Civil procedure, product liability, and dissolution of marriage, with wild boar and venison Swedish meatballs with lingonberries and curry cream sauce, wild baby red sorrel with bacon

After months of a very busy work schedule, followed by some time off for cooking, hiking, and winter gardening, the Appellate Gourmet's (c) Newsletters and Recent Decisions of Interest updates resume. We're back! Thank you for your patience. Enjoy.

Civil procedure -- Appeal from circuit court order denying petition for relief from order appointing receiver and motion for rehearing filed by entity that was served with process in underlying lawsuit and later served with post-judgment motion to establish equitable lien, but failed to put in any appearance until it sought relief from order at issue -- Arguments were waived by failure to contest the relief sought prior to issuance of final order.  PENNYMAC CORP., Appellant, v. OCEAN PLACE AT SILVER BEACH ASSOCIATION, INC., a Florida Not for Profit Corporation; and FPR FORCE, LLC, a Florida Limited Liability Company, Appellees. 4th District.

Civil procedure -- Relief from judgment -- Service of process -- Non-residents -- Defects -- Substitute service on Michigan-based defendant through the Florida Secretary of State under section 48.181(1) was insufficient where defendant provided sworn unrefuted testimony that he was not conducting business in Florida and was not avoiding service -- Final default judgment entered against defendant was void, and trial court should have granted motion to vacate the judgment -- Remand for vacation of both the judgment and default against defendant.  SILVIO COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Marital settlement agreement -- Enforcement -- Provision of MSA that “if the former husband continuously and timely exercises timesharing with minor child for a period of six consecutive months, the parties shall exercise equal timesharing” is ambiguous as to whether “period of 6 consecutive months” began immediately after entry of dissolution judgment or could apply to any six consecutive months after entry of dissolution judgment -- Hearing to consider extrinsic evidence of parties' intent is required.  JULIE WOHLBERG, Appellant, v. MICHAEL CONNER, Appellee. 4th District.

Dissolution of marriage -- Conflict within final judgment between amount of bridge-the-gap alimony needed by wife and amount actually awarded to be resolved on remand.  MICHELLE KHETARPAL, n/k/a MICHELLE BOOTH, Appellant, v. SUNIL KHETARPAL, REX & REX LIMITED, INC., a Florida corporation, and KHETARPAL HOLDINGS, LLC, Appellees. 4th District.

Mortgage foreclosure -- Standing -- Civil procedure -- Substituted plaintiff -- Trial court properly held that, pursuant to rule 1.260, party substituted as plaintiff acquired the standing of the original plaintiff, and established its standing at the time of judgment by presenting a copy of the original note endorsed in blank.  LUTHER EDWARD SPICER and CLARA JEAN MAY, Appellants, v. OCWEN LOAN SERVICING, LLC, RIVERWALK OF THE PALM BEACHES HOMEOWNERS ASSOCIATION, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for RESOURCE FUNDING GROUP, LLC., Appellees. 4th District.

Mortgage foreclosure -- Trial court erred in entering summary judgment in favor of plaintiff where defendant sufficiently pleaded affirmative defense that plaintiff failed to comply with federal housing regulations incorporated into mortgage, including defendant's right to face-to-face interview at least 30 days before commencement of foreclosure, and plaintiff conceded that it failed to refute defense.  DANIEL N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee. 4th District.

Public records -- Counties -- Exemptions -- Trade secrets -- Trial court correctly determined, after in camera inspection, that aggregate number of airport pick-ups by transportation service company and sums of money paid by company to county as airport usage fee pursuant to license agreement between company and county did not constitute trade secret information which was exempt from public disclosure.  RASIER-DC, LLC, Appellant, v. B&L SERVICE, INC., a Florida corporation and BROWARD COUNTY, FLORIDA, a Political Subdivision, Appellees. 4th District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Plaintiff to be permitted on remand to seek leave from court to add claims for punitive damages on negligence and strict liability counts.  PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants, v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER, Appellee. 4th District.

