Contracts, imputed income, and grilled shrimp on avocado with basil pesto dollops

Contracts -- Statute of frauds -- Oral agreement not to be performed within one year of the making of the agreement -- Terminable-at-will oral agreement to purchase lottery tickets and to equally share in the proceeds of any winning lottery ticket is outside statute of frauds, and is enforceable, because agreement could have been performed within one year

HOWARD BROWNING, Petitioner, v. LYNN ANNE POIRIER, Respondent. Supreme Court of Florida.

Deceptive and unfair trade practices -- Sovereign immunity -- Florida State Lottery -- Action against Florida Lottery based on its refusal to pay $500,000 prize where ticket, which initially appeared to be a winning ticket, was on closer inspection a “misprint” which was not a winner and was not able to be validated through the Lottery's system -- No merit to any of plaintiff's several claims -- Although sovereign immunity has been waived for breach of contract claims against the state and its agencies, it has not been waived for the unfair and deceptive trade practices and misleading advertising claims asserted by plaintiff -- Even if the claim were not barred by sovereign immunity, claim lacks merit because summary judgment evidence establishes the ticket was not a winner -- Contracts -- Trial court properly held Lottery did not breach contract embodied in lottery ticket where relevant statute provides that no prize may be paid arising from tickets that are produced or issued in error -- Promissory estoppel -- Trial court properly concluded promissory estoppel claim was a recasting of breach of contract claim

ANNA MARIA CURCIO, Appellant, v. STATE OF FLORIDA DEPARTMENT OF THE LOTTERY D/B/A FLORIDA LOTTERY, Appellee. 1st District.

Dissolution of marriage -- Alimony -- Modification -- Imputed income -- Trial court erred in failing to impute to former wife income for earnings that could reasonably be projected based on her liquid assets while imputing the same type of income to former husband -- Remand for recalculation of alimony

ALBERT JOSEPH WINNIER, Appellant, v. CAROL ANN WINNIER, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion in awarding attorney's fees to wife where parties were equally able to pay their own fees -- Amounts husband was obligated to pay in alimony and child support should have been deducted when determining husband's ability to pay

RICHARD KEITH HAYWALD, Appellant, v. DENISE MICHELLE FOUGERE, Appellee. 1st District.

Garnishment -- Circuit court acting in its appellate capacity departed from essential requirements of law when it affirmed county court order dismissing judgment creditor's garnishment action against judgment debtor's employer based on bankruptcy discharge of the underlying debt owed to creditor by the judgment debtor -- Discharge of judgment debtor's liability to creditor did not eliminate employer's independent liability under garnishment statute -- Under clear terms of garnishment statute, garnishee was independently liable for amounts that it should have retained for creditor's benefit between date writ of garnishment was served and date debtor filed for bankruptcy protection -- Circuit court's departure from essential requirements of law resulted in miscarriage of justice when circuit court also affirmed county court's sua sponte dismissal of creditor's garnishment action in response to motion for judgment on pleadings -- Dismissal was not only improper response to the denial of a motion for judgment on pleadings, but dismissal was form of relief not requested by either of the parties and, accordingly, violated creditor's due process rights

PAUL DAVID DANIELS, Petitioner, v. SORRISO DENTAL STUDIO, LLC, Respondent. 2nd District.

Real property -- Homeowners associations -- Impairment of contracts -- In granting summary judgment to homeowners' association, enforcing payment by foreclosure sale purchaser of assessments accrued under previous owner, trial court's reliance on statute providing that parcel owners are jointly and severally liable with previous owners for unpaid assessments, rather than on provisions of association's declaration providing that obligation for delinquent assessments shall not pass to successors in title, violated new owner's constitutional right against impairment of contract, where new owner was a third-party beneficiary of the declaration -- No merit to homeowners association's claim that the statute amended the declaration -- Remand for entry of summary judgment in favor of new owner

PUDLIT 2 JOINT VENTURE, LLP, a Florida limited liability partnership, Appellant, v. WESTWOOD GARDENS HOMEOWNERS ASSOCIATION, INC., a Florida corporation not-for-profit, Appellee. 4th District.

