Attorney's fees, standing, dissolution of marriage, judges, and grilled squash with goat cheese and basal-balsamic vinaigrette over wild spinach

Appeals -- Appeal is premature where related indemnity claim is pending in trial court

PROFORMANCE PLASTERING OF PENSACOLA, INC., Appellant, v. THE WINDMERE OWNERS' ASSOCIATION, INC., CITIZEN PROPERTY INSURANCE CORPORATION; McCRORY BUILDING CO., INC., DELTA/UNITED SPECIALTIES, INC., ALL-SOUTH SUBCONTRACTORS, INC., BRADLEY MASONRY, INC., ET AL., Appellees. 1st District.

Attorneys -- Attorney's fees contract -- Trial court erred in denying petition for approval of a straight 40% contingency fee contract for representation of petitioner in a medical malpractice action -- Trial court is required by rule to approve petition as long as it finds that petitioner understood the rights that she was waiving and the terms of the fee contract

IN RE: CHARLES BUGGS, DECEASED, BY AND THROUGH LITA RENGIFO, PERSONAL REPRESENTATIVE, Appellant. 1st District.

Attorneys -- Disqualification -- Conflict of interest -- Trial court did not depart from essential requirements of law in determining that a conflict of interest existed and in disqualifying law firm representing both defendants in negligence suit and plaintiff's employer with respect to its workers' compensation lien against any judgment awarded to plaintiff as result of his lawsuit

ANHEUSER-BUSCH COMPANIES, INC. and ANHEUSER-BUSCH, INCORPORATED, Petitioners, v. CHRISTOPHER STAPLES, Respondent. 1st District.

Attorney's fees -- Appellate -- Trial court did not abuse discretion in using a fee multiplier of 1.5 in awarding appellate attorney's fees where the court had determined that a multiplier of 1.5 was appropriate in awarding trial court attorney's fees -- Claim that prevailing party attorney's fees provision in sections 175.061(5) and 185.05(5), Florida Statutes did not apply to a local government pension fund established pursuant to special law was not preserved where issue was not raised before trial court or argued on appeal

BOARD OF TRUSTEES OF THE JACKSONVILLE POLICE & FIRE FUND, Appellant, v. JOSEPH KICKLIGHTER, Appellee. 1st District.

Civil procedure -- Attorney's fees -- Timeliness of motion -- Tolling -- Pending post-judgment motion to set aside a final default judgment does not toll thirty-day time requirement for serving motion for attorney's fees and costs -- Trial court properly denied motion for attorney's fees and costs filed more than thirty days after final default judgment was filed

ASAP SERVICES, LLC, a Florida limited liability company, Appellant, vs. S A FLORIDA INTERNATIONAL, LLC, a foreign limited liability company, d/b/a OEC LATIN AMERICA, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to prosecute -- Error to grant motion to dismiss for lack of prosecution where movant did not provide required sixty-day notice required by revised rule and neither movant nor trial court recognized three instances of record activity preceding dismissal -- Any filing of record during applicable time frame is sufficient to preclude dismissal without requiring that court find that the filing is intended to affirmatively move case toward resolution on merits

AEGIS, LLC., ETC., Appellant, v. MOHAMED MAWJI, FATEMA MAWJI, et al., Appellees. 5th District.

Contracts -- Action by manager of aircraft fleet against fixed base operator seeking damages pursuant to fixed base services agreement for damage caused to plaintiff's aircraft by defendant -- Claims for damage caused to some aircraft more than four years before breach of contract action was filed were barred by Texas statute of limitations -- Under Texas law, it was error to find that plaintiff was not entitled to recover damages for other damaged aircraft because plaintiff made an unreasonable pre-suit demand -- Remand for new trial on damages -- On remand, existence of, or amount of insurance coverage, is not relevant to issue of damages, and is not a proper matter for jury's consideration -- Similarly, defendant may not assert as an affirmative defense the duty to cooperate, which is an implied condition in the performance of a contract and, thus, relates solely to the issue of liability, not damages

BOMBARDIER AEROSPACE CORPORATION, Appellant/Cross-Appellee, v. SIGNATURE FLIGHT SUPPORT CORPORATION, Appellee/Cross-Appellant. 5th District.