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Deficiency judgments, lis pendens, child support, and cage free eggs over turnip greens, heirloom tomatoes, and manchego cheese

Appeals -- Timeliness -- Appellate court has no jurisdiction of appeal of trial court's denial of award of fees under wrongful act doctrine where notice of appeal was filed more than six months after final judgment -- Letter to court which reargued facts of case, raised rhetorical questions, and asked legal advice, did not constitute a motion for rehearing which would suspend rendition of final judgment

MILDRED M. RAYBURN, and BEVERLY MELTON, Trustee of the WILLIAM BURR RAYBURN TRUST, ETC. ET. AL., Appellants, v. WILLIAM C. BRIGHT and WILBERTA A. BRIGHT, ET AL., Appellees. 5th District.

Arbitration -- Contracts -- Settlement agreement -- Under terms of settlement agreement which ultimately provided for merger of two companies, disputes relating to pre-merger loans were subject to two-step process, which required that any dispute be submitted initially to accounting firm for evaluation using “generally accepted accounting principles, consistently applied, and past practices” as parameters and then, if a party disagreed with accounting firm's application of accounting principles or past practices, required that dispute be resolved through binding arbitration -- Trial court's order submitting case to accounting firm for a binding decision as an arbitrator was contrary to parties' settlement agreement -- Remand for entry of order submitting case to accounting firm and ordering arbitration in event that either party disputes resolution reached by accountants

ROBIN RESNICK, Appellant, v. J. WEINSTEIN AND SONS, INC., a Florida corporation, and ABRAHAM RESNICK, individually, Appellees. 4th District.

Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify defendant's counsel in action for breach of non-disclosure agreement where defendant's counsel had represented plaintiff in other non-disclosure agreement matters ten years earlier -- Trial court erred in denying motion for disqualification on grounds of the time that had passed since the prior representation of plaintiff and the circumstances of the non-disclosure agreement -- Attorney's representation of parties involved substantially related matters

ASI HOLDING COMPANY, INC., A FLORIDA CORPORATION D/B/A AMENITY SERVICES, INC., Petitioner, v. ROYAL BEACH & GOLF RESORTS, LLC, Respondent. 1st District.

Attorney's fees -- Prevailing party -- Action for unpaid wages -- Award of prevailing party attorney's fees in action for unpaid wages is discretionary rather than mandatory -- Trial court did not abuse discretion in denying award of attorney's fees to plaintiff in her action for unpaid bonuses where plaintiff prevailed on some of her claims, and defendant prevailed on other claims -- Award of costs to prevailing party in action for unpaid wages is also discretionary, and trial court did not abuse discretion by denying award of costs to plaintiff

FILOMENA RUFFA, Appellant, v. SAFTPAY, INC., Appellee. 3rd District.

Attorney's fees -- Proposal for settlement -- Proposal which clearly announced that it addressed any and all claims and causes of action resulting from accident giving rise to lawsuit brought by injured plaintiff against driver of vehicle and which included and described all relevant conditions of the proposal was unambiguous and sufficient to meet particularity requirements of statute and rule -- Proposal did not need to address spouse's separate and distinct loss of consortium claim -- Trial court erred in characterizing proposal as a joint proposal and in denying claims for attorney's fees based on finding that the proposal failed to state amount and terms attributable to each party -- Requiring that codefendant/owner of vehicle be dismissed was merely condition attached to acceptance of offer and did not render proposal joint or invalidate it in any other way

GLENN MILEY and KYLE MILEY, Appellants, v. MARTHA NASH, Appellee. 2nd District.

Civil procedure -- Dismissal -- Two-dismissal rule -- Under two-dismissal rule, which provides that a notice of voluntary dismissal operates as an adjudication on the merits when served by a plaintiff who has previously dismissed the action, a notice of voluntary dismissal does not operate as an adjudication on the merits when it is preceded by an “agreed order” granting a defense motion to dismiss the case with leave to amend

CYPRESS FAIRWAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. CYPRESS MADISON OWNERSHIP CO., ETC., ET AL., Appellees. 5th District.

Civil procedure -- Discovery -- Deposition of opposing counsel -- Order compelling litigant's in-house attorney, who is not the attorney of record but is directly involved in the litigation, to be deposed, is quashed because respondents failed to satisfy case law requirements for taking deposition of opposing counsel

ELLER-I.T.O. STEVEDORING COMPANY, L.L.C., Petitioner, v. LAZARO PANDOLFO and OLGA ALVAREZ a/k/a Olga Alvarez Sarria, Respondents. 3rd District.

