Dissolution of marriage, personal injury, Bosc pears with herbed goat cheese, creamy angel hair pasta with shrimp and rosemary

 Appeals -- Certiorari -- Discovery orders -- Mortgage foreclosure -- Circuit court order allowing defendant to videotape deposition of substituted plaintiff's corporate representative but prohibiting petitioner from disseminating the video -- Petition dismissed for failure to demonstrate irreparable harm that cannot be remedied on direct appeal -- With respect to argument that lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials. MARTHA L. VALENCIA, Petitioner, v. PENNYMAC HOLDINGS, LLC, et al., Respondents. 3rd District.

Appeals -- Order denying motion for reconsideration and rehearing of non-final order compelling arbitration is not an appealable order and does not toll rendition of an appealable order -- Appeal dismissed. MONICA SAMARA, Appellant, v. TENET FLORIDA PHYSICIAN SERVICES, LLC, etc., et al., Appellees. 3rd District.

Consumer law -- Warranties -- Magnuson-Moss Warranty Act -- Federal Trade Commission's “single document rule,” which requires that a warrantor disclose certain warranty-related items of information clearly and conspicuously in a single document, does not require disclosure of a binding arbitration agreement. LES KROL, Petitioner, v. FCA US, LLC, et al., Respondents. Supreme Court of Florida.

Dissolution of marriage -- Attorney's fees -- Appeals -- Non-final orders -- Portion of judgment determining entitlement to attorney's fees without determining amount is non-final and non-appealable. FLOYD MARLAND TYSON, Appellant/Cross-Appellee, v. TONYA P. TYSON, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion by denying former wife's motion for attorney's fees without making any findings as to former wife's need and former husband's ability to pay -- Even if trial court had intended to sanction former wife for her actions during litigation by making her pay her own fees, as argued by former husband, the fee order must contain sufficient findings to support the trial court's decision -- Where there was no finding by trial court of bad faith on former wife's part, there was no basis on which the court could have denied former wife's motion for attorney's fees on basis of inequitable conduct doctrine. JULIE SHAW, Appellant, v. ROBERT MARK SHAW, Appellee. 1st District.

Dissolution of marriage -- Contempt -- Settlement agreement -- Modification -- No error in holding former husband in contempt for failing to deliver child's passport as required by parties' mediated settlement agreement and parenting plan where findings were supported by competent, substantial evidence that former husband willfully refused former wife's reasonable request for passport -- Purge provision which requires former husband “to comply with former wife's prospective written requests for the child's passport” did not modify agreement's provision that request be reasonable. THOMAS EARL HARRINGTON, III, Appellant, v. JEANETTE MARIE POSPISHIL, f/k/a JEANETTE MARIE HARRINGTON, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Home owned prior to marriage was properly considered a marital asset where debt incurred during marriage as result of advances from equity lines of credit secured by home used to fund family business dwarfed estimated premarital value, and marital income was used to satisfy repayment of the obligations -- Unequal distribution based on intentional misconduct of husband in secreting and dissipating assets, all purportedly in preparation for future dissolution filing, was supported by competent, substantial evidence, and valuations of marital property were grounded upon expert opinion -- Alimony -- Given evidence regarding length of marriage, needs of wife, and disparity in income and earning ability, along with lavish marital lifestyle, there was no abuse of discretion in retroactive and ongoing alimony awards. CELSO CORRALES, Appellant, v. JEANETTE CORRALES, Appellee. 3rd District.

 

Dissolution of marriage -- Jurisdiction -- Default -- Out of state service of process on husband was valid to confer jurisdiction on court although return did not list time of day that service was effected -- Amended statute removes requirement that out of state return of service forms include the time, manner, and place of service -- Trial court did not err in entering default judgment dissolving marriage, but it was error to determine child custody by default -- Best interest of child standard precludes determination of child custody based on parent's default. KEVIN CHRISTOPHER CORRIDON, Appellant, v. GRACE-ELIZABETH CAROLYN CORRIDON, Appellee. 3rd District.

