Civil procedure, product liability, and dissolution of marriage, with wild boar and venison Swedish meatballs with lingonberries and curry cream sauce, wild baby red sorrel with bacon

After months of a very busy work schedule, followed by some time off for cooking, hiking, and winter gardening, the Appellate Gourmet's (c) Newsletters and Recent Decisions of Interest updates resume. We're back! Thank you for your patience. Enjoy.

Civil procedure -- Appeal from circuit court order denying petition for relief from order appointing receiver and motion for rehearing filed by entity that was served with process in underlying lawsuit and later served with post-judgment motion to establish equitable lien, but failed to put in any appearance until it sought relief from order at issue -- Arguments were waived by failure to contest the relief sought prior to issuance of final order.  PENNYMAC CORP., Appellant, v. OCEAN PLACE AT SILVER BEACH ASSOCIATION, INC., a Florida Not for Profit Corporation; and FPR FORCE, LLC, a Florida Limited Liability Company, Appellees. 4th District.

Civil procedure -- Relief from judgment -- Service of process -- Non-residents -- Defects -- Substitute service on Michigan-based defendant through the Florida Secretary of State under section 48.181(1) was insufficient where defendant provided sworn unrefuted testimony that he was not conducting business in Florida and was not avoiding service -- Final default judgment entered against defendant was void, and trial court should have granted motion to vacate the judgment -- Remand for vacation of both the judgment and default against defendant.  SILVIO COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Marital settlement agreement -- Enforcement -- Provision of MSA that “if the former husband continuously and timely exercises timesharing with minor child for a period of six consecutive months, the parties shall exercise equal timesharing” is ambiguous as to whether “period of 6 consecutive months” began immediately after entry of dissolution judgment or could apply to any six consecutive months after entry of dissolution judgment -- Hearing to consider extrinsic evidence of parties' intent is required.  JULIE WOHLBERG, Appellant, v. MICHAEL CONNER, Appellee. 4th District.

Dissolution of marriage -- Conflict within final judgment between amount of bridge-the-gap alimony needed by wife and amount actually awarded to be resolved on remand.  MICHELLE KHETARPAL, n/k/a MICHELLE BOOTH, Appellant, v. SUNIL KHETARPAL, REX & REX LIMITED, INC., a Florida corporation, and KHETARPAL HOLDINGS, LLC, Appellees. 4th District.

Mortgage foreclosure -- Standing -- Civil procedure -- Substituted plaintiff -- Trial court properly held that, pursuant to rule 1.260, party substituted as plaintiff acquired the standing of the original plaintiff, and established its standing at the time of judgment by presenting a copy of the original note endorsed in blank.  LUTHER EDWARD SPICER and CLARA JEAN MAY, Appellants, v. OCWEN LOAN SERVICING, LLC, RIVERWALK OF THE PALM BEACHES HOMEOWNERS ASSOCIATION, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for RESOURCE FUNDING GROUP, LLC., Appellees. 4th District.

Mortgage foreclosure -- Trial court erred in entering summary judgment in favor of plaintiff where defendant sufficiently pleaded affirmative defense that plaintiff failed to comply with federal housing regulations incorporated into mortgage, including defendant's right to face-to-face interview at least 30 days before commencement of foreclosure, and plaintiff conceded that it failed to refute defense.  DANIEL N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee. 4th District.

Public records -- Counties -- Exemptions -- Trade secrets -- Trial court correctly determined, after in camera inspection, that aggregate number of airport pick-ups by transportation service company and sums of money paid by company to county as airport usage fee pursuant to license agreement between company and county did not constitute trade secret information which was exempt from public disclosure.  RASIER-DC, LLC, Appellant, v. B&L SERVICE, INC., a Florida corporation and BROWARD COUNTY, FLORIDA, a Political Subdivision, Appellees. 4th District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Plaintiff to be permitted on remand to seek leave from court to add claims for punitive damages on negligence and strict liability counts.  PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants, v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER, Appellee. 4th District.

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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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