Charging liens, principles of priority, net judgment rule, modification, and fresh linguini with sausage, porcini musthrooms, and sage

 Attorney's fees -- Charging lien -- Unjust enrichment -- Venue -- Transfer -- Principle of priority -- Complaint raising multiple claims, including breach of contract, quantum meruit, and unjust enrichment, stemming from defendants' failure to distribute settlement proceeds in accordance with charging lien plaintiff law firms had filed in a separate case in a separate county -- Appeal of order dismissing action for improper venue is not moot based on fact that plaintiffs withdrew charging lien and the underlying case has since been dismissed -- Even if plaintiffs can no longer pursue charging lien, nothing precludes them from filing a separate action to recover any unpaid fees, as a charging lien is not the exclusive vehicle for discharged counsel to pursue fees and costs to which they claim entitlement -- Trial court erred in applying the principle of priority and dismissing complaint based on its determination that the other county had jurisdiction over the matter because plaintiffs first properly served defendants in the other county -- Plaintiffs were not the parties that initiated the action in the other county, but rather served as counsel for the party who did -- Furthermore, since the charging lien had been withdrawn prior to the entry of the dismissal order in the present case, the matter was no longer pending concurrently in two circuits. ALEX FINCH d/b/a FINCH LAW FIRM, and FROMANG AND FINCH, P.A., Appellants, v. AUTO CLUB INSURANCE COMPANY OF FLORIDA, BRESSLER, AMERY & ROSS, P.C., LINDA MICHELLE BERNS, MASSEY CONSTRUCTION GROUP, INC., MARK B. MASSEY, KANNER & PINTALUGA, P.A., LEVI LAWRENCE WILKES, and SUSAN AYERS, Appellees. 6th District.

Attorney's fees -- Prevailing party -- Significant issues -- Net judgment rule -- Proposal for settlement -- Joint proposal -- Apportionment -- Subcontractor's action against contractor and its surety and project owner and its surety seeking damages for breach of contract, seeking to enforce liens against payment and transfer bonds, and alleging alternative quantum meruit claims against contractor and project owner -- Successor judge erred in concluding that subcontractor was prevailing party in litigation because it recovered a money judgment -- Significant issues in litigation concerned whether subcontracts were enforceable, and thus whether project owner could apply cross-default provisions to offset its damages against any amounts recovered by subcontractor; whether subcontractor was properly defaulted on one of the subcontracts at issue, and thus whether damages could be assessed against subcontractor for value of stairs constructed by replacement subcontractor; the reasonable value of the stairs; and whether subcontractor properly perfected its claims against transfer and payment bonds -- Successor judge's conclusion that defendants were unsuccessful in entirely avoiding payment to subcontractor ignored fact that defendants defeated most of subcontractor's damages claims -- Successor judge's conclusion that enforceability of subcontracts was not a significant issue because that issue did not determine “the overall outcome of this action, nor the amount of damages the Court awarded” was contrary to predecessor trial judge's finding in its merits judgment that “the primary dispute is over which contract controls” -- Moreover, enforceability of subcontracts, and in turn the cross-default provisions, significantly impacted amounts ultimately recovered by subcontractor -- Claims against bond -- Section 713.29 governs award of attorney's fees in action to enforce claim against bond, and significant issues test applies for purposes of determining prevailing party status -- Sureties who successfully resisted enforcement of subcontractor's lien against bonds prevailed on the only claims asserted against them and were not otherwise found liable to subcontractor for damages -- Accordingly, successor judge erred in denying sureties attorney's fees -- Proposal for settlement -- All defendants were entitled to award of attorney's fees and costs pursuant to section 768.79 where amount awarded to subcontractor was at least 25% less than total proposal amount -- Defendants were not required to apportion their offer under circumstances where subcontractor sought the same indistinguishable amount of damages from each defendant. LEMARTEC CORPORATION, et al., Appellants, v. EAST COAST METAL STRUCTURES CORP., Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Alimony -- Trial court erred in failing to make specific written findings of fact as to identification of marital assets and liabilities, valuation of significant marital assets, and designation of which marital assets and liabilities would be distributed to each spouse -- Error was preserved for review through wife's motion for rehearing -- Marital liabilities -- Federal income tax deficiency -- Trial court did not err in designating as a marital liability the back taxes parties owed to Internal Revenue Services notwithstanding wife's assertion that husband signed wife's name on tax returns without her consent -- Tax deficiency was not a “liability incurred by forgery or unauthorized signature” -- Vehicle -- Husband's sale of van for thousands of dollars below fair market value should have been treated as waste of marital asset under circumstances -- Alimony award to wife was unsupported by specific findings as to wife's reasonable monthly expenses and amount of income wife might expect from her own financial assets, including those she received in equitable distribution. KATHY DEASY, Appellant, v. KEVIN DEASY, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Cut-off date -- Trial court erred in requiring former wife to return a necklace to former husband where there was no evidence in record to establish the existence of the necklace -- Trial court erred when it classified and distributed as a marital liability a loan from former husband's parents which was taken out during the parties' marriage and which was fully satisfied prior to the date that former husband filed petition for dissolution -- Because the loan was not a liability that existed as of the applicable cut-off date, the trial court erred by classifying the loan as a marital liability and distributing it -- While a trial court has discretion as to the date it uses to value marital assets and liabilities, it does not have discretion as to the date used to determine the existence of marital assets and liabilities and whether they are subject to equitable distribution. VICKI MACPHERSON, Appellant, v. JOSEPH MACPHERSON, Appellee. 6th District.

