Product liability, class actions, equitable distribution, and lemon-garlic chicken sauteed in truffle oil with cumin seeds

Class actions -- Torts -- Negligence -- Certification of class -- Denial -- Trial court did not err in denying amended motion for class certification in action against road construction contractor brought by business owners who allegedly sustained lost profits in their respective businesses when contractor's employee allegedly damaged natural gas line, resulting in interruption of gas service to sizable region -- To establish numerosity and typicality for purposes of class action, plaintiffs needed to show that sufficient and clearly ascertainable number of proposed class members had suffered some compensable damage from alleged negligence -- Trial court did not err in determining that proposed class was overbroad and failed in this regard

LUCARELLI PIZZA & DELI and T.A.S. SUNSHINE ENTERPRISES LLC, Appellants, v. POSEN CONSTRUCTION, INC., Appellee. 2nd District.

Contracts -- Employment -- Non-compete and non-solicitation agreements -- Injunction -- Trial court properly entered temporary injunction to enforce non-compete and non-solicitation provisions of employment agreement with provider of home health care services -- Referral sources for home health care services are a legitimate business interest entitled to protection under section 542.335, Florida Statutes (2012) -- Conflict certified

INFINITY HOME CARE, L.L.C., and SYLVIE FORJET, Appellants, v. AMEDISYS HOLDING, LLC, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Concerns related to distance between former wife's residence and child's school not basis for modification where location of parties' respective residences was known at time of final judgment when trial court selected former husband's residence as child's legal address and address to be used for school designation purposes -- Because substantial competent evidence of substantial change in circumstances was not presented, trial court abused its discretion by granting former wife's modification petition

JEROD B. BLEVINS, Appellant, v. JENNIFER BLEVINS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Non-marital assets -- Real property -- Trial court erred in awarding wife any interest in marital home which husband had acquired prior to the marriage -- Evidence contradicted trial court's finding that wife had invested $40,000 in the home, and although mortgage payments had been made with pooled resources, the value of the home had decreased during the marriage -- Trial court erred in unequally distributing Georgia properties without making requisite findings or explanations -- Remand for further proceedings to equitably distribute marital assets

WILLIAM E. WEAVER, Appellant, v. LORI LYNN WEAVER, Appellee. 4th District.

Insurance -- Homeowners -- Declaratory judgment -- Duty to defend and indemnify -- Exclusions -- Damages arising out of sexual molestation, corporal punishment or physical or mental abuse -- Intentional shooting -- Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home -- Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting

SALVATORE MIGLINO, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY and HARVEY IRA STEIN, Appellees. 4th District.

Insurance -- Personal injury protection -- Medical expenses -- Coverage -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy language providing that any amounts payable “shall be subject to any and all limitations authorized by section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law, including, but not limited to, all fee schedules” did not make it clear whether insurer was actually and in fact electing to limit its reimbursements to providers under Medicare fee schedules or was simply announcing that it was reserving its right to elect to do so -- Language is ambiguous and must be construed in favor of providers -- Conflict certified

ORTHOPEDIC SPECIALISTS, as Assignee of KELLI SERRIDGE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 4th District.

Paternity -- Timesharing -- Default -- Trial court erred in entering default judgment in favor of father on his counter-petition requesting to establish paternity and timesharing where record did not reflect that mother received service of counter-petition, motion for default, order granting default, or notice of final hearing

GRANADA FELIPE, Appellant, v. RANDOLHF RINCON, Appellee. 5th District.

Torts -- Fraud -- Civil theft -- Limitation of actions -- Reconsideration by successor judge of order of recused judge dismissing complaint on basis of statute of limitations and statute of repose -- Successor judge properly denied motion for reconsideration of predecessor judge's order dismissing complaint where plaintiff failed to indicate how grounds alleged for recusal impacted the recused judge's rulings and failed to demonstrate any prejudice he suffered from initial judge's entry of order of dismissal

STEVE OGNENOVIC, Appellant, v. DAVID J. GIANNONE, INC., DAVID J. GIANNONE, and RICHARD ANDERSON, Appellees. 4th District.

