Arbitration, timesharing modifications, void judgments, and stoneground grits with fennel, roasted peppers, and spicy italian sausage

Arbitration -- Torts -- Residential communities -- Arbitration clause in home purchase and sale agreement and identical clause in deed encompassed purchaser/property owner's claim against developer for personal injuries sustained while riding his bicycle on roadway within residential community where clauses expressly and unambiguously included claims relating to personal injury or property damages “in the community” within the disputes to be submitted to arbitration. LENNAR HOMES, LLC, Appellant, v. MATTHEW WILKINSKY, Appellee. 4th District.

Attorney's fees -- Prevailing party -- Voluntary dismissal -- Where all counts in complaint involved the same facts and the same parties, trial court's order dismissing one of multiple counts was not a final order and did not dispose of the action for either party -- Plaintiff's subsequent notice of voluntary dismissal disposed of the action as to both parties and triggered 30-day time frame for filing motion for attorney's fees -- Trial court erred in reversing its initial award of fees to defendant after concluding that motion should have been filed within 30 days of court's non-final dismissal order. SARA WARD, Appellant, v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN, Appellee. 4th District.

 Child custody -- Time-sharing -- Modification -- Relocation with child -- Mother was not required to seek leave of court or to consult with father before relocating with children to another county where at time of move paternity had not been established -- Trial court reversibly erred by considering statutes which did not apply to mother's move when entering custody and time-sharing orders following father's filing of petition to determine paternity. DEARLYN LOJARES, Appellant, v. ALFONSO SILVA, Appellee. 1st District.

Civil procedure -- Default -- Vacation -- A trial court's failure to make oral or written findings in support of an order vacating a default judgment supports reversal only where the record does not contain any facts to support that decision -- Neither Florida Rule of Civil Procedure 1.540(b), Florida Supreme Court, nor Fourth District Court of Appeal has imposed any requirement that a trial court must make oral or written findings to support an order vacating a default judgment -- On the merits, the circuit court had a factual basis to grant escrow agent's amended motion to vacate both the clerk's default and the circuit court's default judgment against the escrow agent -- Defenses of due diligence, excusable neglect, and meritorious defense were, at least facially, meritorious. FI CAPITAL INVESTMENT 19, LLC, Appellant, v. SOUTH FLORIDA TITLE ASSOCIATES, LLC, et al., Appellees. 4th District.

Civil procedure -- Default -- Void judgment -- Damages -- Liquidated/unliquidated damages -- Action seeking collection on unpaid promissory note -- Default final judgment was void where judgment reflected unliquidated damages and was entered without a hearing -- The otherwise liquidated amount under original promissory note was rendered unliquidated where there was a separate default final judgment entered against a co-promisor and a satisfaction of judgment as to co-promisor without any indication of the amount paid. ANTHONY LIND MAIURI, Appellant, v. FIRST AMERICAN TITLE INSURANCE COMPANY, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to comply with court order -- Error to dismiss lawsuit with prejudice where plaintiff was not given notice or opportunity to be heard and order was not accompanied by finding of deliberate and contumacious disregard for trial court's authority, bad faith, gross indifference, or conduct evincing deliberate callousness. DON SMITH, Appellant, v. LISA MELTZER, etc., Appellee. 3rd District.

Contracts -- Breach of contract -- Corporations -- Successor liability -- Alter ego -- No error in allowing plaintiff to file supplemental complaint to implead defendant corporation as alter ego and successor entity of separate corporation against which plaintiff had obtained money judgment -- Evidence supported three of the four exceptions to corporate law rule that the liability of a predecessor corporation is not imposed upon successor companies. J&R UNITED INDUSTRIES, INC., etc., Appellant, v. STEPHEN E. MIRON, etc., Appellee. 3rd District.

Contracts -- Dismissal -- Fraud on court -- No abuse of discretion in granting defendant's motion to strike complaint for fraud on court alleging that plaintiff submitted a fabricated contract and that plaintiff's corporate representative falsely testified at deposition that fabricated contract was true and correct copy -- Legibility of the sued-upon contract was material to plaintiff's claim, and plaintiff failed to file a response to the motion or present any evidence in opposition. ORACLE ELEVATOR COMPANY, etc., Appellant, v. 8660 BUILDING, LLC, etc., Appellee. 3rd District.

