Cotton marketing agreements, consumer law, fair credit reporting act, bankruptcy and pork tenderloin medallions with a sage-mustard cream sauce over red bell pepper-porcini mushroom, rosemary garlic risotto

Weakley v. Eagle Logistics

Dockets: 17-14022, 17-14023

Opinion Date: June 29, 2018

Judge: Per Curiam

Areas of Law: Bankruptcy, Civil Procedure

In this consolidated appeal, plaintiff alleged that the district court abused its discretion by dismissing his two lawsuits based on the doctrine of judicial estoppel as a result of his failure to disclose them in his bankruptcy proceeding. Applying a two-part test to guide district courts in applying judicial estoppel, the court held that plaintiff took an inconsistent position under oath in a separate proceeding and the inconsistent positions were calculated to make a mockery of the judicial system. In this case, plaintiff not only failed to include the two lawsuits in his initial bankruptcy filings but he also failed to include them in any of the six separate amendments that he made to his schedules and filings during the bankruptcy proceeding. Plaintiff only disclosed the lawsuits after defendants had relied on plaintiff's failure to disclose as grounds for dismissal.

Wilcox v. corrections Corp of America

Docket: 17-11919

Opinion Date: June 25, 2018

Judges: TJOFLAT, ROSENBAUM, and BRANCH

Areas of Law: Civil rights, Employment discrimination, Sexual harassment

Employer could not be held directly liable for harassing acts of co-employee who was not plaintiff's supervisor where evidence established that company took prompt remedial action against the harassing employee -- District court did not err in granting judgment as matter of law for employer notwithstanding jury's favorable verdict and award of damages to plaintiff

Felts v. Wells Fargo Bank, N.A.

Docket: 16-16314

Opinion Date: June 27, 2018

Judges: TJOFLAT and WILSON, Circuit Judges, and ROBRENO

Areas of Law: Consumer law, Fair Credit Reporting Act

Mortgagor brought action against mortgage servicer, as furnisher of information to credit reporting agencies regarding her compliance with her payment obligations under her mortgage loan, claiming that furnisher failed to conduct a reasonable investigation into the accuracy of its credit reporting of her mortgage loan in violation of FCRA -- District court did not err in finding that mortgagor's FCRA claim failed as matter of law because the undisputed material facts demonstrated that furnisher's reporting of mortgage account as past due and delinquent during a forbearance plan was neither inaccurate nor materially misleading, and thus mortgagor failed to make the threshold showing that a reasonable investigation could have uncovered an inaccuracy -- Information reported regarding mortgagor's compliance with the terms of Note was not inaccurate where furnisher reported that scheduled monthly payment amount was full amount due under the Note and that mortgagor's payments were “past due” and “delinquent” for months that she did not make full payments required under the Note -- Apparent compliance with terms of forbearance plan mortgagor entered into with furnisher has no bearing on accuracy of information reported to CRAs regarding compliance with terms of original Note, unless plan legally modified terms of Note, and mortgagor has not identified any facts in record establishing that the forbearance plan legally modified the Note -- Consumer Data Industry Association's guidelines regarding credit reporting do not demonstrate that information reported was inaccurate -- Where mortgagor owed payments under Note, it was not misleading for furnisher to report that payments were not being made under Note as agreed, particularly in light of furnisher's additional statement that she was paying under a partial payment agreement -- Omission of lower payment amount mortgagor agreed to pay under forbearance plan did not render credit reporting misleading.

Autauga Quality Cotton Ass’n v. Crosby

Docket: 17-12092

Opinion Date: June 25, 2018

Judges: NEWSOM, BRANCH, and ANDERSON

Areas of Law: Contracts, Cotton marketing agreement, Breach by grower, Damages

Liquidated damages clause in agreement between grower and cooperative that pooled and marketed grower's cotton amounted to an impermissible penalty under Alabama law and is unenforceable -- Provision did not satisfy second or third prong of three-part test set forth by Alabama court in Camelot Music, Inc. v. Marx Realty & Imp. Co. where evidence indicated that intent was to provide for penalty, not damages, and the agreement's liquidated-damages formula did not remotely prescribe a “reasonable pre-breach [estimate] of the probable loss” -- Cooperative organized under article 4 of Alabama's Agricultural Code not entitled to avail itself of Article 3 liquidated-damages authorization.