Dissolution of marriage -- Marital home -- Sale -- Distribution of proceeds -- Prejudgment interest -- Trial court's factual determinations relating to distribution of sale proceeds, which took into consideration former husband's mortgage, insurance, and tax payments that former wife was required to make, were supported by competent substantial evidence -- Former wife was afforded due process -- Court lacks jurisdiction to address portion of order determining that former husband is entitled to attorney's fees where order merely grants entitlement to fees without liquidating the amount -- Trial court erred by awarding prejudgment interest to former husband for the total amount of his mortgage, insurance, and tax payments -- Prejudgment interest should be calculated separately for each payment made by former husband that, pursuant to settlement agreement, should have been made by former wife. DULCE SCHUENZEL, Appellant, v. JOHN SCHUENZEL, Appellee. 3rd District.

Insurance -- Bad faith -- Denial of coverage -- Failure to defend -- Assignment of claim -- Limitation of actions -- Action brought against insurance company after plaintiff and insured entered into Coblentz settlement, assigning plaintiff the right to collect judgment against insurer -- Error to enter summary judgment in favor of insurer based on finding that plaintiff's action was barred by statute of limitations because insured, whose claim plaintiff asserted, was required to file action against insurer within five years of denial of coverage -- Statute of limitations began to run not at time insurer refused to cover or defend insured, but at time plaintiff's bad faith claim became cognizable. LARRY D. BUTLER, Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Homeowners -- Conditions precedent -- Failure to comply -- Waiver -- Insurer waived its defense that insured failed to comply with conditions precedent where insurer failed to plead non-compliance with specificity as required by rule 1.120(c). JUAN SAAVEDRA, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 5th District.

Insurance -- Homeowners -- Water damage -- Error to enter summary judgment in favor of insurer where disputed issues of material fact remain as to whether covered peril caused opening in door of home, allowing rain water to enter and damage interior. YOANI FERNANDEZ and YADIRA SOMOZA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Paternity -- Contempt -- Failure to pay attorney's fee award -- Remand for trial court to make required findings as to whether failure to pay was willful and whether he has the present ability to pay fees as ordered. JAMES LESTER WILLIAMS, JR., Appellant, v. JAMAI F. SAMUELS, Appellee. 2nd District.

Torts -- Personal injury -- Dismissal -- Fraud on the court -- Trial court abused discretion by setting aside jury verdict in plaintiff's favor and dismissing case based on plaintiff's giving of inconsistent testimony regarding prior medical treatment -- Inconsistent testimony was known to defense counsel and was tested via cross-examination so that jury was able to determine whether plaintiff had lied or provided a reasonable explanation -- Defense counsel could have sought pretrial or in-trial remedy, but made tactical decision to present issue to jury, and jury returned verdict in favor of plaintiff despite inconsistencies. JEAN CARLOS SALAZAR, Appellant, v. MIGUEL ROGELIO GOMEZ, Appellee. 3rd District.

 

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FDCPA, FCCPA, copyrights and academic works, and eggplant, black olive, roasted garlic, and heirloom tomatoes over angel hair pasta

Consumer law -- Debt collection -- Action alleging that defendant debt collector violated Florida Consumer Collection Practices Act and Fair Debt Collection Practices Act by sending plaintiff a letter stating that “Unless you, within 30 days of receipt of this notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be owed” -- Complaint stated claim that letter violated FDCPA because it did not state that if plaintiff did not dispute the debt within 30 days the only entity to assume the debt to be valid is the debt collector -- Defendant's substitution of the word “owed” for the word “valid” in the letter is not a basis for FDCPA claim -- Complaint stated claim that letter violated FCCPA provision that a person shall not assert the existence of a legal right when such person knows that the right does not exist by asserting the misleading communication regarding who could assume that the debt was owed -- Complaint stated claim that letter violated provision of FDCPA that debt collector shall not use any false representations or deceptive means to attempt to collect any debt by stating that if federal bankruptcy discharge has been entered, an In Rem judgment will be entered -- Language could be perceived by the least sophisticated consumer to mean that the consumer will not be allowed to contest an In Rem judgment before it is entered -- Plaintiff may seek declaratory and injunctive relief

ERICA MARTIN, on behalf of herself and others similarly situated, Plaintiff, v. BUTLER & HOSCH, P.A., Defendant. U.S. District Court, Middle District of Florida, Tampa Division.