 

Insurance -- Condominiums -- Subrogation rights -- Negligence action brought against condominium association by individual unit owners' insurer pursuant to right-of-subrogation provision in the unit owners' policy -- No error in granting condominium association's motion for judgment on the pleadings where association's policy did not provide for rights of subrogation against unit owners as required by recent amendment to section 627.714(4) -- Trial court did not improperly apply amendment retroactively where, although subject policy was issued prior to statutory amendment's effective date, insurer's subrogation rights did not vest until loss occurred after the effective date of the amendment -- Body of law holding that the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract only applies to contractual claims between contracting parties -- Conflict certified. UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY a/s/o VIRGILIO PEREZ Y. PEREZ and SIRKKA PEREZ, Appellant, v. LAGUNA RIVIERA CONDOMINIUM ASSOCIATION, INC., Appellee. 2nd District.

Torts -- Civil conspiracy -- Tortious interference -- Dismissal -- Attorney's fees -- Error to enter partial summary judgment in favor of defendants dismissing plaintiff's claims for tortious interference and civil conspiracy for failure to state a cause of action -- Taking pleaded facts as true, operative amended complaint stated sufficient causes of action to withstand a motion to dismiss -- Because award of attorney's fees was predicated upon judgment being reversed, fee order must be vacated as premature. BERKLEY INSURANCE COMPANY, Appellant, v. BANC OF AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, a wholly owned subsidiary of Bank of America, N.A.; BANK OF AMERICA, N.A., a national banking association; THE TEMPO AT ENCORE, LP, a Florida limited partnership; HOUSING FINANCE AUTHORITY OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida; CPDG2, LLC, a Florida limited liability company; THA TEMPO, LLC, a Florida limited liability company; TAMPA HOUSING AUTHORITY DEVELOPMENT CORPORATION, a Florida not-for-profit corporation; TAMPA HOUSING AUTHORITY, a political subdivision of the State of Florida; U.S. BANK, N.A., a national banking association; and FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation, Appellees. BANK OF AMERICA, N.A., and BANC OF AMERICA COMMUNITY DEVELOPMENT COMPANY, LLC, Appellants, v. BERKLEY INSURANCE COMPANY; THE TEMPO AT ENCORE, LP, a Florida limited partnership; RBC TAX CREDIT EQUITY, LLC, a foreign limited liability company; RBC TAX CREDIT MANAGER II, INC., a foreign corporation; and HOUSING FINANCE AUTHORITY OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellees. 2nd District.