Everglades College, Inc. v. Nat’l Labor Relations Board

Docket: 16-10341

Opinion Date: June 26, 2018

Judges: MARTIN and HULL, Circuit Judges, and RESTANI

Areas of Law: Labor relations, Unfair labor practices

Employer did not violate National Labor Relations Act by maintaining and enforcing employment agreement that required employees to individually arbitrate employment-related claims and that waived employees' rights to file class or collective action lawsuits against employer -- Whether employer violated NLRA by maintaining and enforcing employment agreement that caused employees to reasonably believe that they were prohibited from filing unfair labor charges with National Labor Relations Board must be re-evaluated in light of NLRB's recent refashioning of its test for determining whether an employer's allegedly facially neutral policy would reasonably lead an employee to believe that she could not file an unfair labor charge with NLRB -- Unlawful discharge -- Whether employer unlawfully discharged employee for refusing to sign an unlawful employment agreement which could reasonably be construed as prohibiting the filing of unfair labor charges with NLRB must also be reconsidered in light of NLRB's new standard, which applies retroactively.

Llorca v. Sheriff, Collier county, Florida

Docket: 17-10616; 17-11377

Opinion Date: June 27, 2018

Judges: JILL PRYOR, ANDERSON, and HULL

Areas of Law: Labor relations, Fair Labor Standards Act, Overtime

Sheriff deputies are not entitled to compensation under FLSA or Florida Minimum Wage Act for time spent donning and doffing police gear at home or time spent driving to and from work in marked patrol vehicles -- Even though donning and doffing protective gear arguably may be “indispensable,” it is not “integral” to deputies' principal activities of law enforcement duties and therefore such time is not compensable -- Donning and doffing is an entirely separate activity from deputies' principal law enforcement duties, and therefore donning and doffing is a preliminary and postliminary activity as contemplated by Portal-to-Portal Act -- Time deputies spent commuting in marked patrol vehicle is excluded from compensable work time by plain language of Portal-to-Portal Act -- Monitoring roads for traffic violations and other incidents during the deputies' commutes are incidental to use of marked patrol vehicle and not part of employee's principal activities -- Performance of general traffic law enforcement during deputies' commutes is not integral and indispensable to deputies' performance of their principal activities

Rodriguez Asalde v. First Class Parking Systems LLC

Docket: 16-16814

Opinion Date: June 29, 2018

Judge: Jordan

Areas of Law: Labor & Employment Law

Plaintiffs, who are valets, filed a putative class action against FCPS, alleging claims under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The Eleventh Circuit held that, although the district court correctly ruled that the vehicles parked by plaintiffs were "goods" subject to the ultimate consumer exception, and not "materials" under the FLSA, FCPS was not entitled to summary judgment on the FLSA claims. Viewing the evidence in the light most favorable to plaintiffs, a jury could reasonably find that the uniforms they had to wear as valets for FCPS constituted "materials" under 29 U.S.C. 203(s)(1)(A). Furthermore, the labels on the uniforms, which reflect foreign manufacture, similarly created a jury issue as to whether the uniforms moved in international or interstate commerce under section 203(s)(1)(A)(ii). Accordingly, the court affirmed in part, reversed in part, and remanded.

