Monday, January 16, 2023

Buyout clauses, prevailing parties, indendent contractors, and lean shredded pork with chile verde sauce, fresh oregano, over quinoa

Attorney's fees -- Contracts -- Retainer agreement -- Trial court erred in awarding plaintiff law firm attorney's fees for first six months of representation where retainer agreement unambiguously provided for a flat fee of $500 per month for first six months of representation which was to be charged against initial $3,000 retainer fee paid by clients, and further provided that “when” initial retainer was depleted, an additional retainer might be required and the client would be billed on an hourly basis for work performed -- Expert evidence -- Law firm was not required to present independent expert testimony to corroborate reasonableness of fees billed after the first six months where it was seeking to recover previously incurred attorney's fees as an element of compensatory damages in a breach of contract action against its client. C. GIOVANNI MUENTES a/k/a CARLOS G. MUENTES and MICHELE RUIZ, Appellants, v. BRUCE S. ROSENWATER & ASSOCIATES, P.A., Appellee. 4th District.


Attorney's fees -- Insurance -- Homeowners -- Trial court erred in awarding attorney's fees incurred by insured in its action against insurer -- Because there was no prior dispute as to amount owed, lawsuit was not a necessary catalyst to recovery -- Further, dispute between parties did not showcase “a breakdown in the claims-adjusting process” because insurer was never informed of potential dispute until suit was filed -- Fact that insurer did not seek to compel appraisal until after suit was filed not basis for awarding attorney's fees to insured where first indication of disagreement was insured's complaint -- Partial denial of claim did not entitle insured to file suit immediately. PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. ERROL A. POLANCO, Appellee. 4th District.


Attorney's fees -- Insurance -- Prevailing party -- Confession of judgment -- Post-suit payment of claim -- Surplus lines insurer -- Trial court erred in denying insureds' motion for attorney's fees and costs pursuant to section 626.9373 where lawsuit was necessary catalyst to resolve claim and force insurer to proceed with appraisal process. YOSEF DEITSCH, et al., Appellants, v. CERTAIN UNDERWRITERS AT LLOYDS OF LONDON, Appellee. 3rd District.

Child support -- Modification -- Trial court abused its discretion by denying father's petition to modify child support payments based on a defense of unclean hands where defense was not properly pleaded or otherwise raised. R.B., Appellant, v. B.T., Appellee. 2nd District.

Contracts -- Corporations -- Buyout clause -- Enforcement -- Standing -- Equal protection -- Appeals -- No error in requiring defendant shareholder to sell all her stock in corporation to other remaining shareholder pursuant to buyout clause of shareholder agreement after defendant's husband, who was also a shareholder, passed away -- No error in determining that plaintiff had standing to sue for specific performance as corporation's authorized agent -- Although plaintiff brought action in his own name, it is clear from allegations and relief requested that plaintiff sought specific performance on corporation's behalf, and undisputed evidence established that plaintiff was corporation's agent -- Defendant's argument that corporation could not appoint plaintiff as its agent because doing so would require unanimous shareholder approval was not preserved for appellate review -- Plaintiff did not waive enforcement of buyout clause by failing to invoke the clause when purchasing shares from a former shareholder's estate -- Transaction involving purchase of former shareholder's shares was materially different from current scenario and did not evince an intent to waive future enforcement of the buyout clause -- In the absence of state action, court rejects argument that buyout clause violates Equal Protection Clause because clause forced female shareholders to sell all their shares at specified price upon death of their male husbands. LAURENTINA KOCIK, etc., Appellant, v. JORGE FERNANDEZ, et al., Appellees. 3rd District.

Dissolution of marriage -- Child custody -- Modification -- Compelled psychological examination of parent -- Appeals -- Certiorari -- Trial court did not depart from essential requirements of law by granting father's motion to compel psychological evaluation of mother -- Trial court made sufficient findings that mother's mental health was in controversy and good cause existed for the evaluation, and those findings were supported by competent substantial evidence in form of guardian ad litem's testimony -- Court lacks jurisdiction over portion of order compelling social investigation where there was no showing of irreparable harm -- Mother's conclusory allegation that she was denied due process because social investigation was ordered a mere two days after father filed supplemental motion seeking the investigation does not establish irreparable harm. AMAL CRANE, Petitioner, v. MATTHEW HARRISON CRANE, Respondent. 3rd District.

