Corporate fiduciary duty, business records, statute of limitations, and wild boar with mustard and thyme sauce and wild lingonberries

Appeals -- Absence of transcript -- Trial court erred in granting summary judgment in favor of insurer in case involving proper application of policy deductible -- Although there is no transcript of pre-trial conference where ruling was made, error is apparent on face of record where explanation of review documents submitted by insurer show that insurer applied the fee schedule authorized by 627.736(5)(a)1.f. to total charges before applying PIP deductible. NORTH BROWARD CHIROPRACTIC AND WELLNESS CENTER, INC. a/a/o CRISTINA CORRIDORI, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee. 4th District.

Appeals -- Real property -- Appeal of nonfinal order scheduling sale of property ordered partitioned pursuant to final judgment -- Appeal is essentially an untimely challenge to judgment ordering partition of property where notice of appeal was filed more than 30 days after rendition of that final order -- Order of partition is final at such time as court directs sale of the property -- Appeal dismissed. LISONEL PEREZ, Appellant, v. PEDRO A. JAIMOT and MARILYN JAIMOT, Appellees. 3rd District.

Attorney's fees -- Trial court erred in awarding attorney's fees to defendant pursuant to prevailing party provision in contract where defendant failed to plead entitlement to contractual attorney's fees -- Exception to pleading requirement for seeking attorney's fee set forth in Stockman v. Downs is not applicable where plaintiff did not, through any action or inaction, waive any objection to defendant's failure to plead claim for contractual attorney's fees. TIMOTHY LENAHAN, Appellant, v. SHANNON LENAHAN, Appellee. 3rd District.

Civil procedure -- Relief from judgment -- Jurisdiction -- No error in vacating order setting aside mediated settlement agreement where suit had been voluntarily dismissed prior to entry of the order. GAYLE M. BURNS, Appellant, v. LAW OFFICES OF LYNWOOD ARNOLD, P.A., Appellee. 2nd District. 

Contracts -- Asset purchase agreements -- Assumption of debt -- Action alleging that defendant had assumed debt which was secured by equipment defendant purchased as part of APA -- Error to enter summary judgment in favor of plaintiff where plaintiff did not refute defendant's affirmative defense that plaintiff failed to state a cause of action against it -- Although plaintiff alleged that defendant assumed debtor's obligations under the note and repeatedly alleged that defendant breached “the note,” defendant had never been a party to the note -- Because any obligation that defendant may have to plaintiff is based solely on APA to which plaintiff was not a party, and which never mentioned the note, plaintiff has a cause of action against defendant only under third-party beneficiary theory -- Plaintiff's failure to allege requisite elements of a third-party beneficiary claim precluded entry of summary judgment in its favor -- Additionally, plaintiff did not refute affirmative defense of lack of consideration -- Reduction of APA purchase price by amount of debt did not constitute consideration, but simply ensured that defendant would not pay for the equipment twice. OTI FIBER, LLC, Appellant, v. CENTERSTATE BANK, N.A.; FLORIDA FIBER NETWORKS, LLC; DAVID ORSHAN; and DAVID S. SUAREZ, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Long-term marriage -- Trial court erred in denying former wife's request for alimony based on finding former husband had no ability to pay without also making a specific factual determination as to whether former wife had an actual need for alimony -- Moreover, when one party is entitled to permanent periodic alimony but other spouse has no current ability to pay, trial court should award a nominal sum which would give court jurisdiction to reconsider award should parties' financial circumstances change. IRENE SAMANIEGO, Appellant, v. LOUIS SAMANIEGO, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Jurisdiction -- Timeliness of motion -- Trial court erred in denying wife's post-judgment motion for attorney's fees based on mistaken belief that rule 1.525 divested it of jurisdiction to entertain motion for fees filed more than 30 days after judgment -- Rule does not apply to family law cases -- Fee proceedings in family law cases are governed by section 61.16, and that statute does not impose 30-day limitation on trial court's post-judgment jurisdiction to consider fee motions. WELLY JUHL, n/k/a Welly Garza, Appellant, v. TED M. JUHL and TMJ OF PINELLAS COUNTY, INC., Appellees. 2nd District.