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Trademarks, civil rights, and rib roast with green peppercorn-coffee-rosemary-garlic rub over sweet potato mash

Civil rights -- Due process -- Colleges and universities -- Former tenured university professor brought complaint under 42 U.S.C. section1983 alleging his termination failed to comport with procedural due process -- District court did not err in granting defendants' motion to dismiss on ground that plaintiff could not state a plausible claim for relief under Section 1983 with respect to his procedural due process claim -- Plaintiff was afforded adequate procedural due process prior to revocation of his tenure and termination of his employment where he received prior, written notice of charges against him; was represented by counsel at formal hearing before an unbiased faculty committee; presented argument and evidence on his own behalf, including cross-examination of witnesses against him; had a right to appeal his termination to Board of Regents; and submitted a written appeal to Board of Regents -- Lack of a requirement that plaintiff also receive a hearing before university president, that president review and rely on findings of faculty hearing committee or evidence presented at such hearing before making a final decision, or that plaintiff receive an in-person meeting with Board of Regents prior to his termination did not deprive plaintiff of a meaningful opportunity to be heard -- Jurisdiction -- District court had jurisdiction to consider plaintiff's procedural due process claim because plaintiff's federal action under Section 1983 was not barred by doctrine of res judicata and his procedural due process claim was actionable under Section 1983

JOY LASKAR, Ph.D., Plaintiff-Appellant, v. G.P. “BUD” PETERSON, individually and in his official capacity as President of the Georgia Institute of Technology, a Unit of the University System of Georgia, et al., Defendants-Appellants. 11th Circuit.

Contracts -- Real property sale -- Failure to consummate contract -- Purchaser's contract claims for damages and specific performance based on failure to consummate contract for purchase of residential property are barred by remedies limitation provision of the residential contract -- Remedies limitation provision does not contain an unreasonable disparity in remedy alternatives available to parties and thus does not lack mutuality and is enforceable -- Parties' respective remedies are not unreasonably disparate, as pertaining to the failure to consummate sale of residential property, where remedies provision limits purchasing party's remedies for seller's failure to consummate the sale to return of its deposit and out-of-pocket expenses and seller's sole and exclusive remedy for purchaser's failure to consummate the contract was terminating the contract and retaining the earnest money, thus foregoing option of enforcing contract and seeking actual damages or specific performance

INLET BEACH CAPITAL INVESTMENTS, LLC, US 98 CAPITAL INVESTMENTS, LLC, DAVID R. PEARSON, Plaintiffs-Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Peoples First Community Bank Panama City, Florida, a.k.a. FDIC, Defendant-Appellee. 11th Circuit.

Contracts -- Sales -- Accounting -- A Saudi Arabian company that contracted with a Florida-based aircraft parts dealer to sell aircraft parts on consignment sued its contracting party for breach of contract and conversion and requested an accounting -- District court abused discretion when it refused to grant plaintiff an accounting to determine amount, if any, due from defendant -- District court failed to recognize that the fiduciary nature of relationship between parties alone constituted sufficient grounds for an accounting under Florida law and erroneously concluded that an action for damages afforded an adequate remedy at law -- A court-directed accounting was appropriate remedy where defendant, as a consignee, had a fiduciary obligation to account for its handling of plaintiff's parts, parties' contracts explicitly spelled out defendant's duty to keep complete and accurate records and plaintiff's right to review those records, and defendant concededly failed to comply with its accounting and reporting obligations -- A court-directed accounting was proper remedy because plaintiff's breach of contract claim did not constitute an adequate remedy at law where discovery could not provide the means to force defendant, who possessed all relevant details regarding disposition of goods and who had substantial motivation to frustrate discovery process, to disgorge the requisite information for plaintiff to prove damages

ZAKI KULAIBEE ESTABLISHMENT, a company formed under the laws of the Kingdom of Saudi Arabia, Plaintiff-Appellant, v. HENRY H. MCFLIKER, a natural person, a.k.a. Harris H. McFliker, a.k.a. Harold McFliker, AYODH PERSAUD, a natural person, a.k.a. Joe Persaud, SHAMMIE PERSAUD, a.k.a. Bebe Nafessa Persaud, a.k.a. Be Be N. Persaud, a.k.a. Bi Bi N. Persaud, AIRSPARES NETWORK, INC., a Florida corporation, DAYTONA AEROSPACE, INC., a Florida corporation, et al., Defendants-Appellees. 11th Circuit.

