Business law, family matters, torts and homemade meatballs with garlic and fresh basil and tomatoes

Contracts -- Noncompetition covenant -- Liquidated damages -- Provision for liquidated damages for breach of noncompetition agreement was unenforceable where damages were readily ascertainable, and provision constituted a penalty

RICHARD GOLDBLATT, individually and VALERIE GOLDBLATT, individually, Appellants, v. C.P. MOTION, INC., a Florida Corporation, Appellee. 3rd District.

Child custody -- Where two women who were involved in lesbian relationship and wished to have a baby which they would raise together paid a reproductive doctor to withdraw ova from one, the biological parent, have the ova artificially inseminated with the sperm of a donor, and have the ova inserted into the womb of the other, the birth parent, both women have parental rights to the child -- Woman who provided her ova to her lesbian partner was not a donor of her ova -- Section 742.14, Florida Statutes, as applied by trial court to eliminate rights of biological mother to child, renders statute unconstitutional as violation of rights to equal protection and privacy -- Section 63.042(3), Florida Statutes, which prohibits gay and lesbian couples from adopting children, does not deprive biological mother of her parental rights -- Biological mother did not waive parental rights by executing informed consent document in reproductive doctor's office -- Question certified: Does the application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

T.M.H., Appellant, v. D.M.T., Appellee. 5th District.

Civil procedure -- Intervention -- Trial court did not abuse its discretion in denying motion to reconsider order of dismissal because of pending late-filed motion to intervene -- Intervention may not be allowed after final judgment save in the interests of justice

LESLIE K. HARRIS, Appellant, v. BRISTOL LAKES HOMEOWNERS ASSOCIATION, INC., ABERDEEN PROPERTY OWNERS ASSOCIATION, INC., and ABERDEEN GOLF & COUNTRY CLUB, INC., Appellees. 4th District.

Contracts -- Leases -- Satisfaction of obligations -- Absence of record support

COCONUT GROVE STATION DEVELOPMENT, LTD., Appellant, vs. MIAMI-DADE COUNTY, Appellee. 3rd District.

Costs -- Prevailing party -- Depositions and transcripts -- Appellate court cannot say that, under circumstances of instant case, trial court abused its discretion in awarding prevailing defendant costs for transcripts of non-evidentiary hearings and costs for expediting preparation and delivery of deposition transcripts -- Award of costs related to video depositions remanded for reconsideration, as it is not possible to tell from record whether costs were sought for both transcript of video deponents' testimony and for the videotapes prior to summary judgment hearing -- Expert witness fees -- Although lead counsel could properly testify as to reasonableness and necessity of deposition and transcript costs, as well as necessity of obtaining expert witnesses, he was not qualified to testify as to reasonable value of expert witnesses' services -- Objection to request for expert fees was specific enough to preserve the objection both as to entitlement and amount of expert witness costs sought by movants, and review of transcript leads to conclusion that trial court may well have granted movants' request for continuance to prepare for evidentiary hearing had trial court deemed the objection sufficient -- Accordingly, although general rule is that party seeking fees and costs is not entitled to second bite at apple to prove its claim, remand for evidentiary hearing on issue regarding request for expert witness fees is appropriate -- Trial court is not precluded from considering time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research -- Trial court must determine that any expert witness fees incurred were reasonably necessary to defend action -- Court notes that supreme court has specifically stated that trial court should exercise discretion in manner consistent with policy of reducing overall costs of litigation and keeping such costs as low as justice will permit

WINTER PARK IMPORTS, INC. D/B/A LEXUS OF ORLANDO, Appellant, v. JM FAMILY ENTERPRISES, INC., ET AL., Appellees. 5th District.

Dependent children -- Termination of parental rights -- Evidence was insufficient to establish that continued interaction with mother threatened children's life, safety, or health based on the alleged insufficiency of her attempts to keep children's mentally ill and highly abusive father away from home and away from children

A.H. the mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, et al., Appellees. 3rd District.

Dissolution of marriage -- Relief from judgment -- Denial -- Appeals -- Motion for rehearing did not toll time for filing appeal from order denying rule 1.540(b) motion -- Child support -- Error to deny request for child support through date of child's high school graduation

MARTIN EDWARD MESSIER, Appellant, vs. LESLEY J. MARTIN-MESSIER, Appellee. 3rd District.

Eminent domain -- Department of Transportation -- Drainage easement -- Business damages -- Provision of lease giving lessee the express and enforceable right to use common areas and parking lot for the term of lease was sufficient to support claim for business damages, notwithstanding fact that lease referred to lessee's interest in common areas and parking lot as a “license” -- Error to dismiss lessee's business damage claim

MH NEW INVESTMENTS, LLC, ETC., ET AL., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. 5th District.

Mortgage foreclosure -- Relief from judgment -- Absence of sworn motion or evidence

NOVASTAR MORTGAGE, INC., Appellant, vs. OSCAR VARGAS, ET AL. Appellees. 3rd District.

