Dissolution of marriage, writ of mandamus, and lamb roasted on a bed of rosemary and mint-infused olive oil, with heirloom tomatoes

Attorney's fees -- Costs -- Trial court properly awarded attorney's fees to city for successfully defending an action under Bert J. Harris Private Property Rights Protection Act -- Trial court erred by denying award of costs to prevailing city in inverse condemnation action in which court found that no taking had occurred -- A prevailing governmental entity in an inverse condemnation action is entitled to recover costs

CARIBBEAN CONDOMINIUM, ETC., ET AL., Appellants/Cross-Appellees, v. THE CITY OF FLAGLER BEACH, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Appeals -- Appeal from final summary judgment on breach of contract claim was untimely where notice of appeal was not filed within 30 days of rendition, and circuit court docket does not reflect that any motions for rehearing had been filed -- Attorney's fees -- Appeal of order awarding attorney's fees was timely -- Error to award attorney's fees under section 57.105 without setting forth basis for finding of entitlement and facts supporting amount awarded

MARK JACKSON, Appellant, v. MICHELLE JACKSON, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to include in equitable distribution one of husband's pensions, which parties dissipated during pendency of action -- Error to divide furniture and furnishings where parties had stipulated that such property would not be equitably divided -- Error to fail to value or divide husband's second pension

DENISE M. TERRY, Appellant, v. DOUGLAS J. TERRY, Appellee. 4th District.

Guardianship -- Attorney's fees -- Amount -- Limitation -- Claims bill -- Appeal from refusal of guardianship court to authorize payment of attorney's fees in amount exceeding $100,000 limit placed on legal fees and costs by the legislature -- Question certified: After the enactment of section 768.28 and the adoption of Florida Senate Rule 4.81(6), is it constitutionally permissible for the Florida Legislature to limit the amount of attorneys' fees paid from a guardianship trust established by a legislative claims bill?

SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.; MARK EDWARDS and MITZI DEE RODEN, as parents and natural guardians of AARON EDWARDS, a minor; WILLIAM S. FRATES, II, P.A.; EDNA L. CARUSO, P.A.; VAKA LAW GROUP, P.L.; and GROSSMAN & ROTH, P.A., Appellants, v. STATE OF FLORIDA, Appellee. 4th District.

Insurance -- Automobile liability -- Uninsured motorist -- Excess coverage -- Priority of coverage -- Accident involving permissive driver of car owned by another, following which owner's liability insurer tendered its $100,000 policy limits to injured party and injured party sought coverage from its UM carrier after injured party had unsuccessfully sought payment from owner's excess liability carrier, which required that owner maintain underlying limits of $250,000 per person -- Trial court erred in granting summary judgment in favor of UM carrier on its third-party claim against excess carrier where UM carrier asserted throughout litigation that excess carrier's umbrella policy came first after owner's liability policy, and that UM policy was last in priority, but trial court actually held that UM carrier was responsible for $150,000 gap between limit of owner's automobile liability policy and the $250,000 threshold at which excess coverage was triggered -- UM carrier could not claim victory on ground that it requested a generic priority of coverage determination and received what it requested where the priority determination was, in fact, the opposite of what UM carrier sought

ALLSTATE INSURANCE COMPANY, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION a/k/a USAA, MELANIE MANZO-PIANELLI and ALANA PROCTOR, Appellees. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Award to insureds who prevailed in action against insurer which had denied request for appraisal -- Trial court did not abuse discretion in finding that $400 was a reasonable blended hourly rate for various attorneys who were involved in case -- 200 hours was an excessive number of hours billed, and trial court abused discretion in finding that 200 hours was reasonable -- Trial court abused discretion in awarding a multiplier where there was no showing that insureds had difficulty in obtaining competent counsel, the result obtained was not remarkable, and there were no novel or difficult factual or legal issues in case

STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. JOSE ALVAREZ AND MARTHA ALVAREZ, Appellees. 3rd District.

