Portabella mushrooms, arugula, and bison pizza with garlic, rosemary and olive oil drizzle, with jurisdiction, contracts, arbitration recent decisions

Arbitration -- Employee severance payment -- Condition of approval -- Final judgment confirming payment of severance package awarded in arbitration is reversed and vacatur of order of dismissal is affirmed where trial court's final judgment confirming payment did not include the condition of approval set forth in the arbitration award -- Remand for trial court to enter final judgment in conformity with the award as made, including conditioning payment upon the required approval.  FLORIDA CAPITAL GROUP, INC., Appellant, vs. BART S. BISHOP, Appellee. 3rd District.

Appeals -- Order granting summary judgment was appealable where order contained language establishing finality -- Opposing party failed to meet burden of demonstrating existence of genuine issue of material fact.  CHARLES DAVIS, Appellant, v. BAY COUNTY JAIL, RICK ANGLIN, et al., Appellees. 1st District.

Attorney's fees -- Proposal for settlement -- Proposal for settlement was untimely where it was served later than forty-five days before the first day of the docket on which the case was set for trial -- Trial court erred in awarding attorney's fees pursuant to offer of judgment rule.  SCOTT B. MEYROWITZ, Appellant, v. ANDREW M. SCHWARTZ, P.A., Appellee. 4th District.

Contempt -- Direct criminal -- Trial court improperly classified defendant's failure to appear as direct contempt and failed to comply with procedural requirements for indirect contempt proceedings, including adequate notice, a reasonable time to prepare defense, and compulsory process for attendance of witnesses.  NICHOLAS P. SANDELIER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Contracts -- Settlement agreement -- Meeting of the minds -- Record contained competent substantial evidence to support trial court's determination that parties entered into enforceable agreement where plaintiff's counsel tendered offer to insurer, insurer accepted the offer and provided plaintiff with all requested documents, and insurer enclosed proposed release but stated in its letter that execution of the proposed release was not a condition of settlement or intended to constitute a counter-offer.  ANIBAL TOVAR, Appellant, v. JENNIKA RUSSELL, Appellee. 4th District.

Jurisdiction -- Non-residents -- Torts -- Action by airline against corporate entities that performed major repairs and alterations on engine which exploded shortly after take-off from Texas airport -- Trial court erred in denying motion to dismiss for lack of personal jurisdiction over foreign corporation where corporation filed two affidavits that created disputed issues of fact as to whether court could exercise specific personal jurisdiction over it -- Remand for evidentiary hearing -- Although plaintiff first alleged that defendant engaged in substantial and non-isolated business activities in state, it later withdrew its claim that defendant was subject to general jurisdiction of Florida courts, limiting plaintiff to its assertion that defendant committed tortious act within state -- Accordingly, if court concludes defendant did not commit tortious act within state, motion to dismiss must be granted.  ROLLS-ROYCE, PLC, a foreign profit corporation, Appellant, v. SPIRIT AIRLINES, INC., a Florida Corporation, ROLLS-ROYCE CORPORATION, a foreign corporation, ROLLS-ROYCE NORTH AMERICA, INC., a foreign profit corporation, IAE INTERNATIONAL AERO ENGINES AG, a foreign profit entity, PRATT & WHITNEY, a division of UNITED TECHNOLOGIES CORPORATION, a foreign profit corporation, Appellees. 4th District.

Limited liability companies -- Operating agreement -- Transfer of membership interest in LLC in violation of provision prohibiting transfer without consent of majority of members -- Non-member's transfer of his interest in an LLC which was a member of the LLC in question to another member did not violate prohibition against transfer of membership interest without notice, consent, and compliance with right of first offer provision -- Trial court erred in entering summary judgment for plaintiffs on their complaint claiming that transfer violated operating agreement and alleging breach of contract, breach of fiduciary duty, and specific performance -- Removal of party from Board of Management -- Trial court erred in construing operating agreement to permit the removal of a manager by 75% of managers rather than a vote of 60% of the members -- Under provisions of operating agreement member of LLC was permitted to bring direct action against other members for breach of agreement, and trial court erred in finding that action was required to be brought as a derivative action -- Notwithstanding erroneous construction of operating agreement, trial court properly entered judgment for defendants on counterclaims and third-party claims alleging breach of agreement, including claim arising out of removal of manager, as such claims were barred by business judgment rule.  FERK FAMILY, LP, Appellant, v. GAIL FRANK, etc., et al., Appellees. 3rd District.

