Punitive damages, attorney's fees, dissolution of marriage, and porchetta and basil pesto roll

 Attorney's fees -- Charging lien -- Error to deny motion to adjudicate and enforce charging lien against client's settlement funds based on determination that counsel had not established third element of charging lien, which requires an attempt to avoid the payment of fees or a dispute as to the amount involved, because the disagreement over amount owed was not between counsel and client, but rather between counsel and co-counsel from a different firm who was responsible for disbursing payments to creditors -- Client's failure to pay all that he owed counsel was enough to make prima facie showing of third element of charging lien -- Furthermore, co-counsel, who was client's lawyer and agent, did expressly act to withhold client's funds from counsel, client knew about it, and client appears to have done nothing about it -- Regardless of whether client's actions or inaction are attributable to client individually or to him as the principal responsible for his agent's conduct in regard to the settlement funds, the third element of a charging lien was satisfied -- Court rejects argument that money in co-counsel's trust account was no longer client's concern after client signed closing statement. LINDA COMMONS, ESQ. Appellant, v. JAMES SPRACKLEN; ECONOMY DENTURES OF HUDSON, L.L.C.; ROBERT P. MOFFETT, D.D.S.; ECONOMY DENTURES, INC., d/b/a One Day Dentures; LEROY POLITE, DMD.; and LEROY POLITE D.M.D., P.A., Appellees. 2nd District.

 

Attorney's fees -- Prevailing party -- Where former employer filed action against former employee alleging breach of non-compete agreement and non-solicitation agreement, seeking damages in one count and injunctive relief in another count, and subsequently filed amended complaint which dropped the claim for injunctive relief, former employee was entitled to award of attorney's fees as prevailing party in the initial action which was voluntarily dismissed -- Trial court erred in finding that claim for fees was not preserved in subsequent settlement agreement. STEVEN CASTO, Appellant, v. FIRST COAST CARDIOVASCULAR INSTITUTE, P.A., Appellee. 1st District.

 

Attorney's fees -- Proposal for settlement -- Ambiguities -- Defendant's proposal for settlement and release were clear and unambiguous notwithstanding supposed conflicting provisions in proposal and typographical error in general release consisting of use of an asterisk in place of the defendant's name -- Proposal and release stated with particularity relevant conditions and all non-monetary terms, and read as a whole, there were no ambiguities that could have reasonably affected plaintiff's decision whether to accept proposal -- Trial court erred by declining to enforce proposal for settlement. PUBLIX SUPER MARKETS, INC., Appellant, v. SIERRA ALFORD, Appellee. 5th District.

 

Child custody -- Decision-making authority -- Parenting plan -- Error to award father ultimate decision-making authority over children's extracurricular activities where father did not request such relief -- Trial court erred in failing to attach copy of parenting plan to final judgment. ANDREA M. PICARD, Appellant, v. JONATHAN R. PICARD, Appellee. 2nd District.

 

 Contracts -- Employment -- Noncompete agreement -- Injunctions -- Temporary -- Legitimate business interest -- Extraordinary or specialized training -- Trial court erred by entering preliminary injunction enforcing a non-compete agreement because plaintiff, a terrazzo restoration company, did not prove that an injunction enforcing the restrictive covenants contained in the agreement was necessary to protect a legitimate business interest -- Evidence did not support finding that plaintiff had provided defendant with specialized or extraordinary training where the evidence, even when construed in a light most favorable to plaintiff, established that defendant received on-the-job training that was “usual, regular, common or customary in the industry”. RUSSEL VESSELS, JR AND COAST TO COAST TERRAZZO, LLC, Appellants, v. DR. TERRAZZO OF FLORIDA, LLC D/B/A DR. TERRAZZO, Appellee. 5th District.