Copyrights -- Infringement -- Academic works -- Three publishing houses brought copyright infringement action alleging members of the Board of Regents and officials at state university infringed plaintiffs' copyrights by maintaining a policy which allows professors to make digital copies of excerpts of plaintiffs' books available to students without paying plaintiffs -- Immunity -- Argument that defendants are immune from suit pursuant to Eleventh Amendment, which was not raised on cross-appeal, is not properly raised -- Fair use -- District court abused discretion in granting declaratory and injunctive relief to plaintiffs where court's grant of injunctive relief was predicated on its finding of infringement, which was in turn based on court's legally flawed methodology in balancing four fair use factors and erroneous application of factors two and three -- District court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief -- However, district court did err by giving each of four fair use factors equal weight, and by treating the four factors mechanistically, rather than undertaking a holistic analysis which carefully balanced the four factors -- District court did not err in holding that first fair use factor, the purpose and character of the use, favors a finding of fair use, notwithstanding nontransformative nature of the use, where defendant's use was for nonprofit educational purposes, which are favored under fair use statute -- District court erred in holding that second fair use factor, the nature of the copyrighted work, favors fair use in every case -- Because the digital copies of excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the facts, or derives from the owner's own experiences or opinions, district court should have held that second factor was neutral or even weighted against fair use where such material dominated -- In analyzing the third fair use factor, the amount used in relation to the copyrighted work as a whole, district court erred in setting a 10 percent-or-one-chapter benchmark, rather than performing this analysis on a work-by-work basis, taking into account whether the amount taken, qualitatively and quantitatively, was reasonable in light of the pedagogical purpose of the use and threat of market substitution -- District court did not err in its application of fourth fair use factor, the effect of defendants' use on potential market for or value of copyrighted work -- District court erred by not affording fourth factor more significant weight in overall fair use analysis, where defendants' unpaid copying was nontransformative and plaintiffs' works were used for one of purposes for which the works were marketed and threat of market substitution was severe -- District court erred by separating two additional considerations from its analysis of first and fourth fair use factors -- Although it is within district court's discretion to go beyond considerations set forth in four factors, district court's supplemental considerations of whether limited unpaid copying of excerpts will deter authors from creating new academic works and whether slight limitation of permissions income caused by defendants' fair use would promote spread of knowledge and would not appreciably diminish plaintiffs' ability to publish scholarly works, were not actually supplemental, and as such should have been considered within existing statutory framework -- Attorney's fees -- Prevailing party -- Because district court's designation of defendants as prevailing party and consequent award of attorney's fees and costs were predicated on its erroneous fair use analysis, reversal of award of attorney's fees and costs to defendants is appropriate

CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., SAGE PUBLICATIONS, INC., Plaintiffs-Appellants, v. CARL V. PATTON, et al., Defendants, J. L. ALBERT, in his official capacity as Georgia State University Associate Provost for Information System and Technology, MARK P. BECKER, in his official capacity as President of Georgia State University, KENNETH R. BERNARD, JR., in his official capacity as member of the Board of Regents of the University System of Georgia., ROBERT F. HATCHER, in his official capacity as Vice Chair of the Board of Regents of the University System of Georgia, W. MANSFIELD JENNINGS, JR., in his official capacity as member of the Board of Regents of the University System of Georgia, JAMES R. JOLLY, in his official capacity as member of the Board of Regents of the University System of Georgia, et al., Defendants-Appellees. 11th Circuit.

