royalties. MUSIC ROYALTY CONSULTING, INC., Appellant, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP) and JK ENTERTAINMENT, LLC, Appellees. 3rd District.


Dissolution of marriage -- Alimony -- Modification -- Change in circumstances -- Trial court erred in concluding that former husband failed to prove substantial change in circumstances with respect to his ability to pay alimony following entry of dissolution judgment where evidence showed that former husband's current available take-home pay as financial advisor had been substantially reduced due to certain deductions from his paycheck made by his current employer -- Decrease in income was not voluntary, but instead stemmed from factor outside husband's control -- Although trial court properly concluded that change in circumstances was not permanent, as deductions from paycheck would eventually end, husband failed to preserve for review his argument that trial court should have considered a temporary modification -- Order denying modification petition affirmed without prejudice to husband seeking temporary modification. PAUL DAVID SJOGREN, Appellant, v. MARY SJOGREN, Appellee. 4th District.


Dissolution of marriage -- Attorney's fees -- Trial court erred in including in fees awarded to former wife in connection with child support modification proceedings amounts attributable to clerical and secretarial work. dALBERT STEVEN CORIAT, Appellant, v. ENMA LARISSA CORIAT, Appellee. 3rd District.


Dissolution of marriage -- Child support -- Imputed income -- Voluntary underemployment -- No error in finding that former husband was voluntarily underemployed where, although former husband was involuntarily terminated from his logistics job, he pursued a lower paying career in real estate -- Error to impute a salary of $120,000 on former husband where there was insufficient evidence to show former husband had present ability to earn that amount in logistics in his community. YANN GERVILLE-REACHE, Former Husband, Appellant, v. INA GERVILLE-REACHE, Former Wife, Appellee. 1st District.


Dissolution of marriage -- Equitable distribution -- Alimony -- Child support -- Life insurance -- Trial court erred in including in equitable distribution a vehicle which was no longer in wife's possession -- Trial court improperly valued husband's vehicle by failing to consider negative equity in the vehicle where affidavit submitted by husband regarding the vehicle's value and outstanding debt was admitted into evidence without objection -- Trial court improperly valued investment accounts as of the date husband petitioned for dissolution rather than date of trial where, although accounts had been considerably depleted by time of trial, there was no finding of misconduct -- Trial court erred in requiring husband to maintain life insurance to secure support obligations where it failed to make findings as to the availability and cost of insurance, and husband's ability to pay -- Evidence was insufficient to support award of child support based on 50/50 timesharing where, although parties stipulated to 50/50 timesharing, husband's testimony established that he could not exercise equal timesharing. JOSEPH WILLIAM O'NEILL JR., Appellant, v. CAROLYN SWINK O'NEILL, Appellee. 4th District.


Employer-employee relations -- Whistle blowers -- Retaliation -- Jury instructions -- Causation -- New trial -- Discussion of proper standard of causation to be applied in cases involving employer retaliation under Whistle Blower's Act -- Trial court abused its discretion in denying defendant's request to instruct jury that it could return a verdict in favor of plaintiff only if it found that plaintiff's termination would not have occurred but for defendant retaliating against plaintiff's protected activity -- United States Supreme Court's decision in Univ. of Tex. Sw. Med. Ctr. v. Nasser requires the use of a “but for” rather than a “motivating factor” causation standard when analyzing claims under the state's Whistle Blower's Act -- New trial on liability and causation is required using “but for” jury instruction -- Damages -- No error in granting defendant's motion to set aside damages for future loss of earning capacity where only speculative testimony was presented to the jury -- There was no competent substantial evidence to support plaintiff's expert's assumption that plaintiff would have been compensated at the same rate as those who were in the top ten percent earning strata of plaintiff's field or who had obtained leadership positions because plaintiff had no such earnings history, no such demonstrated competency, never held any such leadership positions, and those few high paying jobs went to more senior practitioners. DR. AHMAD Z. CHAUDHRY, Appellant/Cross-Appellee, v. ADVENTIST HEALTH SYSTEM SUNBELT, INC., D/B/A FLORIDA HOSPITAL AND/OR FLORIDA HOSPITAL TRANSPLANT INSTITUTE, Appellee/Cross-Appellant. 5th District.