Contracts -- Notes -- Limitation of actions -- Equitable estoppel -- Action seeking repayment of promissory note from borrower's estate -- Trial court erred in entering summary judgment in favor of estate based on finding that statute of limitations had expired -- Plaintiff's summary judgment evidence was sufficient to support plaintiff's argument that equitable estoppel precluded estate from asserting statute of limitations as a defense to suit where plaintiff's affidavit in opposition asserted that plaintiff did not sue earlier because borrower had repeatedly asked plaintiff not to sue and assured plaintiff that he would be paid as recently as within a year of borrower's death. ANTHONY J. IEMMA, Appellant, v. MARGARET HEICHBERGER, as Personal Representative of the ESTATE OF JOSEPH P. D'ANGELO, and INGRID PALMER, Appellees. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Retirement benefits -- Settlement agreement -- Settlement agreement requiring the parties to equally divide the portion of former husband's retirement plan acquired from the time of the marriage to the filing of the dissolution of marriage petition, “plus any gains or losses on that amount” -- In calculating amount of retirement plan the parties were entitled to, the trial court erred by first subtracting former husband's premarital interest from the value of the plan at the time dissolution of marriage litigation commenced and then dividing the remaining balance equally -- Trial court's calculation resulted in former wife receiving passive appreciation of former husband's premarital interest in the retirement plan -- Contractual term “plus any gains or losses on that amount” does not apply to any passive appreciation in former husband's nonmarital portion of the retirement plan -- Remanded for the entry of a new qualified domestic relations order that subtracts former husband's premarital balance, plus that amount constituting passive appreciation on this premarital balance, from the final value of the plan, and then equally divides the remaining net amount between the parties. MATTHEW FRANK BALAZIC, Appellant, v. JULIE ANN BALAZIC, Appellee. 5th District.

 

Dissolution of marriage -- Alimony -- Need and ability to pay -- Retroactive alimony -- Equitable distribution -- Valuation of assets -- Businesses -- Attorney's fees -- Trial court failed to make adequate findings supporting award of permanent periodic alimony where final judgment did not make clear how trial court resolved conflicting evidence concerning former wife' s monthly living expenses or how trial court determined that former husband could pay the amount awarded -- Furthermore, trial court was required to find that no other form of alimony was appropriate -- Trial court erred in its valuation of former husband's business where it only accounted for business assets without considering business liabilities -- Award of attorney's fees is reversed where order does not make specific findings relating to hourly rate, the number of hours reasonably expended, and any appropriate reduction or enhancement factors -- Error to award retroactive alimony. TOMMY WAYNE GUIMBELLOT, Appellant, v. PATRICIA LYNN GUIMBELLOT, Appellee. 1st District.

 

Dissolution of marriage -- Equitable distribution -- Retirement benefits -- Settlement agreement -- Enforcement -- Wife's request for lump sum payment to effectuate award of wife's portion of husband's retirement and survivor benefits was appropriate where husband had purposefully and deceptively taken the entire benefit for himself and his current wife and flouted multiple trial court orders, his own attorney's instructions, and terms of parties' marital settlement agreement -- Testimony of wife's expert as to present value of benefit was not rendered speculative by expert's use of social security life expectancy calculator. HENRY SAKOW, Appellant/Cross-Appellee, v. LINDA BLAYLOCK f/k/a Linda Sakow, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Psychological evaluation -- Trial court did not depart from essential requirements of law by requiring former husband to submit to psychological evaluation after determining, following evidentiary hearing, that husband's mental health was at issue and mental health evaluation was appropriate -- Trial court erred in failing to specify time, place, manner, conditions, and scope of evaluation and failing to establish person or persons by whom the interview is to be made -- Remand to permit trial court to enter order that complies with rule 12.360(a)(1)(B). DORIAN CHILDS, Petitioner, v. LETICIA CRUZ-CHILDS, Respondent. 2nd District.