Torts -- Defamation per se -- Trial court's verbatim adoption of defendant's proposed final judgment does not require reversal where it was evident that final judgment reflected trial court's independent decision on issues in the case -- Both parties were allowed to submit proposed orders, eight days passed from time parties submitted their proposals until trial court entered final judgment, and plaintiff made no objections to defendant's proposed judgment until after final judgment was entered -- Further, in order denying plaintiff's motion for rehearing, trial court stated that it had reviewed both parties' submissions in light of court's trial notes, record, and briefs and determined that defendant's proposed order accurately reflected court's ruling -- Remand for correction of typographical error identified by plaintiff in one of its objections. RICHARD L. SHURE, M.D., Appellant, v. AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, and BRIAN S. ZIEGLER, M.D., Appellees. 6th District.

Torts -- Medical malpractice -- Denial of motion to dismiss for failure of plaintiff to comply with presuit requirements -- Certiorari -- Trial court did not depart from essential requirements of law by adopting verbatim plaintiff's proposed order denying motion to dismiss where record reflects that trial judge did not adopt proposed order without thought or analysis or in finding that plaintiff's notice was sufficient given limited information available to her and in concluding that plaintiff complied with statutory presuit notice requirements. UNIVERSITY OF MIAMI, etc., Petitioner, v. SHANAY HALL JONES, etc., Respondent. 3rd District.

Torts -- Medical malpractice -- Presuit requirements -- Corroborating expert -- Trial court erred by dismissing complaint with prejudice based on conclusion that plaintiff's corroborating expert, a board certified OB-GYN, did not specialize in same specialty as defendant, a gynecological oncologist who is also a board certified OB-GYN, because gynecological oncology and gynecology required different education, different training, and different certifications -- Discussion of “same specialty” requirement -- Expert witnesses offering testimony are not required to have an identical educational background and work history as a prospective defendant -- Both defendant and plaintiff's expert specialize in same branch of medicine, as illustrated by their identical board certifications. PHENGSANITH PRADAXAY, Appellant, v. JAMES ERASMUS KENDRICK, IV, M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a ADVENTHEALTH MEDICAL GROUP GYN ONCOLOGY AT ORLANDO, and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a ADVENT HEALTH ORLANDO, Appellees. 6th District.

Wrongful death -- Landlord-tenant -- Premises liability -- Duty of care -- Action brought against owner and manager of apartment complex stemming from drowning of a tenant's child in river adjacent to defendant's property -- Trial court did not err in granting summary judgment in favor of defendants based on determination that defendants had no duty to create a barrier between property and the river -- Pursuant to body-of-water rule, absent an unusual, dangerous condition, an owner of a natural or artificial body of water has no duty to fence it -- Exception to the body-of-water rule was inapplicable because the record does not demonstrate any evidence of a trap or unusual element of danger associated with the riverbank adjacent to the apartment complex that does not exist in similar rivers or on similar riverbanks -- The slope leading down to the river, the river current, and the uneven ground along the river did not constitute traps or dangerous conditions that do not occur in similar bodies of water throughout the state -- While section 83.51(2)(a)3 requires a landlord of a dwelling unit to make “reasonable provisions” for the clean and safe condition of common areas, “reasonable provisions” need only include fencing off a body of water if the particular circumstances create an unusual element of danger not presented by similar bodies of water. BARBARA FELICIANO, as personal representative of the Estate of Sthella Lopez Feliciano, a deceased minor, Appellant, v. RIVERTREE LANDINGS APARTMENTS, LLC, a Florida Limited Liability Company, and FIRST COMMUNITIES MANAGEMENT, INC., a Florida Corporation, Appellees. 2nd District.

 

 The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

Discovery, certiorari, mandamus, foreign subpoena, and buckwheat crepes with prosciutto, arugula, and asiago

 

Civil procedure -- Discovery -- Cellphone data -- Forensic review -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring a forensic expert to make a complete copy of the entire contents of petitioner's cellphone to be reviewed by petitioner's attorney where respondent failed to establish that there was any actual or threatened alteration, deletion, or destruction of data on petitioner's cellphone, and no less intrusive means to obtain the information sought -- Petitioner has a reasonable expectation of privacy in contents of her cellphone and, as such, there needed to be an appropriate showing by respondent and a proper balancing of competing interests by trial court -- Requiring the imaging and production of the entire contents of one's cellphone cannot be justified merely because it is the quickest and most efficient method to obtain the discovery sought -- Fact that order required disclosure to petitioner's own attorney was insufficient, without more, to protect petitioner's privacy rights. ELIZABETH ROQUE, Petitioner, v. LEWIS SWEZY, et al., Respondents. 3rd District.