Torts -- Nursing homes -- Violation of resident's rights -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration pursuant to arbitration agreement signed by resident's sister as attorney-in-fact for resident under durable power of attorney on basis that power of attorney limited sister to act as attorney-in-fact for resident to claims involving only liquidated damages -- Language of power of attorney, which granted sister ability to sue for “liquidated or liquidated” damages on behalf of resident, was ambiguous -- Remand for trial court to conduct further proceedings to determine intent of sisters in creating power of attorney

SANTA ROSA INVESTORS, INC. d/b/a SANTA ROSA HEALTH AND REHABILITATION CENTER; SUMMIT CARE II, INC.; GUY FARMER, and JOE D. MITCHELL, Appellants, v. BETTY WILSON AND VIOLET JOYCE CARTER, AS POWER OF ATTORNEY FOR BETTY WILSON, Appellees. 1st District.

Wrongful death -- Medical malpractice -- Trial court did not err in entering summary judgment for defendant University of Miami on claim that University was vicariously liable for negligence of physicians where there had been no pleading that University was vicariously liable for negligence of those physicians -- On motion for summary judgment, trial court considers only issues raised in pleadings

LISA WILSON and KEISHA SALMON, etc., Appellants, vs. RICHARD STONE, M.D., et al., Appellees. 3rd District.

Wrongful death -- Product liability -- Tobacco

DIANA PAPPAS, as Personal Representative of the Estate of MINA PAPPAS, Deceased, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY a foreign corporation, LIGGETT GROUP, LLC, a foreign corporation, f/k/a LIGGETT GROUP, INC., f/k/a LIGGETT & MYERS TOBACCO COMPANY and VECTOR GROUP LTD, INC., f/k/a BROOKE GROUP, LTD, a foreign corporation, Appellees/Cross-Appellants. 4th District


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Dissolution of marriage, estates, Engle "manifestation", and brick oven pizza with prosciutto, fig, arugula, and goat cheese

Attorney's fees -- Prevailing party -- Condominiums -- Where bank obtained foreclosure judgments on condominium units, condominium association claimed assessment liens in excess of the statutory limit of bank's liability for condominium assessments, and bank filed post-judgment motions against association in foreclosure actions requesting application of the statutory cap to association's liens and an award of attorney's fees pursuant to statute which provides that prevailing party is entitled to attorney's fees in disputes between unit owners and condominium associations, trial court properly found that it had jurisdiction to entertain bank's post-judgment motions on the merits, but erred in finding that post-judgment procedure was not a proper forum to litigate the request for fees -- Having accepted post-judgment process as proper forum to decide the merits of disputes over unpaid assessments, association cannot now argue that post-judgment proceedings were an improper forum to award prevailing party attorney's fees -- Bank was not barred from recovering award of attorney's fees by the “no pleading, no fees” rule where entitlement to fees did not exist from the outset of bank's foreclosure actions against condominium unit owners

OCEAN BANK, Appellant, vs. CARIBBEAN TOWERS CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Contempt -- Dissolution of marriage -- Error to hold husband in indirect civil contempt for failing to pay substantial child support arrearages where all agreed husband did not receive proper notice of wife's motion and hearing date -- Error to set a purge amount without imposing a coercive sanction that the purge would remove -- Error to order husband to pay $25,000 within four weeks without sufficient evidence of ability to comply -- Gross receipts of business in which husband owned roughly a one-third interest not sufficient basis for valuation

GHASSAN MANSOUR, Appellant, v. DALAL HELMI MANSOUR, Appellee. 2nd District.

Creditors' rights -- Proceeding supplementary in aid of execution -- Discovery -- Business records -- Trial court departed from essential requirements of law, causing material injury for which there was no adequate remedy on appeal, by requiring non-party corporation with which one of judgment debtor's subsidiaries had loan agreement to divulge extensive business records that were tenuously related to litigation -- Trial court erred in denying corporation's motion for protective order limiting creditor to seeking information regarding assets of judgment debtor that were possibly subject to execution

GENERAL ELECTRIC CAPITAL CORP., Petitioner, v. RICHARD NUNZIATA, as Personal Representative of the Estate of ELVIRA NUNZIATA; TRANS HEALTH MANAGEMENT, INC.; and RUBIN SCHRON, Respondents. 2nd District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Written judgment regarding timesharing schedule to be corrected to conform to oral pronouncement -- Percentages for parties' overnights with children should also be corrected

JEFFREY LANCE BUTLER, father, Appellant, v. STEPHANIE HALL f/k/a STEPHANIE BUTLER, mother, Appellee. 1st District.

