We're back blogging with more Recent Decisions of Interest in Dissolution, Attorney's Fees etc. and Garlic White Pizza with Chanterelles and Arugula

I want to apologize to all for being so busy with work and our Recent Decisions of Interest Newsletters that have tripled over the last 6 months.  But I am back!  Stay healthy and safe everyone.

Attorney's fees -- Civil rights -- Prevailing party -- Award of prevailing party attorney's fees and expenses to plaintiff under 42 U.S.C. section 1988 must be vacated and remanded for additional proceedings where jury awarded only nominal damages for defendant's violation of plaintiff's Fourth Amendment right to be free from illegal seizure and district court in determining reasonableness of a fee award misapplied the law in measuring significance of the substantive issue on which plaintiff prevailed or public purpose served by totaling up number of times that Gray II, which was decided in plaintiff's favor, had been cited -- It was error of law for district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which plaintiff prevailed must be significant and public purpose served by her victory must be substantial -- When citation-counting is used as a method for assessing the significance of a decision in plaintiff's favor, citation of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation -- On remand, district court to decide whether plaintiff is entitled to award of attorney's fees and expenses, even though she recovered only nominal damages; and if so, whether she is entitled to enhancement for delay in payment of expenses and for delay in payment of attorney's fees; and if so, how much -- Calculation errors to be avoided on remand noted
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant, EDMUND SEXTON, etc., et al., Defendants. 11th Circuit.

Elections -- Campaign financing -- Excess spending subsidy -- Injunctions -- Candidate for Republican Party for Governor of State of Florida, who is not participating in Florida system of public campaign financing, moved to preliminarily enjoin enforcement of provision of Florida Election Campaign Financing Act, which provides participating candidates with a subsidy to spend on their campaigns when a nonparticipating opponent spends in excess of statutory expenditure limit or $2 for each registered Florida voter -- Plaintiff is entitled to preliminary injunction enjoining State from releasing funds to opposing candidate under excess spending provision because he is likely to succeed on merits of First and Fourteenth Amendment claim that excess spending subsidy severely burdens his constitutional rights to spend unlimited sums of personal funds and private donations in furtherance of his campaign, burden on his right to free speech is irreparable, and, as district court concluded, balance of harms and public interest do not counsel against an injunction -- Under Davis v. Federal Election Commission, excess spending subsidy imposes substantial burden on nonparticipating candidate's right of free speech and is thus subject to strict scrutiny, which requires that Florida justify the subsidy by establishing that it furthers a compelling state interest -- Even if subsidy furthers stated interest of Florida by encouraging participation in public financing system and indirectly preventing corruption or appearance of corruption, excess spending subsidy is not least restrictive means of furthering the anticorruption interest -- Severability -- Even if issue of severance is premature, excess spending subsidy is severable from $500 contribution limit
RICHARD L. SCOTT, Plaintiff-Appellant, v. DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. 11th Circuit.

Contracts -- Third-party beneficiaries -- Action by homeowners association seeking declaration of rights under crossing agreement between railroad and another homeowners association -- Trial court properly dismissed action on ground that plaintiff homeowners association is not a party to the agreement at issue and not a third-party beneficiary of the agreement -- Plaintiff is not entitled to relief as a third-party beneficiary where parties to agreement did not intend that the agreement be for the benefit of plaintiff, and agreement expressly excludes third-party beneficiaries
VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. CSX TRANSPORTATION, INC., Appellee. 3rd District.

Counties -- Injunctions -- Trial court erred in finding that county denied property owner due process by not giving proper notice of administrative hearing on code violation citation -- Record indicates that notice of hearing was sent to owner at both his address of record with county and the address listed at the top of his request for administrative hearing -- Further, it is evident from record that owner had actual notice of hearing -- Trial court erred in granting owner's motion for temporary injunction on ground that owner had been denied due process through administrative hearing process on citation, and trial court was therefore entitled to intervene in administrative hearing process
MIAMI-DADE COUNTY, Appellant, vs. KEITH WILSON, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Modification -- Jurisdiction -- Uniform Interstate Family Support Act -- Trial court had no authority to transfer Florida post-final-judgment dissolution case to foreign state in which both former spouses now reside -- Under UIFSA, Florida court has continuing exclusive jurisdiction over spousal support order throughout the existence of the support obligation -- Correct procedure under UIFSA is to register spousal support judgment in another state for enforcement there; and even after registration, foreign state must send the case back to Florida court to consider any modification order
ANA ALVAREZ SOOTIN, Appellant, vs. JOHN SOOTIN, Appellee. 3rd District. Opinion filed August 4, 2010.