Elections -- National Voter Registration Act -- Florida violated section 8(c)(2)(A) of NVRA, which requires state to “complete not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters,” by conducting a program to systematically remove suspected non-citizens from voter rolls within 90 days of a federal election -- Remand with instructions to district court to enter order declaring that Florida Secretary of State's actions were in violation of 90-day provision of NVRA and to grant such relief as needs and interests of justice require -- Standing -- Individual plaintiffs who had been wrongly identified as non-citizens in a prior program had standing to challenge that prior program, although they were ultimately not prevented from voting in prior election -- These individuals also had standing to prospectively challenge second attempt to remove non-citizens from voter roles because there was a realistic probability that they would be misidentified due to unintentional mistakes in data-matching process -- Organizational plaintiffs had standing to challenge program based on both a diversion-of-resources and an associational standing theory -- Mootness -- Claims related to 2012 elections are not moot because dispute is capable of repetition yet evading review

KARLA VANESSA ARCIA, MELANDE ANTOINE, et al., Plaintiffs-Appellants, v. FLORIDA SECRETARY OF STATE, Defendant-Appellee, LUIS I. GARCIA, et al., Intervenor Defendants. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Former employees of Florida construction contractor brought suit claiming contractor failed to pay wages, including overtime, that they were entitled to receive under FLSA -- Jurisdiction -- District court had subject matter jurisdiction where face of complaint alleged federal claim for unpaid, overtime hours -- Statement of claim that plaintiffs filed under the local practices did not amend that jurisdictional basis out of the complaint -- Plaintiffs' failure to reiterate their unpaid-overtime-hours claim in statement of claim document is not controlling -- Statement of claim document does not have status of a pleading and is not an amendment of complaint under Rule 15 of Federal Rules of Civil Procedure

ARLE CALDERON, MANNY FERNANDEZ, ADALBERTO GALO, LUIS MOLINA, ANDY W. DEL TORO, SERGIO D. HERNANDEZ, PEDRO JOSE MARTINEZ, WILLIAMS ARIELLO GALANTINO, JOSE DE LA CRUZ CARDENAS, on their own behalf and others similarly situated, Plaintiffs-Appellants, v. BAKER CONCRETE CONSTRUCTION, INC., a Florida profit corporation, et al., Defendants, FORM WORKS/bAKER JV, LLC., a foreign profit corporation, Defendant-Appellee. 11th Circuit.

Trademarks -- Infringement -- Online education -- Standing -- Florida Virtual School, a Florida state agency established for development and delivery of online education, appeals from dismissal of its trademark infringement suit against a national online education provider for lack of standing based on conclusion that only Department of State has standing to sue for infringement of plaintiff's trademarks -- Florida Virtual School has authority, and standing, to file action to protect its trademarks

FLORIDA VIRTUALSCHOOL, a Florida Educational Institution, Plaintiff-Appellant, v. K12, INC., a Delaware Corporation, K12 FLORIDA, LLC, a Florida Limited Liability Company, Defendants-Appellees. 11th Circuit.

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DOL to Issue Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations 

Posted originally by Andrew Frisch Dec. 15, 2011

On December 15, 2011 the Department announced that it will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes:

• To more clearly define the tasks that may be performed by an exempt companion
• To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

More.

Vote for Favorite Blogs in the 5th Annual Blawg 100. Thank you!

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Bill Aims at Worker Misclassification

Posted Oct. 17, 2011 by Ilyse Schuman

Rep. Lynn Woolsey (D-CA) has reintroduced legislation that would create new record-keeping requirements for employers that hire independent contractors, and impose stricter penalties for misclassification. Notably, the Employee Misclassification Prevention Act (H.R. 3178) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. More.

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Criminal law appeals, business disputes, insurance coverage with fresh tomatoes, basil and mozzarella

Miranda Const. Development, Inc. v. Mid-Continent Cas. Co. ,(S.D.Fla.)

Insurance - "Your work" exclusion in commercial general liability policy applied to claim for defective construction of home.