Insurance -- Uninsured motorist -- Torts -- Automobile accident -- Damages -- Noneconomic -- Past and future pain and suffering -- Remittitur -- Trial court abused its discretion when it reduced jury awards for past and future pain and suffering against UM insurer by nearly $1 million without explaining what in the record demonstrated the need for remittitur and the reason for the amount chosen -- Comparison of pain and suffering awards in other cases does not show basis for affirming trial court in instant case -- Remand for entry of order which contains necessary findings and conclusions to support remittitur

JEFFREY P. ARNOLD and TINA ARNOLD, Appellants, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee. 4th District.

Licensing -- Driver's license suspension -- Refusal to submit to breath test -- Circuit court, in its appellate capacity, applied wrong law and improperly substituted its judgment for that of hearing officer when it reweighed evidence before hearing officer and reversed suspension of driver's license on basis that licensee's refusal to take breath test was not voluntary

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY, etc., Petitioner, vs. JOSEPH S. BAIRD, Respondent. 3rd District.

Mandamus -- Denial -- Appeals -- Belated -- Appellate court has no authority to grant belated appeal in civil proceeding or to grant belated certiorari review

WILSON PEREZ, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. 1st District.

Torts -- Discovery -- Work product privilege -- Trial court improperly entered order compelling defendant to disclose to plaintiff post-accident photographs of area where plaintiff was injured where plaintiff failed to exercise due diligence to obtain substantially equivalent materials to the privileged photographs

SEABOARD MARINE LTD., Petitioner, vs. FARCONELLY CLARK, Repondent. 3rd District.

Torts -- Hospitals -- Medical malpractice -- Action arising out of incident in which nurse allegedly quickly and forcefully removed post-operative drainage tube from patient, unknowingly leaving section of drainage tube inside patient -- Jury instructions -- No error in refusing to give requested instruction on presumption of negligence arising from discovery of presence of foreign body -- Instruction was not appropriate where plaintiffs were able to present direct evidence of negligence -- At time of alleged negligence, patient was medicated, but was not unconscious, and patient's wife was in hospital room, and there were no genuine doubts surrounding identity of the allegedly culpable party or the events that led to tube being left inside patient by time case went to trial -- Foreign body instruction was not necessary to allow jury to resolve issues in case or supported by facts of case -- Whether foreign body instruction may have been properly applied to claim that nurse negligently failed to inspect tubing, although not applicable to claim of negligent removal, not considered by appellate court where parties did not submit proposed instructions differentiating claims despite trial court's request

SIMON DOCKSWELL and SANDRA DOCKSWELL, Appellants, v. BETHESDA MEMORIAL HOSPITAL, INC., a Florida corporation, Appellee. 4th District.

Torts -- Product liability -- Statute of repose -- Action by plaintiff who was injured when the filter of his swimming pool exploded, against the manufacturer of the filter, the installer of the pool and intermediate distributor of the filter, and the party who acted as the certified pool contractor -- Action was barred by twelve-year statute of repose -- Pool filter, a component part of the swimming pool, did not constitute an improvement to real property, and was not excepted from statute of repose

RYAN AND JESSICA DOMINGUEZ, Appellants, vs. HAYWARD INDUSTRIES, INC., CERTIFIED GUNITE COMPANY D/B/A CUSTOM POOLS, AND JOHN M. PIEKLO, Appellees. 3rd District.




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Coton v. Televised Visual X-Ography, Inc. ,(M.D.Fla.)
Torts - Photographer was entitled to compensatory damages for company's unauthorized use of her image on cover of pornographic movie.
A photographer was entitled to compensatory damages of $100,000 for a video company's defamation by implication, under Florida law, via the unauthorized use of her self-portrait on the packaging of a pornographic movie. The photographer stated that the use of the photograph was humiliating and distressing, and caused her to become depressed. She also stated that she was shocked, disgusted, and ashamed when she saw the image being used in association with a pornographic movie, and that the use of the photograph caused her stress and problems with her family and friends. The photographer worried that being associated with a pornographic movie would harm her career. The photographer's humiliation and distress was compounded by the company president's offensive and belittling email responses to her requests to remove the photograph from the movie packaging. The photographer gave up photography for several months. She had trouble sleeping and eating.