Creditors' rights -- Collection efforts under Terrorism Risk Insurance Act by victims of kidnapping by terrorist organization against agencies or organizations of terrorist organization (claimants) to recover default judgment entered in favor of victims against terrorist organization -- Due process -- Claimants were entitled to actual notice and to be heard before execution, though not necessarily before attachment -- TRIA does not preempt Florida law, and judgment creditors seeking to satisfy judgments under it must follow notice requirements of Florida law -- District court used proper standard to find claimants to be agencies or instrumentalities of terrorist organization -- Assets of claimants were blocked when Office of Foreign Assets Control designated claimants as Special Designated Narcotics Traffickers -- OFAC's de-listing of claimants did not operate retroactively to put their assets out of plaintiffs' reach because they were no longer blocked -- There is no merit to contention that means by which plaintiffs moved against claimants' assets constituted fraud -- Reassignment to different district court judge on remand is unnecessary -- Turnover judgment against one claimant reversed, as writ of garnishment was filed after claimant's de-listing by OFAC, so that claimant's assets were not blocked -- District court judgment as to other claimants affirmed

KEITH STANSELL, MARC GONSALVES, THOMAS HOWES, JUDITH G. JANIS, CHRISTOPHER T. JANIS, GREER C. JANIS, MICHAEL I. JANIS, JONATHAN N. JANIS, Plaintiffs-Appellees, v. REVOLUTIONARY ARMED FORCES OF COLOMBIA, (FARC), et al., Defendants, JOSE RICUARTE DIAZ HERRERA, Claimant-Appellant, WACHOVIA BANK, a Division of Wells Fargo Bank, N.A., et al., Garnishees, MERCURIO INTERNATIONAL S.A., et al., Claimants. 11th Circuit.

Wrongful death -- Product liability -- Tobacco -- Evidence -- In wrongful death action against cigarette manufacturer, district court abused discretion by excluding evidence of decedent's alcohol abuse -- District court improperly shifted burden of proof by forcing defendant to prove that decedent's death was caused by something other than smoking -- District court applied wrong legal standard in requiring testimony offered by defendant regarding alternative causes be to a reasonable degree of medical certainty, rather than the “more likely than not” standard, and placed the burden of proof as to causation on the wrong party -- Decedent's alcohol abuse was an essential part of defendant's attempt to show that something other than his smoking could have caused his death -- Decedent's alcohol abuse was relevant to cause of death, to determination of comparative fault, and to damages -- Prejudicial effect of evidence of alcohol abuse did not outweigh probative value

THELMA AYCOCK, as Personal Representative of the Estate of Richard Aycock, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant-Appellant, PHILIP MORRIS USA, INC., et al, Defendants. 11th Circuit.

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Business law, civil procedure, and ground almond corn meal souffle pancakes with fresh peaches lightly sauteed in butter and dark maple syrup

Richardson v. Koch Law Firm, P.C.

Court: U.S. 7th Circuit Court of Appeals

Docket: 12-3868 Opinion Date: September 26, 2014

Judge: Easterbrook

Areas of Law: Bankruptcy, Civil Procedure

Richardson, apparently a lawyer who has been suspended several times, incurred educational debt in 1988 but did not pay. Indiana University, the creditor, sued in 1998. Richardson filed a bankruptcy petition days before trial but did not tell the court, the University, or its counsel. Nor did he appear for trial. The state judge entered a default judgment, which the law firm tried unsuccessfully to collect. After learning about the bankruptcy, the law firm stopped collection efforts. The bankruptcy ended in 2001, and the firm resumed collection efforts, relying on 11 U.S.C. 523(a)(8), which makes most educational debts nondischargeable. Richardson filed a second bankruptcy in 2002 that lasted until 2007. Again the law firm ceased its efforts until after its end. The post-2007 efforts resulted in Richardson’s claim that the law firm violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, 1692f, by trying to enforce a judgment that had been entered in violation of the Bankruptcy Code’s automatic stay. The district court treated the suit as a collateral attack on the state court’s judgment and dismissed for want of jurisdiction, invoking the Rooker-Feldman doctrine. The Seventh Circuit held that the dismissal should be on the merits, noting that the state court judgment was vacated at the request of Indiana University.

http://j.st/Zf28

Wells Fargo Equip. Fin., Inc. v. Titan Leasing Inc.