Employer-employee relations -- Veterans -- Retaliation -- Termination -- Employee who testified in judicial proceeding under a subpoena -- Sovereign immunity -- Action alleging wrongful termination in violation of section 92.57 and retaliation under the Uniformed Services Employment and Reemployment Rights Act -- Trial court erred in denying Fish and Wildlife Conservation Commission's motion to dismiss on sovereign immunity grounds -- Sovereign immunity bars private actions brought under USERRA against a state agency -- There is no clear and unequivocal waiver of sovereign immunity in section 92.57, and the waiver provisions of section 768.28 do not apply. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellant, v. JEFFREY HAHR, Appellee. 1st District.

Insurance -- Bad faith -- Third-party bad faith -- Contracts -- Cunningham agreements -- Limitation of actions -- Trial court erred in dismissing bad faith action based on conclusion that claim was barred by statute of limitations -- Parties' modified Cunningham agreement, which was intended to serve as the functional equivalent of the excess judgment needed to pursue third-party bad faith claim, did not constitute the functional equivalent of an excess judgment until the court approved it one year after both parties had signed it -- Trial court's conclusion that agreement did not require court approval was not supported by the plain language of the agreement, and was inconsistent with the parties' stated purpose for entering the agreement -- Because bad faith action was filed within four years from date trial court approved parties' agreement, the action was not barred by statute of limitations. WRIGHT INSURANCE AGENCY, INC. and ANTHONY WRIGHT, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. 2nd District.

Insurance -- Homeowners -- Directed verdict -- Error to enter directed verdict in insurer's favor on claim that insurer breached contract by not fully paying for a covered loss within 20 days of receiving insured's sworn proof of loss based on trial court's conclusion that insurer had 90 days to investigate claim -- Subsection in loss-payment provision of insurance policy which contained the 90-day limit commenced upon insurer's receipt of notice of an initial claim, not upon filing of sworn proof of loss -- Viewing facts in light most favorable to insured, insured's lawsuit was not premature where a jury could have found that insurer received notice of initial claim more than 90 days prior to the filing of insured's suit -- Even assuming suit was premature, proper procedure would have been to abate the action or dismiss without prejudice -- Trial court erred by granting insurer a directed verdict on count which alleged that insurer breached contract by not fully repairing home after it exercised its option to repair -- Based on testimony at trial, a jury could reasonably have found that insurer exercised its option to repair notwithstanding insurer's failure to give written notice as policy required. MARY IWANICKI, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee. 2nd District.

Paternity -- Child custody -- Petition for determination of paternity, parental responsibility, parenting plan, time-sharing schedule, and child support by petitioner, who claims to be biological father of child born during wedlock, seeking to gain custody of child -- Trial court violated due process by entering involuntary dismissal without affording petitioner opportunity to present his full case-in-chief, including opportunity to present evidence to establish standing. ALPHA RANSOM, Appellant, v. KITREANA GRANT-VAN BROCKLIN, et al., Appellees. 3rd District.

Torts -- Corporations -- Breach of fiduciary duty -- Conversion -- Aiding and abetting -- Dismissal -- Derivative action brought by one of two shareholders in closely-held corporation alleging that the other shareholder, with assistance from his family, froze plaintiff out of corporation and transferred corporate assets to a new competing entity -- Order dismissing complaint with prejudice for failure to state a cause of action is reversed -- Discussion of the fiduciary duties of officers and directors of a corporation -- Complaint stated a cause of action for breach of fiduciary duty against defendant shareholder where it alleged that defendant shareholder owed a fiduciary duty as the sole operating officer; defendant shareholder breached that duty by mounting a takeover of the company, diverting corporate business relationships and revenues to a competitor, and executing documents to transfer corporate property to competitor; and that alleged breaches damaged corporation by causing its assets to be wasted and dissipated to a nominal value -- There is no authority for proposition that a complaint must plead a breach of fiduciary duty with heightened specificity to state a cause of action -- Even assuming the existence of such an elevated pleading requirement, it was satisfied in this case -- Claims against defendant shareholder's family members stated a cause of action for aiding and abetting defendant shareholder's breach of fiduciary duty -- Allegations against defendant family members were not commingled where, although defendants were sometimes collectively referred to as the “family,” complaint set forth separate counts against each defendant family member and alleged specific conduct against each individual defendant -- Complaint stated a cause of action for conversion as to some of corporation's assets, such as goodwill of the business -- Action for conversion may be based upon a wrongful takeover of intangible interests in a business venture -- No error in dismissing conversion claim as to cash, misappropriation of trade secrets, and business and contractual relationships -- Error to dismiss claim of aiding and abetting conversion based on conclusion that Florida does not recognize such a cause of action -- Because Florida recognizes aiding and abetting liability for common law torts, it follows that Florida recognizes a claim for aiding and abetting conversion. HARRY TAUBENFELD, as shareholder of PASSOVER FB., INC., Appellant, v. JONATHAN LASKO, SAMUEL LASKO, ARLENE LASKO, AVI LASKO, and LASKO GETAWAYS, LLC., Appellees. 4th District.