Dissolution of marriage -- Alimony -- Error to fail to award retroactive alimony dating back to date dissolution petition was filed and to fail to award prejudgment interest on husband's alimony arrearage -- Trial court's finding that award of retroactive alimony would overlap with temporary alimony award failed to account for interim between date dissolution petition was filed and date temporary award was entered
BILLIE LUTZ GREMEL, Appellant, v. KIRK ALLAN GREMEL, Appellee. 2nd District.


Dissolution of marriage -- Equitable distribution -- Pension -- Where facts showed that husband, under partnership agreement with law firm, received credit for 100 months of service that occurred prior to marriage, trial court erred in ruling that 100% of the pension was marital in nature -- Commingling of withdrawals as they were received and use of those funds by the parties jointly did not change nature of entire asset from non-marital to marital -- Remand for further proceedings to determine value of marital portion of pension -- Error to include in final judgment conflicting provisions as to marital residence or farm expenses where parties had a clear agreement regarding these expenses which was made in and accepted in open court
EGERTON K. VAN DEN BERG, Appellant/Cross-Appellee, v. CAROLINE M. VAN DEN BERG, Appellee/Cross-Appellant. 5th District.


Dissolution of marriage -- Temporary alimony and child support -- Trial court erred by awarding wife temporary alimony and child support in an amount which exceeded husband's net income
ATEF AZIZ, Appellant, v. SHEREEN AZIZ, Appellee. 2nd District.


Child support -- Where Department of Revenue had filed action for child support on behalf of mother, and trial court determined, after evidentiary hearing, that no child support payments were necessary because child spent equal time with each parent, and mother neither appealed that order nor filed a petition for modification of chid support based on change of circumstances, trial court erred in entering order changing prior child support determination and directing father to pay child support -- Absence of transcript does not preclude appellate court from reviewing lower court judgment for error apparent on its face
RICHARD ALLEN HILL, Appellant, vs. VANESSA MARIA CALDERIN, Appellee. 3rd District.


Dissolution of marriage -- Arbitration -- Parties were not entitled to arbitrate post-judgment dispute regarding financial matters -- Arbitration provision in parties' assets agreement regarding financial issues was not enforceable
FAUSTINO MARTINEZ, Appellant, vs. FULYA KURT, Appellee. 3rd District.


Dissolution of marriage -- Child support -- Modification -- Error to enter summary judgment, as recommended by hearing officer, ordering husband to make monthly child support payments to former wife on ground that parenting plan in final judgment called for child to spend at least 40 percent of overnights of the year with wife where there were disputed issues of material fact as to whether grounds existed for deviating from presumptive support award under the guidelines -- Under parenting plan, time parties' child would spend with wife was speculative, depending entirely on wife's willingness and ability to satisfy significant advance conditions; and evidence was presented showing that wife had failed to meet the conditions and had actually exercised very few overnight visitations with child -- Moreover, marital settlement agreement required husband to shoulder almost total financial responsibility for child and wife agreed to provide child's health and dental insurance; and court must have considered this agreement to be an equitable deviation from child support award called for under the guidelines, whether calculated in usual manner or as adjusted for substantial timesharing, since it approved agreement and incorporated it in final dissolution judgment -- Finally, hearing officer's child support calculation was based solely on financial affidavits, notwithstanding husband's protestations that wife had failed to make complete financial disclosures and the fact that wife's financial claims were significantly impeached in sworn filings in opposition to motion for summary judgment -- Remand for further proceedings
LAWRENCE J. SMITH, IV, Appellant, v. SHARLENE DOROTHY SUE LING TOM SMITH, Appellee. 2nd District.


Dissolution of marriage -- Jurisdiction -- Residency requirement -- Error to deny husband's motion to dismiss wife's dissolution petition, in which he alleged that circuit court did not have subject matter jurisdiction because husband did not meet residency requirement, without making any findings regarding where husband resided before wife petitioned for divorce in Florida -- Wife, as party petitioning for dissolution, has burden of proving that the residency requirement is satisfied
CONRAD S. MIKULEC, Petitioner, v. PATRICIA HIGGINS MIKULEC, Respondent. 4th District.