 

Torts -- Contracts -- Limited liability companies -- Officers and directors -- Fraud -- Individual liability -- Active participation theory -- Claim that president of LLC made fraudulent representations that LLC held title to property that was offered to plaintiff investors as collateral in exchange for plaintiffs' loan to LLC despite knowledge that LLC did not have title -- Trial court erred in entering summary judgment in favor of president based on determination that president could not be held individually liable -- Independent tort doctrine did not prevent president from being held personally liable -- Doctrine only applies to the parties to a contract, and it is undisputed that president was only a signatory for LLC and not a party to the loan and security agreement -- President was not entitled to summary judgment based on trial court's conclusion that president had not made any false statements of material fact where agreement and borrower's certificate, both signed by president on behalf of LLC, made false statements of existing fact regarding LLC's ownership of subject property -- Under active participation theory, president may be held individually liable for the fraud evidenced by agreement and certificate even though he signed as a corporate officer of LLC -- Trial court erred in finding that contract absolved president from liability where provisions relied upon were inapplicable, and contract expressly stated that officers could be liable for fraud or intentional misconduct. COSTA INVESTORS, LLC, Appellant, v. LIBERTY GRANDE, LLC and MOSES BENSUSAN, Appellees. 4th District.

 

Wrongful death -- Contracts -- Release -- Exculpatory clause -- Punitive damages -- Claims of negligence and breach of fiduciary duty brought against university by estate of football player who died of cardiac event after participating in football practice were not barred by exculpatory clauses in releases signed by decedent in order to play football for university -- Exculpatory clause relied upon by university was unenforceable where it failed to expressly inform player that he was contracting away his right to sue university for its own negligence, included language that could reasonably lead one to believe that university would be supervising and training properly so that player was only being asked to sign exculpatory clause to cover injuries inherent in sport, and used language suggesting that terms of release were for player's benefit -- Amendment of complaint -- Trial court erred in granting motion to amend complaint to add claim for punitive damages where record evidence fell short of demonstrating gross negligence. THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE, Appellant, v. STETSON UNIVERSITY, INC., Appellee. 5th District.

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

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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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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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Attorney’s fees -- Offer of judgment -- Although complaint made passing reference to equitable relief, action was one for damages, and plaintiff would be entitled to attorney’s fees under offer of judgment statute if he recovers a judgment in an amount at least 25 percent greater than the offer
FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Certiorari -- Jurisdiction -- Petitioner is not entitled to second-tier certiorari review of decision of circuit court appellate division regarding sufficiency of PIP policy language where there was no violation of a clearly established principle of law resulting in a miscarriage of justice by circuit court -- There was no clearly established principle of law where there are conflicting decisions of district courts of appeal on issue, and Florida Supreme Court has accepted jurisdiction to resolve the conflicting decisions
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o ALEXIA BLAKE, Respondent. 3rd District.

Civil procedure -- Default -- Trial court abused discretion by entering default judgment after defendants filed motion to dismiss and motion to clarify instead of an answer
SILAS PIERCE AND ESTATE SALES STARS, Appellants, v. CHRISTOPHER KROHA, Appellee. 5th District.

Civil procedure -- Dismissal of complaint -- Action by condominium unit owner against another unit owner and condominium association alleging that improper installation of carpet on roof of condominium building resulted in water damage to plaintiff’s unit -- Appeals -- Order dismissing five of six counts against association is a non-final, non-appealable order where the remaining count arises out of the same facts as the dismissed counts -- Where claims were filed against unit owner individually and as trustee, it was error to dismiss claims against trustee where motion to dismiss was filed solely by individual, and trustee was not a movant -- Trial court erred in dismissing claims in amended complaint as barred by statute of limitations where claims in amended complaint arose from same conduct, transaction, or occurrence alleged in initial timely complaint, so that amended complaint relates back to initial complaint
BROOK ANDERSON, Appellant, v. IRA EPSTEIN, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Trial court abused discretion in failing to award wife permanent alimony -- Because marriage was long-term marriage, there was an initial presumption in favor of permanent alimony, and husband did not present sufficient evidence to rebut this presumption -- Court erroneously denied request for permanent alimony on basis of figures set forth in wife’s most recent financial affidavit where affidavit was based on wife’s current living arrangements -- Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage

CINDI B. CLEMENS, Appellant, v. MICHAEL P. CLEMENS, Appellee. 5th District.