Court: U.S. 7th Circuit Court of Appeals

Docket: 13-2291 Opinion Date: September 30, 2014

Judge: Easterbrook

Areas of Law: Business Law, Commercial Law, Contracts

Gerdau leased a locomotive from Titan for use in switching at its Knoxville mill. Titan shipped the locomotive in 2008, but it was damaged in transit and sent for repair. It did not reach Gerdau’s plant until 2009. Gerdau rejected it, stating that it needed further repairs. While the locomotive was being repaired, Titan assigned the lease to Leasing, an affiliated business, which then used the lease as security for a loan from Wells Fargo. The loan is nonrecourse: Wells Fargo agreed to look for repayment exclusively from the stream of rentals expected from Gerdau. Leasing made several warranties. Gerdau has never made a payment on the lease. Wells Fargo has taken control of the locomotive and is attempting to sell it. The district court granted summary judgment against Wells Fargo, ruling that Leasing had kept its promises. The court looked to the lease, and then to the Uniform Commercial Code, to see whether the locomotive had been “accepted” when the lease was assigned. Gerdau had an opportunity and the lease required Gerdau to inspect before shipment. The Seventh Circuit reversed. Gerdau did not acknowledge the locomotive’s receipt; Leasing did not live up to its warranties. It must repay Wells Fargo. Titan must perform the guarantees.

http://j.st/ZfFN

Foodmark, Inc. v. Alasko Foods, Inc.

Court: U.S. 1st Circuit Court of Appeals

Docket: 13-2188 Opinion Date: October 1, 2014

Judge: Thompson

Areas of Law: Business Law, Consumer Law, Contracts

Alasko Foods, Inc. (“Alasko”), a Canadian corporation that sells frozen produce to retail outlets, and Foodmark, Inc. (“Foodmark”), a Massachusetts corporation that assists food manufacturers in marketing branded-label and private-label products to retailers, entered into a “U.S. Representation Agreement [and] Sales Management Agreement” wherein Alasko retained Foodmark to market Alasko’s products in the United States. Five years later, Alasko terminated the Agreement. Foodmark filed a complaint against Alasko, alleging that Alasko’s refusal to pay the “Non-Renewal Termination Fee” contemplated by the Agreement constituted a breach of the Agreement and of its covenant of good faith and fair dealing. A federal district court entered summary judgment for Foodmark and awarded $1.1 million in damages. The First Circuit affirmed, holding that there were no genuine issues of fact, and Foodmark was entitled to a termination fee in the amount calculated by the district court.

http://j.st/ZYJQ

Lightfoot v. Cendant Mortgage Corp.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-56068 Opinion Date: October 2, 2014

Judge: Fletcher

Areas of Law: Civil Procedure

Plaintiffs appealed the district court's judgment dismissing her claims against Fannie Mae, contending that the district court lacked jurisdiction over their claims. The court affirmed, concluding that, under the rule announced in American National Red Cross v. S.G., the sue-and-be sued clause in Fannie Mae's federal charter confers federal question jurisdiction over claims brought by or against Fannie Mae. Accordingly, the district court had subject matter jurisdiction over plaintiffs' claims.

http://j.st/ZYiM

Bersin Bagel Group v. The Original Brooklyn Water Bagel Co., et al.

Court: U.S. 11th Circuit Court of Appeals

Docket: 13-12798 Opinion Date: September 30, 2014

Judge: Marcus

 Areas of Law: Civil Procedure

The district court entered a final judgment that barred future lawsuits against OBWB related to certain false patent marking or advertising after OBWB settled a qui tam false marketing suit. Subsequently, Bersin filed suit against OBWB for damages tied to Bersin's investment in an OBWB franchise. The district court issued an order that purported to enforce the federal judgment by enjoining Bersin's state court suit. The court concluded that it lacked jurisdiction to hear the appeal where the order was not final under 28 U.S.C. 1291 because it was not the proper tool for enforcing an injunction. The order did not hold a noncompliant party in contempt or impose sanctions, nor was the order an appealable interlocutory decision for purposes of section 1292(a)(1). The order merely clarified the existing injunction found in the district court's judgment. Accordingly, the court dismissed the appeal.

 http://j.st/ZfFu

Scarlott v. Nissan North America, Inc., et al.

