Consumer rights, constitutional law, and grilled salmon topped with freshly grated wasabi-ginger-honey paste

Third Circuit:

Witasick v. Minn. Mut. Life Ins, Co.

Court: U.S. Court of Appeals for the Third Circuit Docket: 14-1150 Opinion Date: October 1, 2015

Areas of Law: Contracts, Insurance Law, White Collar Crime

Witasick was covered by a disability policy and a business overhead expense policy. His claims against both policies were honored. A dispute arose concerning coverage of some claimed business expenses. After years of negotiation, the parties settled: the insurer agreed to pay more than $4 million and Witasick agreed to release known, unknown, and future claims. The settlement contained a covenant not to sue, based on “any conduct prior to the date the Parties sign this document, or which is related to, or arises out of” the policies. During negotiations, the U.S. Government notified Witasick that he was the target of a grand jury investigation related to fraud and business expense claims on his income tax returns. Witasick was indicted in 2007. To support its charge of mail fraud, the government relied on information and documents Witasick had submitted to the insurer. An employee of the insurer testified before the Grand Jury and at Witasick’s trial. Witasick was convicted on most counts, but acquitted of mail fraud, and was sentenced to 15 months’ imprisonment. In 2011, Witasick sued the insurer based on the policies and cooperation with the prosecution. The Third Circuit affirmed dismissal, finding the claims prohibited by the settlement agreement.

http://j.st/4s69

Fifth Circuit:

Ferguson v. Bank of New York Mellon

Docket: 14-20585             Opinion Date: October 1, 2015

Areas of Law: Banking, Real Estate & Property Law

 After plaintiffs defaulted on their residential mortgage loan, they sought to enjoin BNY from foreclosing by claiming that the assignment of the deed of trust (DOT) to BNY was void. Plaintiffs also filed a false-lien claim under Texas Civil Practice and Remedies Code 12.002 against BNY and MERS. The district court granted BNY's motion to dismiss. The court concluded that plaintiffs lack standing to challenge BNY’s efforts to foreclose on the ground that MERS’s assignment to BNY was void for violating the PSA. Because plaintiffs have failed to plead facts showing BNY’s lien was in fact fraudulent, plaintiffs have failed to state a false lien claim under Texas Civil Practice and Remedies Code 12.002. Accordingly, the court affirmed the district court's judgment.

http://j.st/4suP

Fifth Circuit:

Cole v. Hunter

Court: U.S. Court of Appeals for the Fifth Circuit Docket: 14-10228, Docket: 15-10045           Opinion Date: September 25, 2015

Areas of Law: Civil Rights, Constitutional Law

After Ryan Cole, a seventeen-year-old, was severely injured in an armed encounter with police, he and his parents filed suit against the officers for, among other things, use of excessive force in violation of Ryan's Fourth Amendment rights. The district court denied Defendant Carson’s motion to dismiss and Defendants Hunter and Cassidy’s motion for summary judgment, rejecting the officers’ immunity defense at the motion stage of the case. Under plaintiffs’ version of the facts, the court concluded that it was objectively unreasonable under clearly established law to shoot Ryan. Consequently, the fact disputes identified by the district court - including the central issue of whether Ryan pointed his gun at an officer - are material, and the court dismissed the appeal for lack of jurisdiction. However, the court affirmed the district court’s refusal to dismiss the due process claim relating to fabrication of evidence. Finally, the court concluded that the district court erred in allowing all other claims to proceed.

http://j.st/4s7W

Seventh Circuit:

Defender Sec. Co. v. First Mercury Ins. Co.

Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-1805            Opinion Date: September 29, 2015

Areas of Law: Communications Law, Consumer Law, Contracts, Insurance Law

Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven.

http://j.st/4s8V

Ninth Circuit:

Bradford v. Scherschligt

Court: U.S. Court of Appeals for the Ninth Circuit Docket: 14-35651              Opinion Date: September 25, 2015

Areas of Law: Civil Rights, Constitutional Law

After plaintiff served his full ten-year sentence, the State of Washington vacated his residential burglary and rape conviction based largely on newly-available DNA testing. Plaintiff subsequently filed suit under 42 U.S.C. 1983 against defendant, a police detective, alleging the deliberate fabrication of evidence. The district court found that plaintiff's claim was time-barred and granted summary judgment for defendant. The court held that plaintiff’s claim did not accrue until he was acquitted of all charges on February 10, 2010. Therefore, the court concluded that plaintiff filed the underlying action within the three-year statute of limitations period, and it was error to dismiss his deliberate fabrication of evidence claim as time-barred. The court declined to address defendant’s qualified immunity defense, and remanded for the district court to consider it in the first instance.

http://j.st/4s8T

11th Circuit:

Bankruptcy -- Confirmation -- Chapter 13 plan -- Modification -- Modified plan which proposes plan payments to creditors that escalate over time, with two step-up payments to a fixed payment in months 10-59 and a balloon payment in month 60 of plan, is not confirmable -- Even if, because of the failed mortgage modification mediation, the two step-ups do not violate requirements of 11 U.S.C. section 1325(a)(5), modified plan is not confirmable because debtors have failed to prove the plan is feasible by providing any evidence that would support their ability to make the balloon payment in month 60 of plan -- Because the modified plan is not confirmable and debtors have not been paying the real estate taxes on property, creditor is entitled to complete relief from stay

In re GENE C. LENTZ and MARIA LENTZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida. Case No. 14-15585-BKC-LMI, Chapter 13. January 16, 2015. Laurel M. Isicoff, Judge.