Mortgage foreclosure -- Standing -- Where endorsement on note attached to complaint was different from endorsements on original note filed with court, genuine issue of material fact existed as to plaintiff's standing at inception of action -- Error to enter final judgment of foreclosure following summary judgment.  LESLINE RUSSELL, Appellant, v. BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING LP, Appellee. 4th District.

Torts -- Discovery -- Trade secrets -- Circuit court departed from essential requirements of law by ordering disclosure of trade secrets where party requesting the disclosure failed to present any evidence that production of privileged information was reasonably necessary.  NIAGARA INDUSTRIES, INC. and RHEEM SALES COMPANY, Petitioners, v. GIAQUINTO ELECTRIC LLC, a Florida Limited Liability Company, GUARDIAN AMERICAN PROPERTIES, LLC, f/k/a GUARDIAN AMERICAN RESIDENTIAL PROPERTIES OF BROWARD COUNTY, LLC, a Florida Limited Liability Company, H20 PLUMBING SERVICES, INC., a Florida Corporation, FUENMAYOR & LINDA ENTERPRISES, LLC, d/b/a ACE FLOOD & INSPECTIONS, LLC, a Florida Limited Liability Company, MARK BECKERMAN, individually, and SCOTT WESLEY FRANK, Sr., individually, Respondents. 4th District.Torts -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of resident's negligence claims against nursing home based on arbitration and limitation of liability agreement which contained express severability clause worded in such a way that the essence of the arbitration provision would survive the severance of any illegal arbitration provisions.  ANNE OBOLENSKY, Appellant, v. CHATSWORTH AT WELLINGTON GREEN, LLC d/b/a NUVISTA LIVING AT WELLINGTON GREEN, Appellee. 4th District.

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Equitable distribution, arbitration, family law and potato-fresh chive, sage, and rosemary frittata with brie cheese and whole wheat toast with Tupelo honey

Another certiorari petition is filed too late:

Appeals -- Certiorari -- Timeliness of petition -- Appellate court is without jurisdiction to consider petition for writ of certiorari to review discovery order where petition was filed more than 30 days after rendition of order -- Motion for reconsideration was not an authorized motion and did not suspend rendition of order or toll time period for filing petition for writ of certiorari -- Petitioner is not entitled to an additional five days to file petition because of fact that order was e-mailed to petitioner's counsel

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Petitioner, vs. GUY LEWIS, Esquire, et al., Respondents. 3rd District.

Knowing when to appeal is as important as what to appeal:

Appeals -- Court has no authority to grant belated appeal in a civil proceeding

MICHAEL GREEN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent. 1st District.

Knowing when to concede error is vital:

Appeals -- Sanctions -- Maintaining frivolous defense to appeal

M.B., Appellant, vs. AGENCY FOR PERSONS WITH DISABILITIES, Appellee. 3rd District.

How long is the reach of long-arm jurisdiction?

Contracts -- Torts -- Jurisdiction -- Non-residents -- Law firm's action against former client for breach of contract and against former client's attorney for tortious interference with contract -- Allegations that out-of-state client breached contract with Florida attorneys by failing to make payment in state were sufficient to bring former client within ambit of long-arm statute -- Former client had sufficient minimum contacts with Florida where she voluntarily contracted with law firm in Florida to perform services on her behalf -- Error to dismiss claims against former client -- With respect to client's present attorney, complaint did not sufficiently allege that he committed a tortious act within Florida so as to provide basis for long-arm jurisdiction -- Actions giving rise to tortious interference claim against attorney occurred in foreign state, where attorney allegedly convinced former client to breach her contract with plaintiffs -- Fact that this action resulted in breach of a Florida contract and loss of income to a Florida firm is immaterial for purpose of determining jurisdiction

METNICK & LEVY, P.A., Appellant, v. BARBARA SEULING and LAW OFFICES OF ANTHONY J. PIRROTTI, P.C., Appellees. 4th District.

Dissolution of marriage -- Equitable distribution -- Decision regarding equitable distribution of marital home is deficient where no finding awarding equity in home can be discerned from record -- Where request for partition complies with statute, and is not contested by opposing party, failure to divide property is reversible error -- Imputation of income to former wife is not supported by findings or evidence -- Child support -- Error to require noncustodial parent to pay for private school tuition without required findings -- Error to require former husband to obtain life insurance to secure alimony and child support without required findings -- Attorney's fees -- Because equitable distribution award is reversed, it may be appropriate to reexamine attorney's fee award -- Contempt -- Error to require former husband to pay former wife's attorney's fees for enforcement of additional purge amount where former wife did not adequately demonstrate need for attorney's fees -- Because award of alimony and child support is reversed, determination that former husband is in contempt for failure to pay alimony and child support is also reversed -- Remand for more specific findings as to how amount of arrearage was calculated

DANIEL JOSEPH BRENNAN, Appellant, v. MARIANNE K. BRENNAN, Appellee. 4th District.