Court: U.S. 5th Circuit Court of Appeals

Docket: 13-20528 Opinion Date: September 30, 2014

Judge: Higginson

Areas of Law: Civil Procedure

Plaintiff filed suit in Texas state court against Nissan for breach of express warranty, breach of implied warranty, and violation of Texas law. Plaintiff then amended her complaint to add claims against the dealership, a Nissan distributor, and an auto care company (Hurricane). Defendants asserted federal question jurisdiction under the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq., and removed to federal court. Plaintiff raised the issue of subject matter jurisdiction three months after removal. Plaintiff subsequently dismissed her claims against the dealership and distributor. Plaintiff then filed a motion to remand the suit to state court and the district court denied the motion. The court reversed and remanded, concluding that the district court erred by denying plaintiff's motion to remand where it was not facially apparent that her total damages meet the $50,000 jurisdictional threshold.

http://j.st/ZYZd

Monkton Ins. Servs., Ltd. v. Ritter

Court: U.S. 5th Circuit Court of Appeals

Docket: 13-50941 Opinion Date: September 26, 2014

Judge: Elrod

Areas of Law: Civil Procedure

Plaintiff filed a third-party complaint against Butterfield, a Cayman bank organized and regulated under Cayman law and located on the Island of Grand Cayman, alleging that Butterfield breached contracts with Geneva by failing to detect forged signatures on withdrawals from Geneva's bank account. On appeal, plaintiff challenged the dismissal of his claims against Butterfield for lack of personal jurisdiction. The court concluded that exercising specific jurisdiction over Butterfield would be improper because Butterfield has not purposefully availed itself of the benefits and protections of Texas law through minimum contacts related to the cause of action. Accordingly, the court affirmed the district court's grant of Butterfield's motion to dismiss for lack of personal jurisdiction. Further, the district court did not abuse its discretion in denying plaintiff's motion for jurisdictional discovery.

http://j.st/ZfVp

Cedar Lodge Plantation, L.L.C., et al. v. CSHV Fairway View I, L.L.C., et al.

Court: U.S. 5th Circuit Court of Appeals

Docket: 14-30735 Opinion Date: September 26, 2014

Judge: Jones

Areas of Law: Civil Procedure, Class Action

Cedar Lodge filed a proposed class action suit against Fairway Defendants in Louisiana state court and Fairway Defendants removed to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d). Cedar Lodge subsequently amended the complaint to add STS, a Louisiana citizen, as defendant and moved to remand to state court under the local controversy exception to CAFA jurisdiction. The district court remanded. This court then granted the Fairway Defendants permission to appeal the remand order and now hold that the application of the local controversy exception depends on the pleadings at the time the class action is removed, not on an amended complaint filed after removal. Accordingly, the court reversed and remanded for further proceedings.

http://j.st/ZfVS

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Arbitration, breach of fiduciary duty, negotiable instruments, and fresh rosemary pasta with wilted arugula and Thai basil pesto

Arbitration & Mediation, Class Action, Consumer Law

This case involved arbitration proceedings stemming from plaintiff's class action suit alleging, among other things, that SouthernLINC's termination fees were unlawful penalties under Georgia law. SouthernLINC, a wireless provider, appealed the district court's denial of its motion to vacate two arbitration awards. Under the standard set forth by the Supreme Court in Oxford Health Plans LLC v. Sutter, the court concluded that the arbitrator did not exceed his powers under section 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., either in construing the arbitration clause as he did or in certifying a class. Accordingly, the court affirmed the judgment of the district court.