Contracts -- Employment -- Arbitration -- No error in denying motion to compel arbitration where substantial competent evidence in record supports trial court's finding that plaintiff did not electronically sign the arbitration agreement. GR OPCO, LLC, etc., Appellant, v. ANA PAOLA MURILLO, Appellee. 3rd District.

Creditors' rights -- Proceedings supplementary -- Fraudulent transfers -- Uniform Fraudulent Transfer Act -- Subsequent transferees -- Final summary judgment declaring transfer of condominium unit void as a fraudulent transfer was supported by evidence establishing undisputed existence of seven badges of fraud -- Discussion of badges of fraud in section 726.105(2) in context of case at issue involving series of transfers and shifting corporate entities -- Good faith -- Trial court properly rejected good faith defense asserted by corporate transferee that paid nothing for condominium unit -- Civil procedure -- Summary judgment -- Trial court did not abuse its discretion in denying motion for rehearing in light of new affidavits asserting additional facts. MANE FL CORP., Appellant, v. CALE BECKMAN and MALGORZATA BECKMAN, Appellees. 4th District.

Declaratory judgments -- Wrongful death -- School shooting -- Action against firearm manufacturer and seller of firearm used by gunman -- Trial court did not err in dismissing complaint for declaratory relief after concluding that plaintiffs' request for declaration that section 790.331 prohibits only suits by state actors against firearms manufacturers, not those brought by private citizens, was, in fact, an impermissible attempt to solicit advisory opinion that would help them decide whether they should file a suit. FREDRICK GUTTENBERG and JENNIFER GUTTENBERG, as Co-Personal Representatives of the ESTATE OF JAIME T. GUTTENBERG, Appellants, v. SMITH & WESSON CORP., n/k/a SMITH & WESSON SALES COMPANY, INC., and SUNRISE TACTICAL SUPPLY, LLC, Appellees. 4th District.

Dissolution of marriage -- Child support -- Modification -- Marital settlement agreement -- Trial court erred in granting mother's exceptions to general magistrate's report and recommendation concerning father's child support obligations based on its determination that trial court lacked inherent or statutory authority to modify child support -- Trial court maintained authority to modify father's child support obligations despite language in parties' marital settlement agreement setting a minimum amount of support that the father must pay -- Because the general magistrate's findings regarding the parties' financial status, change in circumstances, and children's best interests were supported by competent substantial evidence, the trial court should have accepted them. JAMES W. FUNDERBURK, Appellant, v. MARCI L. RICENBAW f/k/a MARCI L. FUNDERBURK, Appellee. 2nd District.

 

Judges -- Disqualification -- Taking allegations that trial court made improper comments at calendar call as true, disqualification of judge is warranted and petition for writ of prohibition is granted. ALFREDO RODRIGUEZ, et al., Petitioners, v. ROHAN HALSALL, Respondent. 3rd District.

Limited liability companies -- Shareholders -- Direct/derivative actions -- Contracts -- Torts -- Jury trial -- Entitlement -- Action alleging both direct and derivative legal and equitable claims against defendant shareholder and separate entity owned by defendant shareholder -- Breach of contract claim sufficiently alleged direct harm and special injury where plaintiff claimed that defendant's breach of LLC's operating agreement by misappropriating loan proceeds diluted plaintiff's ownership percentage in the LLC -- Because plaintiff sufficiently alleged direct harm and special injury, breach of contract claim was a direct legal claim for which a right to jury trial existed -- Trial court erred by trying equitable, derivative claims against defendant shareholder's other business separately in a non-jury trial while breach of contract claim was still pending -- Contract claim and the derivative equitable claims were intertwined because they all revolved around underlying factual issues regarding defendant's purported mismanagement of LLC and alleged misappropriation of loan proceeds -- Because contract claim was factually intertwined with equitable claims, a jury was required to resolve the common factual issues -- Proper procedure would have been for trial court to first proceed with jury trial and then apply jury's factual findings to determine whether plaintiff established entitlement to relief on his equitable claims -- Trial court erred in relying on business judgment rule to decide derivative claim against separate entity alleging that entity aided and abetted defendant shareholder's breach of fiduciary duty where defendant shareholder was not a disinterested party to any of the transactions at issue -- Key inquiry is whether defendant shareholder's self-interested transactions were valid under law governing conflict-of-interest transactions for limited liability companies. ALDO DISORBO, Appellant, v. AMERICAN VAN LINES, INC., Appellee. 4th District.