11th Circuit:

Bankruptcy -- Exempt property -- Homestead -- Chapter 7 debtor, who believed he had conveyed his interest in a home by quit-claim deed prior to bankruptcy filing, cannot claim the homestead exemption on property he did not believe he owned at time of his original bankruptcy filing -- To qualify for homestead protection under Florida law, an individual must occupy the property and have actual intent to permanently live in that property, and based on undisputed facts debtor could not have legally intended to permanently reside in the home at time he filed for bankruptcy when he unequivocally stated that he did not believe that he had an ownership interest in home at that time after either conveying or attempting to convey his interest to his son and daughter-in-law

Reopening of proceeding -- Notice -- Debtor failed to properly provide notice to creditor of reopening of case and his intent not only to schedule previously undisclosed property, but also to avoid creditor's properly perfected judgment on that property by claiming a homestead exemption -- Because of debtor's failure to properly serve the Motion to Reopen on creditor in accordance with local rules and bankruptcy rules, creditor's objection to debtor's new homestead exemption claim and creditor's objection to the Motion to Avoid Lien are deemed timely

In re: PYARALI R. CHARANIA, Debtor. U.S. Bankruptcy Court, Southern District of Florida. Case No. 07-14000-RAM, Chapter 7. December 8, 2014. Robert A. Mark, Judge.

11th Circuit:

Bankruptcy -- Judges -- Recusal -- Where Chapter 11 debtor appealed both fee order granting in part fee applications submitted by debtor's counsel and directing counsel to account for all trust account transactions involving debtor as well as order denying counsel's motion for reconsideration, and debtor subsequently filed motion for recusal of bankruptcy judge, the appropriate action for the bankruptcy court, under the circumstances, was to defer ruling on the recusal motion until such time as it was clear that the court had jurisdiction over the singular issue remaining to be determined in the case -- Under the controlling “flexible finality” standard, the bankruptcy court's fee order, reconsideration order, and order setting evidentiary hearing on accounting matter did not appear to be “final,” but if those orders were properly before the district court, the bankruptcy court was at least arguably divested of jurisdiction to proceed further on any matters fairly within ambit of appeal, and it would be inappropriate for bankruptcy court to proceed on any substantive matter until recusal motion had been ruled upon

In re: ANNA MARIA SANDERS, Debtor. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division. Case No. 13-11065-JKO, Chapter 11. February 26, 2015. John K. Olson, Judge.

11th Circuit:

Civil rights -- Public employees -- Speech -- Retaliation -- Political affiliation -- Gender discrimination -- Deputy sheriff appeals grant of summary judgment to city-county government and its sheriff on claims under 42 U.S.C. §1983 alleging that, upon taking office after winning his election, sheriff transferred her to less prestigious position in sheriff's office with less responsibility and authority because she supported his opponent in the election -- District court properly granted summary judgment to consolidated government on First Amendment claim alleging transfer violated plaintiff's rights against employer retaliation based on political affiliation on ground that claim was foreclosed as matter of law by Eleventh Circuit precedent, despite fact that consolidated government's civil service system prohibits employment decisions based on political patronage -- Under Eleventh Circuit precedent, a deputy sheriff fails as a matter of law to plead a First Amendment Claim for an adverse employment decision based on patronage wherever the duties and powers of deputy sheriff and sheriff are the same -- Political loyalty is appropriate requirement for job of deputy sheriff in Georgia -- District court properly granted summary judgment to defendants on plaintiff's Fourteenth Amendment gender discrimination claim where no genuine dispute existed over whether sheriff's proffered reason for plaintiff's transfer were a pretext for discrimination -- Plaintiff failed to create a genuine issue for trial with regard to pretext by failing to cast sufficient doubt on reasoning behind sheriff's reorganization plan for part of sheriff's officer over which plaintiff formerly had control, such that a reasonable juror could find that sheriff's explanation was not believable

TERRI EZELL, Plaintiff-Appellant, v. JOAN B. WYNN, et al., Defendants, JOHN DARR, Individually and in his Capacity as Sheriff of Muscogee County, COLUMBUS CONSOLIDATED GOVERNMENT, Defendants-Appellees. 11th Circuit.