Dissolution of marriage -- Child custody -- Trial court did not exceed its discretionary authority by including in final judgment on parenting plan and timesharing a provision prohibiting father’s discussion of any religious matters during visitation with children where there was “clear, affirmative showing” on the record that father’s actions towards children, which he adamantly believed were religiously motivated, have been harmful to children
MICHAEL KOCH, Former Husband, Appellant, v. EMILY A. KOCH, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Trial court’s prospective-only award to former wife of her share of former husband’s pension on remand did not depart from appellate court’s mandate directing trial court to reconsider the proper disposition of the marital portion of pension by considering the factors in section 61.075, Florida Statutes -- Appellate attorney’s fees -- Trial court erred in denial of award of appellate attorney’s fees to former wife who prevailed on appeal -- Court’s finding that former husband was unable to pay appellate attorney’s fees contradicted its prior attorney’s fee award without any additional evidence or hearing, and was unsupported by record, given the large disparity in the parties’ incomes
ARVITA M. COLEMAN, Appellant, v. MICHAEL BLAND, Appellee. 5th District.

Dissolution of marriage -- Prohibition -- Intervenor’s claim did not survive parties’ voluntary dismissal of dissolution of marriage proceedings
CATHERINE CLAFLIN, Petitioner, vs. CLARENCE CHRISTOPHER CLAFLIN, Respondent, vs. MSP RECOVERY SERVICES, LLC, Intervenor. 3rd District.


Dissolution of marriage -- Provision characterizing award of attorney’s fees and costs as a form of support that is not dischargeable in bankruptcy or by any other means was improper -- Remand with instructions to strike this provision
FELIX DE JESUS GUERRA, Appellant, v. ANGELA GUERRA, Appellee. 2nd District.

Employer-employee relations -- Retaliatory discharge for filing workers’ compensation claim -- Damages -- Award of damages was excessive in light of absence of medical evidence that employer’s conduct caused employee’s medical condition to worsen or caused employee to suffer past or future psychological harm -- Remand for remittitur or new trial -- Judgment improperly awarded post-verdict interest -- Error to deny leave for employee to assert claim for punitive damages where there was a reasonable showing of a basis for recovery of such damages –

FAITH FREIGHT FORWARDING CORPORATION, Appellant/Cross-Appellee, v. CARLOS ANIAS, Appellee/Cross-Appellant. 3rd District.

Family law forms -- Amendment -- Memorandum for Certificate of Military Service
IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Family law forms -- Amendments -- Name change petitions
IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS. Supreme Court of Florida.

Florida Bar -- Rules -- Amendment -- Competence -- Minimum continuing legal education standards
IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR 4-1.1 AND 6-10.3. Supreme Court of Florida.

Insurance -- Homeowners -- Sinkhole claims -- The statutory presumption of correctness afforded to an insurer’s internal report during the investigation process in the sinkhole statutes does not extend to later trial proceedings -- Attorney’s fees -- Insured prevailing in action against insurer -- A prevailing insured’s recovery of attorney’s fees under section 627.428, Florida Statutes, requires only an incorrect denial of benefits, not a showing of bad faith on the part of the insurer -- Insurer’s payment of policy proceeds after suit has been filed constitutes the functional equivalent of a confession of judgment, thereby entitling insured to an award of attorney’s fees
KATHY JOHNSON, Petitioner, v. OMEGA INSURANCE COMPANY, Respondent. Supreme Court of Florida.

