Attorneys' fees, burgers with extra sharp cheddar cheese, and apple pie with rosemary-butter crust and vanilla bean ice cream

Attorney's fees -- Quantum meruit -- Trial court erred in concluding that fees could not be awarded solely because counsel did not keep, or attempt to recreate, accurate time records -- Although time spent on case is one factor to be considered under quantum meruit theory, trial court must consider totality of circumstances in computing reasonable value of services rendered

Reported at 36 Fla. L. Weekly D1028c

Attorney's fees -- Offer of judgment -- Consumer law -- Florida Consumer Collection Practices Act preempts award of attorney's fees and costs pursuant to offer of judgment/proposal for settlement -- Motion to strike and to remove offer of judgment/proposal for settlement from court file is granted

VIEW OPINION

Attorney's fees -- Costs -- Proposal for settlement -- Prevailing party -- Proposal for settlement under section 768.79, Florida Statutes, does not cut off a prevailing party's claim for contractual attorney's fees and costs incurred after the date of the proposal -- Trial court properly awarded defendant attorney's fees and costs incurred after the date of its valid proposal for settlement, and properly awarded plaintiff, which prevailed in its breach of contract action, all of its attorney's fees and costs through trial pursuant to a prevailing party attorney's fees provision in contract

Reported at 36 Fla. L. Weekly D1049b

Attorney's fees -- Prevailing party -- Mutuality of obligation -- Mortgage foreclosure -- A defendant was entitled to recover attorney's fees as a prevailing party under section 57.105(7), where mortgage entitled mortgagee to reasonable attorney's fees for enforcement, after court granted motion to dismiss mortgage foreclosure and dismissed the case without prejudice -- Pleading requirement -- It was proper for defendant to seek attorney's fees in a motion filed after entry of dismissal without prejudice where she had not yet filed a responsive pleading -- Plaintiff's voluntary dismissal makes a defendant a prevailing party even where plaintiff refiles the case and prevails

Reported at 36 Fla. L. Weekly D1065a

Attorney's fees -- Trial court erred in awarding attorney's fees at an hourly rate that exceeded the rate agreed to by party's attorney in noncontingent fee agreement -- Alternative fee recovery clause in fee agreement, which provided for an award of the greater of the contract fee or the amount awarded by the court, is unavailing where fee arrangement was not contingent and party's attorney did not assume any risk of nonpayment for his services.
36 Fla. L. Weekly D1139a

Banks -- Settlement of checks -- Unjust enrichment -- Class action against bank for violation Section 655.85, Florida Statutes, by charging check-cashing service fee on personal check presented in person by non-account-holding payee and for unjust enrichment -- Federal preemption -- Florida statute, which prohibits a bank from settling any check drawn on it other than at par, is preempted by regulations promulgated by Office of Comptroller of Currency pursuant to National Banking Act -- Florida's par value statute, which prohibits charging fees to non-account-holders, is in substantial conflict with OCC regulations which specifically authorize banks to charge fees to non-account-holders presenting checks for payment -- Unjust enrichment claim which relies on identical facts as claim under Florida statute is also preempted -- Unjust enrichment claim also fails as matter of law because plaintiff cannot prove each element of claim

Reported at 22 Fla. L. Weekly Fed. C2036a

Bankruptcy -- Exempt property -- Personal property -- Enhanced statutory exemption -- A debtor who initially did not claim, then claimed, and then disclaimed the benefit of Florida's constitutional homestead exemption is not receiving the benefit of the constitutional homestead exemption and can use Section 222.25(4), Florida Statutes, to claim an additional $4000 exemption for personal property -- Act of not claiming, claiming, and then disclaiming Florida's constitutional homestead exemption does not constitute sufficient prejudice, concealment, or bad faith to disallow debtor's final amendment to schedules disclaiming the homestead exemption and claiming the personal property exemption -- Debtor is not receiving the benefits of homestead exemption by virtue of her relationship with her ex-husband, where they are divorced and do not hold the homestead as tenants by entireties since only married persons can do so under Florida law -- Both statutory and constitutional personal property exemptions may be utilized so long as debtor is not also claiming the constitutional homestead exemption