Under Florida law, the "your work" exclusion in a commercial general liability policy issued to an insured home builder applied to a claim against the insured seeking damages resulting from the insured's alleged defective construction of a home's foundation. Although the complaint alleged damage "including but limited to the flooring, trusses, roof, and walls," it was clear that the claim for damages related solely to the home itself and the insured's alleged defective construction. There were no allegations of damage to personal property or to property other than the home itself.

Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Hospitals -- Where it was undisputed that the only attending obstetrician at time of infant's delivery was not a “participating physician” as defined by NICA, hospital was not protected by NICA from tort claim, even though hospital had given statutorily-required NICA notice -- Remedies and protections afforded by NICA are limited to those cases in which obstetric services were provided by participating physician at infant's birth

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., etc., Petitioner, v. SARAH GWYN AND BRIAN GWYN, etc., Respondents. 5th District.

Negligent Misrepresentation: PARENTS SEEK CHILD-REARING EXPENSES FOR BABY BORN AFTER FAILED VASECTOMY, Bassinger v. Oregon Healthcare Res., 6 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 11, 2011

An Oregon couple who conceived a child after being told that the husband's vasectomy was successful are seeking more than $675,000 in child-rearing expenses from the doctor who allegedly botched the procedure. In a lawsuit filed in the Lane County Circuit Court, Scott and Donnita Bassinger allege Dr. Stephan Schepergerdes negligently misrepresented to them that a sperm count conducted after Scott's March 30, 2007, vasectomy confirmed he was sterile.

Failure to Warn: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 6 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 11, 2011

A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.

Legal Malpractice: MISSISSIPPI HIGH COURT REVIVES MALPRACTICE SUIT AGAINST ATTORNEY, Bennett v. Hill-Boren P.C., 6 No. 18 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice February 11, 2011

The Mississippi Supreme Court has ruled that a woman can pursue legal malpractice allegations against two attorneys who allegedly failed to serve a summons to a defendant in a wrongful-death lawsuit. The trial court incorrectly granted summary judgment to attorney Leonard B. Melvin Jr. on the ground that Mattie Bennett's and Dorothy Washington's malpractice claims were barred by a three-year statute of limitations, the Supreme Court ruled.

Intentional Acts: HERPES INFECTION NOT AN 'ACCIDENT,' NEW JERSEY APPEALS COURT RULES, D.V. v. N.J. Mfrs. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage February 4, 2011

A New Jersey insurance company need not defend a policyholder in a lawsuit in which her ex-boyfriend alleges she intentionally failed to disclose her herpes infection to him, a state appellate court has ruled. The Superior Court Appellate Division upheld a lower court's decision that New Jersey Manufacturers Insurance Co. properly denied coverage to a policyholder identified only as "D.V."The court ruled that since D.V. knew she carried the herpes virus, transmission of the disease to her ex-boyfriend was not an accident.

Settlement Dispute: INSURER'S FINDING OF CONTRIBUTORY NEGLIGENCE COULD BE BAD FAITH, Zintel v. Progressive N. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage February 4, 2011

An insurance carrier might have acted in bad faith when its agent calculated contributory negligence into a claim evaluation for a policyholder who was struck by a pickup truck, a Pennsylvania federal judge has ruled. U.S. District Judge James M. Munley of the Middle District of Pennsylvania said a reasonable jury could find that the insurer knew it lacked a reasonable basis to reduce its claim evaluation but did so anyway.

Civil rights -- Speech -- Retaliation -- Due process -- Former nursing student brought Section 1983 action against college and administrators alleging that her suspension from Licensed Practical Nursing Program violated her free speech and due process rights -- Qualified immunity -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended in retaliation for reporting one of her instructors for falsifying attendance records, in violation of First Amendment, where there is factual dispute as to whether plaintiff's protected speech of reporting instructor was motivating factor in her suspension from Nursing Program, and, even if there was retaliatory motive, record establishes that school administrators also possessed lawful motive for suspending plaintiff and reasonably believed that they would have suspended plaintiff in absence of her protected speech because of her other conduct -- Under facts of case, district court did not err in deciding that, for qualified immunity purposes, school administrators in their position could have reasonably believed that suspending plaintiff would not violate her First Amendment free speech rights -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended without meaningful opportunity to respond to charges against her in violation of Due Process Clause of Fourteenth Amendment -- Even though school administrators deprived plaintiff of pre-suspension hearing, based on facts of case, district court did not err in deciding that, for qualified immunity purposes, it was not clearly established at time plaintiff was suspended that the immediate availability of appeals process would not have adequately protected plaintiff's due process rights