Insurance -- Personal injury protection -- Sufficiency of language in PIP policy to put insureds on notice that reimbursement of medical bills will be limited by statutory schedule -- Appeals –

Mortgage foreclosure -- Error to grant summary judgment in favor of plaintiff where plaintiff failed to demonstrate legal insufficiency of affirmative defense that plaintiff failed to comply with paragraph 22 of mortgage regarding notice of acceleration -- Affidavit addressed to whether notice was actually sent to defendants did not address allegation that notice did not comply with requirements of mortgage
BALBINA A. YOUNG and LAWRENCE E. YOUNG, SR., Appellants, v. NATIONSTAR MORTGAGE, LLC, Appellee. 2nd District.

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court abused its discretion in excluding bank’s business records, which included records from prior servicer, where bank’s witness demonstrated sufficient familiarity with boarding process which occurred after purchase of prior servicer’s assets and witness’s testimony established trustworthiness of prior servicer’s records
OCWEN LOAN SERVICING, LLC, Appellant, v. ROBERT GUNDERSEN and JOAN GUNDERSEN, Appellees. 4th District.

Promissory notes -- Power of attorney -- Trial court erred in dismissing counts of complaint filed by plaintiff as attorney-in-fact under powers of attorney executed by family members seeking to recover on promissory notes given to members of plaintiff’s family -- Although notes contained language barring assignment or transfer of notes without maker’s prior written consent, powers of attorney giving plaintiff the right to collect the sums due under the notes on behalf of the owners did not constitute an assignment or transfer of the notes -- Under the powers of attorney, plaintiff was acting as an agent of the owners of the notes
LUIS ANTONIO NIETO VILLAMIZAR a/k/a LUIS NIETO, individually and as Attorney in Fact, Appellant, v. LUNA DEVELOPMENTS GROUP, LLC, etc., et al., Appellees. 3rd District.

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Wrongful death, new trials, appellee sanctions, and Bison with Kale, Rosemary, and Purple potatoes with Lemon Thyme

Appeals -- Sanctions -- Maintenance of indefensible position in trial court and on appeal -- Rare circumstance in which appellee may be sanctioned -- Appellee complying with none of court deadlines -- Appellee directed to show cause why appellant's attorney's fees should not be assessed against appellee

HSBC Bank USA, N.A., Appellant, vs. BISCAYNE POINT CONDOMINIUM ASSOCIATION, Appellee. 3rd District.

Child custody -- Timesharing -- Error to modify timesharing by restricting contact to one time per week in a supervised setting without identifying what steps parent must take in order to reestablish unsupervised timesharing

IEHUDA TZYNDER, Appellant, vs. KEREN EDELSBURG, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Mortgage foreclosure -- Standing -- Substituted plaintiff -- Trial court erred in granting summary judgment in favor of new plaintiff, to whom mortgage had been assigned, substituted for predecessor plaintiff on same day as hearing on motion for summary judgment, because the assignment from the predecessor plaintiff, which was not in the evidentiary record, leaves standing as an issue of material fact not conclusively established by the pleadings or other summary judgment evidence -- An order of substitution does not create standing -- No merit to successor plaintiff's argument that, because the assignment was a recorded document, the trial court could properly take judicial note of it -- Even if judicially noticed, plaintiff cannot rely on it for standing because it was not served at least 20 days before the hearing on summary judgment

GREGORY SANDEFUR, Appellant, v. RVS CAPITAL, LLC, a Florida limited liability company, RIO VISTA SALOON, LLC, a Florida limited liability company, and DAVID ZWICK, Appellees. 4th District.

Contracts -- Construction -- Arbitration -- Determination of arbitrability of breach of contract claim -- By incorporating into contract the Construction Industry Rules of the American Arbitration Association, which make the issue of arbitrability subject to arbitration, parties sufficiently evidenced intent to have arbitrators, not a court, hear and decide the issue of arbitrability

GLASSWALL, LLC, Appellant, vs. MONADNOCK CONSTRUCTION, INC., et al., Appellees. 3rd District.