Torts -- Conspiracy -- Fraudulent transfers -- Action by shareholder and creditor of corporation alleging that defendants improperly transferred assets to another corporation, which did not pay reasonably equivalent value in exchange for the assets -- Trial court erred in entering summary judgment for corporate defendant on count alleging fraudulent transfer -- Plaintiff was creditor for purposes of fraudulent transfer statute where he classified his contributions to first corporation as loans, not equity -- Accordingly, trial court erred in finding that plaintiff needed to bring derivative action as opposed to a direct action -- Trial court erred in concluding that plaintiff sued wrong entity -- Suit was not premised on agency relationship between corporate defendant and wholly-owned subsidiary which employed the individual who actually transferred the assets at issue -- Trial court erred in finding that record was devoid of evidence that transfer was made with intent to hinder, delay, or defraud plaintiff -- Genuine issues of material fact exist as to existence of two “badges of fraud” -- In light of appellate court's reversal of summary judgment on fraudulent transfer claim, it was error to enter summary judgment on conspiracy count, which was premised on existence of actionable claim for fraudulent transfer

MARK S. YARALLI, individually and as 50% shareholder of Digiplot, Inc., Appellant, v. AMERICAN REPROGRAPHICS COMPANY, LLC, a Florida limited liability company, Appellee. 4th District.

Torts -- Legal malpractice -- Discovery -- Depositions -- Non-party material witness -- Trial court did not depart from essential requirements of law by denying non-party's motion for protective order to prevent continuation of deposition -- As material witness, the fact that certain financial information may be disclosed is not sufficient reason, standing alone, to preclude deposition -- Trial court properly issued order limiting subject matter of pending deposition to those specific issues framed by amended complaint

CARLOS KAUFFMAN, Petitioner, vs. FRANKLIN DURAN, Respondent. 3rd District.

Torts -- Malicious prosecution -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Trial court erred in awarding attorney's fees pursuant to section 57.105, Florida Statutes, in favor of defendant, an unlicensed contractor who had filed an invalid lien against plaintiff's property, on the basis that plaintiff's malicious prosecution action against defendant was not supported by material facts or applicable law -- Evidence was sufficient to establish all elements required for a prima facie case of malicious prosecution, including legal malice and damages

COLLEEN J. MacALISTER, Appellant, v. BEVIS CONSTRUCTION, INC., and MICHAEL BEVIS, Appellees. 2nd District.

Torts -- Negligence -- Contractors -- Unlicensed contractor -- To be considered licensed under contract for construction of home for plaintiffs, defendant, as of date of contract, had to have a primary or secondary qualifying agent in accordance with statute concerning scope of work to be performed under the contract -- Trial court erred in entering judgment in favor of plaintiffs based on finding that defendant was acting as unlicensed contractor where defendant met this requirement -- Statute precludes considering events that occur after the contract date by instructing that a contractor be considered unlicensed “only if” the contractor is unlicensed at that specific time -- Licensure question under section 489.128(1) turns on whether the business organization is associated with a person licensed for the type of work to be performed under the contract as of the effective date of the contract, irrespective of whether that person ultimately obtains the permit and supervises the construction under the contract -- Evidence that defendant may have violated law by building home with a contractor other than the one whose name appeared on building permit, by using former agent's license when she was not affiliated with project, and by conducting project with inadequate supervision was irrelevant to narrow issue of whether defendant was licensed on date of contract

TAYLOR MORRISON SERVICES, INC. f/k/a Morrison Homes, Inc., Appellant, v. CAROL ECOS AND SUSAN BESSING, Appellees. 1st District.

Wrongful death -- Sovereign immunity -- State university's Athletic Association, a university direct-support organization, is entitled to limited sovereign immunity because the university has the right to control the association and exercises actual control over association -- Remand for entry of judgment corresponding to jury's award of damages but limiting athletic association's liability for payment to $200,000 pursuant to section 768.28(5), Florida Statutes

ENOCK PLANCHER, etc., Petitioner, vs. UCF ATHLETICS ASSOCIATION, INC., et al., Respondent. Supreme Court of Florida.

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Child support, imputed income, attorney fees, and grilled grassfed sirlion, rosemary, garlic, and brussel sprouts sauteed in walnut oil

Child support -- Modification -- Administrative support order -- Trial court fundamentally erred when it reduced father's monthly child support obligations without notice or hearing

DEPARTMENT OF REVENUE, o/b/o Loretta Sermon, Cherral Smith, and Yata Frichelle Canty, Appellant, v. GEORGE BAKER, Appellee. 2nd District.

Civil procedure -- Discovery -- Attorney-client privilege -- Trial court departed from essential requirements of law in compelling production of attorney-client privileged documents on basis that documents were relevant and contained information that could not reasonably be obtained from another source -- Unlike the work product doctrine, attorney-client privilege is not defeated by an opponent's showing of relevance and necessity
FLORIDA POWER & LIGHT COMPANY, Petitioner, v. MARK W. HICKS, Respondent. 4th District.