11th Circuit:

Civil rights -- Prisoners -- Prison conditions -- Exhaustion of administrative remedies -- District court reversibly erred in dismissing prisoner's 42 U.S.C. §1983 prison-conditions suit for failure to exhaust administrative remedies established by prison -- In holding that prisoner's informal grievance did not exhaust administrative remedies, district court erred by not following two-step process created by Eleventh Circuit precedent for deciding exhaustion challenges -- District court neither took the first step of accepting plaintiff's facts as true and asking whether, given those facts, plaintiff's grievance exhausted his administrative remedies nor proceeded to second step of identifying particular factual disputes and then making specific findings to resolve those disputes and decide whether the grievance exhausted administrative remedies -- In holding that plaintiff's grievance did not exhaust administrative remedies, district court erred by enforcing a procedural bar that prison itself may have waived -- District courts may not enforce a prison's procedural rule to find a lack of exhaustion after prison itself declined to enforce the rule -- A prisoner has exhausted his administrative remedies when prison officials decide a procedurally flawed grievance on the merits

SHAWN WAYNE WHATLEY, Plaintiff-Appellant, v. WARDEN, WARE STATE PRISON, RODNEY SMITH, Corrections Officer (C.E.R.T. Team) Telfair State Prison, EXAM NURSE, Ware State Prison, MICHAEL GRIFFIN, Supervisor of Lock Down Unit & Tactical Squad Commander, Ware State Prison, Defendants-Appellees. 11th Circuit.

11th Circuit:

Wrongful death -- Medical malpractice -- Federal Tort Claims Act -- Action alleging negligent conduct of medical providers and failure to adequately credential, train, and supervise medical providers arising from allegedly negligent treatment decedent received from medical providers at Veteran's Affairs Medical Center -- Damages -- Statutory cap -- Waiver -- 24 L.P.R.A. § 10035 imposes a cap on medical malpractice liability for regional academic medical centers and “the students, physicians in postgraduate training and the faculty members thereof, for the medical procedures practiced in said Centers in the exercise of their teaching duties” -- This cap on damages is an affirmative defense -- United States waived its defense that facility at issue in this case was an RAMC, making statutory cap on damages applicable, where it failed to raise damages cap as an affirmative defense in its pleadings and engaged in discovery tactics which resulted in unfair prejudice to plaintiffs which could not be cured -- Motion for summary judgment premised on application of 24 L.P.R.A. section 10035 denied

JOSEFA QUINONES, JESSICA MARTINEZ, JUAN QUINONES and ALEXA QUINONES, Plaintiffs, v. USA, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:14-cv-164-T-36MAP. June 29, 2015. Charlene Edwards Honeywell, Judge.

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Fraudulent inducement, garnishment, reformation of mortgage, and rosemary-sage sausage with heirloom tomatoes and fresh angel hair pasta

Contracts -- Sale of business -- Fraudulent inducement -- No error in entering summary judgment against plaintiff on claim against buyers for breach of contract -- Error to enter final judgment in favor of buyers on counterclaim for fraudulent inducement where counterclaim was based on alleged fraudulent misrepresentation regarding payroll costs of business, and estimated labor costs in pro forma document prepared by one of the buyers before purchase indicated that buyers were either aware of falsity of alleged misrepresentation or its falsity would have been obvious to them

TERRY L. NORMAN, Appellant, v. JACK “JACKSON” PADGETT, MARK NEGRETE, GEORGE L. KESSINGER, ADAM BURNETT and RONALD F. GOFRANK, Appellees. 4th District.

Creditors' rights -- Garnishment -- Trial court erred in vacating clerk's certificate of dissolution of writ of garnishment where judgment creditor did not file sworn objection to judgment debtor's claim of exemption within three business days after claim had been hand delivered

CARLOS MARQUEZ, Appellant, vs. BLUECARE HOME HEALTH SVCS., INC., et al., Appellees. 3rd District.

Dissolution of marriage -- Attorney's fees -- Neither marital settlement agreement nor section 57.105(7) provided basis for attorney's fees awards in this case -- Attorney's fees provision in marital settlement agreement, which tied the obligation to pay attorney's fees to circumstances in which party defaulted on duty or obligation arising under the agreement, did not apply in instant case in which neither party defaulted on an obligation under the agreement -- Attorney's fees provision in marital settlement agreement applied to both parties equally and, accordingly, was not a unilateral provision necessitating the application of section 57.105(7) for reciprocity purposes -- Remand for redetermination of wife's entitlement to attorney's fees for work performed on emergency motion for temporary sole custody and parental responsibility using statutory standard for attorney's fees awards

JENNIFER SACKET, Appellant, v. KEVIN M. SACKET, Appellee. 4th District.

Dissolution of marriage -- Relief from judgment -- Error to find that 2010 order entitled “Final Judgment of Uncontested Dissolution of Marriage with Minor Children” was not a final judgment where the judgment dismissed the wife's dissolution petition and ordered the payment of alimony and child support unconnected with dissolution pursuant to section 61.09 -- Remand for consideration of merits of husband's motion to vacate

ZAHEER KHAN, Appellant, v. SHAZIA ZAHEER KHAN, Appellee. 4th District.