Civil procedure -- Discovery -- Foreign subpoena -- Enforcement -- Jurisdiction -- Louisiana subpoena commanding a non-party Florida resident to produce documents -- Trial court erred by denying plaintiff's motion to compel production of items listed in a domesticated Louisiana subpoena duces tecum and deferring to Louisiana court on issue of whether information requested in subpoena was discoverable -- Under the Uniform Interstate Depositions and Discovery Act, the decision of whether to enforce a domesticated subpoena or a protective order based upon a Florida witness's objections is to be made by the discovery state's court -- Remand for trial court to rehear plaintiff's motion to compel and the witness's motion for protective order, and conduct an independent determination of whether the information requested in the plaintiff's subpoena is discoverable. LUV N CARE, LTD., Appellant, v. LISA HAKIM, et al., Appellees. 4th District.

Civil procedure -- Dismissal -- Sanction -- Failure to obtain counsel -- Notice and opportunity to be heard -- Trial court violated plaintiff's due process rights when it granted defendant's motion to dismiss action for failure to obtain successor counsel within time period ordered by trial court where trial court's order contained no express language placing plaintiff on notice that its failure to obtain counsel within designated time could result in dismissal -- Furthermore, plaintiff had no reasonable notice or meaningful opportunity to be heard in response to defendant's motion to dismiss where motion was not noticed for hearing and order on the motion was entered twenty-five hours after motion was filed. BABCOCK NEW HAVEN, LLC, Appellant, v. VAHEED TEIMOURI and TEIMOURI & ASSOCIATES, INC., Appellees. 5th District.

Condominiums -- Dispute between unit owners -- Attorney's fees -- Prevailing party -- Voluntary dismissal -- Trial court abused its discretion in denying defendants' motion to tax attorney's fees as prevailing parties under section 718.303 after plaintiff voluntarily dismissed action based on determination that there was minimal litigation -- General rule that a defendant is a prevailing party when a plaintiff voluntarily dismisses an action applies even where there is limited pre-trial activity prior to dismissal -- No exceptions to general rule were applicable where defendants did not pay any of the damages sought and their actions did not render the lawsuit moot. LEENA MARGIT VILER f/k/a LEENA MARGIT SILVAST and GIORDANO G. VILER, Appellants, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY a/s/o JAMES P. LAMANNA, Appellee. 4th District.

Contracts -- Insurance -- Settlement agreement -- Enforcement -- Trial court erred by granting defendants' motion to enforce settlement agreement where plaintiff's offer to settle expressly stated that it was contingent on defendant's insurer's verification that there were no other policies which may have provided coverage for underlying automobile accident, and an additional policy held by a codefendant was disclosed after acceptance of the settlement offer -- Request to insurer for information on any known policies was an essential term of plaintiff's offer to settle with which defendant's insurer failed to comply. PEDRO FUNDORA, etc., Appellant, v. ROBERTO DANGOND, et al., Appellees. 3rd District. 

Counties -- Contracts -- Dismissal -- Limitation of actions -- Continuing breach doctrine -- Contract requiring defendant to redevelop property pursuant to a master plan that had to be submitted and approved by the county -- Trial court erred in granting motion to dismiss with prejudice based on conclusion that, because more than five years had passed since date master plan was required to be submitted to county, the statute of limitations for bringing action on written contract had expired -- Complaint does not conclusively show that the statute of limitations bars action where complaint alleged various breaches of contract regarding defendant's failure to complete the redevelopment of real property that related not only to defendant's single act of failing to submit master plan by the designated date, but also in failing to comply with numerous other intertwined, ongoing, and continuing contractual duties and obligations that postdated the date that the master plan was due. HERNANDO COUNTY, FLORIDA, Appellant, v. HERNANDO COUNTY FAIR ASSOCIATION, INC., Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Trial court erred in failing to credit wife with marital funds used to pay down mortgage on husband's nonmarital property on the ground that the property actually depreciated in value during marriage -- Any increase in property's equity resulting from payments made with marital funds is a marital asset subject to equitable distribution. NADJA MARCELA BAZAN VASSALLO, Appellant, v. EDELMO ESCALONA SOCARRAS, Appellee. 3rd District.