Contracts -- Attorneys -- Fees -- Dispute between trial attorneys and appellate attorneys regarding amount of fees due to appellate attorneys pursuant to “trial support agreement” for appellate attorneys to help trial attorneys steer clear of reversible error during course of trial -- Under contract provision which entitled appellate attorneys to two and one-half percent of gross recovery if case was settled after appellate attorneys were requested to take any action in preparation of a response to or drafting a motion for new trial, appellate attorneys were entitled to two and one-half percent of the gross recovery where judgment against defendants in case was appealed, appellate court affirmed judgment with the exception of a setoff amount that should have been deducted from judgment, and defendants then agreed to pay the judgment minus the setoff and obtain a satisfaction of the judgment -- In ruling that the fee belonged to trial attorneys, trial court erroneously reasoned that the word “settled” means voluntary resolution of the dispute between the parties via a settlement agreement, and that a trial and its attendant verdict and judgment does not equate to a settlement agreement -- Within context of entire agreement, the word “settled” means the resolution of the lawsuit by final decision or payment or satisfaction of the judgment previously rendered -- Trial court also erred in finding that appellate attorneys materially breached the agreement by advancing an interpretation that differed from trial attorneys' interpretation

BURLINGTON & ROCKENBACH, P.A., ETC., Appellant, v. LAW OFFICES OF E. CLAY PARKER, ETC., ET AL., Appellees. 5th District.

Contracts -- Lease of commercial property -- Action by landlord against tenant after tenant terminated lease and vacated property because of an allegedly illegal drainage of storm water from property -- Trial court properly entered judgment for landlord after court made no finding that there were any illegal conditions on property -- Tenant is not entitled to terminate lease based on theory of constructive eviction unless premises are unsafe, unfit, or unsuitable for occupancy for purposes for which they were leased -- Damages -- Damages were not subject to limitation pursuant to early termination clause in addendum to lease where tenant did not give notice of its intention to vacate property within period specified by clause -- Where landlord leased property to another tenant at a lower rate after tenant's vacation of property, tenant is liable for rent plus sales and property taxes and insurance not paid by the new tenant for remaining term of the lease

GRIFFIN INDUSTRIES, LLC, a foreign limited liability company, Appellant, v. DIXIE SOUTHLAND CORPORATION, a Florida corporation, Appellee. 4th District.

Contracts -- Profit participation agreements -- Dispute arising out of agreements whereby parties purchased commercial shopping center properties and subsequently entered into preliminary profit participation agreements to establish rights and responsibilities for the completion of the purchase, and post-closing profit participation agreements which provided that each participant would receive portion of net cash flow and net proceeds, after reimbursement of owner's outstanding capital, including compounded return on investment -- Fraud -- Plaintiffs' action against defendants for fraud and breach of contract based on defendants' having misrepresented, in preliminary PPAs, that they would not receive portion of brokerage commission was not extinguished by merger clause in subsequent PPAs -- Existence of merger clause does not prevent cause of action for fraud -- Moreover, merger clause was limited to those representations relating to participation interests and did not cover representations with respect to commissions paid at closing of sales of property -- Further, preliminary PPAs stated that they were controlling instruments until closing, and once closing took place, there was no reason to include representation of “no commission” in PPAs -- Accounting -- Declaratory judgment -- No error in concluding that counterclaimants were entitled to accounting to determine net cash flow and whether distributions were owing from respective shopping centers -- Trial court did not abuse its discretion in determining that counterclaim-defendants were not responsible for further accounting at their expense but that, instead, were to furnish financial records on properties to counterclaimants at their request to complete an updated accounting, should they so desire -- No abuse of discretion in requiring that accounting of net proceeds be made upon refinancing or sale of property -- Trial court did not err in concluding that there was no obligation, either express or implied, on part of counterclaim-defendant to furnish financial information to counterclaimants for purpose of determining whether counterclaimants would make an offer to purchase property -- Moreover, trial court properly found that claim to an accounting to enable counterclaimants to create an advantageous offer to purchase properties based on 1995 prices was not raised in pleadings

HARRY HAHAMOVITCH, HHH DEVELOPMENT GROUP, INC., HHH FINANCIAL CORPORATION, INC., SOUTH SQUARE DEVELOPMENT, INC. and PLAZA LA MER, INC., Appellants, v. DELRAY PROPERTY INVESTMENTS, INC., SOSQ PROPERTY INVESTMENTS, INC., HATIM HASHWANI and ROBERT GEISERMAN, Appellees. 4th District.

Costs -- Defendant was denied due process when costs were assessed against it without a written motion for costs and without providing defendant an opportunity to be heard

MEDICAL SPECIALISTS OF TAMPA BAY, LLC, Appellant, v. DAVID KELLY, Appellee. 2nd District.