Civil procedure -- New trial -- Abuse of discretion to grant defendant a new trial on the basis of cumulative unfair surprise where defendant either declined court offered continuance, or failed to request continuance, after each incident of claimed unfair surprise

RUVIM LONDON, Appellant/Cross-Appellee, v. VLADIMIR DUBROVIN, et. al., Appellees/Cross-Appellants. 3rd District.

Dissolution of marriage -- Attorney's fees -- Error to award attorney's fees to wife without making requisite written findings on husband's ability to pay and basis for specific payment plan imposed by court -- Judgment contained requisite findings on reasonableness of hours expended and hourly rate -- Husband cannot argue that trial court failed to make findings to support requirement that husband secure life insurance policy where husband agreed to purchase $100,000 life insurance policy and included such a provision in his proposed final judgment

CHRIS BECKSTROM, Appellant, v. JULIE BECKSTROM, Appellee. 4th District.

Dissolution of marriage -- Child support -- Modification -- Appeal from supplemental final judgment that modified husband's timesharing and child support based primarily on his relocation to foreign state -- Trial court abused its discretion in denying husband's requests for continuance based on late disclosure of wife's financial affidavit the day before final hearing -- Under controlling rule, requirement to provide financial affidavit in supplemental proceedings cannot be waived by parties; and in any event, there was no evidence of record that husband waived requirement -- Husband was prejudiced by late filing where he was unable to procure his own expert to review the alleged permanent decrease in income reflected in wife's affidavit -- Trial court erred in awarding retroactive support in absence of evidence that husband had ability to pay the amount ordered during the time period at issue -- No merit to husband's argument that trial court erred in including children's private school tuition as component on child support guidelines worksheets -- New hearing required on issue of child support

BRIAN K. GILROY, Appellant, v. PATRICIA A. GILROY, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Errors regarding amount of debt and tax liability

MARGARET LEVITT, Appellant, v. ADAM LEVITT, Appellee. 5th District.

Injunctions -- Demolition of building by city -- Portion of injunction finding that city did not give proper notice of proposed demolition proceeding affirmed -- Error to enjoin city from demolishing building until pending foreclosure action is concluded -- Injunction erroneously fails to specify reasons for its entry, and there is no record support for injunction that prevents city's exercise of its right to demolish property once property owners have received proper notice

CITY OF MIAMI, Appellant, v. JP MORGAN CHASE BANK NATIONAL BANK, et. al., Appellees. 3rd District.

Injunctions -- Repeat violence -- No error in denying motion to dissolve injunction where motion challenged merits of injunction rather than alleging change in circumstances since injunction was entered

ALFRED WASHINGTON, Appellant, v. THELMA S. WASHINGTON, Appellee. 1st District.

Landlord-tenant -- Guarantors -- Summary judgment granted in favor of tenant and guarantors reversed as to guarantors because the motion only sought relief on behalf of tenant -- Appeals -- Jurisdiction -- Remainder of appeal dismissed because it is not an appealable partial final judgment

KENDALL COMMERCIAL ASSOCIATES, LLC, etc., Appellant, v. DRAKES, LLC, et. al., Appellees. 3rd District.

Limitation of actions -- Amended complaint -- Relation back -- Trial court erred in granting substituted defendant's motion for summary judgment on ground that statute of limitations had run where mistake in naming proper defendant was merely a misnomer, all the parties knew which entity the plaintiff intended to sue, and there was substantial identity of interest between the original defendant and substituted defendant -- Moreover, incorrectly named defendant engaged in extensive discovery and did not reveal that it was not the proper defendant until after statute of limitations had run -- Plaintiff not at fault for failing to inquire further after original defendant made conclusory statement in its first affirmative defense that it was “not a proper party to this action,” an assertion which was legally insufficient and inconsistent with its conduct in engaging in discovery

PAUL MAY, individually and as legal guardian of Jean May, Appellant, v. HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center; FRANCISCO ESPARZA, M.D.; DAVID DIVITA, M.D.; and PINNACLE MEDICAL GROUP, P.A., Appellees. 2nd District.