Torts -- School boards -- Action against school board seeking damages for injuries suffered by student when she walked into traffic at school bus stop and was struck by vehicle -- Because school board did not have control over student at time of accident, trial court did not err in dismissing complaint with prejudice
JULIE WINSLOW, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY, Appellee. 1st District.


Gear Shift: LOUISIANA APPEALS COURT AFFIRMS $5 MILLION VERDICT IN CHILD-DEATH CASE, Guillot v. DaimlerChrysler Corp., 30 No. 8 Westlaw Journal Automotive 1, Westlaw Journal Automotive October 12, 2010
A Louisiana appeals court has affirmed a $5 million verdict to the family of a child taken off life support after being removed from his pregnant mother following an automobile accident that crushed her midsection. A 2-1 majority of the state's 4th District Court of Appeal said the damages were not excessive given the circumstances of the case and the emotional trauma the parents suffered.The record says August and Juli Guillot and their 3-year-old daughter, Madison, got into the family's 1999 automobile.


Gear Shift: GEORGIA GRANDMOTHER RUN OVER BY OWN CAR WINS $1 MILLION, Roper v. Chrysler Motors, 30 No. 8 Westlaw Journal Automotive 2, Westlaw Journal Automotive October 12, 2010
A state court jury in Fulton County, Ga., has awarded a 77-year-old woman $1.1 million after she was run over by her own 1994 Dodge Intrepid when the gear shift slipped out of the park position. Plaintiff's attorney Lance A. Cooper of Marietta, Ga., said in a press statement that several jurors had mothers who were about the same age as the plaintiff, Ramona Roper."They were very concerned about my client's future and wanted to make sure that she was taken care of," Cooper said.


Birth Injury: APPEALS COURT REJECTS 'SHOCKINGLY LOW' DAMAGES AWARD IN BIRTH INJURY CASE, Worden v. Injured Patients & Families Comp. Fund, 6 No. 10 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice October 8, 2010
Calling a jury award "shockingly low," a Wisconsin appeals court has ordered a new trial on noneconomic damages only in a malpractice action brought by a family whose child suffered a catastrophic brain injury at birth. The jury's $150,000 award for Autumn Worden's pain and suffering and $150,000 to her parents for the loss of their daughter's society and companionship and its failure to award anything for Autumn's future loss of earning capacity was "so unreasonably low as to shock our conscience."


Wrongful Death: PLASTIC SURGEON MUST PAY NEARLY $2 MILLION OVER YOUNG MOM'S DEATH, Lopez v. Galumbeck., 6 No. 10 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice October 8, 2010
A jury has awarded $1.95 million in the case of Virginia woman who died following cosmetic surgery, finding the plastic surgeon negligently sent her home less than an hour after completing the procedures even though she was having trouble breathing. Maritess Lopez, 36, died from aspiration pneumonia less than 40 hours after Dr. Matthew A. Galumbeck performed a "mommy makeover" July 30, 2008, according to the complaint filed in the Virginia Beach Circuit Court.


Wrongful Death: INADEQUATE EXPERT REPORT DOOMS ESTATE'S WRONGFUL-DEATH CLAIMS, Christus Spohn Health Sys. Corp. v. Lackey, 6 No. 10 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice October 8, 2010
A Texas appeals panel has dismissed wrongful-death claims a deceased woman's estate brought against a nursing home and a hospital, finding deficiencies in the estate's expert reports. Reports filed by a registered nurse and a doctor about the care Margaret Baker Lackey received at the facilities failed to demonstrate a causal link between the facilities' alleged negligence and her death, the Court of Appeals held.Although it reversed a trial court's denial of summary judgment to Christus Spohn.


News in Brief: NEWS IN BRIEF, 17 No. 17 Westlaw Journal Medical Devices 10, Westlaw Journal Medical Devices October 11, 2010
Wright Medical pays $7.9 million in kickback settlement Wright Medical Technology will pay $7.9 million to settle federal allegations it engaged in marketing practices that resulted in the submission of fraudulent reimbursement claims to the federal Medicare program. In a deal announced Sept. 30 by the U.S. attorney's office in Newark, N.J., the medical device maker also agreed to 12 months of federal monitoring in the wake of criminal charges it violated anti-kickback laws by paying surgeons.