Dissolution of marriage -- Marital settlement agreement -- Enforcement -- Attorney's fees -- Notice -- Husband, who brought action to compel wife's compliance with MSA, did not waive right to an award of fees under default fee provision of MSA by initially basing his fee request on section 61.16 and court's inherent authority under inequitable conduct doctrine -- Husband gave sufficient notice of his request for attorney's fees in motion to compel, motion sought complete inventory of former marital home in accordance with MSA, wife was signatory to the agreement, and trial court judicially noticed the agreement -- Trial court erred in refusing to award attorney's fees to husband after taking exception to magistrate's finding that husband was entitled to fees under default provision of MSA. THOMAS MCARDLE, Appellant, v. COURTNEY MCARDLE, Appellee. 4th District.

Judges -- Disqualification -- Comments made by judge at a post-summary judgment hearing at which no rulings were to be made, which comments included threats of criminal prosecution of petitioners and a unilateral determination that a receiver should be appointed, gave rise to well-founded fear of bias -- Error to deny motion to disqualify. HOLLYWOOD PARK APARTMENTS WEST, LLC, Petitioner, v. CITY OF HOLLYWOOD, FLORIDA, Respondent. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure in favor of plaintiff where motion and accompanying materials failed to account for binding modification agreement which was referenced in operative complaint. COREY MCINTOSH, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee. 3rd District.

Mortgage foreclosure -- Relief from judgment -- Non-final orders -- Excusable neglect -- Death of counsel -- Trial court abused its discretion by granting plaintiffs' rule 1.540 motion for relief from summary judgment based on conclusion that summary judgment order appeared to lack general words of finality -- By granting plaintiffs' motion and characterizing summary judgment order as non-final, trial court erroneously gave plaintiffs a new post-judgment rehearing period to assert a claim of equitable subrogation, which was a substantive issue plaintiffs failed to raise prior to and during the original summary judgment hearing -- Trial court also misapplied excusable neglect analysis by misinterpreting facts when it alternatively concluded that plaintiffs had demonstrated excusable neglect as a result of counsel's death -- Although illness and death of counsel can meet the definition of excusable neglect as a ground for vacating or setting aside a judgment, counsel's death occurred post-judgment and record does not indicate that plaintiff's counsel was in any way impaired during litigation leading up to summary judgment order -- Argument that plaintiffs should have had notice of the judgment mailed directly to them lacks merit -- Court rejects argument that trial court should have treated motion as a rule 1.530 motion based on trial court's finding that summary judgment order was non-final where such a motion would have been untimely. TAYLOR HODGKINS HIDALGO, Appellant, v. IRENE BINDER and STUART BINDER, Appellees. 3rd District.

Torts -- Jurisdiction -- Non-residents -- Foreign corporations -- Causing personal injury -- Tortious acts -- Business venture -- Action seeking reimbursement of claims paid by Medicare to treat injuries resulting from implantation of medical devices brought against foreign corporation which manufactured and sold the medical devices -- No error in granting defendant corporation's motion to dismiss based on lack of personal jurisdiction -- Trial court did not have personal jurisdiction over defendant based on defendant causing personal injuries in state -- Cause of action does not substantively connect to the personal injury where basis of cause of action is reimbursement for Medicare -- Additionally, torts provision of long-arm statute did not provide personal jurisdiction over defendant where defendant did not commit any torts against Medicare individually, and plaintiff admitted that it was not seeking recovery for personal injury claims on behalf of enrollees -- With regard to business venture provision of long-arm statute, plaintiff failed to provide facts to demonstrate personal jurisdiction -- Furthermore, plaintiff failed to even mention business venture provision in its opposition to defendant's motion to dismiss. MSP RECOVERY CLAIMS, SERIES LLC, et al., Appellants, v. COLOPLAST CORP., et al., Appellees. 3rd District.