Estates -- Trusts -- Action against trustee, his son, and their law firm by beneficiaries of trust, alleging breach of fiduciary duties -- Trustee breached fiduciary duty resulting in damages by failing to diligently ascertain the value of real property which was the sole asset of trust, by undervaluing the property for federal estate tax purposes, by failing to post bond and to render annual accountings to beneficiaries, and by making unilateral payment to himself from trust monies without prior disclosures of alleged entitlement and amount to beneficiaries or the court -- Trial court did not abuse discretion in refusing to strike testimony of beneficiaries' expert appraiser -- Trial court did not abuse discretion in requiring disgorgement of trustee's and attorney's fees previously paid -- Trial court did not abuse discretion in removing trustee or in granting beneficiaries' preemptive request to preclude trustee's sons from serving as successor trustee

ARTHUR F. MCCORMICK, etc., et al., Appellants, vs. GAIL C. COX, et al., Appellees. 3rd District.

Estates -- Wills -- Revocation -- Error to dismiss second amended petition for revocation of probate of will in which petitioner alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusions, all wills executed by decedent after a 1983 will in which petitioner was beneficiary were invalid -- Petitioner pleaded sufficient allegations of standing

MARLENE GORDON, Appellant, v. LAURIE KLEINMAN, individually, and as Personal Representative of the Estate of JOEL H. DAVIS, Deceased; and M. TAMARA RIMES as Curator, Appellees. 4th District.

Foreclosure -- Jurisdiction -- Error to enter final judgment while appeal of non-final order was pending -- Error to enter final judgment when related counterclaim was pending

DENNIZ DILICAN and LORI DILICAN, Appellants, v. NORMANDY VILLAGE PROPERTY OWNERS ASSOCIATION, INC., Appellee. 4th District.

Injunctions -- Mortgage foreclosure -- Trial court acted within its inherent authority to sanction abusive litigant when it issued omnibus order granting permanent injunction barring future filings relating to foreclosure proceeding or filing future actions arising out of foreclosure proceedings in the circuit

LINDSAY JENKINS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Appellees. 4th District.

Torts -- Municipal corporations -- Law enforcement officers -- DUI arrestee's action against city alleging negligent supervision and retention, failure to protect, battery, and negligent infliction of emotional distress based on conduct of police officers while plaintiff was in holding cell and while plaintiff was in police station garage awaiting transport to jail -- Trial court erred in denying city's motion for new trial on claim of negligent retention/supervision of particular police officer where jury found that officer acted within course and scope of his employment at all times -- City cannot show it was prejudiced by this ruling because of two-issue rule -- Although jury was asked to determine liability on four separate negligence claims, three of which were based on city's vicarious liability for officer's actions, damages were determined only once and not apportioned to any particular claim -- Sovereign immunity -- City could be found liable under doctrine of respondeat superior for acts of officer where officer was acting within course and scope of his employment when he committed battery, and jury found battery was not done in bad faith, with malicious purpose, or in manner exhibiting wanton and willful disregard of plaintiff's rights -- City could also be held vicariously liable for negligent infliction of emotional distress where jury found plaintiff had been battered, which by definition requires touching or impact

CITY OF BOYNTON BEACH, Appellant, v. ADAM WEISS, Appellee. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Manifestation of disease for purpose of inclusion in Engle class membership -- Trial court did not err in instructing jury that decedent's manifestation of peripheral vascular disease occurred when he had symptoms of the disease, instead of when decedent was on notice of the causal connection between his smoking and the disease -- Conflict certified -- Trial court did not err in denying defendant's motion for directed verdict on the basis that plaintiff failed to introduce reliable medical evidence demonstrating that decedent experienced symptoms of PVD prior to class membership cutoff date -- Trial court erred in allowing plaintiff to recover punitive damages under theory of gross negligence since that cause of action was not pled in original Engle class case and jury found for defense on concealment and conspiracy claims

R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. PAMELA CICCONE, as Personal Representative of the Estate of GEORGE N. CICCONE, deceased, Appellee. 4th District.