Torts -- Dismissal -- Denial of motion -- Appeals -- Certiorari -- Petition seeking review of order denying motion to dismiss complaint for pure bill of discovery and directing petitioner to file an answer is denied because petitioner failed to demonstrate irreparable harm. IMC MEDICAL CENTERS, LLC and JOSEPH YORK a/k/a JOSEPH ZUMWALT, Petitioners, v. JOHN DELUCA, Respondent. 4th District.

Torts -- Sanctions -- Joint and severable liability -- Final judgment imposing sanctions against two parties jointly and severally is reversed where there was no basis in record for doing so. WIDERMAN MALEK, P.L. AND CELEBRATION LAW, P.A., Appellants, v. C.H. AS SETTLOR OF THE J.F. SPECIAL NEEDS TRUST, THE CENTER FOR SPECIAL NEEDS TRUST ADMINISTRATION, INC., AS TRUSTEE OF THE J.F. SPECIAL NEEDS TRUST, Appellees. 5th District.

 

Segarra Miranda v. Banco Popular de Puerto Rico
Court: US Court of Appeals for the First Circuit
Docket: 20-9006
Opinion Date: August 6, 2021
Judge: Sandra Lea Lynch
Areas of Law: Bankruptcy, Real Estate & Property Law
The First Circuit affirmed the judgment of the Bankruptcy Appellate Panel for the First Circuit (BAP) affirming the summary judgment entered by the bankruptcy court against the bankruptcy trustee (the Trustee) for an estate of two individuals, holding that an unrecorded mortgage in Puerto Rico is not a transfer of the debtor's property that is voidable by a bona fide purchaser that triggers the bankruptcy trustee's authority to avoid and preserve the lien. Jose Antonio Lopez Cancel and Carmen Nereida Medina Gonzalez acquired a property in Puerto Rico that they used as their primary residence. Banco Popular de Puerto Rico held the mortgage, but the mortgage was never recorded. The bankruptcy court treated the mortgage as a general unsecured claim covered by an earlier discharge order. The Trustee then filed this action to avoid the mortgage and preserve it on behalf of the bankruptcy estate, arguing that the unrecorded mortgage was a transfer of the debtor's property that was voidable by a bona fide purchaser. The bankruptcy court concluded that the Trustee could not avoid and preserve an unrecorded mortgage because, under Puerto Rican law, an unrecorded mortgage is not a property interest. The BAP affirmed. The First Circuit affirmed, holding that there was no error.

 