Contracts -- Fraud in the inducement -- Economic loss rule -- Claim that defendant fraudulently induced plaintiff to join auto-racing team by misrepresenting that defendant was fully funded and did not need plaintiff's money in order to run the team -- Because defendant's fraudulent representations were of a present fact, the fraudulent misrepresentation claim did not merge with plaintiff's breach of contract claim, and was not barred by economic loss rule -- Trial court erred in granting defendant's motion for judgment notwithstanding verdict for plaintiff on fraudulent inducement claim -- Attorneys -- Trial court did not abuse discretion by denying out-of-state attorney's motion to appear pro hac vice on the basis that granting of motion would adversely impact the administration of justice and disrupt the proceedings

PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and TOMMY CONSTANTINE, a/k/a THOMAS CONSTANTINE, individually, Appellees. 4th District.

Costs -- Section 57.105 does not provide mechanism for recovering costs

GRAND RESERVE AT TAMPA CONDOMINIUM ASSOCIATION, INC., and BUSINESS LAW GROUP, P.A., Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AF1, Appellee. 2nd District.

Creditors' rights -- Execution of consent judgment -- Motion to stay writ of execution and vacate levy on debtors' personal residence on ground that residence was debtors' homestead -- Trial court denied debtors due process when it refused to hear debtors' homestead exemption objection -- Objection was raised in emergency motion to stay and was therefore before the trial court at the time of hearing; counsel for debtors told court that he had argument pertaining to emergency motion to stay that did not pertain to issues in the motion to vacate consent judgment, but trial court erroneously determined that motion to stay did not contain any argument separate from arguments raised in motion to vacate consent judgment; and counsel clearly informed court in a timely motion for rehearing that separate homestead objection remained unresolved -- Remand for further proceedings

ROBERT MILLARD HAYES and LINDA WEBSTER HAYES, husband and wife, Appellants, v. NORMAN HARRIS SERVICES, INC.; GORDON CUTHBERTSON; and ENVIROGREEN LANDSCAPE MAINTENANCE, INC., a Florida corporation, Appellees. 2nd District.

Dissolution of marriage -- Equitable distribution -- Trial court exceeded scope of appellate mandate by revaluing assets and liabilities, including revisiting issue of value of former husband's dental practice, and by reducing duration of alimony award -- Trial court did not exceed scope of remand by considering evidence regarding former husband's current income, which was relevant to amount of alimony and issue of whether husband could be compelled to pay for minor child's private school tuition -- Remand with instructions to split net proceeds, if any, from sale of marital home and redistribute remaining assets and liabilities in original equitable distribution schedule without revaluing them; and to reinstate ten-year duration of alimony from date of original final judgment -- Appellate court declines to revisit prior ruling that trial court erred in failing to partition marital home where arguments former wife raised on this issue could have been advanced in motion for rehearing in earlier appeal -- Imputed income -- Competent substantial evidence supported amount of income imputed to former wife -- Attorney's fees to be reconsidered on remand in light of appellate court's reversal of trial court's decision to revalue assets -- Alimony credit -- Appeal from award of alimony credit to husband is premature where trial court determined entitlement but did not determine amount of credit -- Private school tuition -- Competent substantial evidence supported trial court's finding that former husband did not have ability to pay child's private school expenses

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

Dissolution of marriage -- Marital home -- Error to include in final judgment language specifying that former wife must refinance or sell marital home within 18 months without addressing each party's financial responsibilities prior to sale of home and consequences should former wife fail to sell or refinance home within allotted time frame -- With respect to provision assigning value to home and specifying that each party was to receive half of that assigned value in the event that the home was sold, although actual sale price might vary from the assigned value, former husband is entitled to equal share of the actual refinancing value or sale price of home -- Equitable distribution -- Various errors in calculation of equitable distribution in final judgment to be corrected

KEITH A. JONES, Appellant, v. LESLIE D. JONES, Appellee. 5th District.