Guardianship -- Trial court abused discretion in appointing ward's son-in-law as her plenary guardian where ward had executed a declaration naming her three daughters as preneed guardians -- There was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian
MARIANNE MAGILL ACUNA & MARILYN MAGILL, Appellants, vs. JACK DRESNER, ET AL., Appellees. 3rd District.

Jurisdiction -- Service of process -- Substitute service -- Service of process was defective where process server failed to note time of service on copy of complaint delivered to the person served -- Requirement to note time on copy of complaint is statutory requirement of service, and strict compliance with statutory requirements of service is mandated -- Second service of process while appeal was pending did not render appeal moot
JOSE E. VIDAL, Appellant, v. SUNTRUST BANK, Appellee. 4th District.

Receiverships -- Ex parte -- Mortgage foreclosure -- Error to appoint receiver for property involved in mortgage foreclosure action without providing notice and opportunity to be heard where mortgagee failed to establish that ex parte receivership was necessary to avoid immediate irreparable harm to mortgaged property or that giving notice and holding a hearing would accelerate or precipitate any injury -- Although loan documents contained provision for appointment of receiver as matter of right and without notice if foreclosure proceedings were instituted, this alone is not dispositive of whether to grant ex parte receivership and provisions of rule 1.610 are not thereby bypassed -- Argument that ex parte receivership was necessary to assist in sale of property rejected -- Argument that ex parte receivership was appropriate because mortgage documents contained assignment of rents provision which provided for appointment of receiver in that context was not raised as basis for appointing receiver; and, moreover, mortgagee did not present verified allegation that any rents were actually being collected on the property or that any such rents were being dissipated -- Trial court also failed to enter appropriate ex parte order where order did not contain any factual findings
JOHN R. DeSILVA, Appellant, v. FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee. 2nd District.

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes
BERNARD WINKLER, ET AL., Appellants, vs. LAWYERS TITLE INSURANCE CORP., ETC., Appellee. 3rd District.

Torts -- Automobile accident -- Damages -- New trial is required where plaintiff's counsel made an improper appeal to passion and sympathy of jury in opening statement, improperly convinced trial judge to limit defense counsel's cross-examination of plaintiff's expert, improperly attacked character of main defense expert during cross-examination, and made improper and prejudicial closing argument
DANIEL GILBERT ANDREW CHIN, Appellant, v. WILLIAM ROGER CAIAFFA, Appellee. 3rd District.

Torts -- Damages -- Future medical expenses -- Abuse of discretion to deny defendants' motion for new trial and motion for remittitur where there was no competent substantial evidence presented at trial that plaintiff was reasonably certain to need future medical treatment -- Remand for new trial or, in the alternative, entry of amended final judgment remitting award for future medical expenses -- Past medical expenses -- Setoff -- Error to fail to determine and apply setoff for personal injury protection benefits to award of past damages
ALICIA E. MONTESINOS AND HUGHETTE ESQUIVEL, Appellants, vs. JAVIER ZAPATA, Appellee. 3rd District.

Torts -- Nuisance -- No error in dismissing with prejudice complaint in which plaintiff sought to recover damages to property allegedly caused by overhanging branches and roots of neighbor's trees encroaching on her property and damages resulting from plaintiff's removal of portions of neighbor's tree intruding on her property
VIRGINIA T. SCOTT, Appellant, v. JULIE L. McCARTY, M.D., Appellee. 4th District.

 

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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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Attorney's fees, condominium associations, future lost profits, and grilled elk wih peppercorn, red onion, and rosemary sauce

Attorney's fees -- Appeals -- Jurisdiction -- Non-final orders -- An order finding entitlement to attorney's fees but not setting an amount is a non-final, non-appealable order -- Appeal dismissed for lack of jurisdiction

KLING CORPORATION, etc., et al., Appellants, vs. HOLA NETWORKS CORPORATION, etc., et al., Appellees. 3rd District.

Attorney's fees -- Prevailing party -- Administrative law -- Counties -- School boards -- Exceptional student education -- Due process hearing -- Statute providing for award of attorney's fees to prevailing party in administrative proceedings under chapter 120 does not apply to proceeding brought under section 1003.57, which is controlled by procedures outlined in section 1003.57(1)(b)

A. L., by his parent P. L. B., and P. L. B. for herself, and Rosemary N. Palmer, attorney, Appellants, v. JACKSON COUNTY SCHOOL BOARD, Appellee. 1st District.

Attorney's fees -- Receiverships -- Attorney for receiver -- Receiver's attorney lacked standing to pursue award of attorney's fees and costs independent of the receiver where order appointing receiver entitled the receiver, not an attorney, to seek award of attorney's fees and costs, and record reflects that no other court order was entered which would have permitted receiver's attorney to independently pursue award of attorney's fees and costs

SAGA BAY GARDENS CONDOMINIUM ASSOCIATION, INC., Appellant, vs. FOR THE APPOINTMENT OF BLANKET RECEIVER, Appellee. 3rd District.

