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.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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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.

Prescriptive easements, wrongful death, contracts and green curry lentil soup with shaved coconut

Appeals -- Jurisdiction -- District court -- Appeal from nonfinal order of county court ordering arbitration in small claims litigation and staying action until arbitration was completed, which appeal was transferred from circuit court to district court following statutory change in circuit court's appellate jurisdiction -- Motion to dismiss appeal, which was pending in circuit court at time of transfer and was premised on circuit court's lack of jurisdiction to review nonfinal orders, is denied, as district court has jurisdiction to hear appeal from nonfinal order compelling arbitration. DAVID L. MALLORY and PAULINE MALLORY, Appellants, v. ROBERT BRINCKERHOFF, individually, and MORGAN STANLEY SMITH BARNEY LLC, Appellees. 4th District.

Child custody -- Modification -- Competent substantial evidence supported trial court's modification of time-sharing -- Trial court did not abuse its discretion by giving mother ultimate decision-making authority as to medical issues if parties were unable to agree where court found that parties did not communicate and that their relationship was beyond acrimonious and considered other factors relating to father's conduct in connection with child's health care and knowledge of details concerning child's health care. CASSIO S. AIALA, Appellant, v. JAIME R. LARKIN, Appellee. 4th District.

Civil procedure -- Default -- Relief from judgment -- Appeals -- Timeliness -- Appeal of order denying motion to set aside default is dismissed as untimely -- Motion for rehearing of order did not toll the time for the filing of notice of appeal. KEVIN RHODY, Appellant, v. VEECO INSTRUMENTS, INC., Appellee. 5th District.

Civil procedure -- Default -- Vacation -- Trial court abused discretion in denying motion to vacate clerk's default where, prior to entry of default, there was correspondence between counsel for parties that indicated that defendant was represented by counsel and intended to defend suit. ACE FUNDING SOURCE, LLC, Appellant, v. A1 TRANSPORTATION NETWORK, INC., Appellee. 3rd District.

Civil procedure -- Summary judgment -- Affidavit in opposition to motion -- Declaration -- Where declarations submitted in opposition to summary judgment were based upon personal knowledge and sworn under penalty of perjury, and motion to exclude these documents was not made until summary judgment hearing, trial court erred in denying movant's motion for continuance to correct technical differences between a declaration and an affidavit in opposition -- Whether declarations, which are admissible under federal rules of civil procedure, are admissible in Florida summary judgment proceedings need not be decided in instant case. MICHAEL KING, Appellant, v. STANISLAV ZASLAVSKIY, Appellee. 3rd District.

Condominiums -- Assessment liens -- Foreclosure -- Damages -- Trial court erred when it adjudicated amount of damages owed to condominium association as a matter of law where there were genuine issues of material fact as to whether association was estopped from seeking pre-purchase assessments, fees, and costs based on purported representations regarding amount of outstanding assessments made by association's manager and president prior to defendant's purchase of unit. SVI TRUST, Appellant, v. WILLIAMS WALK CONDOMINIUM ASSOCIATION, INC., Appellee. 1st District.

Contracts -- Noncompete agreement -- Injunctions -- Temporary -- Temporary injunction order is facially deficient because it fails to include specific findings on each of the four required elements needed for issuance of an injunction -- Trial court erred in setting bond amount without conducting an evidentiary hearing. JOHN THOMAS PHELAN, JR., Appellant, v. TRIFACTOR SOLUTIONS, LLC, Appellee. 2nd District.

Corporations -- Injunctions -- Temporary -- Bond -- Replevin -- Monies -- Appeal of non-final orders denying defendants' motion for prejudgment replevin seeking to recover corporate funds that were intercepted by plaintiff and deposited in an undisclosed bank account, and granting a temporary injunction in favor of plaintiff which required defendants to provide plaintiff with health insurance -- Trial court erred in issuing temporary injunction where plaintiff did not request injunctive relief requiring the provision of health insurance -- An injunction entered in the absence of proper pleading and without an evidentiary hearing is a violation of due process -- Furthermore, injunction did not meet requirements of rule 1.610 -- Error to require plaintiff to pay bond without holding an evidentiary hearing -- While replevin was not available to recover deposited funds, defendants are entitled to possession of the checkbook and check card of the bank account where the funds were deposited -- Defendants established an immediate right to possession of the check card and checkbook where the bylaws of defendant corporation provided that the treasurer shall retain custody of corporate funds, and annual report shows that one of defendants was the treasurer -- Trial court improperly reasoned that alleged set-offs between plaintiff and defendants made forcing prejudgment conveyance of monies premature -- Recourse for potential set-off is money damages, not retention of property subject to replevin -- Additionally, trial court erred in analyzing defendant's motion for replevin under section 78.068 -- Section 78.068 was inapplicable because there was notice and hearing. THOMAS G. HINNERS, MARY J. WAMSER, and FLORIDA AFFORDABLE HOUSING, INC., Appellants, v. BRIAN J. HINNERS, Appellee. 4th District.