Dissolution of marriage -- Settlement agreement -- Enforcement -- Estates -- Motion to enforce marital settlement agreement insofar as it addressed disposition of three parcels in the Cayman Islands owned by husband and wife as joint tenancy with rights of survivorship, filed by personal representative of former husband, who died four years after divorce -- Trial court erred in ordering former wife to whom properties passed upon death of former husband either to sell properties or to purchase former husband's interest in them -- Under both unambiguous provisions of former husband's will, which was executed at time husband instituted dissolution proceedings, and Cayman Islands law, disputed parcels became former wife's sole property when former husband died -- Although marital settlement agreement stated that parties would try to sell Cayman Island properties “within a reasonable time” and provided that either party could buy out the other party's interest at any time, it did not require that parties would be forced to sell property immediately if one did not buy out the other -- Error to grant estate's motion to enforce final judgment and marital settlement agreement against former wife -- Order prohibiting former wife from dissipating, encumbering, transferring, or selling these properties to be vacated on remand

DIANE MARIE EBANKS, Appellant, v. CURTIS EBANKS, as Personal Representative of the Estate of Arthur Ebanks, Appellee. 2nd District.

Insurance -- Discovery -- Trial court departed from essential requirements of law in ordering insurer to produce portions of its adjusters' claims files to medical provider in first-party non-bad-faith cases

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. PREMIER DIAGNOSTIC CENTERS, LLC, (A/A/O SHERRY DUJON, DOLORES LANCASTER, MARIA LOPEZ), Respondent. 3rd District.

Insurance -- Uninsured motorist -- Argument -- Insurer entitled to new trial based on cumulative effect of statements by plaintiff's counsel pointing out that plaintiff had done the right thing all along and that insurer had refused to pay the debt it owed to plaintiff, counsel's use of PowerPoint slide visible to jury that emphasized the insurer's responsibility, and an instruction by the trial court which also focused on insurer's liability rather than on the issue of actual damages attributable to the accident

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. MICHAEL D. GOLD and GINA GOLD, individually and as husband and wife, Appellees. 4th District.

Judges -- Disqualification -- Motion to disqualify judge was legally sufficient to extent it relied upon specific campaign-related issues, including fact that at least one of opposing party's counsel was playing significant role in judge's current, ongoing reelection campaign -- Prohibition granted

ERIC RIVERA, Petitioner, v. JOSHUA BOSQUE, Respondent. 5th District.

Jurisdiction -- Non-residents -- Contracts -- Failure to pay on contract requiring payment in Florida is sufficient to satisfy Florida's long-arm statute conferring jurisdiction over breach of contract actions -- Minimum contacts -- Where neither amended complaint nor testimony at hearing on jurisdiction showed that any act beyond repayment of promissory note was required to be performed in Florida, defendant did not have sufficient minimum contacts with state to support assertion of personal jurisdiction -- Remand with directions to dismiss without prejudice to refiling complaint in appropriate forum

CORNERSTONE INVESTMENT FUNDING, LLC, Appellant, v. PAINTED POST GROUP, INC., Appellee. 4th District.

Municipal corporations -- Trial court erred in dismissing complaint for declaratory and injunctive relief seeking to void city's alleged ultra vires act of confirming parking credits that served to reduce a building's parking space obligation -- It was error to dismiss complaint on ground that Design Review Board determined that building qualified for an allowance of parking space credits, that city granted a parking variance, and that plaintiff's action is procedurally barred because plaintiff failed to timely challenge City Planning Department's administrative determination contained in Design Review Board resolution -- Findings made by trial court in granting motion to dismiss complaint are not supported by allegations of complaint -- Dismissal cannot be affirmed on basis of res judicata or collateral estoppel, as there has not been a prior determination on the merits -- There is no merit to claim that separation of powers bars complaint because it attempts to challenge an executive act of city -- Plaintiff is not requesting that city perform a discretionary act, but, rather, alleged that city engaged in an ultra vires act

NEAPOLITAN ENTERPRISES, LLC, Appellant, v. THE CITY OF NAPLES, OLDE NAPLES BUILDING LLC, and BROAD AVENUE LLC, Appellees. 2nd District.