Guardianship -- Incapacitated persons -- Counsel -- Error to fail to appoint counsel for incapacitated person when guardian of property filed renewed petition to determine incapacity and petition to appoint guardian of ward's person -- Error to fail to appoint counsel for an alleged incapacitated person upon determining that guardian needed to be appointed on an emergency basis -- Claim that appointment of counsel was not necessary because no “summary” proceeding was held is without merit -- Trial court's decision to appoint an emergency temporary guardian after hearing evidence presented at hearing on motion for temporary injunction to prevent removal of purportedly incapacitated person from residential facility converted the hearing into a “summary proceeding” for purposes of section 744.3031(1)

GLENDA MARTINEZ, as healthcare surrogate, attorney-in-fact, and wife of J. ALAN SMITH, the Ward, Appellant, v. JOHN CRAMER, as emergency temporary guardian of the Ward, Appellee. 4th District.

Insurance -- Uninsured motorist -- Damages -- Future medical expenses -- Collateral source benefits -- Medicare benefits of developmentally disabled adult plaintiff -- Trial court erred in excluding from jury evidence of plaintiff's receipt of medical services under Medicare program for purpose of determining future medical expenses -- Because there is no evidence that plaintiff contributed to the financing of the Medicare program, the program's benefits are unearned and not subject to exclusion under the collateral source rule

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JOHN JOERG, JR., Individually, and as natural father and guardian of Luke Augustine Joerg, Appellee. 2nd District.

Mortgage foreclosure -- Civil procedure -- Summary judgment -- Rehearing -- Excusable neglect -- Error for trial court to deny mortgagor's motion for rehearing where mortgagor's attorney had failed to attend hearing on bank's request for summary judgment because of a secretarial error -- Secretarial error is excusable neglect

BRIAN KELLY a/k/a BRIAN K. KELLY, Appellant, v. BANKUNITED, FSB, Appellee. 4th District.

Mortgage foreclosure -- Civil procedure -- Summary judgment -- Summary judgment resulting in final judgment of foreclosure was error where mortgagee failed to present competent evidence it had provided mortgagors with requisite notice and opportunity to cure default before acceleration -- Trial court's reliance on unauthenticated copy of notice was error -- Trial court erred in finding no issues of material fact remained where, despite its having stricken defendants' affirmative defenses, it had not stricken their legally sufficient denials of the allegations in the complaint -- No merit to mortgagee's argument that the property owners failed to file any affidavits or other materials in opposition to the motion for summary judgment, because there is no requirement for a party to do so in order to defeat a motion for summary judgment

JOE DiSALVO, III, and ELIZABETH ANN DiSALVO, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee. 2nd District.

Mortgage foreclosure -- Error to grant final summary judgment of foreclosure where affirmative defenses were not conclusively refuted on the record -- Allegations in verified complaint were not sufficient to refute defenses where complaint was not based on personal knowledge

JANICE RUBBO LINDGREN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee. 4th District.

Mortgage foreclosure -- Reformation of mortgage -- Error to reform mortgage to add legal description when granting plaintiff's motion for summary judgment of foreclosure where issue of reformation was not raised as issue to be addressed at summary judgment hearing

GREGORY J. WILLIS, Appellant, v. THE BANK OF NEW YORK MELLON AS SUCCESSOR BY MERGER TO THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT INC. ALTERNATIVE LOAN TRUST 2005-60TI MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-60TI, Appellee. 4th District.

Mortgage foreclosure -- Res judicata -- No error in denying motion to vacate final judgment of foreclosure on ground that mortgagor's participation in federal modification program rendered foreclosure inequitable where mortgagor failed to raise this claim in a prior motion to vacate

ANGELA VIRGO, Appellant, v. NATIONAL CITY MORTGAGE CO., a division of NATIONAL CITY BANK OF INDIANA n/k/a NATIONAL CITY BANK, Appellee. 4th District.

Paternity -- Child support -- Medical expenses -- Where trial court imposed flat-rate obligation on father to cover unreimbursed medical expenses and factored that amount into father's total child support obligation, it was error to then order father to pay a percentage of unreimbursed medical expenses in addition to this flat rate -- Income -- Where appellate court remanded for recalculation of father's income for particular year based on finding that trial court erroneously attributed wife's income to him, trial court exceeded scope of mandate by going beyond deletion of wife's income and completely recalculating father's income by crediting him with business losses previously considered and rejected by trial court in original proceedings -- Error to fail to consider cost of father's medical insurance in calculating income -- Attorney's fees -- Trial court to reconsider whether, in light of erroneous calculations that more than doubled father's income, there is still significant disparity in parties' incomes to warrant requiring father to pay mother's attorney's fees

HAROLD ROBERT RUSSELL, Appellant, v. HOLLY A. MCQUEEN, Appellee. 5th District.

Paternity -- Child support -- Trial court abused its discretion by failing to take into consideration economic effects of father's other two children and anticipated costs of travel associated with fact that father lives in New Jersey and child lives with primary custodial parent in Florida -- Child custody -- Parenting plan -- Inconsistencies and apparent typographical errors in parenting plan to be corrected on remand

MICHAEL POPE, Appellant, v. REBECCA J. LANGOWSKI, n/k/a REBECCA J. SMITH, Appellee. 4th District.