Reid Hospital and Health Care, Inc. v. Conifer Revenue Cycle Solutions, LLC
Court: US Court of Appeals for the Seventh Circuit
Docket: 20-1735
Opinion Date: August 11, 2021
Judge: HAMILTON
Areas of Law: Business Law, Contracts, Health Law
Healthcare revenue cycle management contractors manage billing and behind-the-scenes aspects of patient care, from pre-registering patients to reviewing and approving documentation upon release. Reid Hospital contracted with Dell, a revenue cycle management contractor. Their contract limited both sides’ damages in a breach of contract action in the absence of willful misconduct or gross negligence. Dell sold much of its portfolio to Conifer in 2012 while Dell was still losing money on the Reid contract. Conifer began reducing staff and neglecting duties; there was a slowdown throughout the revenue-management cycle and in processing patients’ discharge forms, leading to longer hospital stays that third-party payors refused to reimburse fully. After two years, Reid took its revenue operation back in-house. Reid's consultant found significant errors in Conifer’s work. Reid sued for breach of contract, claiming that Conifer’s actions caused the hospital to lose tens of millions of dollars. The court granted Conifer summary judgment, reading the contract as defining all claims for lost revenue as claims for “consequential damages,” prohibited absent “willful misconduct.” The Seventh Circuit reversed. Even if lost revenue is often considered consequential, this was a contract for revenue collection services and did not define all lost revenue as an indirect result of any breach. Lost revenue would have been the direct and expected result of Conifer’s failure to collect and process that revenue as required under the contract. The parties did not intend to insulate Conifer entirely from damages.

 

Life Spine, Inc. v. Aegis Spine, Inc.
Court: US Court of Appeals for the Seventh Circuit
Docket: 21-1649
Opinion Date: August 9, 2021
Judge: St. Eve
Areas of Law: Intellectual Property, Patents
Life Spine makes and sells a spinal implant device called the ProLift Expandable Spacer System. Aegis contracted with Life Spine to distribute the ProLift to hospitals and surgeons. Aegis promised to protect Life Spine’s confidential information, act as a fiduciary for Life Spine’s property, and refrain from reverse-engineering the ProLift. Aegis nonetheless funneled information about the ProLift to its parent company, L&K Biomed to help L&K develop a competing spinal implant device. Shortly after L&K’s competing product hit the market, Life Spine sued Aegis for trade secret misappropriation and breach of the distribution agreement. The district court granted Life Spine a preliminary injunction barring Aegis and its business partners from marketing the competing product. Aegis argues that the injunction rested on a flawed legal conclusion—that a company can have trade secret protection in a device that it publicly discloses through patents, displays, and sales. The Seventh Circuit affirmed. While public domain information cannot be a trade secret, a limited disclosure does not destroy all trade secret protection. Life Spine did not publicly disclose the specific information that it seeks to protect by patenting, displaying, and selling the ProLift. Life Spine’s trade secrets are not in the public domain but are accessible only to third parties who sign confidentiality agreements.

 

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Wrongful death, arbitration, juror challenges, dissolution of marriage, and grilled salmon with fresh ginger and wasabi

Appeals -- Second-tier certiorari review of circuit court appellate division order reversing hearing officer's determination that respondent was in violation of County Code -- Circuit court applied correct law in determining whether hearing officer's findings were supported by competent substantial evidence and in finding that hearing officer had denied respondent due process -- Circuit court improperly remanded case with instructions to dismiss citation -- Available remedy to circuit court in granting writ of certiorari was limited to quashing hearing officer's order, and nothing more. MIAMI-DADE COUNTY, Petitioner, v. SNAPP INDUSTRIES, INC., Respondent. 3rd District.

Civil procedure -- Amendment of answer -- Trial court abused discretion in denying defendant's ore tenus motion, made at summary judgment hearing, to amend answer to assert affirmative defense -- Defendant had not abused privilege to amend, plaintiff would not be prejudiced by amendment, and amendment would not be futile. MISHPAJA SHAJINE, INC., et al., Appellants, v. GRANADA INSURANCE COMPANY, et al., Appellees. 3rd District.

Civil procedure -- Discovery -- Business records -- Examination -- Transport of documents -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring party to transport original corporate documents from California to opposing counsel in Florida where opposing party did not identify any reason to do so. LE-1, a Florida Limited Liability Company d/b/a LE-1, a California Limited Partnership, Petitioner, v. WILLIAM B. TROWER, as Successor Personal Representative of the Estate of LINDA B. WEISHEIT, Respondent. 4th District.

Civil procedure -- Discovery -- Depositions -- Former opposing counsel in pending case -- Trial court properly quashed subpoena and issued protective order to prohibit defendant from taking deposition of plaintiff's former counsel where defendant failed to allege or establish that no other means existed to obtain information sought. CENTRAL CONCRETE SUPERMIX, INC., Petitioner, v. JOSE A. “PEPE” CANCIO, SR., Respondent. 3rd District.