Torts -- Self-incrimination -- Stay of proceedings -- Appeals -- Certiorari -- Civil action brought against two police officers in their individual capacities while criminal proceedings against plaintiff were ongoing -- Trial court departed from essential requirements of the law by granting plaintiff's motion for indefinite stay pending resolution of criminal proceedings against plaintiff based on plaintiff's invocation of her privilege against self-incrimination -- Delay in determining defendants' claim for qualified immunity constitutes irreparable harm, irremediable on appeal -- Plaintiff failed to justify stay where plaintiff proffered no case where a stay was granted in favor of a plaintiff asserting her Fifth Amendment privilege, and no special circumstances exist -- Plaintiff remains free to assert her privilege against self-incrimination where appropriate -- To extent asserting privilege amounts to an adverse inference as to material allegations or claims plaintiff brings, that is the choice she made in filing a civil action. IVETTE PEREZ, et al., Petitioners, v. MARGLLI GALLEGO, et al., Respondents. 3rd District.

Wrongful death -- Premises liability -- Independent contractors -- Construction accidents -- Summary judgment -- Evidence -- Argument -- Action stemming from death of decedent which occurred after decedent fell through skylight of commercial warehouse owned and operated by defendants while working as an HVAC technician for an independent contractor -- Trial court erred by entering summary judgment in favor of plaintiff where genuine issues of material fact existed concerning whether defendants knew or should have known that skylights were potentially not up to code based on prior repairs to roof that were done without a permit -- Defendants were denied right to fair trial on damages where plaintiff introduced evidence of subsequent remedial measures in violation of motion in limine -- Additionally, plaintiff's counsel made improper comments at closing where counsel asked jury to render their verdict “for the entire community” and mentioned forty-year inspections and building safety in context of another building's collapse that occurred during the trial. MARTEX CORPORATION, et al., Appellants, v. ROBERTO ARTILES, etc., et al., Appellees. 3rd District.

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Saturday, January 14, 2023

Easley published again, authoring two more chapters in the Appellate Practice Book, 12th edition, 2023

We are so pleased and honored for Dorothy Easley to be published again as an author in two more chapters in the  FLORIDA APPELLATE PRACTICE book, 12th edition, 2023, published by The Florida Bar. Now available.

Friday, January 13, 2023

Arbitration, timesharing modifications, void judgments, and stoneground grits with fennel, roasted peppers, and spicy italian sausage

Arbitration -- Torts -- Residential communities -- Arbitration clause in home purchase and sale agreement and identical clause in deed encompassed purchaser/property owner's claim against developer for personal injuries sustained while riding his bicycle on roadway within residential community where clauses expressly and unambiguously included claims relating to personal injury or property damages “in the community” within the disputes to be submitted to arbitration. LENNAR HOMES, LLC, Appellant, v. MATTHEW WILKINSKY, Appellee. 4th District.

Attorney's fees -- Prevailing party -- Voluntary dismissal -- Where all counts in complaint involved the same facts and the same parties, trial court's order dismissing one of multiple counts was not a final order and did not dispose of the action for either party -- Plaintiff's subsequent notice of voluntary dismissal disposed of the action as to both parties and triggered 30-day time frame for filing motion for attorney's fees -- Trial court erred in reversing its initial award of fees to defendant after concluding that motion should have been filed within 30 days of court's non-final dismissal order. SARA WARD, Appellant, v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN, Appellee. 4th District.

 Child custody -- Time-sharing -- Modification -- Relocation with child -- Mother was not required to seek leave of court or to consult with father before relocating with children to another county where at time of move paternity had not been established -- Trial court reversibly erred by considering statutes which did not apply to mother's move when entering custody and time-sharing orders following father's filing of petition to determine paternity. DEARLYN LOJARES, Appellant, v. ALFONSO SILVA, Appellee. 1st District.