Torts -- Damages -- Past lost earnings -- Future lost earning capacity -- Trial court properly denied defendant's motions for directed verdict, remittitur, or new trial as to awards of past lost earnings and future lost earning capacity, although evidence regarding these damages was not corroborated by any income tax returns or other documents -- There is no requirement that a claim for lost past earnings must be supported by documentary evidence or income tax returns -- Issues were for jury to weigh in assessment of plaintiff's credibility

MAGGOLC, INC., Appellant, vs. ROBERT ROBERSON, Appellee. 3rd District.

Torts -- Indemnity -- Third-party action by lessor of business premises against lessee, asserting claims for common law indemnity and breach of contract after lessor had been sued in premises liability action by lessee's employee who was injured during course and scope of employment at the leased premises -- Lessor's third-party complaint was not barred by workers' compensation immunity -- A third party's claim for common law indemnification against a negligent employer is not barred by workers' compensation law -- In seeking indemnification against lessee, lessor is not bound by allegations of injured employee's complaint against lessor that lessor was actively negligent, or by the fact that injured employee did not allege negligence on part of lessee -- Trial court properly dismissed with prejudice lessor's common law indemnity claim because lessor failed to show the existence of any special relationship between himself and lessee that would make lessor vicariously, constructively, derivatively, or technically liable to injured employee because of lessee's negligence or fault -- Trial court properly dismissed lessor's related claim that lessee breached contract by failing to have lessor named as an additional insured on commercial general liability insurance policy -- Because lessor's common law indemnification claim failed to state cause of action, related breach of contract claim may not be maintained as a third-party claim -- Dismissal of breach of contract claim should have been without prejudice because claim may be asserted in a separate action against lessee

TERRY TSAFATINOS, individually; and SIGMA TAF MANAGEMENT, INC., Appellants, v. FAMILY DOLLAR STORES OF FLORIDA, INC.; DAVID C. SUGAS; and BARBARA D. SUGAS, Appellees. 2nd District.

Torts -- Product liability -- Tobacco -- Venue -- Trial court properly transferred case from Miami-Dade County Circuit Court to Orange County Circuit Court where plaintiffs have been residents of Orange County throughout history of smoking and the treatment for its results, and Miami-Dade County has no relevant connection to case

ROY E. HALL, et al., Appellants, vs. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellee. 3rd District.

Trusts -- Irrevocable trust -- Modification or reformation -- Error to grant summary judgment excluding 27-year-old adoptee from becoming beneficiary of trust, which provided that words of relationship in any degree included legally adopted persons, on ground that inclusion of this adult adoptee as beneficiary would defeat or substantially impair accomplishment of material purpose of trust -- Absent any provision to the contrary, where trust is created and executed in Florida, law presumes that settlor expected Florida law to apply, and Florida law permits adult adoptions -- Whether adult adoption substantially impaired accomplishment of material purpose of trust is issue inappropriate for resolution on summary judgment -- Trial court also erred in finding, as independent ground for granting summary judgment, that Pennsylvania adoption procedure followed in the adult adoption at issue was not sufficiently similar to Florida law to support a construction of the Trust that would treat adult adoptee as a beneficiary -- Pennsylvania statute, which differs from Florida law in that notice is not required to be given to financially interested parties, is not so repugnant that adoption at issue is not entitled to full faith and credit in Florida, as even under Florida statute petitioner would not have been entitled to notice of Pennsylvania adoption because she had only indirect and contingent interest in the adoption and did not stand to gain or lose by direct legal operation and effect of the judgment

DIANNA ROBIN DENNIS, individually and as Co-Trustee of the Thomas Gordon Dennis Revocable Trust of 1989 as amended and LAUREN KEELY HAWS, Appellants, v. HARRIET D. KLINE and DEUTSCHE BANK TRUST COMPANY, N.A., as Co-Trustee of the Thomas Gordon Dennis Revocable Trust 1989 as amended, Appellees. 4th District.

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Class Action? Chicago Lawyer Sues Southwest, Says Airline Breached Free-Drink Coupon Contract

"Although the airline revised its policy in August of last year, notifying customers that such coupons would be honored only on the day of the flight after August 2011, a Chicago lawyer is challenging that change.
Adam J. Levitt, who allegedly has about 45 now-worthless free-drink coupons from Southwest, filed suit yesterday in federal court in Chicago, according to Reuters.  The complaint, which seeks class action status, contends that the carrier breached a contract with passengers by changing its policy and refusing to honor the coupons, which have no expiration date. Alcoholic beverages purchased on board otherwise would cost about $5 each." More.