Reported at 22 Fla. L. Weekly Fed. B674a

Civil rights -- Public accommodations -- Further factfinding is required by Florida Commission on Human Relations regarding whether the presence of a restaurant and tiki hut transformed a marina into a public accommodation for purposes of Florida Civil Rights Act -- If the restaurant and tiki hut are located on the marina's property, and if the marina serves their patrons, the marina would qualify as a public accommodation

Reported at 36 Fla. L. Weekly D1035b

Counties -- Code enforcement -- Appeals -- Circuit court, sitting in appellate capacity, did not depart from essential requirements of law in finding that property owner's motion for rehearing of special master's violation order was untimely where motion was filed more than thirty days after violation order was entered -- Circuit court departed from essential requirements of law in finding that notice of appeal from enforcement orders imposing penalty/lien was untimely -- Although property owner failed to timely appeal violation order, this failure does not bar her from appealing subsequently entered enforcement orders -- Circuit court also departed from essential requirements of law when it affirmed the orders under review after it concluded that it lacked jurisdiction over the appeal

Reported at 36 Fla. L. Weekly D1079b

Dependent children -- Violation of “Stipulation for Plan of Treatment” -- General master did not have authority to conduct adjudicatory hearing under section 39.507, which requires that such hearings be conducted by judge -- Moreover, rule 8.257(h) prohibits general magistrate from presiding over adjudicatory hearing under section 39.507 -- Rule further provides that no matter shall be heard by general magistrate without appropriate order of referral -- Finally, agency presented no evidence to show that mother materially violated stipulation or that child was otherwise dependent within meaning of statute

Reported at 36 Fla. L. Weekly D1045b

Dissolution of marriage -- Support -- Trial court abused discretion by requiring husband to provide health insurance for wife without setting any limitation as to amount he would have to pay to comply with requirement -- Court erred in requiring husband to maintain life insurance to secure alimony and child support in an amount in excess of life insurance currently maintained by husband where there was insufficient evidence that insurance in excess of insurance currently maintained was available or reasonably affordable -- Court erred in failing to allocate amount of insurance designated to secure alimony award and amount designated to secure child support award -- Court did not err in requiring husband to contribute to children's private school tuition and related expenses -- Trial court's requirement that husband contribute to the costs of children's extracurricular activities construed to apply only to those extracurricular activities that are agreed to by the parties pursuant to shared parental responsibility

Reported at 36 Fla. L. Weekly D1021a

Employee benefit plans -- Pension -- Challenge to new plan which, in some respects, was less generous than prior plan -- District court, having determined that plan fiduciary's failure to give plan beneficiaries proper notice of changes to their benefits caused its employees sufficient injury to warrant legal relief, lacked authority to reform the plan under section 502(a)(1)(B) of Employee Retirement Income Security Act, which authorizes plan participant or beneficiary to bring civil action to recover benefits due under terms of plan -- However, relief is authorized by section 502(a)(3), which allows a participant, beneficiary, or fiduciary to obtain “other appropriate equitable relief” to redress violations of ERISA or a plan's terms -- Relevant standard of harm will depend upon the equitable theory by which the district court provides relief -- Discussion of equitable principles that may apply on remand

Reported at 22 Fla. L. Weekly Fed. S985a

Estates -- Creditors' rights -- Where bank was secured creditor of deceased physician's professional association under a note and mortgage which provided bank with right of setoff in all professional association's accounts with bank, with decedent being a personal guarantor of the note, it was error to enter order directing transfer of funds in professional association's account at bank to the depository account established for the administration of decedent's estate at another bank -- Order impaired bank's right of setoff -- The affairs of a corporation, even though substantially owned by a decedent, cannot be administered by decedent's executor as assets of the decedent's estate -- Trial court order is reviewable non-final order

Reported at 36 Fla. L. Weekly D1079a

False Claims Act -- Public disclosure bar -- A federal agency's written response to a request for records under Freedom of Information Act constitutes a “report” within meaning of FCA's public disclosure bar

Reported at 22 Fla. L. Weekly Fed. S975a

Insurance -- Life insurance -- Insurable interest -- Where insurance agent procured life insurance policy on the life of his client, with a trust named as owner and beneficiary of the policy, trial court properly found that the trust did not have an insurable interest in the insured's life, and that the policy was void ab initio -- Trial court properly determined that the trust was not entitled to a refund of any premiums paid -- Where a party wrongfully procures a life insurance policy on an individual in whom it has no insurable interest, the party is not entitled to a return of premiums paid for the void policy

