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.