Civil procedure -- Default -- Vacation -- A trial court's failure to make oral or written findings in support of an order vacating a default judgment supports reversal only where the record does not contain any facts to support that decision -- Neither Florida Rule of Civil Procedure 1.540(b), Florida Supreme Court, nor Fourth District Court of Appeal has imposed any requirement that a trial court must make oral or written findings to support an order vacating a default judgment -- On the merits, the circuit court had a factual basis to grant escrow agent's amended motion to vacate both the clerk's default and the circuit court's default judgment against the escrow agent -- Defenses of due diligence, excusable neglect, and meritorious defense were, at least facially, meritorious. FI CAPITAL INVESTMENT 19, LLC, Appellant, v. SOUTH FLORIDA TITLE ASSOCIATES, LLC, et al., Appellees. 4th District.

Civil procedure -- Default -- Void judgment -- Damages -- Liquidated/unliquidated damages -- Action seeking collection on unpaid promissory note -- Default final judgment was void where judgment reflected unliquidated damages and was entered without a hearing -- The otherwise liquidated amount under original promissory note was rendered unliquidated where there was a separate default final judgment entered against a co-promisor and a satisfaction of judgment as to co-promisor without any indication of the amount paid. ANTHONY LIND MAIURI, Appellant, v. FIRST AMERICAN TITLE INSURANCE COMPANY, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to comply with court order -- Error to dismiss lawsuit with prejudice where plaintiff was not given notice or opportunity to be heard and order was not accompanied by finding of deliberate and contumacious disregard for trial court's authority, bad faith, gross indifference, or conduct evincing deliberate callousness. DON SMITH, Appellant, v. LISA MELTZER, etc., Appellee. 3rd District.

Contracts -- Breach of contract -- Corporations -- Successor liability -- Alter ego -- No error in allowing plaintiff to file supplemental complaint to implead defendant corporation as alter ego and successor entity of separate corporation against which plaintiff had obtained money judgment -- Evidence supported three of the four exceptions to corporate law rule that the liability of a predecessor corporation is not imposed upon successor companies. J&R UNITED INDUSTRIES, INC., etc., Appellant, v. STEPHEN E. MIRON, etc., Appellee. 3rd District.

Contracts -- Dismissal -- Fraud on court -- No abuse of discretion in granting defendant's motion to strike complaint for fraud on court alleging that plaintiff submitted a fabricated contract and that plaintiff's corporate representative falsely testified at deposition that fabricated contract was true and correct copy -- Legibility of the sued-upon contract was material to plaintiff's claim, and plaintiff failed to file a response to the motion or present any evidence in opposition. ORACLE ELEVATOR COMPANY, etc., Appellant, v. 8660 BUILDING, LLC, etc., Appellee. 3rd District.

Contracts -- Employment -- Arbitration -- No error in denying motion to compel arbitration where substantial competent evidence in record supports trial court's finding that plaintiff did not electronically sign the arbitration agreement. GR OPCO, LLC, etc., Appellant, v. ANA PAOLA MURILLO, Appellee. 3rd District.

Creditors' rights -- Proceedings supplementary -- Fraudulent transfers -- Uniform Fraudulent Transfer Act -- Subsequent transferees -- Final summary judgment declaring transfer of condominium unit void as a fraudulent transfer was supported by evidence establishing undisputed existence of seven badges of fraud -- Discussion of badges of fraud in section 726.105(2) in context of case at issue involving series of transfers and shifting corporate entities -- Good faith -- Trial court properly rejected good faith defense asserted by corporate transferee that paid nothing for condominium unit -- Civil procedure -- Summary judgment -- Trial court did not abuse its discretion in denying motion for rehearing in light of new affidavits asserting additional facts. MANE FL CORP., Appellant, v. CALE BECKMAN and MALGORZATA BECKMAN, Appellees. 4th District.

Declaratory judgments -- Wrongful death -- School shooting -- Action against firearm manufacturer and seller of firearm used by gunman -- Trial court did not err in dismissing complaint for declaratory relief after concluding that plaintiffs' request for declaration that section 790.331 prohibits only suits by state actors against firearms manufacturers, not those brought by private citizens, was, in fact, an impermissible attempt to solicit advisory opinion that would help them decide whether they should file a suit. FREDRICK GUTTENBERG and JENNIFER GUTTENBERG, as Co-Personal Representatives of the ESTATE OF JAIME T. GUTTENBERG, Appellants, v. SMITH & WESSON CORP., n/k/a SMITH & WESSON SALES COMPANY, INC., and SUNRISE TACTICAL SUPPLY, LLC, Appellees. 4th District.