Mortgage foreclosure -- Sale -- Objection -- Timeliness -- No error in denying borrower's objection to sale of foreclosed property alleging that clerk's advertisement was defective where objection was raised more than ten days after sale -- While borrower was granted a stay of the sale, that stay was entered to allow borrower to redeem and purchase the property, not to raise further objections. CEDRIC McINTYRE, etc., Appellant, v. CIT BANK, N.A., Appellee. 3rd District.

Real property -- Easements -- Injunctions -- Trial court erred in determining that proposed development of servient estate was precluded by easement and agreed permanent injunction enforcing the easement, which enjoined servient estate from “interfering with” dominant estate's right to ingress and egress, based on finding that increased traffic resulting from development of servient estate would “interfere” with dominant estate's easement rights -- While broad dictionary term of “interfering” could, in isolation, support dominant estate's position that interference means delaying or slowing down ingress and egress, such a definition is not supported by the easement or by the entire text of the agreed permanent injunction itself -- In context, best interpretation of “interfering” is not something that simply hinders, but rather something that obstructs access. 7 AT BLUE LAGOON (1), LLC, et al., Appellants, v. BLUE LAGOON CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Torts -- Jurors -- Peremptory challenge -- Race-neutral explanation -- Genuineness -- No abuse of discretion in determining that plaintiff's proffered reason for exercising peremptory challenge as to Hispanic female juror was not genuine. AIRAM BULTE, Appellant, v. DOLLAR TREE STORES, INC., etc., Appellee. 3rd District.

Wrongful death -- Product liability -- Tobacco -- Punitive damages -- Excessive award -- Remittitur -- Trial court abused its discretion in denying remittitur of punitive damages that exceeded net compensatory damages award by a ratio of 106.7 to 1 -- While it was not unreasonable to conclude that facts and circumstances of case under review supported a departure from the 3:1 statutory cap, a trial court in a wrongful death action abuses its discretion by denying remittitur of a punitive damages award that does not bear a reasonable relation to the amount of damages proved and the injury suffered by the statutory beneficiaries -- Court rejects argument that the injury suffered in a wrongful death action is decedent's death because Wrongful Death Act provides that the injury suffered in such an action is to the decedent's statutory beneficiaries, not the decedent -- Injury suffered by the survivors in case under review is the injury reflected in the compensatory damages award that the jury found to represent the total amount of the damages that decedent's survivors sustained for the loss of parental companionship, instruction, and guidance, and from their mental pain and suffering as a result of decedent's illness and death -- Although higher dollar awards of punitive damages have been approved in other tobacco cases, statutory analysis of whether a punitive damages award bears a reasonable relation to the amount of damages proven and the injury suffered is necessarily case-specific. BRINDA COATES, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent. Supreme Court of Florida.

Wrongful death -- Suicide -- Arbitration -- Arbitrable issues -- Trial court erred in denying motion to dismiss or to compel arbitration in action against private school and individual defendant brought by parent of student who committed suicide following school's request that he withdraw from school for selling vape pen to another student, alleging school violated its policies and procedures and common law duty to assess and provide suicide prevention and crisis support to a disciplined student -- Arbitration clauses in enrollment contract and student handbook were sufficiently narrow in scope -- Although sounding entirely in tort and not specifically including breach of contract claim, claims alleged in complaint have direct relationship to the enrollment contract and handbook's terms and provisions, and complaint expressly relies on enrollment contract and handbook to establish school's duty to student. CALVARY CHAPEL CHURCH, INC. d/b/a CALVARY CHRISTIAN ACADEMY, CALVARY CHAPEL OF FT. LAUDERDALE, INC., and JOSEPH WILSON, Appellants, v. COLLEEN HAPP, as Personal Representative of the ESTATE OF COLIN CHARLES HAPP, Appellee. 4th District.