Contracts -- Limitation of actions -- Action for breach of contract filed against estate of plaintiffs' deceased aunt and uncle alleging entitlement to “incentive money” which was initially supposed to be given to the plaintiffs for each year of college they completed pursuant to incentive program initiated by the deceased, but which was never distributed and which plaintiffs assumed was being kept under loan-back provision which stated that plaintiffs could loan the funds back to the deceased to accrue 10% interest, compounded monthly, that plaintiffs could then collect at their discretion -- No error in entering final summary judgment in favor of defendant estate -- For each installment of incentive money, the right to obtain it vested when each plaintiff completed a year of college, and thus the statute of limitations began to run when each installment was due -- Because plaintiffs did not bring action against estate until more than five years after they had each completed their last year of college, their actions were barred by the statute of limitations -- Court rejects argument that statute of limitations would begin to run only if plaintiffs' demands for payment were denied -- Lend-back provision of contract required plaintiffs to communicate their election of the provision to the deceased -- Because neither plaintiff communicated their election of the lend-back provision the provision was not invoked -- Even assuming lend-back provision had been triggered, contract ended one year after each plaintiff's respective graduation. JOHN P. WOODWARD, and ROBERT C. WOODWARD, Appellants, v. TIMOTHY J. MORELL, in his capacity as Personal Representative of THE ESTATE OF MILDRED W. OLSON, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Modification -- Change in circumstances -- Magistrate's report and recommendation -- Former husband's modification petition seeking change in parental responsibility and time-sharing based, in part, on incidents involving former wife and her boyfriend -- Evidence supported magistrate's finding that there had been a substantial change in circumstances based on former wife's behaviors, her relationship with her boyfriend, and removal of children from former wife's “temporary care” during a dependency case -- Evidence supported magistrate's conclusion that, while removal of children from former wife during dependency proceedings was temporary, a substantial change in circumstances had occurred based on former wife's volatile relationship with her boyfriend which continued beyond the conclusion of dependency proceedings -- Trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting wife's exceptions to magistrate's report on that basis -- Remand with directions to enter order adopting report and recommendations of magistrate. P.D.V-G., Appellant, v. B.A.V-G., Appellee. 2nd District.

Dissolution of marriage -- Injunctions -- Freezing accounts -- Trial court abused its discretion by exceeding the scope of wife's requested relief for a freeze of marital accounts when it ordered husband's individual bank accounts to be placed in both parties' names -- Issue was not tried by consent. AJAY KUMAR DODDAPANENI, Appellant, v. CANDACE ELAINE DODDAPANENI, Appellee. 5th District.

Dissolution of marriage -- Magistrates -- Report and recommendations -- Exceptions -- Trial court abused its discretion by summarily denying former wife's exceptions to magistrate's report and recommendations based upon wife's failure to file transcript of hearing before the magistrate within 45 days allotted and ordered by court -- Hearing on exceptions is mandatory, and transcript is required only “if necessary for the court's review” -- Where exceptions raise pure issues of law, such as whether magistrate's report and recommendations improperly modified parties' property rights as previously determined by final judgment of dissolution, transcript would not be necessary -- Remand for trial court to hold hearing and consider exceptions on the merits. ROSEMITA JEAN, Appellant, v. JOSUE JEAN, Appellee. 2nd District.

Insurance -- Coverage -- Venue -- Forum selection clause -- Ambiguity -- Trial court erred in transferring action to Miami-Dade County where automobile insurer has its headquarters based on determination that policy's forum selection clause, which stated that any legal action against insurer to determine coverage under the policy “shall be filed and maintained in the county where the policy was issued,” mandated exclusive venue in that county -- Forum selection clause in policy is reasonably interpreted as not restricting venue to Miami-Dade County where policy failed to define “issued” and contained no terms expressly mandating venue exclusively in Miami-Dade County. THOMAS ROBLES, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. 1st District.