Creditors' rights -- Garnishment -- Service of process on garnishee LLC was defective where writ of garnishment was served on an hourly employee who is not an officer or manager, who does not supervise other personnel, who does not have any direct client contact, and who is not the registered agent for service of process -- There is no merit to contention that employee was a business agent authorized to accept service of process -- Trial court erred in denying motion to quash service of process

MORGAN STANLEY SMITH BARNEY, LLC, Appellant, v. GIBRALTAR PRIVATE BANK & TRUST CO., Appellee. 3rd District.

Dissolution of marriage -- Imputed income -- Evidence supported finding that husband was voluntarily unemployed -- Amount of income imputed to husband was unsupported by specific findings regarding husband's occupational qualifications and prevailing earning levels for similar positions within relevant community -- Child support -- No error in failing to decrease amount of child support proportionately as each child reaches majority -- Child support guidelines do not require that reduction be made on proportionate basis -- Error to require husband to maintain life insurance as security for child support without making findings of fact regarding necessity, cost, and availability of life insurance -- Equitable distribution plan to be corrected to eliminate improper double-counting of 529 College Savings Plan, which was added to husband's assets as an independent asset and also included in another account awarded to husband

GLENN ROBERT BROGA, Appellant, v. LINDA MARIE BROGA, Appellee. 1st District.

Dissolution of marriage -- Income -- Attorney's fees -- Trial court abused discretion by imputing income equal to minimum wage for a forty-hour workweek to former wife, without considering her pay from Army Reserves, while including in husband's income his pension and disability benefits in addition to a full-time imputed minimum wage -- It was improper to consider former husband's secondary sources of income while ignoring former wife's -- It was error to award former wife attorney's fees where no evidence supported the reasonableness of the fee award -- On remand, trial court to conduct evidentiary hearing on reasonableness of fees
ROGER HARRIS, Appellant, v. MARY L. HARRIS, Appellee. 5th District.


Injunctions -- Repeat violence -- Modification -- Where respondent was incarcerated and properly brought to trial court's attention his desire to appear telephonically for hearing, and trial court noted that respondent was to appear telephonically but failed to issue order directed to Department of Corrections requiring respondent to appear telephonically at specified time and date, trial court erred in denying motion for modification of injunction when respondent failed to appear telephonically on date of hearing -- Remand for further proceedings
JERRY W. HAVENNER, Appellant, v. DEBORA HUTCHINSON, Appellee. 1st District.

Injunctions -- Stalking -- Cyberstalking -- Error to enter final judgment of injunction for protection against stalking where evidence did not establish two incidents of stalking -- Single blog posting disclosing petitioner's involvement in affair with respondent's husband not sufficient to support injunction

MELISSA LEACH, Appellant, v. TARA MICHELLE KERSEY, Appellee. 2nd District.

Mandamus -- Criminal law -- Parole -- Challenge to continued suspension of presumptive parole release date by Commission on Offender Review -- Permitting sentencing court to raise objections to petitioner's release on parole pursuant to section 947.1745(6) did not violate ex post facto clauses of state and federal constitutions, although statute was not in existence at time petitioner was convicted
WILLIAM INMON, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.


Name change -- Petition for name change was facially insufficient where petitioner, a state prisoner, admitted that his civil rights were suspended -- Claim that denial of petition substantially burdens exercise of religion, in violation of federal Religious Land Use and Institutionalized Persons Act, is without merit -- RLUIPA does not apply to claim brought under state statute that applies to all persons petitioning for name change, not merely those incarcerated within correctional institution
JESSE C. HARRELL a/k/a JESSE CLEVELAND HUNTER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


Torts -- Automobile accident -- Attorney's fees -- Proposal for settlement -- Proposal for settlement by one plaintiff which would resolve loss of consortium claim of offering plaintiff's husband in addition to claim of offering plaintiff was a joint proposal, and was invalid because it did not apportion the amount between the plaintiffs
VALERIE AUDIFFRED, Petitioner, v. THOMAS B. ARNOLD, Respondent. Supreme Court of Florida.


Torts -- Automobile accident -- Rear-end collision -- Damages -- Mental anguish and financial hardship -- Trial court erred in allowing evidence regarding mental anguish plaintiff suffered from defendant's desire to leave accident scene, a minor auto collision, defendant's failure to apologize to plaintiff, and defendant's delay in admitting negligence until just prior to trial and in admitting evidence of plaintiff's financial problems following accident -- Error cannot be considered harmless under new standard announced by supreme court in Special v. West Boca Medical Center where plaintiff cannot prove that there is no reasonable possibility that error complained of contributed to verdict in which jury awarded over $1 million in damages to plaintiff whom testimony revealed had pre-existing symptoms similar to those he claimed in instant case -- Damages -- Set-off -- Collateral source -- Unemployment compensation benefits are not specifically listed in collateral source statute and cannot be interpreted as a collateral source under any of its provisions -- Trial court erred in setting off those benefits from final judgment
YEINSON TORRES HURTADO and VIVIANA HURTADO ESCOBAR, Appellants, v. NIGEL DESOUZA, Appellee. 4th District.