Dissolution of marriage -- Child support -- Modification -- Marital settlement agreement -- Trial court erred in granting mother's exceptions to general magistrate's report and recommendation concerning father's child support obligations based on its determination that trial court lacked inherent or statutory authority to modify child support -- Trial court maintained authority to modify father's child support obligations despite language in parties' marital settlement agreement setting a minimum amount of support that the father must pay -- Because the general magistrate's findings regarding the parties' financial status, change in circumstances, and children's best interests were supported by competent substantial evidence, the trial court should have accepted them. JAMES W. FUNDERBURK, Appellant, v. MARCI L. RICENBAW f/k/a MARCI L. FUNDERBURK, Appellee. 2nd District.


Judges -- Disqualification -- Taking allegations that trial court made improper comments at calendar call as true, disqualification of judge is warranted and petition for writ of prohibition is granted. ALFREDO RODRIGUEZ, et al., Petitioners, v. ROHAN HALSALL, Respondent. 3rd District.

Limited liability companies -- Shareholders -- Direct/derivative actions -- Contracts -- Torts -- Jury trial -- Entitlement -- Action alleging both direct and derivative legal and equitable claims against defendant shareholder and separate entity owned by defendant shareholder -- Breach of contract claim sufficiently alleged direct harm and special injury where plaintiff claimed that defendant's breach of LLC's operating agreement by misappropriating loan proceeds diluted plaintiff's ownership percentage in the LLC -- Because plaintiff sufficiently alleged direct harm and special injury, breach of contract claim was a direct legal claim for which a right to jury trial existed -- Trial court erred by trying equitable, derivative claims against defendant shareholder's other business separately in a non-jury trial while breach of contract claim was still pending -- Contract claim and the derivative equitable claims were intertwined because they all revolved around underlying factual issues regarding defendant's purported mismanagement of LLC and alleged misappropriation of loan proceeds -- Because contract claim was factually intertwined with equitable claims, a jury was required to resolve the common factual issues -- Proper procedure would have been for trial court to first proceed with jury trial and then apply jury's factual findings to determine whether plaintiff established entitlement to relief on his equitable claims -- Trial court erred in relying on business judgment rule to decide derivative claim against separate entity alleging that entity aided and abetted defendant shareholder's breach of fiduciary duty where defendant shareholder was not a disinterested party to any of the transactions at issue -- Key inquiry is whether defendant shareholder's self-interested transactions were valid under law governing conflict-of-interest transactions for limited liability companies. ALDO DISORBO, Appellant, v. AMERICAN VAN LINES, INC., Appellee. 4th District.

Mortgage foreclosure -- Sale -- Objection -- Timeliness -- No error in denying borrower's objection to sale of foreclosed property alleging that clerk's advertisement was defective where objection was raised more than ten days after sale -- While borrower was granted a stay of the sale, that stay was entered to allow borrower to redeem and purchase the property, not to raise further objections. CEDRIC McINTYRE, etc., Appellant, v. CIT BANK, N.A., Appellee. 3rd District.

Real property -- Easements -- Injunctions -- Trial court erred in determining that proposed development of servient estate was precluded by easement and agreed permanent injunction enforcing the easement, which enjoined servient estate from “interfering with” dominant estate's right to ingress and egress, based on finding that increased traffic resulting from development of servient estate would “interfere” with dominant estate's easement rights -- While broad dictionary term of “interfering” could, in isolation, support dominant estate's position that interference means delaying or slowing down ingress and egress, such a definition is not supported by the easement or by the entire text of the agreed permanent injunction itself -- In context, best interpretation of “interfering” is not something that simply hinders, but rather something that obstructs access. 7 AT BLUE LAGOON (1), LLC, et al., Appellants, v. BLUE LAGOON CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Torts -- Jurors -- Peremptory challenge -- Race-neutral explanation -- Genuineness -- No abuse of discretion in determining that plaintiff's proffered reason for exercising peremptory challenge as to Hispanic female juror was not genuine. AIRAM BULTE, Appellant, v. DOLLAR TREE STORES, INC., etc., Appellee. 3rd District.