Southern Communications Serv. v. Thomas, U.S. 11th Circuit Court of Appeals, Docket: 11-15587, July 12, 2013, Judge: Tjoflat

Contempt -- Indirect criminal -- Where party appeared at show cause hearing without counsel, court neither advised party that he was entitled to be represented by attorney, as provided by rule 3.840(d), nor informed him that attorney could be appointed for him if he could not afford one, and party did not knowingly waive right to counsel, it was fundamental error to adjudicate party guilty of indirect criminal contempt and sentence him to six months in jail

CHRISTOPHER PODOLSKY, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to distribute entire value of husband's 401(k) account to wife in part as sanction for husband's acts of domestic violence against wife in front of minor children -- Although trial court also cited private school tuition arrearage as basis for award, judgment provided neither valuation for the 401(k) account nor amount of any arrearage in tuition -- Remand for further proceedings -- Value of 401(k) above tuition arrearage should be equitably distributed

MAHMOUD NASSIROU, Appellant, v. NELLIE BORBA NASSIROU, Appellee. 1st District.

Insurance -- Liability -- Trial court should have dismissed third-party complaint for declaratory judgment brought against liability insurer where there had been no settlement or verdict against insured -- Party who was allegedly injured as result of insured's negligence, but who has not obtained a settlement of verdict against insured, has no beneficial interest in insured's policy with insurer and no cause of action against insurer has accrued -- When an insurer demonstrates that the pre-suit requirements of section 627.4136, Florida Statutes, have not been met, certiorari review of an order denying a motion to dismiss is appropriate

LANTANA INSURANCE, LTD., Petitioner, vs. JOSEPH C. THORNTON, III; JEAN THORNTON; MARKHAMAT (MYA) ABDUJALALOVA; and ROBERT DEAN, Respondents. 3rd District.

Inverse condemnation -- Limitation of actions -- Trial court properly ruled that stabilization doctrine did not hold statute of limitations on inverse condemnation claim in abeyance until county abandoned its efforts to remediate flooding on property which property owner claimed was result of county road improvement activity that altered existing drainage pattern -- Limitations period commenced running at time county completed the road improvements which allegedly caused the flooding that rendered property unusable, regardless of county's promise to repair the problem -- Although owner may have been able to avoid statute of limitations by pleading and proving equitable estoppel, property owner did not raise estoppel and, therefore, the issue was waived

SHARI K. JUDKINS, Appellant, v. WALTON COUNTY, a political Subdivision of the State of Florida, Appellee. 1st District.

Municipal corporations -- Public employees -- Termination of chief of police -- Administrative proceedings -- Discovery -- Public records -- Exemptions -- Criminal investigative information -- Appeal from circuit court's ruling on amended petition in which state, in connection with pending administrative proceedings in which police chief contested termination, sought to quash subpoena of investigator with state attorney's office who had conducted an investigation into allegations raised by the police chief against some members of the city council and allegations against police chief that he had improperly deleted information from his work computer and also sought protective order preventing another subpoena from being issued to the investigator -- Circuit court, sitting in its appellate capacity, improperly held that portion of written investigative report containing mental impressions of investigator was not admissible in administrative hearing -- Where investigator's investigation and any related criminal proceedings had concluded, and no charges were filed against any of the parties mentioned in the report, the statutory exemption no longer applied and the investigator's report was a public record -- Circuit court order, which granted in part and denied in part state's amended petition, is otherwise affirmed

CITY OF AVON PARK, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee, and MICHAEL ROWAN, Appellee/Cross-Appellant. 2nd District.

Torts -- Abuse of process -- Malicious prosecution -- Litigation privilege applies to claims for abuse of process and malicious prosecution against attorneys who filed complaint and briefly prosecuted case against plaintiff -- Trial court properly granted defendants' motion for judgment on the pleadings

HAROLD E. WOLFE, JR., et al., Appellants, v. JEFFREY T. FOREMAN, et al., Appellees. 3rd District.