Dissolution of marriage -- Child support -- Income -- Requirement that former husband pay private school tuition for the parties' children reversed where evidence did not support former husband's ability to pay -- Trial court erred in failing to deduct rehabilitative alimony award from former husband's gross income for purposes of computing child support. RAMIZ MAALI, Appellant, v. GHARAM MAALI, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Businesses -- Valuation -- Goodwill -- Alimony -- No competent, substantial evidence supported trial court's valuation of the parties' insurance company -- Trial court's exclusion of company's liabilities in its determination of fair market value led to significant overvaluation of the company in equitable distribution plan -- Trial court's valuation of former husband's personal goodwill was not supported by competent evidence -- Expert's analysis of selected insurance company transactions contained in database and the reported values of the related noncompete clauses did not provide competent evidence to support trial court's determination of the amount of former husband's personal goodwill in company where expert did not provide any specific knowledge about the particulars of the insurance businesses that reported transactions in the database; did not disclose whether the owners of those businesses also sold insurance as former husband did; how involved the owners of those businesses had been with the companies; or anything about the day-to-day operations of those businesses -- Additionally, record showed that many transactions expert analyzed took place outside Florida, with some dating back almost twenty years -- Trial court erred in determining that former husband had the ability to pay amount of alimony awarded because, when determining former husband's gross income, trial court erroneously included all undistributed pass-through income from insurance company. MALCOLM C. KING JR., Appellant, v. KELSI KING, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Valuation -- Liabilities -- Alimony -- Trial court erred in classifying personal injury settlement funds received during the marriage as former husband's nonmarital asset where former husband did not overcome statutory presumption that the funds were marital in nature -- Although it was former husband and not former wife who was injured in accident underlying personal injury settlement, that fact alone does not transform the nature of the funds from marital to nonmarital -- Trial court abused its discretion by including the personal injury funds in equitable distribution because they had been dissipated by the time of the dissolution hearing and there was no evidence that dissipation resulted from either party's intentional misconduct -- Trial court abused its discretion by awarding marital home, which was parties' only significant remaining marital asset, to former husband without making any specific finding of fact to justify the unequal distribution of the marital residence -- On remand, trial court should reconsider both the unequal distribution of the marital home as well as the award of credit to former husband for postseparation payments on the marital home where trial court gave no reason for awarding the former husband a credit for half of mortgage payments made since date of parties' separation -- Absent evidence to support former wife's passive-appreciation argument, former wife failed to establish an abuse of discretion in trial court's selecting of the parties' date of separation as the valuation date of the marital home based on finding that parties had been separated for three years, and that former husband had remained in the home making improvements without assistance from former wife -- Error to treat vehicle title loan taken out by former husband as a marital liability because former husband incurred the debt after petition for dissolution was filed -- Error to decline to award alimony to former wife without making statutorily required findings regarding need and ability to pay. MARY P. ROTH, Appellant, v. MARTIN R. ROTH, Appellee. 2nd District.

Dissolution of marriage -- Interim partial equitable distribution -- Roth and traditional IRAs -- Trial court erred by distributing parties' traditional IRA where neither party requested its distribution and there was no good cause to support it. BRIAN CALVARESE, Appellant, v. JOANNE KENNEDY CALVARESE, Appellee. 4th District.

Dissolution of marriage -- Marital settlement agreement -- Enforcement -- Contempt -- Failure to make lump sum alimony payments to spouse as required by marital settlement agreement -- Trial court erred in finding husband in contempt for failing to make lump sum alimony payments because, under MSA's plain language, payments were non-modifiable alimony payments to effect the equitable distribution of marital property and therefore not subject to enforcement by contempt -- Trial court erred in considering parol evidence regarding parties' intent where language of MSA was unambiguous -- Trial court properly found that former wife's claim was not barred by laches. ANDRES SUAREZ, Appellant, v. ELSA SUAREZ, Appellee. 3rd District.