Estates -- Assets -- Limited liability companies -- Dissolution -- Real property held by LLC wholly owned by decedent -- Trial court erred in denying motion seeking determination that real property was not an estate asset based on trial court's determination that the LLC's assets were assets of the estate because the single-member LLC immediately dissolved upon decedent's death -- Death of sole member does not immediately dissolve a single-member LLC -- Not until ninety days after decedent's death, which was well after denial of motion to determine assets, did the death become an event causing dissolution under relevant statutes -- Furthermore, LLC must be dissolved by filing articles of dissolution, after which LLC still continues for certain purposes such as winding up. PRECIOUS EZEAMAMA, Appellant, v. IN RE: THE ESTATE OF CATHERINE EZEAMAMA CHIBUGO, Appellee. 3rd District.

Liens -- Construction lien -- Discharge -- Mandamus -- Petition seeking to compel trial court to discharge a subcontractor's construction lien pursuant to section 713.21(4) is denied -- Section 713.21 only applies to a lien that is properly perfected -- Because complaint specifically alleged subcontractor had failed to perfect its lien by serving a notice to property owner and therefore had no lien rights, petitioners could not avail themselves of the special statutory procedure authorized by section 713.21(4). ABRAHAM A. CALIXTE and DOROTHY DROUILLARD a/k/a DOROTHY CALIXTE, Petitioners, v. COASTAL BUILDING CONTRACTORS, LLC, Respondent. 4th District.

 The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

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.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

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.

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.

 

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

 

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.

Corporate fiduciary duty, business records, statute of limitations, and wild boar with mustard and thyme sauce and wild lingonberries

Appeals -- Absence of transcript -- Trial court erred in granting summary judgment in favor of insurer in case involving proper application of policy deductible -- Although there is no transcript of pre-trial conference where ruling was made, error is apparent on face of record where explanation of review documents submitted by insurer show that insurer applied the fee schedule authorized by 627.736(5)(a)1.f. to total charges before applying PIP deductible. NORTH BROWARD CHIROPRACTIC AND WELLNESS CENTER, INC. a/a/o CRISTINA CORRIDORI, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee. 4th District.

Appeals -- Real property -- Appeal of nonfinal order scheduling sale of property ordered partitioned pursuant to final judgment -- Appeal is essentially an untimely challenge to judgment ordering partition of property where notice of appeal was filed more than 30 days after rendition of that final order -- Order of partition is final at such time as court directs sale of the property -- Appeal dismissed. LISONEL PEREZ, Appellant, v. PEDRO A. JAIMOT and MARILYN JAIMOT, Appellees. 3rd District.

Attorney's fees -- Trial court erred in awarding attorney's fees to defendant pursuant to prevailing party provision in contract where defendant failed to plead entitlement to contractual attorney's fees -- Exception to pleading requirement for seeking attorney's fee set forth in Stockman v. Downs is not applicable where plaintiff did not, through any action or inaction, waive any objection to defendant's failure to plead claim for contractual attorney's fees. TIMOTHY LENAHAN, Appellant, v. SHANNON LENAHAN, Appellee. 3rd District.

Civil procedure -- Relief from judgment -- Jurisdiction -- No error in vacating order setting aside mediated settlement agreement where suit had been voluntarily dismissed prior to entry of the order. GAYLE M. BURNS, Appellant, v. LAW OFFICES OF LYNWOOD ARNOLD, P.A., Appellee. 2nd District. 