Civil procedure -- Appeals -- Jurisdiction -- Non-final orders -- Order granting motion for entry of default judgment as to liability only is a non-final, non-appealable order -- This type of order was expressly removed from the list of appealable non-final orders -- Appeal dismissed for lack of jurisdiction

AMMY M. KOGAN, Appellant, vs. MICHAEL MILDENBERGER, Appellee. 3rd District.

Civil procedure -- Dismissal -- Forum non conveniens -- Error to deny motion to dismiss for forum non conveniens based on finding that parties had availed themselves of the jurisdiction of the court -- Finding of personal or subject matter jurisdiction not substitute for existence of convenient forum -- Order granting final summary judgment entered while interlocutory appeal of order denying motion to dismiss was pending also reversed

SERAFIN GARCIA ARMAS, Appellant, vs. BANCO NACIONAL DE CRÉDITO, C.A., etc., Appellee. 3rd District.

Civil procedure -- Sanctions -- Due process -- State v. Spencer, which requires trial court to provide notice and opportunity to respond before enjoining parties from filing further pro se pleadings or motions, applies to all pro se litigants, civil and criminal alike -- Error to prohibit further pro se filings in instant civil litigation without issuing show cause order and permitting reasonable time to respond

BRAD M. BOLTON AND TERESA B. BOLTON, Appellants, v. SE PROPERTY HOLDINGS, LLC, AS SUCCESSOR TO VISION BANK and PARASOL WEST HOMEOWNERS ASSOCIATION, INC., Appellees. 1st District.

Condominiums -- Assessments -- Prior owner is jointly and severally liable with current owner for all past due assessments up to time of transfer of title -- Where condominium association foreclosed on its assessment lien and took title to property while mortgage foreclosure action was pending, mortgage foreclosure action subsequently concluded and third party purchased property at foreclosure sale, association was jointly and severally responsible with former owner back to time when title to property was transferred to former owner, and third-party purchaser at mortgage foreclosure sale was responsible for unpaid assessments back to time when association took title to subject property

PARK WEST PROFESSIONAL CENTER CONDOMINIUM ASSOCIATION, INC., Appellant, vs. JOHN LONDONO, Appellee. 3rd District.

Contempt -- Direct criminal -- Father's failure to comply with truancy orders requiring him to ensure daughter's attendance at school -- Truancy court judge improperly acted as judge and prosecutor -- Evidence was insufficient to establish willful noncompliance with truancy court's orders

DAVE MOYERS, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Contempt -- Where court had entered order requiring co-owner of condominium apartment to “vacate” the unit because her occupancy violated the fifty-five and older age restriction for residents, it was error to hold the co-owner in contempt for continuing to spend several hours a day at the unit for the purpose of remodeling and gardening and staying overnight on several occasions -- Court order was ambiguous as to what was required to vacate the unit, and it was improper to hold party in contempt for violation of an ambiguous order

VIRGINIA HOKENSTROM and HOLLY HOKENSTROM, Appellants, v. ENVIRON TOWERS I CONDOMINIUM ASSOCIATION, INC., Appellee. 4th District.

Contracts -- Discovery -- Trial court departed from essential requirements of law in entering order compelling defendant in breach of contract action to produce personal financial records where such records are not relevant to any issues in litigation -- Defendant's personal financial information is not relevant to his affirmative defense of plaintiff's anticipatory breach of contract because defendant is not required to establish his ability to perform under contract to be relieved of his contractual obligations based on plaintiff's anticipatory breach

JOHN M. RYAN, Petitioner, v. LANDSOURCE HOLDING COMPANY, LLC, Respondent. 2nd District.

Contracts -- Leases -- Damages -- Where lessor breached lease and constructively evicted lessee, ultimately causing the destruction of lessee's business, by failing to repair leaking roof, trial court properly found that prospective lost profits was the correct measure of damages -- Awarding market value for a business that has been slowly reduced to nothing due to defendant's breach would be inequitable -- There was no clear error in trial court's factual finding that awarding prospective lost profits beyond the initial lease term would be too speculative -- Trial court did not err in dismissing lessee's equitable foreclosure and lis pendens where lessee had no interest in underlying realty -- In awarding attorney's fees to lessee, trial court did not err in denying a contingency fee multiplier where evidence showed that any number of attorneys would have agreed to take case on an hourly or contingent basis

KATZ DELI OF AVENTURA, INC., Appellant, vs. WATERWAYS PLAZA, LLC, etc., Appellee. 3rd District.