Injunctions -- Contempt -- Trial court abused its discretion by finding that respondent was in contempt of injunction every time respondent traveled to respondent's property because the action brought respondent within 500 feet of petitioner's property -- Because original trial court's ore tenus explanation of its order imposing the injunction implied that respondent would not violate the 500-foot perimeter by merely passing petitioner's property while traveling through the neighborhood, injunction could not have effectively noticed respondent that said conduct would be prohibited. FRANCES OGDEN, Appellant, v. DONNA MINDREBO, Appellee. 1st District.

 Injunctions -- Domestic violence -- Due process -- Error to grant injunction for protection against domestic violence solely on basis of objected-to testimony that was not the subject of the petition for injunction. SKYLER P. WYNTER, Appellant, v. JAELYN GUTIERREZ, Appellee. 5th District.

Injunctions -- Mandatory -- Portion of injunction requiring respondent to immediately perform remediation measures is reversed where parties did not have a full opportunity to present their evidence on remediation issue -- Furthermore, remediation provision is deficient in that it fails to describe with reasonable detail the act or acts required to comply with the injunction. CENTER STATE TRANSPORTATION, INC., Appellant, v. MOTOR TREND ORLANDO SERVICE, LLC, Appellee. 5th District.

Insurance -- Bad faith -- Civil remedy notice -- Deficient notice -- No error in dismissing complaint against insurer based on finding that insured's civil remedy notice, which cited thirty-five statutory provisions and listed nearly every provision in insurance policy, failed to satisfy statutory requirement that an insured state with specificity the policy language and statutory provisions at issue -- Court rejects argument that notice was sufficient because the Department of Financial Services has statutory authority to return deficient notices but failed to do so -- Department's discretionary grant of authority did not determine the legality of the notice, nor is there evidence that the department even considered the issue -- Even if department made specific determination about notice's legality, the courts must independently review the notice. JUNIOR JULIEN, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Personal injury protection -- Civil procedure -- Discovery -- Non-parties -- Action seeking declaration that plaintiff is entitled to recover from defendant insurer payments made by plaintiff's assignors that should have been made by insurer -- Trial court departed from essential requirements of law in finding that insurer had no standing to challenge plaintiff's non-party discovery requests where items sought belong to insurer pursuant to master agreement between insurer and non-party. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Insurance -- Personal injury protection -- Declaratory action seeking declaration that plaintiff is entitled to recover from PIP insurer payments made by plaintiff's assignors that should have been made by insurer -- Jurisdiction -- Prohibition -- Petition for writ of prohibition seeking to prohibit court from exercising jurisdiction denied -- Where circuit court has jurisdiction of count of complaint for pure bill of discovery, court has jurisdiction of other counts which are limited to less than circuit court jurisdictional threshold -- Appeals -- Certiorari -- Discovery -- Defendant is not entitled to writ of certiorari to review order denying motion for protective order, as defendant has not demonstrated requisite irreparable harm. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Mortgage foreclosure -- Conditions precedent -- Notice of default -- Error to enter summary judgment in favor of lender because issue of fact remains regarding whether lender complied with standard notice requirements contained in paragraphs 15 and 22 of mortgage -- Copy of default letter and unauthenticated “letter log history file” attached to motion for summary judgment were insufficient to prove that letter was mailed to borrower. MICHAEL J. PARKIN, JR., Appellant, v. EAGLE HOME MORTGAGE, LLC, Appellee. 5th District.

Nursing homes -- Residents' rights -- Settlement of daughter's action against nursing home concerning access to her 92-year-old mother -- Trial court acted reasonably in addressing daughter's concerns regarding enforcement of access provisions of settlement agreement in light of executive and administrative orders curtailing that access because of COVID-19 pandemic. ELIZABETH SNYDER, as the daughter and authorized agent of Judith Goldstein, Appellant, v. MERIDIAN PARK VILLAGE LIMITED PARTNERSHIP, Appellee. 4th District.