Why retaining appellate counsel in the trial court before appeal is helpful:

Dissolution of marriage -- No merit to husband's argument, raised for first time on appeal, that guardian ad litem's participation in trial requires reversal -- Although trial court erred when it allowed guardian ad litem to question witnesses, error was not fundamental and husband's failure to object constituted waiver of issue

JONATHAN MILLEN, II, Appellant, vs. ELIZABETH MILLEN, Appellee. 3rd District.

Trial courts can abuse their discretion in deciding injunctions:

Injunctions -- Domestic violence -- Dissolution of injunction -- In dissolving permanent injunction for domestic violence protection, trial court abused discretion by reweighing evidence supporting initial injunction rather than finding a change of circumstances since the injunction was issued

ALESSANDRA BARBIERI, Appellant, v. GLENN MULLER, Appellee. 5th District.

Signing with the express authority to sign is important in nursing home arbitration agreements:

Torts -- Nursing homes -- Arbitration -- Validity of arbitration agreement -- Where husband of nursing home resident signed arbitration agreement without indicating his authority to sign agreement on behalf of resident, it was error for trial court to deny defendants' motion to compel arbitration without holding evidentiary hearing to determine the validity of the agreement -- Trial court is required to conduct evidentiary hearing on motion to compel when there is a substantial issue regarding the making of the agreement -- Trial court should have conducted evidentiary hearing at which it considered parol evidence to determine whether resident assented to arbitration agreement in the absence of her signature, or whether resident's husband had authority to sign on resident's behalf -- Failure to sign an arbitration agreement does not automatically render the agreement invalid

FI-EVERGREEN WOODS, LLC, AIRAMID HEALTH MANAGEMENT N/K/A AIRAMID HEALTH SERVICES, LLC, THEMIS HEALTH MANAGEMENT, LLC and DEBRA HOWE, Appellants, v. MAY L. ROBINSON, Appellee. 5th District.

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Dissolution of marriage, estates, Engle "manifestation", and brick oven pizza with prosciutto, fig, arugula, and goat cheese

Attorney's fees -- Prevailing party -- Condominiums -- Where bank obtained foreclosure judgments on condominium units, condominium association claimed assessment liens in excess of the statutory limit of bank's liability for condominium assessments, and bank filed post-judgment motions against association in foreclosure actions requesting application of the statutory cap to association's liens and an award of attorney's fees pursuant to statute which provides that prevailing party is entitled to attorney's fees in disputes between unit owners and condominium associations, trial court properly found that it had jurisdiction to entertain bank's post-judgment motions on the merits, but erred in finding that post-judgment procedure was not a proper forum to litigate the request for fees -- Having accepted post-judgment process as proper forum to decide the merits of disputes over unpaid assessments, association cannot now argue that post-judgment proceedings were an improper forum to award prevailing party attorney's fees -- Bank was not barred from recovering award of attorney's fees by the “no pleading, no fees” rule where entitlement to fees did not exist from the outset of bank's foreclosure actions against condominium unit owners

OCEAN BANK, Appellant, vs. CARIBBEAN TOWERS CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Contempt -- Dissolution of marriage -- Error to hold husband in indirect civil contempt for failing to pay substantial child support arrearages where all agreed husband did not receive proper notice of wife's motion and hearing date -- Error to set a purge amount without imposing a coercive sanction that the purge would remove -- Error to order husband to pay $25,000 within four weeks without sufficient evidence of ability to comply -- Gross receipts of business in which husband owned roughly a one-third interest not sufficient basis for valuation

GHASSAN MANSOUR, Appellant, v. DALAL HELMI MANSOUR, Appellee. 2nd District.

Creditors' rights -- Proceeding supplementary in aid of execution -- Discovery -- Business records -- Trial court departed from essential requirements of law, causing material injury for which there was no adequate remedy on appeal, by requiring non-party corporation with which one of judgment debtor's subsidiaries had loan agreement to divulge extensive business records that were tenuously related to litigation -- Trial court erred in denying corporation's motion for protective order limiting creditor to seeking information regarding assets of judgment debtor that were possibly subject to execution

GENERAL ELECTRIC CAPITAL CORP., Petitioner, v. RICHARD NUNZIATA, as Personal Representative of the Estate of ELVIRA NUNZIATA; TRANS HEALTH MANAGEMENT, INC.; and RUBIN SCHRON, Respondents. 2nd District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Written judgment regarding timesharing schedule to be corrected to conform to oral pronouncement -- Percentages for parties' overnights with children should also be corrected

JEFFREY LANCE BUTLER, father, Appellant, v. STEPHANIE HALL f/k/a STEPHANIE BUTLER, mother, Appellee. 1st District.