 

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Family law appeals, requested relief, shared parental responsibility, and proscuitto and nasturtium pizza

 It is well settled that courts cannot grant relief not requested in the pleadings, and to do so is both an abuse of discretion and reversible error. Worthington v. Worthington, 123 So. 3d 1189, 1191 (Fla. 2d DCA 2013) (reversing and remanding where court granted relief that was not requested); Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (reversing and remanding trial court’s award of shared parental responsibility where such relief was not pleaded or raised at the hearing). Nor should a court grant such relief without proper notice to the parties.  Sinton v. Sinton, 749 So. 2d 532, 533 (Fla. 2d DCA 1999). Doing so raises due process concerns. Sabine v. Sabine, 834 So. 2d 959, 960 (Fla. 2d DCA 2003); Cortina v. Lorie, 95 So. 3d 467, 469 (Fla. 5th DCA 2012); Randall v. Randall, 948 So. 2d 71, 74 (Fla. 3d DCA 2007).   If the relief granted is not requested in the pleadings, it can be reversible error.

Moreover, Florida Statutes 61.13(2)(c)(2) requires that a trial court must order shared parental responsibility “unless the court finds that shared parental responsibility would be detrimental to the child.” See also Smith v. Smith, 971 So. 2d 191, 195 (Fla. 1st DCA 2007). Numerous Florida courts of appeal agree that blanket awards that give one parent complete control over decisions does not give effect to the Statute. See, e.g., Markham v. Markham, 485 So. 2d 1299, 1300 (Fla. 5th DCA 1986) (“to lump all decision-making authority in one party for all matters, undermines the mandate of the law that decisions be "jointly made," unless there is a finding as required pursuant to section 61.13(2)(b)2”); Wheeler v. Wheeler, 501 So. 2d 729, 730 (Fla. 1st DCA 1987) (following Markham to reverse and remand blanket award of ultimate responsibility); Kuharcik v. Kuharcik, 629 So. 2d 224, 225 (Fla. 4th DCA 1993) (reversing order giving mother ultimate decision-making authority over all areas if parties can’t agree because it “undermines the intent of the child custody statute regarding shared parental responsibility”); Cranney v. Cranney, 206 So. 3d 162, 165 (Fla. 2d DCA 2016) (reversing award of ultimate decision-making authority to mother where court found both parents were capable of parenting the child even though father was less able to cooperate); McClure v. Beck, 212 So. 3d 396, 399 (Fla. 4th DCA 2017) (reversing open-ended award of ultimate decision-making authority to father over major decisions for trial court to specify which aspects over which he has authority). To make such an award of sole parental responsibility, there must be a finding that shared responsibility would be detrimental to the child. See id.; see also Maslow v. Edwards, 886 So. 2d 1027, 1029 (Fla. 5th DCA 2004) (holding court's failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action); Aranda v. Padilla, 216 So. 3d 652 (Fla. 4th DCA 2017) (reversing and remanding where final judgment does not contain finding that shared parental responsibility would be detrimental to the child).

If an order contains no finding that shared parental responsibility is detrimental to the child, the contrary is presumed by statute, and that order may be reversible on appeal.  The appellate court in Ziruolo v. Ziruolo, 42 Fla. L. Weekly D986 (Fla. 1st DCA Apr. 28, 2017), reversed and remanded an order providing one parent as the ultimate decision maker that did not provide justification for doing so. 

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Civil procedure, product liability, and dissolution of marriage, with wild boar and venison Swedish meatballs with lingonberries and curry cream sauce, wild baby red sorrel with bacon

After months of a very busy work schedule, followed by some time off for cooking, hiking, and winter gardening, the Appellate Gourmet's (c) Newsletters and Recent Decisions of Interest updates resume. We're back! Thank you for your patience. Enjoy.