Patents -- Licensing -- Infringement -- Jurisdiction -- Subject matter -- Action brought by plaintiff with exclusive license to third-party patents used to create software stating causes of action against defendant for unjust enrichment for benefiting from its patrons' use of software that violates plaintiff's exclusive license; temporary and or permanent injunctive relief to enjoin defendant's violations of its exclusive rights; conversion by way of receiving illicit compensation for the unauthorized use of plaintiff's software; and violations of Florida's Deceptive and Unfair Trade Practices Act -- Trial court erred in dismissing complaint based on determination that it did not have subject matter jurisdiction because plaintiff's claims necessarily required a determination of the scope, validity or infringement of a patent -- Where it is clear that none of plaintiff's claims are created by federal law, those claims must meet all four factors set forth in Gunn v. Minton for federal court to have exclusive jurisdiction over plaintiff's proffered state law claims -- All of plaintiff's claims necessarily raise an issue of federal law where trial court would be required to evaluate the validity and scope of the patents to some extent -- Appellate court is unable to determine whether an issue of patent or copyright law is “actually disputed” because no answer has been filed to the complaint -- Defendant's anticipatory belief that an issue of federal law will be “actually” disputed is not sufficient -- Issue of patent infringement, while necessarily raised, is not substantial enough to confer federal jurisdiction over state law claims where deciding a pure issue of federal law will not be dispositive to any of plaintiff's four causes of action; trial court's resolution will not control numerous other cases; and, because the resolution of the case will not control numerous other cases, the government has no direct interest in the dispute between the parties -- Because issues of federal law within the four counts were not substantial, court also finds that bringing these claims in federal court would disrupt Congress's intended division of labor between state and federal courts. POINT CONVERSIONS, LLC, Appellant, v. WPB HOTEL PARTNERS, LLC, Appellee. 4th District.

Real property -- Prescriptive easement -- Motion to enforce judgment -- Appeals -- Non-final orders -- Appeal of interim order which had found a prescriptive easement appurtenant but did not determine whether to enforce prescriptive easement in final judgment -- To extent interim order was appealable based on theory that it determined immediate possessory rights to the easement, appellant had thirty days to appeal from it as a nonfinal order -- To the extent the trial court's interim order either was not appealable at all or was not timely appealed, it still would have been subject to review on appeal from the final order disposing of the motion to enforce the final judgment -- Since neither party appealed final order and time to file an appeal has expired, the subject appeal is dismissed as untimely. WINBAR, L.L.C., Appellant, v. RABIA ARDAN MORRIS, Appellee. 1st District.

Rules of Juvenile Procedure -- Rules of Appellate Procedure -- Amendments -- Abortions -- Minor's petition for judicial waiver of parental notice and consent to termination of pregnancy -- Forms -- Court adopts proposed amendments to Florida Rules of Juvenile Procedure which delete language regarding judicial waiver of notice only and clearly distinguish between seeking a waiver of notice and consent and consent only -- Title of form 8.987 amended to read “Petition for Judicial Waiver of Parental Notice and Consent or Consent only to Termination of Pregnancy” -- Paragraph in form 8.987 addressing appointment of counsel amended to inform minor that appointment of counsel will be at no cost to the minor as contemplated by section 390.01114(6)(a) -- Form 8.990 amended to eliminate possibility that the court could grant a waiver of notice only because waiver of consent will always be required if court grants petition -- References to petition for judicial waiver in Rules of Appellate Procedure amended to reflect amended title. IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420, THE FLORIDA RULES OF JUVENILE PROCEDURE, AND THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 JOINT FAST-TRACK REPORT. Supreme Court of Florida.

Torts -- Discovery -- Denial -- Judicial estoppel -- Attorney-client privilege -- Appeals -- Certiorari -- Parties stipulating in federal court that no further discovery was required in order to resolve defendant's summary judgment motion asserting that plaintiff's claims against her had been settled -- Trial court departed from essential requirements of the law by relying on judicial estoppel to prohibit parties from engaging in any discovery related to defendant's affirmative defense that the underlying personal injury claims were settled prior to suit being filed -- In judicial proceedings, a party is not estopped from asserting a later inconsistent position unless the party's initial position was successfully maintained -- Defendant did not successfully maintain position that all facts had been successfully developed and presented where, although both parties stipulated that no further discovery was needed, federal judge disagreed by finding too many unanswered factual questions to permit entry of summary judgment in defendant's favor -- A party such as defendant is not estopped from relying upon such an adverse ruling and asserting any position consistent with that ruling -- Furthermore, trial court erroneously treated federal court's denial of defendant's motion for summary judgment as though it was a binding, substantive ruling -- Because federal court ultimately determined that it lacked subject matter jurisdiction, it could not make binding, substantive rulings -- Plaintiff cannot demonstrate that he was prejudiced by the parties' stipulation -- Trial court also departed from essential requirements of the law by applying attorney-client privilege without consideration of its waiver as a basis for banning discovery into settlement defense -- Prohibiting all discovery on settlement issue eviscerated defendant's settlement defense, resulting in irreparable harm. ALEYSSA MARIE ARROYO MARRERO, Petitioner, v. TERENCE REA, Respondent. 5th District.