Posted in ABA Journal by Marcia Neil, Nov. 17, 2011

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Family law, child custody, consumer protection, foreclosure and assorted desserts

Dissolution of marriage -- Equitable distribution -- Error to treat an IRA account inherited by husband from his mother as a marital asset and to award it to wife -- Where parties entered into a stipulation to sell a commercial marital property, with wife to receive $250,000 from the sale proceeds, which she was to use as temporary support for herself and children, it was error for trial court to decline to treat the funds given to wife as either previously paid support or as a distributed asset -- Child support -- In calculating child support award, it was error to fail to deduct the amount of periodic alimony payable to wife in determining husband's net income
RANDY V. HEYSEK, Appellant/Cross-Appellee, v. MARY L. HEYSEK, Appellee/Cross-Appellant. 2nd District.
Taylor v. Homecomings Financial, LLC ,(N.D.Fla.) Real Property - Lender's disclosure of effects of negative amortization met Truth in Lending Act (TILA) requirements. Under Florida law, the plain language of a residential mortgage note, which repeatedly and unmistakably indicated that a mortgagor's monthly payments might not be sufficient to cover the interest, and that any deficiency would be added to the note's principal, did not require a mortgagee or a loan servicer to apply at least a portion of each monthly mortgage payment to the principal. Although the mortgagee made Truth in Lending Act (TILA) disclosures in a form that varied from sample language in a staff interpretation, the language was found to sufficiently notify the borrower of the effects of negative amortization.
Liens -- Home builder's equitable lien on undisbursed construction funds held by construction loan lender -- Where lender retained final construction draw after owner refused to proceed with required end closing on completed home construction, it was error to award builder an equitable lien on the undisbursed construction funds held by lender -- Because parties' written agreement authorized lender to retain the final construction draw if the owner did not proceed with the end closing, lender's retention of undisbursed construction funds was not inequitable under the circumstances, and builder failed to establish unjust enrichment necessary to establish its equitable lien claim
CTX MORTGAGE COMPANY, LLC, Appellant, v. ADVANTAGE BUILDERS OF AMERICA, INC., a Florida corporation, Appellee. 2nd District.
Mortgage foreclosure -- Intervention -- Trial court properly denied motion to intervene filed by parties who sought to intervene more than twenty days after mortgagee had filed foreclosure complaint and filed notice of lis pendens -- Section 48.23(1)(b), Florida Statutes (2008), which allows the holders of unrecorded property interests only twenty days from the recording date of a lis pendens to intervene in an action affecting property does not unconstitutionally violate the principle of separation of powers by infringing on the rulemaking authority of the Florida Supreme Court -- Statute is substantive, and any procedural provisions contained within it are intimately related to the definition of those substantive rights
KHILENA ADHIN, TENITA ISAACS, ET AL., Appellants, v. FIRST HORIZON HOME LOANS, ETC., ET AL., Appellee. 5th District.
Torts -- Premises liability -- Slip and fall on slippery substance in grandstand of greyhound track operated by defendant -- Trial court abused discretion in denying plaintiff's motion to amend complaint to allege breach of a nondelegable duty by defendant -- Court erroneously found that proposed amendment would be futile because statute of limitations on plaintiff's claims had run and proposed amendment would not relate back to original pleading which alleged active negligence -- Claim based on breach of nondelegable duty is not a separate and distinct cause of action from cause of action based on active or direct negligence -- Trial court erred in entering summary judgment for defendant on ground that complaint failed to state cause of action against defendant for breach of its nondelegable duty to maintain premises in reasonably safe condition because plaintiff had not specifically alleged either a breach of a nondelegable duty by defendant or a basis to impose vicarious liability on defendant for actions of cleaning company which had contracted to clean and maintain the facility, and that there was no basis for a claim against defendant for active negligence -- Cause of action for breach of a nondelegable duty and cause of action for vicarious liability have different rationales, and liability for breach of nondelegable duty is a direct liability
ROBERT L. ARMIGER, Appellant, v. ASSOCIATED OUTDOOR CLUBS, INC., and CLEAN SWEEP SUPPLY COMPANY, Appellees. 2nd District.
Wrongful death -- Nursing homes -- Arbitration -- Trial court did not err in compelling arbitration of estate's wrongful death claim against nursing home pursuant to arbitration provision in admission agreement -- Nursing home arbitration agreement executed by a patient is binding on his estate and survivors in wrongful death claim -- Question certified: Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient's estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement?
DEBRA LAIZURE, AS PERSONAL REPRESENTATIVE, ETC., Appellant, v. AVANTE AT LEESBURG, INC., a/k/a AVANTE AT LEESBURG OUTPATIENT REHAB., INC., AVANTE ANCILLARY SERVICES, INC., and AVANTE GROUP, INC., Appellees. 5th District.
Dissolution of marriage -- Equitable distribution -- Error to allocate parties' marital assets without accounting for decrease in value of husband's stock portfolio at time of final hearing -- Husband did not invite error by stipulating to amounts which were potentially subject to equitable distribution at time husband petitioned for dissolution where husband then requested court to account for decrease in stock portfolio's value by time of final hearing -- Husband's argument that final judgment is deficient because its form does not comply with statute is moot given reversal of final judgment, but trial court should insure on remand that form of final judgment complies with statute