Johnson v. State ,(Fla.)
Criminal Justice - It was per se reversible error when trial judge preemptively instructed jury that it could not have testimony read back.
It is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. In so holding, the Supreme Court reasoned that a reviewing court cannot properly conduct a harmless error analysis because it is impossible to determine what effect the erroneous instruction had on the jury.


Criminal law -- Prisoners -- Presumptive parole release date -- Prisoner Indigency Statute -- An action challenging the Florida Parole Commission's determination of an inmate's presumptive parole release date is a collateral criminal proceeding for the purposes of section 57.085(10), Florida Statutes (2009), which exempts such proceedings from the fee and lien provisions of section 57.085 -- It was error to impose lien on inmate's trust account for costs associated with inmate's non-frivolous petition for writ of mandamus challenging Commission's determination of his presumptive parole release date
FLORIDA PAROLE COMMISSION, Petitioner, vs. JOSEPH ROBERT SPAZIANO, Respondent. Supreme Court of Florida.


Criminal law -- Lewd and lascivious molestation -- Jury instructions -- Trial court did not err in refusing to give jury instruction on simple battery as lesser included offense where information did not allege that touching of victim was against will of victim -- Evidence -- Hearsay -- No error in sustaining state's hearsay objection to questions which defense attempted to ask victim's mother regarding victim's alleged recantation where defense did not question victim about alleged recantation when she was on stand, and thus failed to lay proper foundation for impeachment -- Trial court did not abuse discretion in denying motion for mistrial on basis of allegedly improper closing argument regarding consistency of victim's testimony
RONALD BARNETT, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Opinion filed October 13, 2010.


Criminal law -- Manslaughter -- Self-defense -- Evidence -- Where defendant claimed that he shot victim in self-defense, trial court did not abuse discretion by prohibiting defendant from introducing evidence of victim's reputation in the community for carrying firearms unless defendant could first demonstrate that, prior to the shooting, he was aware of victim's reputation in the community for carrying firearms
LEONEL MUNOZ, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.


Criminal law -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- District court committed no error, plain or otherwise, in imposing 10-year mandatory minimum sentences on three counts of indictment, notwithstanding any disparity created by 100:1 crack-to-powder cocaine ratio -- District court was not authorized to impose sentence below statutory mandatory minimum where government did not file substantial assistance motion under Section 3553(e) and defendant did not qualify for safety-valve exception of Section 3553(f)
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GREGORY ANTHONY GOMES, Defendant-Appellant. 11th Circuit.


Criminal law -- Possession of firearms and ammunition on school property -- No error in denying motion to dismiss charge on ground that firearms at issue were located in private conveyance and securely encased and not immediately available -- Subsection of statute permitting possession of a securely encased firearm for “lawful purpose” within interior of private conveyance did not apply in defendant's case where he was on probation at the time, and condition of probation required that defendant not possess any weapons
STEPHEN MICHAEL BELCHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.


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Arbitration, automobiles, coverage, mortgages al dente

Attorney's fees -- Contracts -- Prevailing defendant in collection action based on contract that provides for recovery of attorney's fees is entitled to award of fees -- Justiciable issues -- Motion seeking attorney's fees under section 57.105(1) on grounds that plaintiff could not recover because it is unlicensed contractor was not required to state that plaintiff has 21 days to withdraw complaint and avoid sanctions -- It was not necessary for defendant to re-file motion for attorney's fees after plaintiff amended complaint where amendment did not alter claim for breach of contract, which remained meritless -- Defendant is not entitled to award of section 57.105(1) attorney's fees where plaintiff and his attorney knew or should have known that plaintiff did not have general contractor's license, but evidence does not establish that they knew or should have known that general contractor's license was required
VIEW OPINION