Reported at 36 Fla. L. Weekly D1022a

Insurance -- Windstorm -- Action by insured, a not-for-profit corporation operating as condominium association, against insurer, seeking declaratory judgment establishing that glass windows and sliding glass doors that provide access to a single condominium unit are covered under policies issued by insurer and that insurer improperly failed to consider these items when it determined that the amount of plaintiff's covered loss from hurricane was less than applicable hurricane deductible; seeking declaratory judgment establishing that plaintiff is entitled to have dispute concerning amount of its hurricane loss resolved through appraisal process described in the policies; and further seeking declaratory judgment establishing that hurricane deductible in the policies is void under state law which requires specific disclosures to be made with certain font requirements -- Count seeking declaration that glass windows and sliding glass doors are covered dismissed based on absence of justiciable controversy between parties, as complaint contains no allegation that before filing the case plaintiff expressed disagreement with insurer's adjustment of claim or that insurer ever took position that windows and sliding glass doors were not covered under the policy -- Count demanding appraisal is premature where complaint does not allege that plaintiff informed insurer of any disagreement concerning insurer's position before filing suit or that insurer disagreed with plaintiff's position -- Because resolution of third count will be directly impacted by Florida Supreme Court's decision in case pending before it, stay of that count is warranted

Reported at 22 Fla. L. Weekly Fed. D595a

Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Amount of fee -- Where contingent fee contract between insured and her attorney provided for an hourly rate of $300, it was error for court to award fees on the basis of an hourly rate of $350

Reported at 36 Fla. L. Weekly D1082a

Insurance -- Homeowners -- Overhead and profit -- Under terms of replacement cost policy, insured was not entitled to payment from insurer for overhead and profit where insured had not hired a contractor to repair fire damage to insured home

Reported at 36 Fla. L. Weekly D1081a

Insurance -- Personal injury protection -- A PIP insurer may not elect to use Medicare Part B fee schedules set forth in section 627.736(5)(a)(2) when the subject policy specifies that the PIP insurer will pay 80% of medically necessary expenses -- Incorporation of PIP statute into policy did not give insurer the unilateral right to ignore the only payment methodology referenced in the policy

Reported at 36 Fla. L. Weekly D1062a

Jurisdiction -- Non-residents -- Minimum contacts -- Securities fraud -- Plaintiff, who alleged defendants were guilty of securities fraud based on individual defendants having made false statements in press releases and on internet message boards that corporate defendant had received offers to sell its stock to another company, failed to establish that defendants had sufficient minimum contacts with state to satisfy due process requirements -- There was no evidence that false statements were purposefully directed toward residents of Florida, and plaintiff failed to state any direct knowledge of significant business transactions in Florida by the defendants -- Fact that defendants have been sued in federal court in Florida by Securities and Exchange Commission for alleged securities violations does not satisfy requirement of establishing minimum contacts

Reported at 36 Fla. L. Weekly D1063a

Paternity -- Child born to intact marriage between legal father and mother cannot be subject of paternity proceeding brought by a biological father -- Trial court fundamentally erred in granting paternity petition and awarding legal rights and physical custody to biological father pursuant to nonexistent cause of action

Reported at 36 Fla. L. Weekly D1045a

Torts -- Medical malpractice -- Limitation of actions -- Where plaintiff purchased an automatic 90-day extension of statute of limitations on March 21, 2006, prior to the time limitations period would have otherwise expired on June 10, 2006, and defendant received plaintiff's notice of intent to initiate litigation on August 2, 2006, statute of limitations period began to run again ninety days later on November 1, 2006 -- Because immediately after tolling period thirty-seven days of the 90-day extension plaintiff had purchased remained, and remainder of period of statute of limitations was less than sixty days, plaintiff had sixty days from November 1, 2006, in which to file her complaint -- Complaint filed on January 17, 2007, seventy-eight days after November 1, 2006, was untimely

Reported at 36 Fla. L. Weekly D1046a

Torts -- Negligence -- Action against insurer, insurance broker, and insurance agent for lessee of vehicle which was owned by plaintiff-insurer's subrogee, seeking to recover amounts plaintiff paid in settlement of accident involving leased vehicle, alleging defendants breached duty owed to vehicle lessors and to general public to abide by standard insurance practices to issue automobile liability insurance coverage on leased vehicles as required by Florida vehicle leases and Florida statutes and that, by breaching this duty, defendants assisted the lessee-driver in breaching his lease, which required that lessee maintain certain levels of insurance -- Although preemptive effect of federal Graves Amendment did not preclude plaintiff from using equitable subrogation to assert a claim against defendants, negligence cause of action plaintiff sought to pursue against defendants failed as matter of law because, in providing insurance to the lessee, defendants owed no legal duty to lessor