KEVIN TILLMAN, Appellant, v. SEBILA ALTUNAY, Appellee. 4th District.
Dissolution of marriage -- Judgment -- Although trial court's verbatim adoption of husband's proposed final judgment, standing alone, did not establish that judgment did not reflect judge's independent decision-making, final judgment contained errors and omissions which created appearance that this was the case and reversal is required -- Child custody -- Error to order rotating custody where record was devoid of evidence that would support change in parenting schedule in effect at time of final hearing -- Moreover, parties reached mediation agreement which included stipulation to allow mental health therapist who was counseling children to recommend husband's visitation schedule, and therapist recommended against expanding visitation schedule that was in effect at time of hearing -- Equitable distribution -- Depleted assets -- Error to assign to wife funds withdrawn from her 401(k) account where testimony was uncontradicted that the depleted funds were used for marital expenses, and trial court made no finding of misconduct with respect to wife's use of funds -- Marital home -- Value assigned to marital home was not supported by findings of fact or competent substantial evidence -- Award of lump sum equalizing payment was apparently result of overvaluation of marital home and improper assignment to wife of her depleted 401(k) assets and must be reversed -- Moreover, even if assets had been valued and assigned properly, neither would have provided ability for wife to make the cash equalizing payment ordered
VICTORIA LYNN BISHOP, Appellant, v. TODD CAMERON BISHOP, Appellee. 2nd District.
Insurance -- Uninsured motorist -- New trial -- Trial court did not abuse discretion in granting insured plaintiff a new trial in action against insurer where court had entered summary judgment for plaintiff on liability, and jury awarded plaintiff zero damages upon finding that automobile accident was not a legal cause of any injuries to plaintiff -- Trial court did not abuse discretion by finding that jury verdict was contrary to manifest weight of evidence that plaintiff required some reasonable diagnostic testing where no evidence was presented that any of the diagnostic tests that were performed were not reasonable or necessary to determine whether the accident caused plaintiff's complained of injuries
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, vs. JUAN M. FLORES, Appellee. 3rd District.
Insurance -- Windstorm -- Authority of agent to bind insurer -- Where insurance application clearly provided, on page two, actual notice of limitations on insurance agent's authority to bind the insurer; applicant did not receive page two of application, but a printed line directly above the signature line on page one of application stated, “I further understand and agree to the terms as set forth on page 2”; and applicant's principal admitted that when he signed the application, he understood page two was part of the entire application but never asked to review the page, applicant was placed on inquiry notice and therefore subject to limitations imposed on agent by insurer -- Trial court erred in finding there was no evidence that applicant was ever put on notice of any limitations on agent's authority to bind coverage -- Trial court did not err by failing to apply incorporation by reference doctrine as to page two of insurance application as a matter of law where language on page one of application neither made it subject to terms and conditions on page two nor expressly referred to or described the agency disclaimer on page two
CITIZENS PROPERTY INSURANCE CORPORATION, a Florida corporation, Appellant, v. EUROPEAN WOODCRAFT & MICA DESIGN, INC., a Florida corporation, and GLOBAL INSURANCE SERVICES, INC., a Florida corporation, Appellees. 4th District.
Torts -- Cruise ship -- Punitive damages -- Discovery -- Trial court departed from essential requirements of law by granting plaintiffs leave to amend complaint to assert claim for punitive damages without conducting evidentiary inquiry to determine whether a reasonable basis exists for recovery of punitive damages -- Certain of plaintiffs' discovery requests are barred by appellate court's prior decision quashing discovery order and limiting scope of discovery, and trial court improperly denied defendant's motion for protective order as to those requests -- Remand with directions to assign case to a different judge
ROYAL CARIBBEAN CRUISES, LTD., Petitioner, vs. JANE DOE & JANE DOE, AS NATURAL PARENT AND GUARDIAN OF SARA DOE, A MINOR, Respondents. 3rd District.
Wrongful death -- Medical malpractice -- Error to rule that medical malpractice presuit requirements did not apply to negligence claim against hospital arising out of incident in which decedent, after having been admitted to hospital emergency room purportedly in a disoriented and confused state, fell off stretcher and suffered head injuries that caused his death where complaint asserted claims relating to hospital's standard of care in evaluating condition of patients admitted to emergency room and adequacy of hospital's procedures for managing and supervising patients admitted to emergency rooms
INDIAN RIVER MEMORIAL HOSPITAL, INC., Petitioner, v. KATHLEEN BROWNE, as Personal Representative of the ESTATE OF THOMAS BROWNE, Respondent. 4th District.
Landlord-tenant -- Eviction -- Standing -- Plaintiff lost standing to file eviction action for possession when final judgment of foreclosure was entered for leased premises and certificate of title was issued to lender
VIEW OPINION