Paternity -- Disestablishment -- Trial court erred in granting petition to disestablish paternity on ground that mother failed to produce child for DNA testing without determining whether mother's failure to submit child for testing was willful

DEPARTMENT OF REVENUE, o/b/o M.J.W., Appellant, v. G.A.T., JR., Appellee. 2nd District.

Public employees -- Drug testing -- Discovery -- Subpoena duces tecum -- Non-profit advocacy organization moved to quash subpoenas for documents in connection with action challenging constitutionality of mandatory drug testing of state employees -- Motion to quash is denied in part with respect to documents that are publicly available on the organization's website and responsive to defendant's request -- Authentication of these documents by deposition of records custodian for documents is unnecessary; rather, sworn declaration of records custodian shall be sufficient for authenticity purposes -- Motion to quash is granted with respect to documents or deposition testimony as to organization's “knowledge and position” on employer drug testing and public approval of employer drug testing, as well as prevalence of drug use and harmful effects of drug use in workplace, where defendant has not shown that information sought is truly relevant, that no other means exist to obtain the information, and that it is crucial to his defense of case -- Even if scope of subpoenas, which are exceedingly broad and burdensome on their face, have been narrowed by defendant's response, motion should nevertheless be granted as such testimony from legal advocacy organization that is specifically acting as counsel of record for a party in case raises unnecessary burden and privilege issues that far outweigh any relevance of information sought

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

Public employees -- Drug testing -- Challenge to constitutionality of Executive Order directing all state agencies to amend their drug-testing policies to provide for pre-employment and random drug testing for all state employees, as a violation of Fourth Amendment's prohibition against unreasonable search and seizure -- Jurisdiction -- Standing -- AFSCME union for state employees has standing to sue where union demonstrated an injury in fact, that alleged Fourth Amendment violation is fairly traceable to EO, and that a judgment that EO is unconstitutional would redress complained of injury -- Claim is fully ripe for adjudication because issues are sufficiently defined and concrete -- Claim is not moot where one state agency is currently undertaking EO's implementation and voluntary cessation with respect to other agencies is not likely to endure -- Union has organizational standing to sue on behalf of its members because they could sue individually, and further union has an interest in representing rights of its members -- Motion to join as necessary party treated as motion to intervene -- Intervention -- Secretary of Department of Corrections, who moved to intervene as party-defendant based on intervention as matter of right or permissive intervention when governor suspended implementation of EO for all agencies except DOC, cannot intervene based on intervention as matter of right where secretary has not demonstrated direct interest in constitutionality of EO, has failed to show that existing parties cannot adequately represent his interest, and court will not lose subject matter jurisdiction absent secretary's intervention -- Alternatively, secretary cannot intervene based on permissive intervention

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, and RICHARD FLAMM, Plaintiffs, v. RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant. U.S. District Court, Southern District of Florida.

Speech -- Appeal from entry of preliminary injunction preventing enforcement of Alabama statute, which prohibits a state or local government employee from arranging “by payroll deduction or otherwise” the payment of any contribution to an organization that uses any portion of those contributions for “political activity” -- District court found that statute impinges on free speech rights protected by First Amendment and that plaintiffs are likely to succeed in showing that statute is both overbroad in its restrictions and unduly vague as to what constitutes political activity -- Interpretation of Act is question of state law that has not been specifically addressed by state supreme court or by the intermediate state appellate courts; and therefore, the appellate court certified the following questions to Alabama Supreme Court: Is the “or otherwise” language in the statute limited to the use of state mechanisms to support political organizations, or does it cover all contributions by state employees to political organizations, regardless of the source? Does the term “political activity” refer only to electioneering activities?

ALABAMA EDUCATION ASSOCIATION, an Alabama non-profit corporation, A-VOTE, an Alabama political committee, PAM HILL, JEFF BREECE, CHASSITY SMITH, et al., Plaintiffs-Appellees, v. STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA, Defendants-Appellants. 11th Circuit.

Torts -- Defamation -- Injunction -- Action seeking injunction to prohibit operator of website, which allows third party users to post complaints, from allowing defamatory post to remain on the website -- Trial court properly dissolved injunction which had been entered against operator of website because Communications Decency Act provides absolute immunity to interactive computer services

JOHN GIORDANO, INDIVIDUALLY, AND G & G ADDICTION TREATMENT, INC., A FLORIDA CORPORATION, Appellants, vs. DONNA L. ROMEO, AND XCENTRIC VENTURES, LLC, an Arizona Limited Liability Corporation, Appellees. 3rd District.

Torts -- Fraudulent inducement -- Arbitration -- No error in denying motion to compel arbitration based on arbitration agreement to which opposing party was non-signatory -- Cause of action for fraud in inducement fails where there was no contract between the parties

GLOBETEC CONSTRUCTION, LLC, Appellant, v. CUSTOM SCREENING & CRUSHING, INC., CUSTOM CRUSHING & MATERIALS, INC., Appellees. 3rd District.

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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