Reported at 36 Fla. L. Weekly D1067a

Torts -- Workers' compensation -- Exclusive remedy -- Employer-employee relationship -- Help supply services employee -- Where contract between help supply services company and defendant plainly stated that the services to be performed by company's employees would be performed under the direction, supervision, and control of defendant, trial court did not err in entering summary judgment against plaintiff on ground that defendant had immunity from suit under section 440.11(2) -- Although plaintiff testified in deposition that she was paid by help supply services company, that she never received instruction from defendant on how to do her job, and that her personal supervisor was another employee of the help services company, the legal right of control the contract conferred on defendant is dispositive

Reported at 36 Fla. L. Weekly D1055a

Torts -- Interference with business relationship -- Evidence was insufficient to establish that defendant interfered with plaintiff's business relationships by accepting payments on automobile financing agreements made by plaintiff's customers where there was no showing that defendant had knowledge of the business relationship at the time he took the money

Reported at 36 Fla. L. Weekly D1027b

Torts -- Automobile accident -- Permanent injury -- Although determinations about the permanency of an injury are generally made by juries, where evidence of injury and causation is such that no reasonable inference could support a jury verdict for defendant, it is not improper to direct a verdict on the permanency issue for plaintiff -- Plaintiff can establish prima facie case of permanency by presenting expert testimony of permanency, and burden then shifts to defendant to present countervailing expert testimony, impeach plaintiff's expert, or present other evidence which creates direct conflict with plaintiff's evidence -- Where medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on other evidence at trial, jury is not free to ignore or arbitrarily reject that medical evidence and render a verdict in conflict with it -- Where medical experts agreed on permanency of plaintiff's thigh injury, trial court properly granted directed verdict on permanency of thigh injury -- As long as part of bodily injury arising out of motor vehicle accident involves a permanent injury within a reasonable degree of medical probability, plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident -- Appeals -- Defendant did not preserve for appellate review issues related to adequacy of jury instructions or verdict form regarding permanency where defense counsel voiced no objection when asked by trial court if instructions and verdict form were acceptable

Reported at 36 Fla. L. Weekly S211b

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Counties -- School boards -- Termination of teacher's employment -- Teacher had right to counsel at investigatory interview conducted by investigator for school board's office of professional standards -- By its adopted policy, school board elected not to conduct investigations into allegations of teacher misconduct, but instead delegated its investigatory authority over these types of complaints to office of professional standards, and office of professional standards investigator's investigation constitutes an “agency in investigation” as that phrase is used in section 120.62(2), Florida Statutes
Reported at 34 Fla. L. Weekly D2488b

Condominiums -- Where condominium association filed petition for temporary injunction against unit owner, and court denied petition and returned matter to arbitration, award of attorney's fees to unit owner as prevailing party was premature -- Award of fees was error because the non-final order denying the petition for injunction did not end the litigation between the parties, and no final determination on the merits had been made
Reported at 34 Fla. L. Weekly D2501a

Non-named parties -- Defendant was entitled to award of attorney's fees against parties who were not named as plaintiffs, but who financed and had control over litigation -- Non-named parties' involvement in litigation was such that their status rose to level of a “party” -- Defendant was entitled to award of attorney's fees under civil theft statute where plaintiff's civil theft claim was without substantial legal support -- Defendant was not entitled to award of attorney's fees against non-named parties under offer of judgment statute where offer was not served on non-named parties
Reported at 34 Fla. L. Weekly D2496a

Contracts -- Action alleging that defendant breached contract for sale and purchase of LP gas by charging plaintiff for tank rental where contract only allowed defendant to change its charges for gas or gas service, and that tank is neither gas nor a service -- Error to enter summary judgment for defendant -- Breach of contract claim was not barred on ground that contract was terminable at will, where plaintiff alleged that defendant breached contract while it was in effect -- Summary judgment was improper where there was factual issue as to whether tank rental was a “service”
Reported at 34 Fla. L. Weekly D2485a