Wrongful death -- Damages -- Limitation -- For purposes of section 768.24, which provides that survivor's death before final judgment limits the survivor's recovery to lost support and services to the date of his or her death, the term “final judgment” means the moment the trial court's judgment becomes final; and this finality is reached when trial court's judicial labor ends -- Survivor who died while defendant's motion for new trial was pending died before final judgment and, accordingly, recovery of damages was limited to lost support and service to date of death -- Because there was no claim for lost support or services, trial court correctly reduced damages awarded by jury to zero dollars. MICHAEL HAMBLEN, as Personal Representative of the Estate of Samantha Hamblen, Appellant, v. PILOT TRAVEL CENTERS, LLC, d/b/a FLYING J, Appellee. 1st District.

Wrongful death -- Product liability -- Tobacco -- Engle-progeny case -- Punitive damages -- Trial court properly applied pre-1999 version of section 768.73 in wrongful death action which arose upon decedent's death in 2000 -- Wrongful death complaint related back to Engle class-action complaint, and plaintiff's right to file the wrongful death action was based on decedent's status as an Engle class member -- Conflict certified. R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. JANICE DURRANCE JONES and JULIAN DALE DURRANCE, as personal representative for the Estate of Dorothy Watson Durrance, Appellees. 2nd District.

 

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Dissolution of marriage, personal injury, Bosc pears with herbed goat cheese, creamy angel hair pasta with shrimp and rosemary

 Appeals -- Certiorari -- Discovery orders -- Mortgage foreclosure -- Circuit court order allowing defendant to videotape deposition of substituted plaintiff's corporate representative but prohibiting petitioner from disseminating the video -- Petition dismissed for failure to demonstrate irreparable harm that cannot be remedied on direct appeal -- With respect to argument that lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials. MARTHA L. VALENCIA, Petitioner, v. PENNYMAC HOLDINGS, LLC, et al., Respondents. 3rd District.

Appeals -- Order denying motion for reconsideration and rehearing of non-final order compelling arbitration is not an appealable order and does not toll rendition of an appealable order -- Appeal dismissed. MONICA SAMARA, Appellant, v. TENET FLORIDA PHYSICIAN SERVICES, LLC, etc., et al., Appellees. 3rd District.

Consumer law -- Warranties -- Magnuson-Moss Warranty Act -- Federal Trade Commission's “single document rule,” which requires that a warrantor disclose certain warranty-related items of information clearly and conspicuously in a single document, does not require disclosure of a binding arbitration agreement. LES KROL, Petitioner, v. FCA US, LLC, et al., Respondents. Supreme Court of Florida.

Dissolution of marriage -- Attorney's fees -- Appeals -- Non-final orders -- Portion of judgment determining entitlement to attorney's fees without determining amount is non-final and non-appealable. FLOYD MARLAND TYSON, Appellant/Cross-Appellee, v. TONYA P. TYSON, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion by denying former wife's motion for attorney's fees without making any findings as to former wife's need and former husband's ability to pay -- Even if trial court had intended to sanction former wife for her actions during litigation by making her pay her own fees, as argued by former husband, the fee order must contain sufficient findings to support the trial court's decision -- Where there was no finding by trial court of bad faith on former wife's part, there was no basis on which the court could have denied former wife's motion for attorney's fees on basis of inequitable conduct doctrine. JULIE SHAW, Appellant, v. ROBERT MARK SHAW, Appellee. 1st District.