Torts -- Dismissal -- Appeal from written order denying motion to dismiss without differentiating between grounds for dismissal asserted in motion, which sought dismissal for failure to state cause of action and for lack of personal jurisdiction -- Error to deny motion to dismiss without affording parties opportunity for full hearing on merits of defendant's jurisdictional objection
BLOGWIRE HUNGARY SZELLEMI ALKOTáST HASZNOSíTó, KFT, a/k/a GAWKER MEDIA, Appellant, v. TERRY GENE BOLLEA, p/k/a HULK HOGAN; HEATHER CLEM; GAWKER MEDIA, LLC, a/k/a GAWKER MEDIA; NICK DENTON; A.J. DAULERIO; and GAWKER MEDIA GROUP, INC., a/k/a GAWKER MEDIA, Appellees. 2nd District.


Torts -- Negligent hiring and retention -- Attorney's fees -- Proposal for settlement -- Joint proposal for settlement by two defendants was invalid where it did not apportion the amount attributable to each offeror -- It was error to award attorney's fees to defendant pursuant to offer of judgment statute
ANCEL PRATT, JR., Petitioner, v. MICHAEL C. WEISS, D.O., et al., Respondents. Supreme Court of Florida.

Torts -- Workers' compensation immunity -- Action by subcontractor's employee against defendant that rented scissor lifts to other subcontractors on project -- Because defendant was not a subcontractor, it was error to grant summary judgment for defendant on the basis of horizontal immunity under workers' compensation law
WILSON CICERON and ROSIE CICERON, his wife, Appellants, v. SUNBELT RENTALS, INC., Appellee. 4th District.


Trusts -- Reformation of revocable trust -- Trust is subject to reformation to correct draftsman's error in failing to include schedule of beneficial interests -- Trial court erred in finding that trust was never created and was void ab initio because there were no definite beneficiaries of the purported trust -- Trust was valid and subject to reformation where it clearly designated settlor as beneficiary during her lifetime -- Although, in absence of reformation, failure of trust to designate any remainder beneficiaries would result in merger so that successor trustee would hold trust assets upon a resulting trust for the benefit of decedent's estate, that does not mean that reformation to supply names of remainder beneficiaries is unavailable -- Reformation of a trust is available to avoid what would otherwise result in a merger
DENISE L. MEGIEL-ROLLO, Individually and as Trustee of the P.M. REVOCABLE TRUST dated July 29, 1997, Appellant, v. SHARON J. MEGIEL, ROBERT MICHAEL MEGIEL, DANIEL MEGIEL, and ANDREA MEGIEL, Appellees. 2nd District.



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The general rules on contract enforceability in Florida and recent contract decisions

To determine a contract’s enforceability, the Florida Supreme Court has long-established that Florida uses the objective (as opposed to the subjective) test (first expressed by the late Supreme Court Justice Oliver Wendell Holmes):

The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing, but on their having said the same thing.

Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (quoting Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974)); see also, Oliver Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (quoted in Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957)).

The Florida Supreme Court also holds in Blackhawk Heating and Plumbing Co. Inc. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974), that nonessential terms left for future negotiations do not render a contract unenforceable.   Where an Agreement consists of “two sets of external signs”, “says the same thing”, and on the same day, it is generally enforceable. 

Below are some recent decisions of interest on CONTRACTS:

Contracts -- Error to enter summary judgment for plaintiff in breach of contract action where there was a lack of evidence to establish that plaintiff had standing at time action was filed, and an incorrect cardmember agreement was attached to complaint

DETELINA Y.A. MITEVA, Appellant, vs. AMERICAN EXPRESS BANK, FSB, Appellee. 3rd District.

Contracts -- Real property sale -- Specific performance -- Trial court erred in dismissing purchaser's complaint for specific performance, concluding an action for specific performance could not be asserted, where contract does not limit the remedies available to the purchaser in the event of default by the seller

REGENTS PARK INVESTMENTS, LLC., A FLORIDA LIMITED LIABILITY COMPANY, Appellant, vs. KAI PROPERTIES, LTD, A FLORIDA LIMITED PARTNERSHIP, 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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