Contracts -- Staffing agreement -- Indemnification -- Error to dismiss with prejudice fifth amended complaint alleging defendant breached duty to indemnify plaintiff for claims against plaintiff which were caused by defendant's employees -- Although defendant contended that plaintiff was not party to contract, plaintiff alleged the agreement extended coverage to contracting corporation's subsidiary, referred to on the contract's signature page as the plaintiff, and fifth amended complaint also alleged that the plaintiff was the contracting corporation's subsidiary and that defendant had contracted with the plaintiff for temporary employment services -- Further, although defendant alleged its duty to indemnify was limited to temporary employees listed in certain schedule, the contract required defendant to indemnify plaintiff for claims caused by the defendant's employees in general -- Accordingly, plaintiff adequately pled that the defendant breached contract by refusing to indemnify plaintiff for claim caused by defendant's employee

REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a ALL SERVICE REFUSE a foreign limited partnership, Appellant, v. WORKERS TEMPORARY STAFFING INC., a Florida corporation, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Error to fail to include in final judgment findings relating to all factors listed in statute -- Equitable distribution -- Error to distribute marital assets and liabilities without stating value of each asset and amount of each liability -- Attorney's fees -- Award of attorney's fees to be reevaluated after clarification of equitable distribution scheme and alimony

RALPH PATINO, Appellant, v. YOLANDA PATINO, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Where marriage fell in “gray area” between a short-term and long-term marriage, it was an abuse of discretion to award wife nominal alimony without factual findings regarding statutory factors for award of alimony

EMMANUEL TURCOTTE, Appellant, v. MICHELLE TURCOTTE, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of child -- Final judgment denying former wife's petition to relocate with child born of marriage is well-supported by evidence -- No merit to argument that trial court erred in applying factors enumerated in section 61.13001(7) to find that former wife failed to prove by preponderance of evidence that relocation was in best interest of child, but instead should have required former husband to prove that there had been a substantial change in circumstances since entry of initial judgment determining time-sharing, pursuant to section 61.13 -- Former husband was not required to prove a substantial change in circumstances because he was merely seeking enforcement of time-sharing schedule set forth in initial judgment, not a modification of time-sharing schedule

MISTIE FETZER, Appellant, v. KYLE T. EVANS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Qualified domestic relations order -- 401(k) -- Valuation -- In calculating one-half share of husband's 401(k) plan to be awarded to wife under terms of mediated settlement, trial court erred in including value of outstanding loans taken out by former husband to support parties' lifestyle -- Including outstanding loan balances in amount to be distributed to former wife would result in inequitable distribution and windfall to her and would leave undisposed marital liabilities represented by the loans -- Remand for modification of QDRO to provide that outstanding unpaid loans, as they existed on date of valuation, will not be included in distribution to former wife

JOEL C. TEAGUE, Appellant, v. LORA L. TEAGUE, Appellee. 4th District.

Dissolution of marriage -- Trial court abused discretion in requiring former husband to maintain life insurance policy as security for alimony without finding that husband could afford to maintain the policy and without finding that life insurance was necessary to secure alimony obligation

JEFFREY FROESCHLE, Appellant, v. LEONORE FROESCHLE, Appellee. 2nd District.

Judges -- Disqualification -- Challenge to blanket order from judge disqualifying herself from all cases involving a particular attorney employed by the public defender as the supervising division chief for the division in which the judge was the presiding judge -- Although trial judge had authority to disqualify herself in all cases involving a specific attorney under appropriate circumstances, judge departed from essential requirements of law by filing an “order” of blanket disqualification in a specific court file and including in this order the judge's personal opinions regarding the attorney's reputation and professionalism -- Order to be stricken from case in which it was filed -- If judge concludes that her relationship with this lawyer is such that she will be unable to treat lawyer's clients fairly, she can provide written notice of blanket disqualification to chief judge and clerk of circuit court and file typical notice of disqualification without further explanation in any affected court file

JULIANNE HOLT, Public Defender for the Thirteenth Judicial Circuit, Hillsborough County, Petitioner, v. HONORABLE TRACY SHEEHAN, Circuit Court Judge, Hillsborough County, Respondent. 2nd District.

Judges -- Disqualification -- Prohibition -- Disqualification required where, although motion was legally insufficient, judge took issue with facts alleged in motion

ALAN SCOTT MCPHERSON, Petitioner, v. DANA EARLE MCPHERSON, Respondent. 4th District.