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Attorneys' fees, attorney disqualification and cornmeal pancakes with pecans and cranberries

Appeals -- Jurisdiction -- Attorney's fees -- Appellate court lacks jurisdiction to consider challenge to award of attorney's fees based on dismissal with prejudice of counterclaim where trial court reserved jurisdiction to determine the amount of fees to be awarded

CHARLES A. MORRISON AND SHIRLEY W. MORRISON, Appellants, v. UNITED STATES OF AMERICA, ACTING THROUGH FARM SERVICE AGENCY, f/k/a FARMERS HOME ADMINISTRATION, UNITED STATES DEPARTMENT OF AGRICULTURE, Appellee. 1st District.

Attorney Disqualification: BOFA SEEKS TO OUST AIG LAW FIRM FROM $10 BILLION CASE, AIG v. Bank of Am Corp., 22 No. 3 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage October 28, 2011 NEW YORK, Oct. 18 (Reuters) - Bank of America Corp. urged a judge to disqualify the law firm representing insurer American International Group in its $10 billion mortgage fraud lawsuit against the bank, alleging a conflict of interest by one of the firm's partners. The bank said Quinn Emanuel Urquhart & Sullivan should be removed because the partner had defended Merrill Lynch & Co. and its First Franklin Financial Corp. unit against similar charges that they made and sold defective mortgage loan.

Attorney's fees -- Offer of judgment

LOIS M. SEEVERS, Appellant, v. LUIS A. MONTIEL, individually, Appellee. 1st District.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Chapter 11 trustee instituted adversary proceedings to avoid and recover as fraudulent transfers distributions made to investors in debtor corporations that were operated as instruments of a Ponzi scheme -- Investors asserted affirmative defense claiming transfers were “for value” -- General rule in fraudulent transfer actions arising out of Ponzi scheme that a defrauded investor gives “value” to debtor in exchange for a return of principal amount of investment, but not as to any payments in excess of principal, applies to investors that hold an equity interest in the insolvent debtors -- Under general rule, transfers from debtors up to principal amount of investment through investors' purchase of limited partnerships from debtors satisfied investor defendants' restitution or fraud claims and provided value to debtors

WILLIAM F. PERKINS, Plaintiff-Appellant, v. AENA Y. HAINES, JAMES BRONNER, SIMONE BRONNER, NATHANIEL BRONNER, GEORGE RUSSELL CURTIS, SR., et al., Defendants-Appellees. 11th Circuit.

Bankruptcy - Transfer made by debtor involved in Ponzi scheme in order to redeem equity investment may constitute transfer "for value."  Addressing an issue of apparent first impression for the circuit, the Eleventh Circuit Court of Appeals has ruled that, with respect to the "for value" defense to fraudulent transfer actions arising out of a Ponzi scheme, the general rule that a debtor's transfers to an investor up to the principal amount of the investment were given "for value" and are not subject to recovery by the bankruptcy trustee, while any transfers exceeding the amount of the principal were not made "for value," applies regardless of whether good faith investors have an equity interest in, or some other form of claim against, the debtor. Courts do not distinguish between equity investments and debt-based claims when applying the "for value" defense of 11 U.S.C.A. 548(c) in this context. Perkins v. Haines ,(C.A.11 (Ga.))

Civil procedure -- Default -- Vacation -- Service of process -- Defects -- Error to deny motion to vacate default and final judgment where plaintiff failed to make diligent effort to personally serve defendant before serving process by publication

DANIEL BLANCO, Appellant, v. BANK OF NEW YORK as successor in interest of JP Morgan Chase Bank, N.A., as Trustee on behalf of SAMI 2006-AR-3, Appellee. 4th District.