SARA CASTLE, Plaintiff-Appellant, v. APPALACHIAN TECHNICAL COLLEGE, JASPER GEORGIA, In their individual and official capacities, et al., Defendants, JOAN THOMPSON, Vice President, in their individual and official capacities, DR. TRINA BOTELER, Executive Affairs Officer, in their individual and official capacities, Defendants-Appellees. 11th Circuit.

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Full Disclosure Act -- District court did not err in dismissing complaint seeking rescission of land purchase contracts and damages pursuant to ILSA, after considering forum selection clause in purchase contracts designating Bahamas as exclusive venue for any litigation concerning or related to contract and finding that venue was foreclosed in Florida -- District court's enforcement of forum selection clause did not deprive plaintiffs of their right to choose the venue for their ILSA claims and was not contrary to public policy

KENNETH W. LILES, PATRICIA M. LILES, EDWARD R. WEBB, JAMES JOSEPHSON, WILLIAM J. ANDREWS, JR., MARK R. ROODVOETS, JON D. ANDREWS, CHARLES B. LESESNE, JERRY A. CICOLANI, JR., KRIS BRENEMAN, DANA F. BALLINGER, SUSAN KHERKHER, THOMAS E. LAMMERTSE, MARY L. SIPSKI, RONALD P. VAN, as trustee of the Ronald P. Van Jr. Revocable Trust, KATHY JO VAN, as trustee of the Kathy Jo Van Revocable Trust, Plaintiffs-Appellants, v. GINN-LA WEST END, LIMITED, ROBERT F. MASTER, II, EDWARD R. GINN, III, Defendants-Appellees, GINN FINANCIAL SERVICES, et al., Defendants. 11th Circuit.

Employer-employee relations -- Family and Medical Leave Act -- Interference with FMLA rights -- District court correctly found that employee's Department of Labor complaint did not bar her from filing civil action against employer for interfering with her statutory right to request medical leave and for firing her in retaliation for her protected leave request in violation of FMLA -- Agency regulations which allow an employee to file either agency complaint or civil suit, but not both, cannot contravene statute providing a right to a cause of action and specifically listing the limitations terminating the right of action -- District court correctly excluded causal nexus from recitation of elements of interference claim, but employer was entitled to raise lack of causation as affirmative defense -- Error in failing to give jury instruction on defense of lawful reasons for termination was harmless because jury specifically rejected defense in its special verdict

DIANE SPAKES, Plaintiff-Appellee, v. BROWARD COUNTY SHERIFF'S OFFICE, Defendant-Appellant. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Motor carrier exemption -- Shuttle service that provides ground transportation services to general public traveling to and from local airports was entitled to summary judgment on former shuttle driver's claim for overtime under Fair Labor Standards Act on ground that airport shuttle van drivers fall under motor carrier exemption to FLSA and therefore are exempt from FLSA's overtime provisions -- Plaintiff is subject to motor carrier exemption where undisputed evidence shows that shuttle service is subject to Secretary of Transportation's jurisdiction under Motor Carrier Act and plaintiff's work-related activities as airport shuttle driver directly affected safety of operation of motor vehicles in transportation of passengers on public highways in interstate commerce within meaning of Motor Carrier Act

STEVEN ABEL, on his own behalf and all others similarly situated, Plaintiff-Appellant, v. SOUTHERN SHUTTLE SERVICES, INC., a Florida Corporation, Defendant-Appellee. 11th Circuit.