Torts -- Attorney's fees -- Proposal for settlement -- Law of the case -- Exceptions -- Manifest injustice -- Under circumstances, trial court did not abuse its discretion in denying plaintiff's request for trial level attorney's fees based on proposal for settlement although appellate court, in prior appeal, had awarded appellate attorney's fees based on the same proposal for settlement -- When appellate court issued order granting the motion for appellate fees and remanding to fix amount, instant appeal of trial court's order denying plaintiff entitlement to attorney's fees was pending before appellate court and, accordingly, the order granting appellate fees should have been conditioned upon plaintiff's ultimately prevailing in this appeal -- Because trial court did not abuse discretion by determining that plaintiff was not entitled to attorney's fees based on its proposal for settlement, reversal of that order based on law of the case doctrine would result in manifest injustice -- Trial court did not abuse its discretion in denying motion for attorney's fees where plaintiff initially sought damages for business income losses due to defendant's negligence, but by the time plaintiff served its proposal for settlement, it knew that it would be closing its business and also knew that it would be seeking damages for destruction of its business, not merely for its business losses, but failed to inform or notify defendant as to the change in the nature of its claimed damages

FLORIDA DIVERSIFIED FILMS, INC., Appellant, vs. SIMON ROOFING AND SHEET METAL CORP., Appellee. 3rd District.

Torts -- Banks -- Conversion -- Negligence -- Negotiable instruments -- Action by automobile dealer against depository bank and financing banks alleging mishandling of financing checks issued in connection with dealer's provision of vehicles to rental car company which ultimately went out of business without repaying money owed to dealer -- Single-payee checks -- Dealer's claim for statutory conversion of single-payee checks, which was based on allegations that, without dealer's knowledge, financing banks delivered to rental company, for the use and benefit of dealer, checks which were payable only to dealer fails for lack of delivery where there was no allegation or evidence that rental company was acting as dealer's agent -- Portion of final judgment awarding dealer damages for the face amount of single-payee checks reversed -- Two-payee checks -- Dealer failed to establish that it suffered damages with respect to several of the two-payee checks on which rental company had forged dealer's endorsement, as record showed that dealer had received payment in full for the amount of these checks -- Record supported award of damages with respect to one two-payee check for which dealer had not received payment -- Prejudgment interest -- No error in awarding prejudgment interest from date money was due until date of judgment, although interest should be recalculated on remand, consistent with appellate court's opinion

REGIONS BANK, etc., et al., Appellants, v. MAROONE CHEVROLET, L.L.C., Appellee. 3rd District.

Torts -- Contracts -- Civil theft -- Fraud -- Breach of fiduciary duty -- Trial court grossly abused discretion in vacating default final judgment against financial services company, its owner, and employee, as void for plaintiff's failure to state a cause of action -- Although civil theft complaint does not use the words “criminal intent,” allegations in the complaint sufficiently support a claim for civil theft and sufficiently allege company owner's personal involvement with failure to return funds he admitted to being escrow funds -- Final judgment as to civil theft claim to be reinstated -- Trial court did not err in holding fraud claim failed to state cause of action where fraud allegation lacked specificity -- Trial court did not err in holding breach of fiduciary duty claim failed to state cause of action where the complaint's allegations were conclusory and no ultimate facts were alleged to support that defendant owner personally misled plaintiff

LOIS RHODES, Appellant, v. O. TURNER & COMPANY, LLC, OTHEL TURNER and BYRON RAINER, Appellees. 4th District.

Torts -- Medical malpractice -- Action against defendant that provided Medicare health insurance benefits to plaintiff -- Claim that defendant's administrative personnel failed to provide authorization for plaintiff to be transported promptly to hospital for an urgent procedure to prevent a second major stroke was not a claim for medical negligence -- Medical malpractice presuit notice requirements were not applicable -- Even if claims were claims for medical malpractice, claims related back to first amended complaint, which was filed within the statute of limitations, rather than second amended complaint, which was filed after the statute of limitations had passed -- Defendant waived presuit notice requirement by failure to raise the issue in its response to first amended complaint -- Trial court erred in entering summary judgment for defendant

ANGEL ACOSTA, et al., Appellants, vs. HEALTHSPRING OF FLORIDA, INC., etc., et al., Appellees. 3rd District.

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