Estates -- Trusts -- Action against trustee, his son, and their law firm by beneficiaries of trust, alleging breach of fiduciary duties -- Trustee breached fiduciary duty resulting in damages by failing to diligently ascertain the value of real property which was the sole asset of trust, by undervaluing the property for federal estate tax purposes, by failing to post bond and to render annual accountings to beneficiaries, and by making unilateral payment to himself from trust monies without prior disclosures of alleged entitlement and amount to beneficiaries or the court -- Trial court did not abuse discretion in refusing to strike testimony of beneficiaries' expert appraiser -- Trial court did not abuse discretion in requiring disgorgement of trustee's and attorney's fees previously paid -- Trial court did not abuse discretion in removing trustee or in granting beneficiaries' preemptive request to preclude trustee's sons from serving as successor trustee

ARTHUR F. MCCORMICK, etc., et al., Appellants, vs. GAIL C. COX, et al., Appellees. 3rd District.

Estates -- Wills -- Revocation -- Error to dismiss second amended petition for revocation of probate of will in which petitioner alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusions, all wills executed by decedent after a 1983 will in which petitioner was beneficiary were invalid -- Petitioner pleaded sufficient allegations of standing

MARLENE GORDON, Appellant, v. LAURIE KLEINMAN, individually, and as Personal Representative of the Estate of JOEL H. DAVIS, Deceased; and M. TAMARA RIMES as Curator, Appellees. 4th District.

Foreclosure -- Jurisdiction -- Error to enter final judgment while appeal of non-final order was pending -- Error to enter final judgment when related counterclaim was pending

DENNIZ DILICAN and LORI DILICAN, Appellants, v. NORMANDY VILLAGE PROPERTY OWNERS ASSOCIATION, INC., Appellee. 4th District.

Injunctions -- Mortgage foreclosure -- Trial court acted within its inherent authority to sanction abusive litigant when it issued omnibus order granting permanent injunction barring future filings relating to foreclosure proceeding or filing future actions arising out of foreclosure proceedings in the circuit

LINDSAY JENKINS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Appellees. 4th District.

Torts -- Municipal corporations -- Law enforcement officers -- DUI arrestee's action against city alleging negligent supervision and retention, failure to protect, battery, and negligent infliction of emotional distress based on conduct of police officers while plaintiff was in holding cell and while plaintiff was in police station garage awaiting transport to jail -- Trial court erred in denying city's motion for new trial on claim of negligent retention/supervision of particular police officer where jury found that officer acted within course and scope of his employment at all times -- City cannot show it was prejudiced by this ruling because of two-issue rule -- Although jury was asked to determine liability on four separate negligence claims, three of which were based on city's vicarious liability for officer's actions, damages were determined only once and not apportioned to any particular claim -- Sovereign immunity -- City could be found liable under doctrine of respondeat superior for acts of officer where officer was acting within course and scope of his employment when he committed battery, and jury found battery was not done in bad faith, with malicious purpose, or in manner exhibiting wanton and willful disregard of plaintiff's rights -- City could also be held vicariously liable for negligent infliction of emotional distress where jury found plaintiff had been battered, which by definition requires touching or impact

CITY OF BOYNTON BEACH, Appellant, v. ADAM WEISS, Appellee. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Manifestation of disease for purpose of inclusion in Engle class membership -- Trial court did not err in instructing jury that decedent's manifestation of peripheral vascular disease occurred when he had symptoms of the disease, instead of when decedent was on notice of the causal connection between his smoking and the disease -- Conflict certified -- Trial court did not err in denying defendant's motion for directed verdict on the basis that plaintiff failed to introduce reliable medical evidence demonstrating that decedent experienced symptoms of PVD prior to class membership cutoff date -- Trial court erred in allowing plaintiff to recover punitive damages under theory of gross negligence since that cause of action was not pled in original Engle class case and jury found for defense on concealment and conspiracy claims

R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. PAMELA CICCONE, as Personal Representative of the Estate of GEORGE N. CICCONE, deceased, Appellee. 4th District.

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