Creditors' rights -- Supplementary proceedings -- Fraudulent transfers -- Attorney's fees -- Impleaded parties are not liable for attorney's fees and costs in proceedings supplementary -- In such proceedings, attorney's fees and costs may be awarded only against original judgment debtor -- To extent final judgment against impleaded parties purports to reserve jurisdiction to award attorney's fees and costs against the impleaded parties jointly and severally with judgment debtor, judgment is reversed -- Final judgment awarding attorney's fees and costs for proceedings supplementary reversed to extent that it purports to permit writs of execution against all of the assets of the impleaded parties, rather than solely the assets of judgment debtor now in the hands of the impleaded parties as result of fraudulent transfers

KINGSTON CORPORATION GROUP OF FLORIDA, INC.; KINGSTON GROUP, LLC; TAMIAMI HOEHNE, LLC; and THE SOURCE MINISTRIES, INC., Appellants, v. RICHARD KLEIBER WALTER KLEIBER PARTNERSHIP, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Substantial change in circumstances -- Trial court abused its discretion in finding no change in circumstances warranting reduction in alimony where husband presented unrebutted evidence establishing a forty-percent drop in income from business which he owned and operated, the unavailability of additional money from the business, the lack of substantial assets to liquidate, grim job expectations, and monthly expenses which exceeded his income -- Contempt -- Finding husband was in contempt for failing to pay alimony was not supported by competent, substantial evidence

HENRY M. DRIGGERS, Appellant, v. ROBIN Y. DRIGGERS, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Trusts -- Trial court did not err in granting continuing writ of garnishment over any disbursements made from discretionary trusts to former husband for payment of alimony upon finding that traditional remedies for enforcement of alimony obligation were not effective -- Although trusts contained spendthrift provision, a spendthrift provision is unenforceable against a beneficiary's former spouse who has a judgment or court order against the beneficiary for support or maintenance

BRUCE D. BERLINGER, Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Dissolution of marriage -- Child support -- Modification -- Foreign state support order -- Jurisdiction -- Under provisions of the Uniform Interstate Family Support Act, Florida court does not have jurisdiction to modify a Michigan child support order which was registered in Florida under UIFSA where Michigan no longer has continuing, exclusive jurisdiction over the order; party seeking modification is a Florida resident; and opposing party is a nonresident who objects to Florida's assumption of jurisdiction -- UIFSA is not preempted by federal Full Faith and Credit for Child Support Orders Act -- Petition for writ of prohibition granted -- Circuit court required to refrain from exercising modification jurisdiction

JYRKI TUONO JUHANI PULKKINEN, Petitioner, v. KAREN ELAINE PULKKINEN, n/k/a Karen Elaine Brautcheck, Respondent. 1st District.

Dissolution of marriage -- Equitable distribution -- Court's valuation of marital assets and liabilities was not supported by competent substantial evidence -- On remand, trial court must reconsider other orders that stemmed from erroneous equitable distribution schedule -- Trial court did not err in valuing marital assets and liabilities as of the date of filing dissolution petition -- Building that was nonmarital asset of husband at time of marriage was transformed into marital asset where wife was instrumental in improvements made to building during marriage

JORDAN H. JORDAN, Appellant, v. LAURA JORDAN, Appellee. 4th District.

Dissolution of marriage -- Trusts -- Jurisdiction -- Where court had granted former wife's motion for continuing writs of garnishment over payments to former husband from discretionary trusts for the payment of former husband's alimony obligation, trial court did not err in substituting special trustee of trusts as a party to the family law action -- There is no merit to trustee's argument that court did not have personal jurisdiction over him as special trustee and the trust because the court did not grant the motion for substitution until the same date it granted the continuing writ of garnishment -- Trustee voluntarily submitted himself to the jurisdiction of the family law court when he was appointed as special trustee of the discretionary trusts, filed motions seeking relief in family court, and voluntarily appeared as trustee at hearing in family court

RICHARD K. INGLIS, ESQ., Appellant, v. ROBERTA SUE CASSELBERRY, Appellee. 2nd District.

Torts -- Contractors -- Failure to maintain premises in safe condition -- Business invitee's action against contractor seeking damages for injuries sustained when he tripped and fell over construction debris as he attempted to enter home through the garage -- Error to enter summary judgment for defendant where there was genuine issue of material fact as to whether contractor, the sole possessor of the property at the time of the incident, failed to satisfy its duty to maintain premises in safe condition -- Whether plaintiff's apparent recognition of open dangers within garage resulted in his assumption of risk of entering house by that route is issue to be decided by jury as part of comparative negligence determination

ROBERT SKALA, Appellant, v. LYONS HERITAGE CORPORATION; SEAN CLARK; and SEAN CLARK CONTRACTING, INC., Appellees. 2nd District.

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