Dissolution of marriage -- Contempt -- Settlement agreement -- Modification -- No error in holding former husband in contempt for failing to deliver child's passport as required by parties' mediated settlement agreement and parenting plan where findings were supported by competent, substantial evidence that former husband willfully refused former wife's reasonable request for passport -- Purge provision which requires former husband “to comply with former wife's prospective written requests for the child's passport” did not modify agreement's provision that request be reasonable. THOMAS EARL HARRINGTON, III, Appellant, v. JEANETTE MARIE POSPISHIL, f/k/a JEANETTE MARIE HARRINGTON, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Home owned prior to marriage was properly considered a marital asset where debt incurred during marriage as result of advances from equity lines of credit secured by home used to fund family business dwarfed estimated premarital value, and marital income was used to satisfy repayment of the obligations -- Unequal distribution based on intentional misconduct of husband in secreting and dissipating assets, all purportedly in preparation for future dissolution filing, was supported by competent, substantial evidence, and valuations of marital property were grounded upon expert opinion -- Alimony -- Given evidence regarding length of marriage, needs of wife, and disparity in income and earning ability, along with lavish marital lifestyle, there was no abuse of discretion in retroactive and ongoing alimony awards. CELSO CORRALES, Appellant, v. JEANETTE CORRALES, Appellee. 3rd District.

 

Dissolution of marriage -- Jurisdiction -- Default -- Out of state service of process on husband was valid to confer jurisdiction on court although return did not list time of day that service was effected -- Amended statute removes requirement that out of state return of service forms include the time, manner, and place of service -- Trial court did not err in entering default judgment dissolving marriage, but it was error to determine child custody by default -- Best interest of child standard precludes determination of child custody based on parent's default. KEVIN CHRISTOPHER CORRIDON, Appellant, v. GRACE-ELIZABETH CAROLYN CORRIDON, Appellee. 3rd District.

Dissolution of marriage -- Marital home -- Sale -- Distribution of proceeds -- Prejudgment interest -- Trial court's factual determinations relating to distribution of sale proceeds, which took into consideration former husband's mortgage, insurance, and tax payments that former wife was required to make, were supported by competent substantial evidence -- Former wife was afforded due process -- Court lacks jurisdiction to address portion of order determining that former husband is entitled to attorney's fees where order merely grants entitlement to fees without liquidating the amount -- Trial court erred by awarding prejudgment interest to former husband for the total amount of his mortgage, insurance, and tax payments -- Prejudgment interest should be calculated separately for each payment made by former husband that, pursuant to settlement agreement, should have been made by former wife. DULCE SCHUENZEL, Appellant, v. JOHN SCHUENZEL, Appellee. 3rd District.

Insurance -- Bad faith -- Denial of coverage -- Failure to defend -- Assignment of claim -- Limitation of actions -- Action brought against insurance company after plaintiff and insured entered into Coblentz settlement, assigning plaintiff the right to collect judgment against insurer -- Error to enter summary judgment in favor of insurer based on finding that plaintiff's action was barred by statute of limitations because insured, whose claim plaintiff asserted, was required to file action against insurer within five years of denial of coverage -- Statute of limitations began to run not at time insurer refused to cover or defend insured, but at time plaintiff's bad faith claim became cognizable. LARRY D. BUTLER, Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Homeowners -- Conditions precedent -- Failure to comply -- Waiver -- Insurer waived its defense that insured failed to comply with conditions precedent where insurer failed to plead non-compliance with specificity as required by rule 1.120(c). JUAN SAAVEDRA, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 5th District.

Insurance -- Homeowners -- Water damage -- Error to enter summary judgment in favor of insurer where disputed issues of material fact remain as to whether covered peril caused opening in door of home, allowing rain water to enter and damage interior. YOANI FERNANDEZ and YADIRA SOMOZA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Paternity -- Contempt -- Failure to pay attorney's fee award -- Remand for trial court to make required findings as to whether failure to pay was willful and whether he has the present ability to pay fees as ordered. JAMES LESTER WILLIAMS, JR., Appellant, v. JAMAI F. SAMUELS, Appellee. 2nd District.

Torts -- Personal injury -- Dismissal -- Fraud on the court -- Trial court abused discretion by setting aside jury verdict in plaintiff's favor and dismissing case based on plaintiff's giving of inconsistent testimony regarding prior medical treatment -- Inconsistent testimony was known to defense counsel and was tested via cross-examination so that jury was able to determine whether plaintiff had lied or provided a reasonable explanation -- Defense counsel could have sought pretrial or in-trial remedy, but made tactical decision to present issue to jury, and jury returned verdict in favor of plaintiff despite inconsistencies. JEAN CARLOS SALAZAR, Appellant, v. MIGUEL ROGELIO GOMEZ, Appellee. 3rd District.

 

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