Mandamus -- Judges -- Disqualification -- Motion to disqualify should have been deemed granted after expiration of 30-day period following service of motion -- Order denying motion more than three months after it was filed quashed -- Remand with directions to enter order directing clerk to reassign case to different judge

PEARLY BELGRAVE-SIMMONDS, Petitioner, v. CHRISTOPHER BELGRAVE, Respondent. 4th District.

Mortgage foreclosure -- Standing -- Summary judgment in favor of plaintiff, where note attached to complaint contained two allonges signed by the same individual, one of which contained an undated endorsement from original lender to another entity and the second of which contained an undated endorsement in blank from this other entity, was proper because defendants failed to offer any evidence to overcome the statutory presumption that the individual signing the allonges was authorized to do so

VIRGIL M. BENNETT and LISSETTE C. BENNETT, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees. 4th District.

Mortgage foreclosure -- Standing -- Trial court improperly granted summary judgment for mortgagors, holding that to have standing to foreclose, mortgagee must be both holder and owner of the promissory note -- Because party seeking foreclosure is required only to be the holder of the note, mortgagee who holds note but provided no evidence of ownership has standing to foreclose

WELLS FARGO BANK, N.A., Appellant, v. DANIEL P. MORCOM AND SHARON MORCOM, Appellees. 5th District.

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Attorneys' fees, attorney disqualification and cornmeal pancakes with pecans and cranberries

Appeals -- Jurisdiction -- Attorney's fees -- Appellate court lacks jurisdiction to consider challenge to award of attorney's fees based on dismissal with prejudice of counterclaim where trial court reserved jurisdiction to determine the amount of fees to be awarded

CHARLES A. MORRISON AND SHIRLEY W. MORRISON, Appellants, v. UNITED STATES OF AMERICA, ACTING THROUGH FARM SERVICE AGENCY, f/k/a FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee. 1st District.

Attorney Disqualification: BOFA SEEKS TO OUST AIG LAW FIRM FROM $10 BILLION CASE, AIG v. Bank of Am Corp., 22 No. 3 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage October 28, 2011 NEW YORK, Oct. 18 (Reuters) - Bank of America Corp. urged a judge to disqualify the law firm representing insurer American International Group in its $10 billion mortgage fraud lawsuit against the bank, alleging a conflict of interest by one of the firm's partners. The bank said Quinn Emanuel Urquhart & Sullivan should be removed because the partner had defended Merrill Lynch & Co. and its First Franklin Financial Corp. unit against similar charges that they made and sold defective mortgage loan.

Attorney's fees -- Offer of judgment

LOIS M. SEEVERS, Appellant, v. LUIS A. MONTIEL, individually, Appellee. 1st District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee instituted adversary proceedings to avoid and recover as fraudulent transfers distributions made to investors in debtor corporations that were operated as instruments of a Ponzi scheme -- Investors asserted affirmative defense claiming transfers were “for value” -- General rule in fraudulent transfer actions arising out of Ponzi scheme that a defrauded investor gives “value” to debtor in exchange for a return of principal amount of investment, but not as to any payments in excess of principal, applies to investors that hold an equity interest in the insolvent debtors -- Under general rule, transfers from debtors up to principal amount of investment through investors' purchase of limited partnerships from debtors satisfied investor defendants' restitution or fraud claims and provided value to debtors

WILLIAM F. PERKINS, Plaintiff-Appellant, v. AENA Y. HAINES, JAMES BRONNER, SIMONE BRONNER, NATHANIEL BRONNER, GEORGE RUSSELL CURTIS, SR., et al., Defendants-Appellees. 11th Circuit.

Bankruptcy - Transfer made by debtor involved in Ponzi scheme in order to redeem equity investment may constitute transfer "for value."  Addressing an issue of apparent first impression for the circuit, the Eleventh Circuit Court of Appeals has ruled that, with respect to the "for value" defense to fraudulent transfer actions arising out of a Ponzi scheme, the general rule that a debtor's transfers to an investor up to the principal amount of the investment were given "for value" and are not subject to recovery by the bankruptcy trustee, while any transfers exceeding the amount of the principal were not made "for value," applies regardless of whether good faith investors have an equity interest in, or some other form of claim against, the debtor. Courts do not distinguish between equity investments and debt-based claims when applying the "for value" defense of 11 U.S.C.A. 548(c) in this context. Perkins v. Haines ,(C.A.11 (Ga.))

