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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