Mortgage foreclosure -- Deficiency -- Action at law by mortgagee to recover damages for breach of note after mortgagee had included prayer for deficiency judgment in foreclosure complaint and trial court reserved jurisdiction in foreclosure judgment to enter deficiency judgment -- Trial court did not err in entering judgment for damages on note after consolidating the action at law and the foreclosure action

ROBERT G. REID, Appellant, v. COMPASS BANK, Appellee. 1st District.

Mortgage foreclosure -- Jury trial -- Where lender brought promissory note count against defendants in conjunction with mortgage foreclosure suit, defendants were not entitled to jury trial on promissory note action -- Legal remedy on promissory note in this context is deficiency judgment, and foreclosure courts are explicitly granted authority to enter this remedy -- Moreover, mortgage at issue contained jury trial waiver for any action related to mortgage or note -- Argument that plaintiff was not entitled to enforce jury trial waiver because it was not party to original contract is without merit, as plaintiff was holder of note and mortgage by virtue of an endorsement

TRENDA KINNEY f/k/a TRENDA BOUTIN and PETER KINNEY, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., et al., Appellees. 4th District.

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Mortgage foreclosure, securities fraud, contracts and tofu, tuscany kale, roaste pepper stir fry with fresh ginger and garlic

Admiralty -- Mortgages -- Preferred mortgage -- In rem admiralty action to foreclose a first preferred ship mortgage claimed by mortgagee bank on defendant vessel, which was assigned second identification number after execution of mortgage, documented under different name, and sold to third-party purchaser for value, all without notice to bank -- Third-party purchaser for value claims competing ownership interest in defendant vessel as subsequent innocent purchaser for value -- Validity of mortgage -- Bank is not entitled to preferred ship mortgage status under Ship Mortgage Act because mortgage was invalid to create a security interest in defendant vessel where mortgagor did not hold good and valid legal title to vessel on day he executed the mortgage -- Only a valid mortgage is eligible for preferred status under Ship Mortgage Act -- Notwithstanding mortgagor's failure to permanently affix the HIN to vessel, in violation of federal law, at time of application for initial issue of certificate of documentation, substantial compliance with recordation requirements of Ship Mortgage Act is adequate to show eligibility for preferred status, where there was no evidence of fraud or purposeful intent to evade or mislead on part of mortgagee -- Irregularities in recorded mortgage documents or failure to comply with minutiae of recording will not result in loss of preferred status of mortgagee where there is “honest and substantial compliance” with recordation requirements of Ship Mortgage Act -- Equitable subordination -- Bank's conduct justifies the equitable subordination of its claimed preferred ship mortgage to interest claimed by third-party purchaser for value gross, where bank deviated from acceptable banking practices when it decided to forego a declaration of default on loan and granted a five-year extension of loan term without inspecting or reevaluating the collateral or insisting on proof of insurance and where bank failed to insist that mortgagor permanently affix the HIN on the vessel before initial documentation
BRANCH BANKING & TRUST CO. of VIRGINIA, Plaintiff, v. M/Y “BEOWULF,” Official No. 1137719, etc., in rem, Defendant. U.S. District Court, Southern District of Florida.

 

Attorney's fees -- Proposal for settlement -- Circuit court, in its appellate capacity, departed from essential requirements of law in denying motion for entitlement to recover a conditional award of appellate costs and attorney's fees under section 768.79, on ground that petitioner's success in obtaining a reversal of the county court order on appeal was not itself a money judgment -- Statute plainly encompasses all costs and attorney's fees incurred leading up to a final judgment -- If proposal for settlement statute is ultimately satisfied, petitioner will be entitled to recover its appellate costs and fees
STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. REMBRANDT MOBILE DIAGNOSTICS, INC. a/a/o NERECE FRANCOIS, Respondent. 4th District.

Attorney's fees -- Proposal for settlement -- Timeliness of proposal -- Proposal for settlement which was served on the 45th day before trial date was timely under rule 1.442(b), which provides that “No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier” -- Because the proposal for settlement was required to be served 45 days before the date set for trial, the proper method for counting the 45 days is to include the day the proposal for settlement was served and to exclude the date set for trial
R.T.G. FURNITURE CORP. d/b/a ROOMS TO GO, Appellant, v. FRANKLIN COATES and LORIE A. COATES, Appellees. 4th District.