Insurance -- Homeowners -- Coverage -- Appraisal -- Waiver -- Trial court erred in compelling appraisal of residential home under policy where there were disputes over coverage and policy specifically precluded appraisal for coverage issues -- Moreover, any right of appraisal was waived where suit was filed and litigated for a year prior to appraisal request. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. EMPIRE MITIGATION RESTORATION AND CONSULTING, LLC a/a/o Steve Wexler and Paula Wexler, Appellee. 1st District.


Mortgage foreclosure -- Standing -- Lost note -- Reestablishment -- Res judicata -- Collateral estoppel -- No error in entering final summary judgment in favor of borrowers for lack of standing where there was a break in the assignment of the note prior to the purported assignment to plaintiff -- Previous assignee in chain of assignment had no interest in the note to transfer to plaintiff because the former assignment to previous assignee only transferred interest in the mortgage -- Trial court erred in finding that res judicata barred plaintiff's foreclosure action because, in a prior foreclosure action between the same parties, the trial court made a specific finding that plaintiff failed to reestablish the lost note -- Section 673.3091 does not create an independent cause of action -- The right to enforce a lost note, in foreclosure context, travels with the breach that triggers the need to seek enforcement, a default by mortgagor -- Plaintiff may pursue foreclosure based upon borrower's subsequent defaults, each of which furnishes a separate cause of action -- No abuse of discretion in denying plaintiff's motion for rehearing to present additional evidence regarding the assignment to previous assignee -- Failure of proof is not a basis to reopen evidence -- Court rejects argument that evidence plaintiff sought to produce was newly discovered where the evidence existed well before trial and plaintiff knew borrowers contested its standing. FORTY ONE YELLOW, LLC, Appellant/Cross-Appellee, v. YOEL REMON ESCALONA and NURIA GONZALEZ, Appellees/Cross-Appellants. 2nd District.


Rules of Appellate Procedure -- Amendments -- New rules -- General provisions -- Addition of new subdivision requiring every court to publish on its website written opinions not covered by Rule of Judicial Administration 2.420 -- Notice of appeal -- Orders of lower tribunals and orders granting new trial in jury and nonjury cases -- Requirement that notice of appeal indicate that a motion tolling rendition is pending in lower tribunal -- Nonfinal orders and specified final orders -- Orders disposing of motions for rehearing are not reviewable separate and apart from a review of a final order -- Constitutional challenge to state statute or state constitutional provision -- Parties in cases other than criminal and collateral criminal proceedings where constitutionality of statute or constitutional provision is challenged are required to provide notice of such to attorney general -- Attorneys -- Limitation of appearance -- Attorney of record for party in appeal or original proceeding shall be attorney of record unless, at time of appearance, attorney files a notice specifically limiting appearance to one particular matter or portion of proceeding -- Court declines to adopt proposed amendments to rules regarding uniform citation system and notice of supplemental authority. IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 REGULAR-CYCLE REPORT. Supreme Court of Florida.


Torts -- Medical malpractice -- Sovereign immunity -- University is entitled to sovereign immunity for services rendered by its employee physician at Public Health Trust teaching hospital where university provides healthcare services -- Pursuant to terms of university's agreement with hospital, it was hospital's agent at time physician treated plaintiff -- University is immune from suit because physician treated plaintiff while acting as hospital's statutory agent. MARIA JOANNA LAZZARI, etc., Appellant, v. PABLO GUZMAN, M.D., etc., et al., Appellees. 3rd District.


Torts -- New trial -- Trial court did not abuse discretion by granting plaintiff's motion for new trial where defense counsel intentionally misrepresented to court that Fire Rescue Report had not been admitted into evidence, leading court to remove the report from evidence during closing argument, and made improper and inflammatory remarks during closing argument. WE THE BEST MUSIC, INC., Appellant, v. KENDRICK STAFFORD, Appellee. 3rd District.


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