Contracts -- Asset purchase agreements -- Assumption of debt -- Action alleging that defendant had assumed debt which was secured by equipment defendant purchased as part of APA -- Error to enter summary judgment in favor of plaintiff where plaintiff did not refute defendant's affirmative defense that plaintiff failed to state a cause of action against it -- Although plaintiff alleged that defendant assumed debtor's obligations under the note and repeatedly alleged that defendant breached “the note,” defendant had never been a party to the note -- Because any obligation that defendant may have to plaintiff is based solely on APA to which plaintiff was not a party, and which never mentioned the note, plaintiff has a cause of action against defendant only under third-party beneficiary theory -- Plaintiff's failure to allege requisite elements of a third-party beneficiary claim precluded entry of summary judgment in its favor -- Additionally, plaintiff did not refute affirmative defense of lack of consideration -- Reduction of APA purchase price by amount of debt did not constitute consideration, but simply ensured that defendant would not pay for the equipment twice. OTI FIBER, LLC, Appellant, v. CENTERSTATE BANK, N.A.; FLORIDA FIBER NETWORKS, LLC; DAVID ORSHAN; and DAVID S. SUAREZ, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Long-term marriage -- Trial court erred in denying former wife's request for alimony based on finding former husband had no ability to pay without also making a specific factual determination as to whether former wife had an actual need for alimony -- Moreover, when one party is entitled to permanent periodic alimony but other spouse has no current ability to pay, trial court should award a nominal sum which would give court jurisdiction to reconsider award should parties' financial circumstances change. IRENE SAMANIEGO, Appellant, v. LOUIS SAMANIEGO, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Jurisdiction -- Timeliness of motion -- Trial court erred in denying wife's post-judgment motion for attorney's fees based on mistaken belief that rule 1.525 divested it of jurisdiction to entertain motion for fees filed more than 30 days after judgment -- Rule does not apply to family law cases -- Fee proceedings in family law cases are governed by section 61.16, and that statute does not impose 30-day limitation on trial court's post-judgment jurisdiction to consider fee motions. WELLY JUHL, n/k/a Welly Garza, Appellant, v. TED M. JUHL and TMJ OF PINELLAS COUNTY, INC., Appellees. 2nd District.

Employer-employee relations -- Veterans -- Retaliation -- Termination -- Employee who testified in judicial proceeding under a subpoena -- Sovereign immunity -- Action alleging wrongful termination in violation of section 92.57 and retaliation under the Uniformed Services Employment and Reemployment Rights Act -- Trial court erred in denying Fish and Wildlife Conservation Commission's motion to dismiss on sovereign immunity grounds -- Sovereign immunity bars private actions brought under USERRA against a state agency -- There is no clear and unequivocal waiver of sovereign immunity in section 92.57, and the waiver provisions of section 768.28 do not apply. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellant, v. JEFFREY HAHR, Appellee. 1st District.

Insurance -- Bad faith -- Third-party bad faith -- Contracts -- Cunningham agreements -- Limitation of actions -- Trial court erred in dismissing bad faith action based on conclusion that claim was barred by statute of limitations -- Parties' modified Cunningham agreement, which was intended to serve as the functional equivalent of the excess judgment needed to pursue third-party bad faith claim, did not constitute the functional equivalent of an excess judgment until the court approved it one year after both parties had signed it -- Trial court's conclusion that agreement did not require court approval was not supported by the plain language of the agreement, and was inconsistent with the parties' stated purpose for entering the agreement -- Because bad faith action was filed within four years from date trial court approved parties' agreement, the action was not barred by statute of limitations. WRIGHT INSURANCE AGENCY, INC. and ANTHONY WRIGHT, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. 2nd District.

Insurance -- Homeowners -- Directed verdict -- Error to enter directed verdict in insurer's favor on claim that insurer breached contract by not fully paying for a covered loss within 20 days of receiving insured's sworn proof of loss based on trial court's conclusion that insurer had 90 days to investigate claim -- Subsection in loss-payment provision of insurance policy which contained the 90-day limit commenced upon insurer's receipt of notice of an initial claim, not upon filing of sworn proof of loss -- Viewing facts in light most favorable to insured, insured's lawsuit was not premature where a jury could have found that insurer received notice of initial claim more than 90 days prior to the filing of insured's suit -- Even assuming suit was premature, proper procedure would have been to abate the action or dismiss without prejudice -- Trial court erred by granting insurer a directed verdict on count which alleged that insurer breached contract by not fully repairing home after it exercised its option to repair -- Based on testimony at trial, a jury could reasonably have found that insurer exercised its option to repair notwithstanding insurer's failure to give written notice as policy required. MARY IWANICKI, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee. 2nd District.