Banks -- Checking accounts -- Disputed transactions -- Electronic Fund Transfer Act -- Bank customer sued her bank to recover for unauthorized withdrawals from her checking account, made using her check card and personal identification number, alleging bank failed to conduct reasonable investigation of her claim, failed to follow EFTA's claim-resolution procedures, and unlawfully held her liable for unauthorized transactions -- In denying EFTA claims against bank, district court did not err in finding that transactions were authorized because they were part of scheme to defraud the bank and, consequently, that bank had not violated EFTA

 CARLINE MERISIER, Plaintiff-Appellant, v. BANK OF AMERICA, N.A., a national association, Defendant-Appellee. 11th Circuit.

Bankruptcy -- Exempt property -- Debtor's bank account and household furniture owned with his non-debtor spouse as tenants by entirety are non-exempt in their entirety under Section 522(b)(3)(B), and proceeds of such property may be distributed by Chapter 7 trustee to joint creditors of debtor and his spouse to extent of the joint unsecured claims, with any remainder to be returned to debtor and his spouse -- Only joint unsecured creditors of debtor and his non-debtor spouse are entitled to a distribution from property -- Allowing all unsecured creditors to reach entireties property would give non-joint creditors a right in bankruptcy estate that does not exist under Florida law
In re: JAMES T. HELM, Debtor. U.S. Bankruptcy Court, Southern District of Florida, West Palm Beach Division.

 

Civil rights -- Handicapped persons -- Employment -- Arbitration -- Federal district court is required to stay pending arbitration action against employer alleging disability discrimination in violation of the Americans with Disabilities Act where arbitration agreement required plaintiff to submit to mandatory arbitration certain types of disputes, including ADA claims -- Arbitration agreement is enforceable pursuant to Federal Arbitration Act -- Employer's overall employment practices constitute activity involving commerce sufficient to satisfy FAA's threshold requirement of interstate commerce, even though plaintiff's individual work and contacts may have been limited to Florida -- Arbitration agreement, which purports to shift responsibility for half of costs of arbitration to plaintiff, is not unenforceable for limiting remedies that plaintiff would otherwise have available to her under ADA or for shifting costs to plaintiff, where employer stipulated that it will pay all costs associated with arbitration
STACY LIPSCOMB, Plaintiff, v. PAYROLL MANAGEMENT INC.; PAYROLL MANAGEMENT INC. of DELAWARE; and PMI EMPLOYEE LEASING, INC., Defendants. U.S. District Court, Northern District of Florida, Pensacola Division.

Dissolution of marriage -- Contempt -- Trial court erred in holding former husband in contempt for failure to provide health insurance for children as required by mediated marital settlement agreement, where husband did provide health insurance for children, but the insurance provided was deemed to be inadequate -- Settlement agreement required husband to provide health insurance for children, but did not specify any particular attributes of the insurance to be provided -- Trial court erred in holding former husband in contempt for failure to pay for children's extracurricular activities as required by agreement where such expenses have increased since time agreement was entered into and there has been no consent to payment of additional expenses -- Former wife's motion for contempt was premature in the sense that post-agreement additional, increased obligations were required to be addressed in motion for modification before any enforcement action relating to the obligations could be commenced
GEOFFREY ALEXANDER COLE, Appellant, vs. NANCY COLE, Appellee. 3rd District.

Estates -- Assets -- Joint property -- Antenuptial agreement allowing decedent to acquire separate property after the marriage -- Trial court erred in modifying its initial determination that a watch and ring purchased by decedent were assets of the estate, not the sole property of decedent's wife, due to the fact that items were purchased with funds from the spouses' joint checking account -- The joint tenancy nature of the funds in the joint account with right of survivorship was terminated upon their withdrawal by the decedent -- Moreover, the fact that the wife was with the decedent at the time of purchase does not make the items joint property -- It is for whom the items were purchased rather than how they were purchased that is important -- Unity of possession was not present for either the watch or ring where decedent had exclusive use and possession of the items, items were designed for a man, and wife only took possession to store them for safekeeping while decedent was in hospital
WILLIAM P. CONNELL, as Personal Representative of the Estate of Peter W. Connell, Deceased, Appellant, v. FANA CONNELL, Appellee. 2nd District.