Wrongful death -- Product liability -- Tobacco -- Punitive damages -- Excessive award -- Remittitur -- Trial court abused its discretion in denying remittitur of punitive damages that exceeded net compensatory damages award by a ratio of 106.7 to 1 -- While it was not unreasonable to conclude that facts and circumstances of case under review supported a departure from the 3:1 statutory cap, a trial court in a wrongful death action abuses its discretion by denying remittitur of a punitive damages award that does not bear a reasonable relation to the amount of damages proved and the injury suffered by the statutory beneficiaries -- Court rejects argument that the injury suffered in a wrongful death action is decedent's death because Wrongful Death Act provides that the injury suffered in such an action is to the decedent's statutory beneficiaries, not the decedent -- Injury suffered by the survivors in case under review is the injury reflected in the compensatory damages award that the jury found to represent the total amount of the damages that decedent's survivors sustained for the loss of parental companionship, instruction, and guidance, and from their mental pain and suffering as a result of decedent's illness and death -- Although higher dollar awards of punitive damages have been approved in other tobacco cases, statutory analysis of whether a punitive damages award bears a reasonable relation to the amount of damages proven and the injury suffered is necessarily case-specific. BRINDA COATES, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent. Supreme Court of Florida.

Wrongful death -- Suicide -- Arbitration -- Arbitrable issues -- Trial court erred in denying motion to dismiss or to compel arbitration in action against private school and individual defendant brought by parent of student who committed suicide following school's request that he withdraw from school for selling vape pen to another student, alleging school violated its policies and procedures and common law duty to assess and provide suicide prevention and crisis support to a disciplined student -- Arbitration clauses in enrollment contract and student handbook were sufficiently narrow in scope -- Although sounding entirely in tort and not specifically including breach of contract claim, claims alleged in complaint have direct relationship to the enrollment contract and handbook's terms and provisions, and complaint expressly relies on enrollment contract and handbook to establish school's duty to student. CALVARY CHAPEL CHURCH, INC. d/b/a CALVARY CHRISTIAN ACADEMY, CALVARY CHAPEL OF FT. LAUDERDALE, INC., and JOSEPH WILSON, Appellants, v. COLLEEN HAPP, as Personal Representative of the ESTATE OF COLIN CHARLES HAPP, Appellee. 4th District.


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Thursday, January 5, 2023

Punitive damages, attorney's fees, dissolution of marriage, and porchetta and basil pesto roll

 Attorney's fees -- Charging lien -- Error to deny motion to adjudicate and enforce charging lien against client's settlement funds based on determination that counsel had not established third element of charging lien, which requires an attempt to avoid the payment of fees or a dispute as to the amount involved, because the disagreement over amount owed was not between counsel and client, but rather between counsel and co-counsel from a different firm who was responsible for disbursing payments to creditors -- Client's failure to pay all that he owed counsel was enough to make prima facie showing of third element of charging lien -- Furthermore, co-counsel, who was client's lawyer and agent, did expressly act to withhold client's funds from counsel, client knew about it, and client appears to have done nothing about it -- Regardless of whether client's actions or inaction are attributable to client individually or to him as the principal responsible for his agent's conduct in regard to the settlement funds, the third element of a charging lien was satisfied -- Court rejects argument that money in co-counsel's trust account was no longer client's concern after client signed closing statement. LINDA COMMONS, ESQ. Appellant, v. JAMES SPRACKLEN; ECONOMY DENTURES OF HUDSON, L.L.C.; ROBERT P. MOFFETT, D.D.S.; ECONOMY DENTURES, INC., d/b/a One Day Dentures; LEROY POLITE, DMD.; and LEROY POLITE D.M.D., P.A., Appellees. 2nd District.