Contracts -- Automobile sale -- Arbitration clause -- Validity -- Arbitration clause that waives buyer's right to seek punitive damages or pursue action under consumer protection statutes with fee-shifting provisions and prohibits class relief is substantively unconscionable -- Clause is also procedurally unconscionable where contract is in English but buyer barely speaks English, salesman did not furnish buyer with copy of contract, salesman rushed buyer into signing contract without disclosing that buyer was purchasing older vehicle with substantially more mileage than vehicle buyer had originally selected, and buyer was confronted with “take it or leave it” proposition to take substituted car or forfeit deposit -- Arbitration clause is unenforceable

Contracts -- Shipping -- Action by carrier against shipper for unpaid transportation charges paid by shipper to now-insolvent trucking broker which did not forward payment to carrier -- Where there was no credible evidence that carrier agreed to look solely to now-insolvent trucking broker to be paid, shipper is not relieved of liability to pay carrier

Attorney's fees -- Arbitration -- Trial de novo following court-ordered nonbinding arbitration -- Trial court correctly refused to hold individual who controlled corporate plaintiff liable for fees incurred in trial de novo, which was requested by the corporate plaintiff which had received favorable arbitration award but which did not prevail in trial de novo, where, by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under applicable statute, he was not a “party” subject to a fee award -- Moreover, language of stipulated dismissal stated that parties agreed to bear their own attorney's fees and costs incurred with respect to the claim and the parties that were being dismissed with prejudice and, accordingly, circuit court was without jurisdiction to reconsider attorney's fees claim after trial against the plaintiffs who were dismissed from the lawsuit
Reported at 35 Fla. L. Weekly D250a

Contracts -- Resort Affiliation Agreement between developer of interval ownership resort and company in the business of providing time share exchange services that provided for the inclusion of the resort in an interval network, a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts -- Trial court properly entered summary judgment for defendant in developer's action seeking declaration that contract is not in force or that defendant breached implied covenant of good faith and fair dealing -- Mutuality of obligations -- Agreement is not rendered illusory because of fact that defendant reserved right to modify terms and conditions of interval network in its sole discretion where agreement delineated specific contractual duties owed by defendant to plaintiff which did not comprise the terms and conditions of the interval network itself -- Defendant's modification of the interval network would not relieve it of its obligations to plaintiff -- Even if there were a lack of mutuality of obligation at the inception of the contract, the lack of mutuality was cured by the parties' subsequent performance according to the terms of the agreement -- Where agreement provided that it would automatically renew for a second term at the end of the initial term unless a party provided written notice of its intent not to renew, and plaintiff failed to provide such notice, the agreement did not expire by its own terms -- Defendant is not equitably estopped from asserting that the agreement automatically renewed where there was no representation by defendant that reasonably indicated to plaintiff that it was relieved of its obligation to give defendant timely written notice of its intent not to renew -- Defendant did not breach implied covenant of good faith and fair dealing by revoking plaintiff's Five Star resort rating where there was nothing in agreement which obligated defendant to confer such rating -- Trial court did not abuse discretion in granting defendant leave to amend its answer to assert claim for attorney's fees
Reported at 35 Fla. L. Weekly D252a

Mortgages -- Capacity to sue -- Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue -- Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint -- Case dismissed without prejudice
VIEW OPINION

Mortgages -- Foreclosure -- Standing -- Motion for final judgment of foreclosure denied -- Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action -- Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage -- Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge
VIEW OPINION

Torts -- Arbitration -- Arbitrable issues -- Action by purchasers of home against contractors, alleging that personal injuries suffered by plaintiffs from mold exposure were caused by negligent design and construction of the home -- Trial court properly compelled arbitration where arbitration provision in purchase agreement mandated arbitration of claims of defects in the home and claims for personal injury
Reported at 35 Fla. L. Weekly D245a