 

Jurisdiction -- Prohibition -- Torts -- Automobile accident -- Third-party complaint against liability insurance carrier -- Trial court lacked jurisdiction over third-party bad-faith complaint against defendant's liability insurer, which was labeled by plaintiff as a crossclaim, where pleading was filed after trial court had entered final judgment in tort case and after time for filing motions for rehearing or new trial had passed -- Order denying insurer's motion to dismiss quashed, without prejudice to plaintiff's raising claim as separate and independent cause of action
LIBERTY INSURANCE CORPORATION, Petitioner, v. SUSAN M. MILNE and TIMOTHY P. LITERSKY, Respondents. 4th District.

 

Mortgage foreclosure -- Arbitration -- Trial court erred in denying motion to compel arbitration of mortgage foreclosure dispute where mortgages required arbitration of any claim or controversy between the parties when requested by either party, despite the fact that there was a clause in mortgages that might be read otherwise
MDC 6, LLC, a Florida limited liability company; MEDALLION CONVENIENCE STORES, INC.; and KENNETH L. WOOD, Appellants, v. NRG INVESTMENT PARTNERS, LLC, Appellee. 2nd District.

Mortgage foreclosure -- Bona fide purchaser without notice of prior mortgage -- Constructive notice of prior mortgage attached at time deed and mortgage were recorded by clerk, despite fact that clerk voided the deed and mortgage from the official records after realizing she made a mistake in the recording process and subsequently failed to re-record deed and mortgage in official records book after error was corrected -- Statute does not require that documents remain in official records to impart constructive notice, but merely requires that, to be good and effectual against bona fide purchasers, a document must “be recorded according to law” -- Trial court properly granted summary judgment of foreclosure on ground that deed and mortgage were recorded in accordance with section 695.11 and provided constructive notice to subsequent purchasers and mortgagee
MICHAEL D. MAYFIELD, BONNIE J. MAYFIELD, AND BRANCH BANKING AND TRUST COMPANY, Appellants, v. FIRST CITY BANK OF FLORIDA, Appellee. 1st District.

Securities -- Fraud -- Class action -- Appeal arising from private securities fraud class action brought under Section 10(b) of Securities Exchange Act and SEC Rule 10b-5 by investors, alleging that class members purchased stock at prices that were artificially inflated because defendant holding company and its management fraudulently misrepresented level of risk associated with commercial real estate portfolio held by its subsidiary and that those shares lost value when portfolio's deterioration was revealed to market -- District court erred when it relied on perceived inconsistency between two of jury's interrogatory answers as ground for discarding one of them and granted defendants' Rule 50 motion for judgment as matter of law on the basis of jury's remaining findings, instead of considering whether evidence was sufficient to support verdict in favor of plaintiff -- When a court considers a motion for judgment as matter of law, even after the jury has rendered a verdict, only the sufficiency of evidence matters -- Loss causation -- In this case, evidence was insufficient to support a finding of loss causation, an element required to make out a securities fraud claim under Rule 10b-5 -- To support a finding that defendant's misstatements were a substantial factor in bringing about plaintiff's losses, plaintiff had to present evidence that would give a jury some indication of how much of the decline in stock price resulted not from the fraud but from the general downturn in Florida's real estate mark, the risk of which defendant warned of, and plaintiff failed to do so -- Because plaintiff failed to adequately separate losses caused by fraud from those caused by collapse of Florida real estate market, jury did not have sufficient evidentiary basis to conclude that fraud was substantial contributing factor in bringing about class's losses -- Defendant was entitled to judgment as matter of law

JOSEPH C. HUBBARD, individually and on behalf of all others similarly situated, Plaintiff, STATE-BOSTON RETIREMENT SYSTEM, Plaintiff-Appellant, v. BANKATLANTIC BANCORP, INC., JAMES A. WHITE, VALARIE C. TOALSON, JARETT S. LEVAN, ALAN B. LEVAN, Defendants - Appellees. 11th Circuit.