Torts -- Assignment of claims -- Action by plaintiff against his residential tenant, alleging that tenant was negligent in connection with a fire that damaged plaintiff's property -- Trial court did not err in entering summary judgment for defendant on basis that plaintiff, in mortgage, had assigned rights to recover for property damage to mortgagee

JORGE ARTILES, Appellant, vs. YURISBEL PINO, et al., Appellees. 3rd District.

Torts -- Cruise ships -- Jurisdiction -- Forum non conveniens -- Two class action suits against cruise line by U.S. and non-U.S. passengers on Italian-flagged cruise ship which ran aground in Italy -- Trial court did not err in dismissing one action for forum non conveniens upon finding that Italy is an available and adequate forum, that private interest and public interest factors favor trial in Italy, and that plaintiffs can reinstate their suit in Italy without undue inconvenience or prejudice -- In failing to dismiss U.S. plaintiffs in other action court did not conduct a proper private interest analysis when it failed to consider the necessary evidence required to prove and disprove each element of plaintiffs' cause of action

DENISE ABEID-SABA, et al., Appellants/Appellees/Cross-Appellees, vs. CARNIVAL CORP., CARNIVAL PLC, COSTA CROCIERE, S.p.A., COSTA CRUISE LINES, INC., and JOSEPH FARCUS ARCHITECT, P.A., Appellees/Appellants/Cross-Appellants. 3rd District.

Torts -- Evidence -- Action against automobile dealer that sold truck with lift kit installed to initial purchaser and automobile dealer who subsequently sold truck to plaintiff, who was injured when truck's steering and suspension failed, resulting in truck flipping over -- Trial court did not err in striking affidavit of plaintiff's expert witness, filed after defendants had filed motion for summary judgment, which expressed opinion that dealer who sold truck to plaintiff failed to take action which could have prevented accident where witness's prior deposition testimony stated that he had no opinion regarding the conduct of defendants -- Witness's affidavit was inconsistent with his earlier deposition testimony without any explanation for the inconsistency -- Trial court did not abuse discretion by applying rule that a litigant, when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony -- Trial court did not err in entering summary judgment for defendants where there was no evidence that truck was defective when sold by initial seller and no evidence that second seller of truck had a duty to inspect the truck for latent defects

SHAUN LESNIK, Appellant, v. DUVAL FORD, LLC, a Florida corporation and BURKINS CHEVROLET, INC., a Florida corporation, Appellees. 1st District.

Wrongful death -- Medical malpractice -- New trial -- Plaintiff suffered prejudice where, shortly before trial, defendant amended Fabre defense to include other physicians as non-party defendants and then withdrew the Fabre defense on the last day of trial -- Events created situation in which plaintiff presented case premised on fact that jury would apportion fault between defendant and Fabre defendants, only to have jury to decide case on an all-or-nothing basis -- Trial court abused discretion in denying plaintiff's motion for new trial

JEFFREY M. EDWARDS, as Personal Representative of the Estate of MARY EDWARDS, deceased, for and on behalf of lawful survivors/claimants; JEFFREY M. EDWARDS, surviving spouse; JEFFREY M. EDWARDS, JR., surviving minor child; CARL A. EDWARDS, surviving minor child; and MATTHEW T. EDWARDS, surviving minor child, Appellants, v. JEFFREY ROSEN, M.D.; FLORIDA HEART ASSOCIATES, P.L.; SHAHEEN FARUQUE, M.D.; INPATIENT CONSULTANTS OF FLORIDA, INC.; IMTIAZ AHMAD, M.D.; ALLERGY, SLEEP AND LUNG CARE, P.A.; and LEE MEMORIAL HEALTH SYSTEM, Appellees. 2nd District.

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