Civil procedure -- Default -- Vacation -- Service of process -- Defects -- Error to deny motion to vacate default and final judgment where plaintiff failed to make diligent effort to personally serve defendant before serving process by publication

DANIEL BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee. 4th District.

Construction: ROOFING CONTRACTOR MUST WEATHER DAMAGES JUDGMENT WITHOUT COVERAGE, Evanston Ins. Co. v. Heeder, 22 No. 3 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage October 28, 2011 An insurer that limited its coverage to residential roofing owes no duty for a $681,000 judgment for damage that happened during a commercial roofing project, a federal judge in Tampa, Fla., has ruled. U.S. District Judge Susan C. Bucklew of the Middle District of Florida said Evanston Insurance Co. only insured roofing contractor Douglas D. Heeder for the operations listed on his insurance application and the policy's declarations page. The judge granted the insurer's motion for summary judgment.

 Contracts -- Insurance -- Discovery -- Request for production -- Insured is not entitled to discovery of insurer's claims file where insured has only alleged a breach of contract action, not a bad faith claims handling case -- To extent any of documents responsive to insured's request for production are contained within insurer's claims file, they are protected from disclosure -- Any documents not contained within claims file that are responsive to insured's request for production should be produced -- Insurer satisfied request for “copies of any and all documents that show payments made” to insured, if any, on this claim, by stating that it has produced copies of checks issued to insured -- To extent documents responsive to this request would be included in claims file they are not discoverable in this breach of contract action -- Request for a copy of each check for payments in this claim is denied as moot where insurer asserts that only documents responsive to this request have already been produced -- Request for a copy of agent's file is due to be granted where insurer asserts conclusory, boilerplate objection that fails to explain precise ground that makes the request objectionable -- Request for a copy of all documents regarding all prior claims, excluding any privileged information, is vague and ambiguous and motion to compel is due to be denied -- Interrogatories -- Interrogatory seeking information about how insurer adjusted the claim is relevant to insured's breach of contract claim and motion to compel is due to be granted -- Privilege log -- Any documents listed on privilege log that are included within claims file are not discoverable -- Regarding documents on privilege log that were withheld based on attorney-client and work product privileges, where insurer has asserted that these documents were made after lawsuit was filed and concern defense of lawsuit, motion to compel is denied

GAVIN'S ACE HARDWARE, INC., Plaintiff, vs. FEDERATED MUTUAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division.

Counties -- School boards -- Teachers -- Termination of employment -- Teacher was given sufficient notice before her employment was terminated following an informal hearing, and she was not denied due process -- Teacher was provided notice of a pre-determination conference to discuss her absences from work, which she did not attend, teacher did not return calls regarding her attendance at conference or her absence from work, administrative complaint was hand delivered to the mailbox at teacher's official home address, and was also sent to two different email addresses on file for her -- Due process does not require a showing that interested party received actual notice

LINDA M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA, Appellee. 5th District.

Dependent children -- Placement -- Interstate Compact on the Placement of Children -- Trial court erred in terminating protective supervision and permanently placing child with father, who lived in foreign state and with whom child was on an “extended visit,” without foreign state's concurrence to placement and without statutorily-compliant home study -- Mother was entitled to evidentiary hearing before trial court could place child with non-custodial father -- Appellate court's decision not to be read as requiring that child, who is currently residing with father, be relocated back to Florida pending evidentiary hearings

M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Time-sharing -- Contempt -- No error in finding wife in contempt for depriving husband of time-sharing with child -- No abuse of discretion in determining that husband was entitled to makeup time-sharing -- Trial court erred in failing to find that the manner in which makeup time-sharing was ordered was in best interests of child, as required by statute -- Competent substantial evidence would not support any implicit finding that order granting husband immediate custody of child and 100% time-sharing for period of 150 days was in best interests of child, as this order not only changed primary custody of child from mother to father, but also relocated child to foreign state in middle of school year -- Remand for further proceedings

MARIAH ARICA CHEEK, FORMER WIFE, Appellant, v. BRIAN R. HESIK, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Appeals -- Neither order domesticating foreign support order nor order of protection expressly disposed of petition to modify child support, either on the merits or on jurisdictional grounds -- Orders are not final orders, and are not appealable non-final orders

KAREN ELAINE PULKKINEN N/K/A KAREN ELAINE BRAUTCHECK, FORMER WIFE, Appellant, v. JYRKI TUONO JUHANI PULKKINEN, FORMER HUSBAND, Appellee. 1st District.

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