Contracts -- Specific performance -- Limitation of actions -- Equitable estoppel -- Doctrine of equitable estoppel acts as bar to statute of limitations defense, and its application is wholly independent of statute of limitations and its tolling provisions -- Trial court erred in relying on tolling statute to determine whether plaintiff's claims for specific performance were barred by statute of limitations where plaintiff asserted that defendant was equitably estopped from asserting statute of limitations defense -- Record will not permit appellate court to affirm on alternate basis that plaintiff did not allege sufficient facts to raise defense of equitable estoppel where adequacy of allegations was not at issue in trial court and, accordingly, plaintiff had no opportunity to address issue or proffer additional facts -- Trial court correctly dismissed count seeking to plead equitable estoppel as a separate cause of action -- Plaintiff entitled to new trial on breach of contract claim where jury found defendant had breached contract, but awarded zero damages despite uncontradicted evidence establishing more than nominal damages
Reported at 34 Fla. L. Weekly D2490a

Creditors' rights -- Garnishment -- Priorities -- Trial court properly determined that judgment lien controlled distribution of cash bond that had been deposited with clerk of court in an unrelated case and returned to debtor's attorney upon close of case -- Intervenor which claimed security interest in cash bond based on Uniform Commercial Code financing statement failed to establish that cash bond fell under any of the categories of collateral described in security agreement -- Cash bond was not an account, general intangible, deposit account, or financial asset within the meaning of UCC -- Assuming cash bond could be categorized as “money,” a security interest in money may be perfected only by secured party's taking possession under section 679.3131, a circumstance which did not occur in this case -- Jury trial -- Intervenor waived its right to jury trial by participating in non-jury trial
Reported at 34 Fla. L. Weekly D2495a

Employment discrimination -- Handicapped employees -- Plaintiff alleging employer discriminated against her when it terminated her from her cashier position because she had HIV, in violation of Florida Omnibus AIDS Act and Florida Civil Rights Act -- Evidence -- Trial court abused its discretion in admitting into evidence the “no reasonable cause” determination letter issued by county agency authorized to conduct investigations for Equal Employment Opportunity Commission because the conclusory nature of the agency's determination letter left it with little probative value compared to the substantial prejudicial effect it may have had on jury's ultimate assessment of plaintiff's credibility and the pivotal determination as to whether plaintiff had provided a doctor's note to her employer following her HIV-related absence -- Appellate court cannot say that erroneous admission of this evidence was harmless -- Discussion of admissibility of administrative findings and conclusions of EEOC or similar enforcement agency in a subsequent jury trial de novo under Florida Civil Rights Act or similar statutes
Reported at 34 Fla. L. Weekly D2477a

Commercial property damage -- Insolvent insurers -- Where insolvent insurance company which was Florida Insurance Guaranty Association's predecessor failed to comply with notice requirements of statute, insured was not required to submit to loss appraisal process -- FIGA is not exempt from notice requirement -- Line of cases refusing to hold FIGA liable for misdeeds of defunct insurer, beyond those arising out of an insurance policy, does not provide basis for avoiding application of statute -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed
Reported at 34 Fla. L. Weekly D2481a

Insurance -- Personal injury protection -- Defendant insurer's claim that it was not required to pay medical provider's bills because provider did not provide insurer with proper written notice of a covered loss where initial set of bills did not include a disclosure and acknowledgment form, and box 31 of CMS-1500 form did not contain physician's license number -- Where bills furnished to insurer contained physician's name, bills were substantially complete, and provided proper notice to insurer -- Even if physician's license number were deemed a material provision of statements or bills, absence of license number was cured by later submission of number to insurer -- Failure of medical provider to provide disclosure and acknowledgment form with initial set of bills was cured by submitting form prior to litigation -- Circuit court appellate division did not depart from essential requirements of law in affirming county court's entry of summary judgment for medical provider in action seeking unpaid benefits
Reported at 34 Fla. L. Weekly D2500a

Mortgage foreclosure -- Condominium unit -- Trial court erred in entering order requiring mortgagee to diligently proceed with pending foreclosure action within thirty days, or pay monthly maintenance fees on condominium unit in foreclosure
Reported at 34 Fla. L. Weekly D2505b