Contracts -- Construction -- Agreement between contractor and subcontractor for subcontractor to manufacture staircase and flooring system for renovation being performed by contractor -- Trial court properly found that a valid contract existed although contractor did not sign subcontractor's final proposal where contractor accepted proposal by its actions of paying initial deposit and subsequently invoiced payments -- Where contract provided that subcontractor was to “engineer, fabricate and install” the staircase and flooring system, but also provided that the final progress payment was “due upon supervision of installation,” the contract was ambiguous as to whether subcontractor was to install the staircase and flooring system or only supervise the installation, and court properly allowed presentation of parol evidence to establish the parties' intent -- Judgment finding that contractor breached contract by failing to make a payment was internally inconsistent where court also found that the payment had not been invoiced by subcontractor -- Judgment finding contractor to be in breach of contract reversed

L & H CONSTRUCTION COMPANY, INC., Appellant, v. CIRCLE REDMONT, INC., Appellee. 5th District.

Counties -- Rezoning -- Inconsistency with comprehensive plan -- No error in entering summary judgment in favor of defendants in action challenging county's approval of application for rezoning of parcel to allow for automotive repair and service shop where automotive repair facility was an allowed use within the subject parcel's future land use category

D. DOUGLAS REHMAN, Appellant, v. LAKE COUNTY, FLORIDA, ET AL., Appellee. 5th District.

Child support -- Income -- Amount paid to father by Veteran's Administration for benefit of child should have been included in father's income and the total family income figure -- Remand for recalculation of child support

EDWARD W. MASLOW, Appellant, v. JULIANNE M. EDWARDS AND DEPARTMENT OF REVENUE, Appellee. 5th District.

Insurance -- Uninsured motorist -- Bad faith -- Error to lift abatement of bad faith claim while insurer's appeal of excess judgment was pending

ILLINOIS NATIONAL INSURANCE CO., Petitioner, v. PATRICIA BOLEN, Respondent. 5th District.

Insurance -- Uninsured motorist -- Umbrella policy -- Stacking -- Trial court properly determined that policy issued to insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium paid for each automobile

NATHAN SIMMONS, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 5th District.

Civil procedure -- Parties -- Anonymity -- Civil suit brought by anonymous plaintiffs for damages stemming from films produced by defendants in which plaintiffs, while under age of eighteen, exposed their breasts and engaged in sexually explicit acts -- District court abused discretion in denying plaintiffs' motion to proceed anonymously at trial where court incorrectly deemed some of plaintiffs' conduct “casual and voluntary” and improperly discounted expert evidence of harm that revealing their identities would cause the plaintiffs -- None of normal harms threatened to defendants when plaintiffs proceed anonymously are present in instant case -- Remanded for entry of order allowing plaintiffs to remain anonymous, subject to limitations posed by First Amendment on prior restraint on speech -- Appellate court would not address claim that requested limitations on press's ability to cover the trial constitute prior restraint in violation of First Amendment where district court had not addressed issue in first instance

PLAINTIFF B, Plaintiff-Appellant, FLORIDA FREEDOM NEWSPAPERS, INC., Intervenor-Appellee, PLAINTIFF J, PLAINTIFF S, PLAINTIFF V, Plaintiffs-Appellants, v. JOSEPH R. FRANCIS, MRA HOLDINGS LLC, MANTRA FILMS INC., AERO FALCONS, LLC, Defendants-Appellees. NATIONAL CRIME VICTIM LAW INSTITUTE, SOUTHERN NEWSPAPER PUBLISHER'S ASSOCIATION, Amicus Curiae. 11th Circuit.