Child custody -- Modification -- Venue -- Error to transfer venue on mother's supplemental petition to modify child custody order where venue was proper where petition was filed and no showing was made that another proper venue was more convenient
JESSICA RESOR, Appellant, v. CHRIS WELLING, Appellee. 5th District.
Dissolution of marriage -- Child support -- Error to fail to include in final judgment awarding child support any findings concerning incomes of parties -- Error to fail to address health care coverage for minor child, child care costs, and noncovered medical, dental, and prescription medication expenses
GLORIA L. WHITTINGHAM, Appellant, v. CHRISTOPHER A. WHITTINGHAM, Appellee. 2nd District.
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Chocolate mousse blended with attorneys fees, then the gym

Consumer Protection: LA FITNESS MEMBER: EARLY-TERMINATION FEES FORCED, UNREASONABLE, Abramowicz v. L.A. Fitness Int'l, 16 No. 6 Andrews Class Action Litig. Rep. 23, Andrews Class Action Litigation Reporter July 15, 2009 LA Fitness members must sign contracts that include early-termination fees that do not reflect the gym chain's costs and are meant to deter unsatisfied customers from canceling their personal training services, according to a California federal court suit. The Irvine, Calif.-based company charges customers an early-termination fee equal to half the cost of a full personal training contract, which can run from three to 12 months, if the contract is canceled after a 72-hour trial period

Employment: CHOICEPOINT ILLEGALLY REPORTS MARIJUANA CONVICTIONS, SUIT SAYS, Morgan v. ChoicePoint, 16 No. 6 Andrews Class Action Litig. Rep. 7, Andrews Class Action Litigation Reporter July 15, 2009 A class-action lawsuit filed in California state court accuses consumer information broker ChoicePoint of reporting misdemeanor marijuana convictions that are more than two years old to current and prospective employers when doing background checks. Plaintiff Brandon Morgan says the company has repeatedly violated California laws that prohibit employers from asking about or using information about an employee's minor drug offenses that are more than two years old to make employment decisions.

Product Liability: DENTURE CREAM SUITS OVER HIGH ZINC LEVELS HEAD TO FLA. FED. COURT, In re Denture Cream Prods Liab. Litig., 16 No. 6 Andrews Class Action Litig. Rep. 13, Andrews Class Action Litigation Reporter July 15, 2009 A Florida federal court will be the forum for a dozen suits filed against two denture adhesive cream manufacturers over allegedly high levels of zinc in the creams that can cause neurological problems. The Judicial Panel on Multidistrict Litigation transferred the suits from 11 different districts to the U.S. District Court for the Southern District of Florida. An additional seven tag-along actions also were transferred to the court under U.S. District Judge Cecilia M. Altonaga.

Product Liability: MICROWAVE OVENS WON'T SHUT OFF, CLASS ACTION ALLEGES, Hennigan v. Gen. Elec. Co., 16 No. 6 Andrews Class Action Litig. Rep. 14, Andrews Class Action Litigation Reporter July 15, 2009 A class-action lawsuit filed in Michigan federal court accuses General Electric and Samsung Electronics America of negligently making and selling microwave ovens that operate without prompting and pose a fire hazard because they smoke, spark and cannot be shut off. Timothy Hennigan filed the complaint in the U.S. District Court for the Eastern District of Michigan. He says that in June 2008, his six-year-old GE microwave "began operating on its own accord." The oven sparked and emitted smoke.

Securities Fraud: RAYMOND JAMES, EXECS HIT WITH $2B SUBPRIME MORTGAGE FRAUD SUIT, Woodard v. Raymond James Fin., 16 No. 6 Andrews Class Action Litig. Rep. 20, Andrews Class Action Litigation Reporter July 15, 2009 Florida-based Raymond James Financial defrauded shareholders to the tune of $2 billion by touting conservative lending practices while secretly amassing risky subprime residential mortgages, according to an investor's lawsuit filed in Manhattan federal court. The class-action suit, filed in the U.S. District Court for the Southern District of New York, says RJF failed to disclose the risks taken on by a subsidiary, Raymond James Bank, and failed to set aside enough cash to cover the inevitable.

Corbitt v. Home Depot U.S.A., Inc. ,(C.A.11 (Ala.))
Labor and Employment - Male supervisor's flirtatious comments to male employees did not constitute sexual harassment.
A male supervisor's complimentary and/or flirtatious comments to male employees did not constitute sexual harassment under Title VII, the Eleventh Circuit Court of Appeals has ruled. Although a supervisor telling an employee that he liked how the employee dressed, that he liked the employee's pants, that the employee's hair was beautiful, and that he liked the employee's green eyes may not have been appropriate workplace conversation, it was not actionable conduct under Title VII. Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment, the Court of Appeals stated. Although the plaintiffs may have been subjectively more uncomfortable because a presumably gay man made the flirtatious comments, this did not factor into the objective component of the Title VII analysis.

Embry v. Ryan ,(Fla.App. 2 Dist.)
GLBT - Trial court was required to give full faith and credit to same-sex couple adoption judgment from another state.
A Florida trial court was required, in an adoptive mother's action to determine parental responsibility, contact and support, to give full faith and credit to a Washington adoption judgment under which the adoptive mother had adopted a child while engaged in a same-sex relationship with the child's biological mother. Regardless of whether Florida had a public policy prohibiting same-sex couple adoptions, there were no public policy exceptions to the full faith and credit requirement. Furthermore, Florida statutes specifically provided that adoption decrees from other states were to be recognized.

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