Torts -- Action by employee of window subcontractor and his wife against another subcontractor who installed safety railings at construction site, alleging that safety railings were negligently installed -- No error in entering summary judgment in favor of defendant on negligence issues where uncontested evidence established that defendant did not negligently install guardrail system -- Affidavit of plaintiff's human factors and industrial safety expert that “Safety Boot guardrail system was not properly installed” was based upon expert's reference to manufacturer's installation instructions depicting required railings, not upon expert's personal knowledge
Reported at 34 Fla. L. Weekly D2484a

Torts -- Automobile accident -- New trial -- Action by driver of motorcycle which collided with SUV driven by defendant when defendant's vehicle exited a parking lot and made a left-hand turn across lane in which plaintiff was traveling -- Plaintiff's motion for new trial on ground that jury verdict for defendant was against manifest weight of evidence -- Trial court did not abuse discretion in denying motion for new trial where there was conflicting evidence as to whether plaintiff ran red light before colliding with defendant's vehicle -- In denying motion for new trial, court was not required to articulate specifically that jury's finding was not contrary to manifest weight of evidence
Reported at 34 Fla. L. Weekly D2498a

Venue -- State agencies -- Home venue privilege -- Action filed in Pinellas County against state agencies and former employees of reform school, alleging causes of action against state agencies and individual defendants for violations of Declaration of Rights of Florida Constitution, and against individual defendants for assault and battery and intentional infliction of emotional distress -- Error to deny motion to transfer venue to Leon County, where state agencies have their headquarters -- State agencies did not waive home venue privilege by agreeing that venue was proper in either Leon County or Jackson County -- Joint tortfeasor exception to home venue privilege was not applicable where plaintiffs did not establish a statutory basis for venue against any defendants in Pinellas County -- Where state agencies and individual defendants are willing to submit to venue in either Leon County or Jackson County, and plaintiffs have indicated that they would prefer to try the case in Leon County, transfer of venue to Leon County is proper -- Appeals -- Order denying defendants' motion to transfer venue without prejudice is an appealable non-final order that concerns venue
Reported at 34 Fla. L. Weekly D2486b

Bankruptcy -- Adversary proceedings -- Contracts -- Chapter 11 trustee brought adversary proceeding against customer to recover amounts owed under fulfillment warehouse contract, and customer filed counterclaim seeking to recoup or setoff costs incurred to remove its property from debtor's warehouse -- Summary judgment affidavits of customer's employee were based on personal knowledge, and thus were admissible, where employee based statements in affidavits on her review of customer's business records -- Amendment of trustee's answer to counterclaim by changing two admissions to denials is in interest of justice, good cause exists for amendments, neither substantial nor undue prejudice will be incurred by allowance, and underlying motivation is neither rooted in bad faith nor generally dilatory in nature -- Recoupment -- Debtor's claim against customer for compensation due under fulfillment warehouse contract and customer's claim against debtor for damages arising from debtor's post-petition non-performance under contract did not arise from same transaction, and thus customer could not assert recoupment claim -- Setoff -- Damages sustained by customer as result of trustee's rejection of fulfillment warehouse contract are deemed to have arisen prepetition, and thus customer could setoff damages arising from removal of property from debtor's warehouse against funds owed debtor in form of outstanding invoices arising under contract
Reported at 22 Fla. L. Weekly Fed. B144a

Bankruptcy -- Confirmation -- Chapter 11 plan -- Liquidating plan pursuant to which debtor proposes to transfer substantially all of its assets free and clear of junior liens and encumbrances to mortgagee, who held perfected first mortgage lien and security interest in all of debtor's assets as of petition date, should be confirmed -- Debtor's revised joint plan of reorganization satisfies requirements for confirmation set forth in Section 1129 of Bankruptcy Code where debtor has been and will continue to be affected by decline in property values and unfavorable real estate market that has been experienced nationwide and plan will result in benefits to creditors that may not be available if case were dismissed or converted -- Objections to confirmation by claimants who had entered into prepetition agreements to purchase condominium units or related property from debtor on ground that plan impermissibly strips purchase contract claimants' equitable vendees' liens from debtor's real properties and improperly permits debtor to assign their deposits to mortgagee should be overruled, because claimants' claims, to extent they assert an interest in real property, have been disallowed, and because claimant's rights to deposits are preserved in plan
Reported at 22 Fla. L. Weekly Fed. B139a