Attorney's fees -- Prevailing party -- Where former employer filed action against former employee alleging breach of non-compete agreement and non-solicitation agreement, seeking damages in one count and injunctive relief in another count, and subsequently filed amended complaint which dropped the claim for injunctive relief, former employee was entitled to award of attorney's fees as prevailing party in the initial action which was voluntarily dismissed -- Trial court erred in finding that claim for fees was not preserved in subsequent settlement agreement. STEVEN CASTO, Appellant, v. FIRST COAST CARDIOVASCULAR INSTITUTE, P.A., Appellee. 1st District.


Attorney's fees -- Proposal for settlement -- Ambiguities -- Defendant's proposal for settlement and release were clear and unambiguous notwithstanding supposed conflicting provisions in proposal and typographical error in general release consisting of use of an asterisk in place of the defendant's name -- Proposal and release stated with particularity relevant conditions and all non-monetary terms, and read as a whole, there were no ambiguities that could have reasonably affected plaintiff's decision whether to accept proposal -- Trial court erred by declining to enforce proposal for settlement. PUBLIX SUPER MARKETS, INC., Appellant, v. SIERRA ALFORD, Appellee. 5th District.


Child custody -- Decision-making authority -- Parenting plan -- Error to award father ultimate decision-making authority over children's extracurricular activities where father did not request such relief -- Trial court erred in failing to attach copy of parenting plan to final judgment. ANDREA M. PICARD, Appellant, v. JONATHAN R. PICARD, Appellee. 2nd District.


 Contracts -- Employment -- Noncompete agreement -- Injunctions -- Temporary -- Legitimate business interest -- Extraordinary or specialized training -- Trial court erred by entering preliminary injunction enforcing a non-compete agreement because plaintiff, a terrazzo restoration company, did not prove that an injunction enforcing the restrictive covenants contained in the agreement was necessary to protect a legitimate business interest -- Evidence did not support finding that plaintiff had provided defendant with specialized or extraordinary training where the evidence, even when construed in a light most favorable to plaintiff, established that defendant received on-the-job training that was “usual, regular, common or customary in the industry”. RUSSEL VESSELS, JR AND COAST TO COAST TERRAZZO, LLC, Appellants, v. DR. TERRAZZO OF FLORIDA, LLC D/B/A DR. TERRAZZO, Appellee. 5th District.

Contracts -- Notes -- Limitation of actions -- Equitable estoppel -- Action seeking repayment of promissory note from borrower's estate -- Trial court erred in entering summary judgment in favor of estate based on finding that statute of limitations had expired -- Plaintiff's summary judgment evidence was sufficient to support plaintiff's argument that equitable estoppel precluded estate from asserting statute of limitations as a defense to suit where plaintiff's affidavit in opposition asserted that plaintiff did not sue earlier because borrower had repeatedly asked plaintiff not to sue and assured plaintiff that he would be paid as recently as within a year of borrower's death. ANTHONY J. IEMMA, Appellant, v. MARGARET HEICHBERGER, as Personal Representative of the ESTATE OF JOSEPH P. D'ANGELO, and INGRID PALMER, Appellees. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Retirement benefits -- Settlement agreement -- Settlement agreement requiring the parties to equally divide the portion of former husband's retirement plan acquired from the time of the marriage to the filing of the dissolution of marriage petition, “plus any gains or losses on that amount” -- In calculating amount of retirement plan the parties were entitled to, the trial court erred by first subtracting former husband's premarital interest from the value of the plan at the time dissolution of marriage litigation commenced and then dividing the remaining balance equally -- Trial court's calculation resulted in former wife receiving passive appreciation of former husband's premarital interest in the retirement plan -- Contractual term “plus any gains or losses on that amount” does not apply to any passive appreciation in former husband's nonmarital portion of the retirement plan -- Remanded for the entry of a new qualified domestic relations order that subtracts former husband's premarital balance, plus that amount constituting passive appreciation on this premarital balance, from the final value of the plan, and then equally divides the remaining net amount between the parties. MATTHEW FRANK BALAZIC, Appellant, v. JULIE ANN BALAZIC, Appellee. 5th District.