Paternity -- Child custody -- Petition for determination of paternity, parental responsibility, parenting plan, time-sharing schedule, and child support by petitioner, who claims to be biological father of child born during wedlock, seeking to gain custody of child -- Trial court violated due process by entering involuntary dismissal without affording petitioner opportunity to present his full case-in-chief, including opportunity to present evidence to establish standing. ALPHA RANSOM, Appellant, v. KITREANA GRANT-VAN BROCKLIN, et al., Appellees. 3rd District.

Torts -- Corporations -- Breach of fiduciary duty -- Conversion -- Aiding and abetting -- Dismissal -- Derivative action brought by one of two shareholders in closely-held corporation alleging that the other shareholder, with assistance from his family, froze plaintiff out of corporation and transferred corporate assets to a new competing entity -- Order dismissing complaint with prejudice for failure to state a cause of action is reversed -- Discussion of the fiduciary duties of officers and directors of a corporation -- Complaint stated a cause of action for breach of fiduciary duty against defendant shareholder where it alleged that defendant shareholder owed a fiduciary duty as the sole operating officer; defendant shareholder breached that duty by mounting a takeover of the company, diverting corporate business relationships and revenues to a competitor, and executing documents to transfer corporate property to competitor; and that alleged breaches damaged corporation by causing its assets to be wasted and dissipated to a nominal value -- There is no authority for proposition that a complaint must plead a breach of fiduciary duty with heightened specificity to state a cause of action -- Even assuming the existence of such an elevated pleading requirement, it was satisfied in this case -- Claims against defendant shareholder's family members stated a cause of action for aiding and abetting defendant shareholder's breach of fiduciary duty -- Allegations against defendant family members were not commingled where, although defendants were sometimes collectively referred to as the “family,” complaint set forth separate counts against each defendant family member and alleged specific conduct against each individual defendant -- Complaint stated a cause of action for conversion as to some of corporation's assets, such as goodwill of the business -- Action for conversion may be based upon a wrongful takeover of intangible interests in a business venture -- No error in dismissing conversion claim as to cash, misappropriation of trade secrets, and business and contractual relationships -- Error to dismiss claim of aiding and abetting conversion based on conclusion that Florida does not recognize such a cause of action -- Because Florida recognizes aiding and abetting liability for common law torts, it follows that Florida recognizes a claim for aiding and abetting conversion. HARRY TAUBENFELD, as shareholder of PASSOVER FB., INC., Appellant, v. JONATHAN LASKO, SAMUEL LASKO, ARLENE LASKO, AVI LASKO, and LASKO GETAWAYS, LLC., Appellees. 4th District.

Torts -- Dismissal -- Denial of motion -- Appeals -- Certiorari -- Petition seeking review of order denying motion to dismiss complaint for pure bill of discovery and directing petitioner to file an answer is denied because petitioner failed to demonstrate irreparable harm. IMC MEDICAL CENTERS, LLC and JOSEPH YORK a/k/a JOSEPH ZUMWALT, Petitioners, v. JOHN DELUCA, Respondent. 4th District.

Torts -- Sanctions -- Joint and severable liability -- Final judgment imposing sanctions against two parties jointly and severally is reversed where there was no basis in record for doing so. WIDERMAN MALEK, P.L. AND CELEBRATION LAW, P.A., Appellants, v. C.H. AS SETTLOR OF THE J.F. SPECIAL NEEDS TRUST, THE CENTER FOR SPECIAL NEEDS TRUST ADMINISTRATION, INC., AS TRUSTEE OF THE J.F. SPECIAL NEEDS TRUST, Appellees. 5th District.