Trusts -- Trustee -- Removal -- Portion of order removing trustee as a sanction for breach of fiduciary duty is reversed where trustee was not provided with notice or opportunity to be heard -- While trustee was aware of a sanction being sought against him for his failure to comply with discovery, that sanction was for imposition of attorney's fees, not removal -- Additionally, nothing in prior contempt order giving trustee twenty days to comply with discovery put trustee on notice that removal was possible sanction -- Furthermore, where order expressly stated sanction was imposed not only for trustee's failure to provide accounting, but also for failing to comply with previous court orders, sanction is analogous to indirect contempt order which requires notice and opportunity to be heard
EDWARD HARRIS KOUNTZE, Individually and as the Trustee of the Denman Kountze, Jr., Revocable Trust, Appellant, v. CHARLES DENMAN KOUNTZE, Appellee. 2nd District.

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Some mortgage foreclosure rules

Although a mortgagee may properly, upon default by the mortgagor, elect to accelerate, Florida courts have consistently noted that acceleration will be denied where the default is merely technical or where the overall equities of a particular case warrant denial. La Boutique of Beauty Acad. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983) (judgment was affirmed in appeal by mortgagee from order granting summary judgment to appellees, mortgagors, in an action to foreclose on a mortgage. The court concluded it would be unconscionable to allow acceleration and appellant, mortgagee, was estopped from exercising its acceleration rights upon default because appellant had not done so after prior defaults.); Jones, 870 So. 2d at 52 (similar); Pearson v. Arthur, 248 So. 2d 227 (Fla. 3d DCA 1971) (Under the maxim that equity will enjoin the unconscionable exercise of a legal right, the right of a mortgagee to exercise an agreement to accelerate the unpaid indebtedness upon a default may be denied by the court when an acceleration of the due date of the debt would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable.).
In Jones v. City of Winter Haven, 870 So. 2d 52 (Fla. 2d DCA 2003), for example, the owner bought real property from a financial corporation. The property had previously been found to be in violation of the city's ordinances and the corporation had been ordered to bring the property into compliance, subject to daily fines. The owner's agent was allegedly assured that a reduction in fines could have been petitioned for after the property was brought into compliance. In reliance on the representations, the owner improved the property. Two orders imposing fines on the property were recorded and a lien was created by operation of law. The city sued the owner to foreclose on the lien and the owner raised two affirmative defenses, one of which was estoppel. The city was granted summary judgment. On appeal, the Second District held that the final summary judgment was improper because genuine issues of material fact existed concerning the issues alleged in the affirmative defenses. As the city did not conclusively refute the estoppel defense, final summary judgment was improper.
Likewise, in Knight Energy Servs., 660 So. 2d at 788, a major supplier of motor fuel loaned a sum of money to some established petroleum franchises operating branded retail stations. When a dispute arose between the parties, they reached an agreement in which the parties executed notes and mortgages on some of appellant's service stations to secure repayment. The service station operators failed to make payments in accordance with the settlement, and appellee filed a foreclosure action. The service station operators asserted affirmative defenses that included unclean hands and estoppel. The trial court granted appellee's motion for summary judgment. On appeal, the Fourth District Court of Appeal determined that the affirmative defenses were legally sufficient to preclude a final summary judgment of foreclosure, reversed, and held that, because the appellee failed to factually refute the allegations, a genuine issue of material fact existed the precluding the entry of the judgment. Knight Energy Servs., 660 So. 2d at 788-89.
Likewise, in Marin v. Seven of Five, Ltd., 921 So. 2d 699 (Fla. 4th DCA 2006), the borrowers claimed that the mortgagee, who was also the builder of their residence, breached it warranty to repair any defects by failing to repair damage caused by water intrusion around the home's windows. In addition, the borrowers claimed that the mortgagee's partner initially agreed to a new financing arrangement, but then failed to honor his commitment. The Fourth District held that the allegations concerning the new financing arrangement were legally sufficient to support both the unclean hands and promissory estoppel defenses and, because the mortgagee failed to present any evidence refuting the alleged factual predicate of the defenses, the trial court erred in granting summary judgment.