Civil rights -- Prisoners -- Speech -- Retaliation -- State prisoner filed retaliation claim under 42 U.S.C. section 1983 alleging prison official violated his First Amendment rights when she disciplined prisoner for filing inmate grievance and for speaking to her in manner she found disrespective -- Error to grant summary judgment in favor of prison official where genuine issues of material fact remain as to causal relationship between inmate's use of large upper case letters in his grievance and discipline imposed, and as to causal relationship between inmate's statements to prison official about contacting his attorney and official's subsequent actions -- As matter of law, an inmate's statement that he wants or plans to contact his attorney does not constitute a punishable “spoken threat” -- Damages -- District court erred when it sua sponte granted summary judgment in favor of prison official on issue of compensatory damages where court did not provide notice that it intended to rule on compensatory damages claim during summary judgment proceedings

LEWIS MARTIN MOTON, JR., Plaintiff-Appellant, v. CAPTAIN B.E. COWART, Defendant-Appellee, W.O. SHEETZ, LT. PRIETO, Defendants. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Career offender -- Prior convictions -- Error to sentence defendant as career offender where his prior conviction for cocaine trafficking did not constitute a controlled substance offense -- Because appellate court was required to assume that defendant's prior conviction involved only the purchase of cocaine where district court was unable to determine statutorily-prohibited act for which defendant was convicted, and because act of purchase is not included in definition of controlled substance offense under section 4B1.2(b), defendant's prior conviction was not a “controlled substance offense”

USA, Plaintiff-Appellee, v. JERMON SHANNON, JR., a.k.a. Winfield Winchester Roye, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Error to include in offense level calculation a two-level enhancement for unduly influencing a minor to engage in prohibited sexual conduct, where only “minor” involved in case was undercover law enforcement officer posing as underage child -- Amendment 732, which became effective after date of defendant's sentencing hearing and states that undue influence enhancement does not apply when only “minor” involved is undercover officer, is clarifying amendment that should be applied retroactively to defendant's direct appeal of his sentence

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SETH JERCHOWER, Defendant-Appellant. 11th Circuit.

Criminal law -- Murder -- Death penalty -- Post conviction relief -- No error in concluding that defendant was not mentally retarded -- Circuit court erred in its application of standard error of measurement to one of defendant's IQ scores, and language of circuit court's order does not demonstrate beyond reasonable doubt that the error did not contribute to court's conclusion that defendant failed to establish subaverage intellectual functioning -- However, competent, substantial evidence supported circuit court's determination that defendant failed to establish deficient adaptive functioning -- Evidence -- Even if, as defendant claims, circuit court improperly allowed a number of documents to be admitted into evidence and improperly allowed a former defense expert to testify for the state, any error was harmless where language of order demonstrated beyond reasonable doubt that challenged evidence did not contribute to conclusion that defendant failed to establish mental retardation -- Court notes that, while post conviction court had authority to take judicial notice of prior post conviction proceeding and certain letters in court files, documents are still subject to same rules of evidence to which all evidence must adhere -- Further, it is important for attorneys to ensure that record reflects identifying information as to which piece of evidence is being referenced and addressed during proceeding

DONALD WILLIAM DUFOUR, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Resentencing -- Guidelines departure sentence -- Decisions of U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, under which a judge may impose sentence based solely on facts reflected in a jury verdict or admitted by defendant except for the fact of a prior conviction, apply to de novo resentencing proceedings that were not final when Apprendi and Blakely issued regardless of whether the defendant's conviction and sentence were final before Apprendi and Blakely issued

STATE OF FLORIDA, Petitioner, vs. CHRISTIAN FLEMING, Respondent. Supreme Court of Florida.

Criminal law -- Appellate counsel -- Ineffectiveness -- Although appellate counsel was deficient for failing to file motion to correct sentencing error which had not been preserved by trial counsel where defendant would have been entitled to relief under case law in effect at the time of defendant's appeal, defendant is not entitled to relief on claim of ineffective assistance of appellate counsel where that case law has been disapproved by Florida Supreme Court -- Question certified: When a petitioner clearly alleges deficient performance on the part of appellate counsel based on case law in effect at the time of the appeal that would have resulted in relief had appellate counsel raised the issue on appeal, but the case law upon which the petitioner bases the claim is subsequently disapproved, is the petitioner still prejudiced by appellate counsel's deficient performance and thus entitled to relief through a petition alleging ineffective assistance of appellate counsel?

DEANDRE T. WOODRUFF, Petitioner, v. STATE OF FLORIDA, Respondent. 2nd District.

 
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