Dissolution of marriage -- Alimony -- Need and ability to pay -- Retroactive alimony -- Equitable distribution -- Valuation of assets -- Businesses -- Attorney's fees -- Trial court failed to make adequate findings supporting award of permanent periodic alimony where final judgment did not make clear how trial court resolved conflicting evidence concerning former wife' s monthly living expenses or how trial court determined that former husband could pay the amount awarded -- Furthermore, trial court was required to find that no other form of alimony was appropriate -- Trial court erred in its valuation of former husband's business where it only accounted for business assets without considering business liabilities -- Award of attorney's fees is reversed where order does not make specific findings relating to hourly rate, the number of hours reasonably expended, and any appropriate reduction or enhancement factors -- Error to award retroactive alimony. TOMMY WAYNE GUIMBELLOT, Appellant, v. PATRICIA LYNN GUIMBELLOT, Appellee. 1st District.


Dissolution of marriage -- Equitable distribution -- Retirement benefits -- Settlement agreement -- Enforcement -- Wife's request for lump sum payment to effectuate award of wife's portion of husband's retirement and survivor benefits was appropriate where husband had purposefully and deceptively taken the entire benefit for himself and his current wife and flouted multiple trial court orders, his own attorney's instructions, and terms of parties' marital settlement agreement -- Testimony of wife's expert as to present value of benefit was not rendered speculative by expert's use of social security life expectancy calculator. HENRY SAKOW, Appellant/Cross-Appellee, v. LINDA BLAYLOCK f/k/a Linda Sakow, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Psychological evaluation -- Trial court did not depart from essential requirements of law by requiring former husband to submit to psychological evaluation after determining, following evidentiary hearing, that husband's mental health was at issue and mental health evaluation was appropriate -- Trial court erred in failing to specify time, place, manner, conditions, and scope of evaluation and failing to establish person or persons by whom the interview is to be made -- Remand to permit trial court to enter order that complies with rule 12.360(a)(1)(B). DORIAN CHILDS, Petitioner, v. LETICIA CRUZ-CHILDS, Respondent. 2nd District.


Torts -- Contracts -- Limited liability companies -- Officers and directors -- Fraud -- Individual liability -- Active participation theory -- Claim that president of LLC made fraudulent representations that LLC held title to property that was offered to plaintiff investors as collateral in exchange for plaintiffs' loan to LLC despite knowledge that LLC did not have title -- Trial court erred in entering summary judgment in favor of president based on determination that president could not be held individually liable -- Independent tort doctrine did not prevent president from being held personally liable -- Doctrine only applies to the parties to a contract, and it is undisputed that president was only a signatory for LLC and not a party to the loan and security agreement -- President was not entitled to summary judgment based on trial court's conclusion that president had not made any false statements of material fact where agreement and borrower's certificate, both signed by president on behalf of LLC, made false statements of existing fact regarding LLC's ownership of subject property -- Under active participation theory, president may be held individually liable for the fraud evidenced by agreement and certificate even though he signed as a corporate officer of LLC -- Trial court erred in finding that contract absolved president from liability where provisions relied upon were inapplicable, and contract expressly stated that officers could be liable for fraud or intentional misconduct. COSTA INVESTORS, LLC, Appellant, v. LIBERTY GRANDE, LLC and MOSES BENSUSAN, Appellees. 4th District.


Wrongful death -- Contracts -- Release -- Exculpatory clause -- Punitive damages -- Claims of negligence and breach of fiduciary duty brought against university by estate of football player who died of cardiac event after participating in football practice were not barred by exculpatory clauses in releases signed by decedent in order to play football for university -- Exculpatory clause relied upon by university was unenforceable where it failed to expressly inform player that he was contracting away his right to sue university for its own negligence, included language that could reasonably lead one to believe that university would be supervising and training properly so that player was only being asked to sign exculpatory clause to cover injuries inherent in sport, and used language suggesting that terms of release were for player's benefit -- Amendment of complaint -- Trial court erred in granting motion to amend complaint to add claim for punitive damages where record evidence fell short of demonstrating gross negligence. THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE, Appellant, v. STETSON UNIVERSITY, INC., Appellee. 5th District.