 

Segarra Miranda v. Banco Popular de Puerto Rico
Court: US Court of Appeals for the First Circuit
Docket: 20-9006
Opinion Date: August 6, 2021
Judge: Sandra Lea Lynch
Areas of Law: Bankruptcy, Real Estate & Property Law
The First Circuit affirmed the judgment of the Bankruptcy Appellate Panel for the First Circuit (BAP) affirming the summary judgment entered by the bankruptcy court against the bankruptcy trustee (the Trustee) for an estate of two individuals, holding that an unrecorded mortgage in Puerto Rico is not a transfer of the debtor's property that is voidable by a bona fide purchaser that triggers the bankruptcy trustee's authority to avoid and preserve the lien. Jose Antonio Lopez Cancel and Carmen Nereida Medina Gonzalez acquired a property in Puerto Rico that they used as their primary residence. Banco Popular de Puerto Rico held the mortgage, but the mortgage was never recorded. The bankruptcy court treated the mortgage as a general unsecured claim covered by an earlier discharge order. The Trustee then filed this action to avoid the mortgage and preserve it on behalf of the bankruptcy estate, arguing that the unrecorded mortgage was a transfer of the debtor's property that was voidable by a bona fide purchaser. The bankruptcy court concluded that the Trustee could not avoid and preserve an unrecorded mortgage because, under Puerto Rican law, an unrecorded mortgage is not a property interest. The BAP affirmed. The First Circuit affirmed, holding that there was no error.

 

Reid Hospital and Health Care, Inc. v. Conifer Revenue Cycle Solutions, LLC
Court: US Court of Appeals for the Seventh Circuit
Docket: 20-1735
Opinion Date: August 11, 2021
Judge: HAMILTON
Areas of Law: Business Law, Contracts, Health Law
Healthcare revenue cycle management contractors manage billing and behind-the-scenes aspects of patient care, from pre-registering patients to reviewing and approving documentation upon release. Reid Hospital contracted with Dell, a revenue cycle management contractor. Their contract limited both sides’ damages in a breach of contract action in the absence of willful misconduct or gross negligence. Dell sold much of its portfolio to Conifer in 2012 while Dell was still losing money on the Reid contract. Conifer began reducing staff and neglecting duties; there was a slowdown throughout the revenue-management cycle and in processing patients’ discharge forms, leading to longer hospital stays that third-party payors refused to reimburse fully. After two years, Reid took its revenue operation back in-house. Reid's consultant found significant errors in Conifer’s work. Reid sued for breach of contract, claiming that Conifer’s actions caused the hospital to lose tens of millions of dollars. The court granted Conifer summary judgment, reading the contract as defining all claims for lost revenue as claims for “consequential damages,” prohibited absent “willful misconduct.” The Seventh Circuit reversed. Even if lost revenue is often considered consequential, this was a contract for revenue collection services and did not define all lost revenue as an indirect result of any breach. Lost revenue would have been the direct and expected result of Conifer’s failure to collect and process that revenue as required under the contract. The parties did not intend to insulate Conifer entirely from damages.

 

Life Spine, Inc. v. Aegis Spine, Inc.
Court: US Court of Appeals for the Seventh Circuit
Docket: 21-1649
Opinion Date: August 9, 2021
Judge: St. Eve
Areas of Law: Intellectual Property, Patents
Life Spine makes and sells a spinal implant device called the ProLift Expandable Spacer System. Aegis contracted with Life Spine to distribute the ProLift to hospitals and surgeons. Aegis promised to protect Life Spine’s confidential information, act as a fiduciary for Life Spine’s property, and refrain from reverse-engineering the ProLift. Aegis nonetheless funneled information about the ProLift to its parent company, L&K Biomed to help L&K develop a competing spinal implant device. Shortly after L&K’s competing product hit the market, Life Spine sued Aegis for trade secret misappropriation and breach of the distribution agreement. The district court granted Life Spine a preliminary injunction barring Aegis and its business partners from marketing the competing product. Aegis argues that the injunction rested on a flawed legal conclusion—that a company can have trade secret protection in a device that it publicly discloses through patents, displays, and sales. The Seventh Circuit affirmed. While public domain information cannot be a trade secret, a limited disclosure does not destroy all trade secret protection. Life Spine did not publicly disclose the specific information that it seeks to protect by patenting, displaying, and selling the ProLift. Life Spine’s trade secrets are not in the public domain but are accessible only to third parties who sign confidentiality agreements.

 

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.