Bankruptcy -- Discharge -- Denial -- Transfer or concealment of assets with intent to hinder, delay, or defraud creditor -- Bankruptcy court did not err in denying discharge based on finding that debtor had, with intent to shield assets from his creditors, diverted the fruits of his labor to increase the value of his wife's business and then used business assets to support his personal lifestyle -- Continuing concealment doctrine precludes debtor's contention that he could not have “concealed” assets from creditor within the one-year look-back period of section 727(a)(2)(A) because creditor had learned about debtor's alleged equitable interests more than a year before bankruptcy petition was filed
Reported at 22 Fla. L. Weekly Fed. C292a

Bankruptcy -- Discharge -- Complaint -- Amendment of pleadings to add various factual allegations is not required where evidence outside pleadings that was admitted and considered by trial court does not present a basis for relief -- False oath or account -- Omissions from Statement of Financial Affairs of transfers of debtor's interests outside ordinary course of business constitute false oaths and are cause for denial of discharge under section 727(a)(4)(A) because failure to disclose these transfers in debtor's schedules and statements was material and willful -- With fraudulent intent, debtor made deliberate omissions from his schedules and statements, and cannot shield this intent behind plea that he was merely following advice of counsel -- Prepetition fraudulent transfers -- Denial of discharge under Section 727(a)(2)(A) for fraudulent transfer of property within year prior to filing of petition is not warranted because evidence was insufficient to establish fraudulent transfer -- Under section 727(a)(2), transfer of funds from debtor's home equity line to IRA was not fraudulent where result of transaction was to make more assets available to creditors -- Conversion of exempt assets into non-exempt assets by inadvertence, with negative consequences to debtor, cannot be a fraudulent transfer -- Prepetition transfer or concealment of estate property of insider -- Denial of discharge based on allegations that debtor concealed or destroyed property of estate of insider of debtor is not warranted where plaintiff presented evidence regarding concealment or destruction of cabinet doors in facilities used by insider, but failed to establish that cabinet doors were, at that time, property of insider's bankruptcy estate -- Failure to satisfactorily explain loss of assets -- Issues of whether debtor satisfactorily explained whereabouts of his Rolex watch or alleged disposition of that watch and whether debtor satisfactorily explained disposition of $7,000 in cash obtained within six months of filing of bankruptcy are questions of fact -- Failure to maintain adequate books and records -- Denial of discharge pursuant to section 727(a)(3) for failure to keep or preserve recorded information is not warranted where failure to keep and maintain records documenting sale of debtor's Rolex watch is justified given that sale of 20 year old watch was cash transaction between acquaintances while on vacation
Reported at 22 Fla. L. Weekly Fed. B131a

Bankruptcy -- Liens -- Validity, extent, and priority -- Chapter 7 trustee holds superior right, claim, title, lien and interest in property referenced in lien claimed by defendants pursuant to financing statement filed in Pennsylvania, including, but not limited to, account receivable allegedly owed to debtor -- Because defendants' security interest was never perfected, trustee can avoid the lien under Section 544(a), and preserve it under Section 551 for benefit of estate and thus for benefit of all creditors -- Defendants' lien is unperfected, rendering it unsecured, where financing statement with respect to Florida debtor should have been filed in Florida, not Pennsylvania -- Trustee is free to administer such assets of bankruptcy estate, free and clear of any claim of right , title, lien, or interest by defendants -- Defendants permanently enjoined from collecting, in any manner whatsoever, on any receivables of debtor, including, but not limited to account receivable owed to debtor under contract; such property detailed in financing statement; or any other assets of estate -- Issuance of injunction is necessary and appropriate where immediate and irreparable injury will result to trustee if defendants are free to collect on receivables of debtor, property detailed in financing statement, and any other assets of estate, issuance of injunction does not substantially affect public interest and will benefit public interest by maintaining status quo, and trustee has no adequate remedy at law, as best legal remedy would relegate trustee to filing separate claim for damages each time it is injured anew -- Damages -- Defendants committed willful violations of automatic stay by manifesting the intent to violate stay in demand letter -- As sanctions, trustee is entitled to award of attorney's fees and costs associated with defendants' conduct in attempting to collect on assets which are property of bankruptcy estate -- Trustee is not entitled to additional sanctions because no showing of actual damages other than attorney's fees and costs has been made -- Punitive damages may not be awarded
Reported at 22 Fla. L. Weekly Fed. B148a

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