Construction: ROOFING CONTRACTOR MUST WEATHER DAMAGES JUDGMENT WITHOUT COVERAGE, Evanston Ins. Co. v. Heeder, 22 No. 3 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage October 28, 2011 An insurer that limited its coverage to residential roofing owes no duty for a $681,000 judgment for damage that happened during a commercial roofing project, a federal judge in Tampa, Fla., has ruled. U.S. District Judge Susan C. Bucklew of the Middle District of Florida said Evanston Insurance Co. only insured roofing contractor Douglas D. Heeder for the operations listed on his insurance application and the policy's declarations page. The judge granted the insurer's motion for summary judgment.

 Contracts -- Insurance -- Discovery -- Request for production -- Insured is not entitled to discovery of insurer's claims file where insured has only alleged a breach of contract action, not a bad faith claims handling case -- To extent any of documents responsive to insured's request for production are contained within insurer's claims file, they are protected from disclosure -- Any documents not contained within claims file that are responsive to insured's request for production should be produced -- Insurer satisfied request for “copies of any and all documents that show payments made” to insured, if any, on this claim, by stating that it has produced copies of checks issued to insured -- To extent documents responsive to this request would be included in claims file they are not discoverable in this breach of contract action -- Request for a copy of each check for payments in this claim is denied as moot where insurer asserts that only documents responsive to this request have already been produced -- Request for a copy of agent's file is due to be granted where insurer asserts conclusory, boilerplate objection that fails to explain precise ground that makes the request objectionable -- Request for a copy of all documents regarding all prior claims, excluding any privileged information, is vague and ambiguous and motion to compel is due to be denied -- Interrogatories -- Interrogatory seeking information about how insurer adjusted the claim is relevant to insured's breach of contract claim and motion to compel is due to be granted -- Privilege log -- Any documents listed on privilege log that are included within claims file are not discoverable -- Regarding documents on privilege log that were withheld based on attorney-client and work product privileges, where insurer has asserted that these documents were made after lawsuit was filed and concern defense of lawsuit, motion to compel is denied

GAVIN'S ACE HARDWARE, INC., Plaintiff, vs. FEDERATED MUTUAL INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division.

Counties -- School boards -- Teachers -- Termination of employment -- Teacher was given sufficient notice before her employment was terminated following an informal hearing, and she was not denied due process -- Teacher was provided notice of a pre-determination conference to discuss her absences from work, which she did not attend, teacher did not return calls regarding her attendance at conference or her absence from work, administrative complaint was hand delivered to the mailbox at teacher's official home address, and was also sent to two different email addresses on file for her -- Due process does not require a showing that interested party received actual notice

LINDA M. SCHIMENTI, Appellant, v. SCHOOL BOARD OF HERNANDO COUNTY, FLORIDA, Appellee. 5th District.

Dependent children -- Placement -- Interstate Compact on the Placement of Children -- Trial court erred in terminating protective supervision and permanently placing child with father, who lived in foreign state and with whom child was on an “extended visit,” without foreign state's concurrence to placement and without statutorily-compliant home study -- Mother was entitled to evidentiary hearing before trial court could place child with non-custodial father -- Appellate court's decision not to be read as requiring that child, who is currently residing with father, be relocated back to Florida pending evidentiary hearings

M.A.C., Mother of K.C., K.C., and K.P., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Time-sharing -- Contempt -- No error in finding wife in contempt for depriving husband of time-sharing with child -- No abuse of discretion in determining that husband was entitled to makeup time-sharing -- Trial court erred in failing to find that the manner in which makeup time-sharing was ordered was in best interests of child, as required by statute -- Competent substantial evidence would not support any implicit finding that order granting husband immediate custody of child and 100% time-sharing for period of 150 days was in best interests of child, as this order not only changed primary custody of child from mother to father, but also relocated child to foreign state in middle of school year -- Remand for further proceedings

MARIAH ARICA CHEEK, FORMER WIFE, Appellant, v. BRIAN R. HESIK, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Child support -- Modification -- Appeals -- Neither order domesticating foreign support order nor order of protection expressly disposed of petition to modify child support, either on the merits or on jurisdictional grounds -- Orders are not final orders, and are not appealable non-final orders

KAREN ELAINE PULKKINEN N/K/A KAREN ELAINE BRAUTCHECK, FORMER WIFE, Appellant, v. JYRKI TUONO JUHANI PULKKINEN, FORMER HUSBAND, Appellee. 1st District.

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