Civil procedure -- Appeal from circuit court order denying petition for relief from order appointing receiver and motion for rehearing filed by entity that was served with process in underlying lawsuit and later served with post-judgment motion to establish equitable lien, but failed to put in any appearance until it sought relief from order at issue -- Arguments were waived by failure to contest the relief sought prior to issuance of final order.  PENNYMAC CORP., Appellant, v. OCEAN PLACE AT SILVER BEACH ASSOCIATION, INC., a Florida Not for Profit Corporation; and FPR FORCE, LLC, a Florida Limited Liability Company, Appellees. 4th District.

Civil procedure -- Relief from judgment -- Service of process -- Non-residents -- Defects -- Substitute service on Michigan-based defendant through the Florida Secretary of State under section 48.181(1) was insufficient where defendant provided sworn unrefuted testimony that he was not conducting business in Florida and was not avoiding service -- Final default judgment entered against defendant was void, and trial court should have granted motion to vacate the judgment -- Remand for vacation of both the judgment and default against defendant.  SILVIO COZZETTO, Appellant, v. BANYAN FINANCE, LLC, et al., Appellees. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Marital settlement agreement -- Enforcement -- Provision of MSA that “if the former husband continuously and timely exercises timesharing with minor child for a period of six consecutive months, the parties shall exercise equal timesharing” is ambiguous as to whether “period of 6 consecutive months” began immediately after entry of dissolution judgment or could apply to any six consecutive months after entry of dissolution judgment -- Hearing to consider extrinsic evidence of parties' intent is required.  JULIE WOHLBERG, Appellant, v. MICHAEL CONNER, Appellee. 4th District.

Dissolution of marriage -- Conflict within final judgment between amount of bridge-the-gap alimony needed by wife and amount actually awarded to be resolved on remand.  MICHELLE KHETARPAL, n/k/a MICHELLE BOOTH, Appellant, v. SUNIL KHETARPAL, REX & REX LIMITED, INC., a Florida corporation, and KHETARPAL HOLDINGS, LLC, Appellees. 4th District.

Mortgage foreclosure -- Standing -- Civil procedure -- Substituted plaintiff -- Trial court properly held that, pursuant to rule 1.260, party substituted as plaintiff acquired the standing of the original plaintiff, and established its standing at the time of judgment by presenting a copy of the original note endorsed in blank.  LUTHER EDWARD SPICER and CLARA JEAN MAY, Appellants, v. OCWEN LOAN SERVICING, LLC, RIVERWALK OF THE PALM BEACHES HOMEOWNERS ASSOCIATION, INC., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Nominee for RESOURCE FUNDING GROUP, LLC., Appellees. 4th District.

Mortgage foreclosure -- Trial court erred in entering summary judgment in favor of plaintiff where defendant sufficiently pleaded affirmative defense that plaintiff failed to comply with federal housing regulations incorporated into mortgage, including defendant's right to face-to-face interview at least 30 days before commencement of foreclosure, and plaintiff conceded that it failed to refute defense.  DANIEL N. WHITE, Appellant, v. PLANET HOME LENDING, LLC, Appellee. 4th District.

Public records -- Counties -- Exemptions -- Trade secrets -- Trial court correctly determined, after in camera inspection, that aggregate number of airport pick-ups by transportation service company and sums of money paid by company to county as airport usage fee pursuant to license agreement between company and county did not constitute trade secret information which was exempt from public disclosure.  RASIER-DC, LLC, Appellant, v. B&L SERVICE, INC., a Florida corporation and BROWARD COUNTY, FLORIDA, a Political Subdivision, Appellees. 4th District.

Torts -- Jury -- Voir dire -- Trial court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias.  HEATHER IRIMI, as Personal Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Appellees. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Plaintiff to be permitted on remand to seek leave from court to add claims for punitive damages on negligence and strict liability counts.  PHILIP MORRIS USA, INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants, v. JACQUELINE MECHELLE BLACKWOOD, as Personal Representative of the ESTATE OF MARY ELNA COOPER, Appellee. 4th District.

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