Insurance -- Commercial general liability -- Coverage -- Insurance dispute arising out of state court slip-and-fall suit against underlying defendants that culminated in Coblentz agreement, which was subsequently reduced to consent judgment -- Duty to defend -- Insurer was relieved of its duty to defend, given the omission in underlying complaint of plaintiff's uncontroverted receipt of workers' compensation benefits and her employment status and the impairment of insurer's right to assess plaintiff's claims and exercise control over litigation before parties entered into Coblentz agreement -- Insurer is therefore entitled to judgment as matter of law that it has no obligation to reimburse plaintiff or insured for any defense costs or attorney's fees incurred in underlying litigation -- Duty to indemnify -- Even assuming, arguendo, that insurer had duty to defend, workers' compensation and employer's liability exclusions in CGL policy issued to underlying defendants preclude coverage for plaintiff's state law claims where plaintiff's injuries comprised “an obligation of the insured under a workers' compensation law” and “arose out of and in the course of her employment” by insured -- Insurer is entitled to judgment as matter of law that it has no duty to indemnify plaintiff or its insureds for plaintiff's injuries or for consent judgment entered in underlying tort action
Reported at 22 Fla. L. Weekly Fed. D137a


Contracts -- Motion for relief from default judgment entered in action by company providing sitework and fill material against contractor and owner of construction site -- Contract attached to complaint for foreclosure of mechanic's lien, breach of contract and quantum meruit is inadequate for failure to attach change orders that materially affect amount owed on contract, but not for failure to attach plan drawings -- Mechanic's lien -- Where exhibit attached to complaint contradicts statement in complaint that notice was provided within one year of date plaintiff first provided labor, services or material to defendant, exhibit controls and nullifies allegation that plaintiff complied with statutory prerequisites to impose and foreclose mechanic's lien -- Failure to state cause of action for foreclosure of mechanic's lien and breach of contract is fatal deficiency in complaint warranting setting aside judgment -- Where contract is not for fixed amount, and amount defendant owes plaintiff can only be determined by reference to evidence outside contract, plaintiff's damages were unliquidated when judgment was entered, and defendants were entitled to notice and opportunity to be heard on amount owed -- Judgment and all events that flowed from it are declared void ab initio
VIEW OPINION

Civil rights -- Sexual discrimination -- Employment -- Hostile work environment -- District court erred in granting summary judgment in favor of employer where, in addition to evidence of general, indiscriminate vulgarity, plaintiff presented ample evidence of gender-specific, derogatory comments made about women on account of their sex to permit reasonable jury to find that workplace exposed plaintiff to disadvantageous terms or conditions of employment to which members of the other sex were not exposed -- Remand for further proceedings
Reported at 22 Fla. L. Weekly Fed. C477a

Racketeering -- City's action against company which sells cigarettes online to residents of city, alleging business failed to comply with federal law requiring out-of-state vendors to submit customer information to states into which they ship cigarettes, which information was forwarded by state to city for use in tracking down cigarette purchasers who do not pay their taxes, and thereby committed mail and wire fraud which ultimately caused city to lose revenue in form of unrecovered cigarette taxes -- Because city cannot show that it lost tax revenue “by reason of” defendant's alleged RICO violation, city cannot state claim under RICO -- City was required to show that predicate offense “not only was a ‘but for' cause of his injury, but that it was the proximate cause as well,” and proximate cause for RICO purposes requires some direct relation between injury asserted and injurious conduct alleged -- City's causal theory cannot satisfy RICO's direct relationship requirement
Reported at 22 Fla. L. Weekly Fed. S113a

Torts -- Death resulting from traffic collision in Iraq with truck operated by defendant, which was incorporated under Kuwaiti law and had its principal place of business in Kuwait -- Civil procedure -- Default -- Vacation -- No error in vacating default judgment, which was entered against foreign defendant for failure to appear or otherwise answer after service, after district court conducted evidentiary hearing on personal jurisdiction and concluded that the defendant lacked minimum contacts with Georgia sufficient to support jurisdiction under Georgia's long-arm statute -- Defendant did not waive challenge to personal jurisdiction by ignoring service, retaining counsel in the United States, monitoring court proceedings, and then filing motion to vacate judgment after default judgment was rendered against it -- Defendant did not waive personal jurisdiction defense by entering into contracts with U.S. government that contained section of Federal Acquisition Regulation requiring contractors to maintain liability insurance to indemnify and hold harmless the government against third-party injury and property loss claims
Reported at 22 Fla. L. Weekly Fed. C473a

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