Insurance -- Homeowners -- Appraisal -- Trial court did not err in determining that policy's appraisal provision clearly and unambiguously applied to claim by insured's assignee for water mitigation services -- Policy provided that either party could demand appraisal to resolve “disagreement regarding the amount of the covered loss,” and it was undisputed that water mitigation services performed by assignee were part of the amount of the covered loss. EXPRESS DAMAGE RESTORATION, LLC, etc., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Insurance -- Homeowners -- Preferred Contractor Endorsement -- Where insurer elected to repair hurricane damage to insured home under Preferred Contractor Endorsement, and insured failed to provide a compliant sworn proof of loss and completed his own repairs to home, thereby preventing insurer from completing repairs under Preferred Contractor Endorsement, trial court erred in entering judgment requiring insurer to pay appraisal amount -- Insured breached policy by failing to fulfill post-loss obligations and hiring his own contractor to perform repairs. PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. ALEJANDRO AMARO, Appellee. 3rd District.

Mortgage foreclosure -- Relief from judgment -- Void judgment -- Foreclosure judgment in favor of junior mortgagee was properly found to be void as to senior mortgagee whose mortgage had been recorded before that of junior mortgagee -- Trial court erred in finding that motion to vacate judgment was not timely filed, as party may move to vacate void judgment at any time -- However, order denying motion to vacate judgment is affirmed, as section 702.036, Florida Statute, barred court from vacating judgment where vacation of judgment would adversely impact quality and character of title of property which had been purchased by third parties after foreclosure sale. WELLS FARGO BANK, N.A., Appellant, v. CHI PENG TAN, BANK OF AMERICA, N.A., as assignee of FIRST MAGNUS FINANCIAL CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Acting solely as Nominee for FIRST MAGNUS FINANCIAL CORPORATION, an Arizona Corporation, SCHINDLER ELEVATOR CORPORATION, SOUTHERN CONSTRUCTION SERVICES, INC., PRECISION U.S.A., INC., PARK TOWER ASSOCIATION, INC., NISSIM SHANI and MICHELE SHANI, Appellees. 4th District.

Torts -- Automobile accident -- Comparative negligence -- Summary judgment -- Appeals -- Mootness -- Action brought against plaintiffs' insurer to recover damages stemming from two separate rear-end collisions involving plaintiffs within a two-week period -- Argument that trial court erred by not granting plaintiffs' motion for summary judgment on issues of liability and plaintiff driver's comparative negligence in causing the accidents is moot where issues were tried before a jury, and evidence authorized jury's verdict -- Argument that evidence was insufficient to allow jury to apportion negligence to plaintiff driver for failing to mitigate his business losses and his pain was not preserved for appeal where plaintiffs failed to move for a directed verdict on issue at close of evidence at trial -- Even if trial court improperly allowed mitigation factors to enter comparative negligence equation, result appears to be harmless where jury's apportionment of negligence to plaintiff driver can be attributed to evidence that plaintiff driver helped cause rear-end collisions by driving forward then suddenly stopping his vehicle. ROY STRICKLAND and KATHRYN STRICKLAND, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. 1st District.

Torts -- Automobile accident -- Rear end collision -- Successor judge who did not preside over trial erred in granting directed verdict in favor of defendant where there was competent substantial evidence to support jury's verdict that defendant was negligent and to support jury's rejection of defendant's defense that he unexpectedly lost consciousness or experienced syncope prior to collision. KAREN HERNANDEZ, etc., Appellants, v. SHULI ANDREW MISHALI, Appellee. 3rd District.

Torts -- Discovery -- Plaintiff failed to meet his burden to establish reversible error in trial court's order granting defendant's motion for protective order and denying plaintiff's motion to compel depositions where plaintiff has failed to provide transcript of hearing during which discovery motions were discussed -- Summary judgment -- Claim that trial court erred in denying plaintiff's motion to continue summary judgment hearing was not preserved for appellate review where plaintiff never obtained an order denying his motion to continue hearing. HENRY TIEN, Appellant, v. AKERMAN LLP (and the terminated AKERMAN, SENTERFITT & EIDSON, P.A.), Appellees. 3rd District.

Torts -- False arrest -- Municipal corporations -- Trial court properly entered summary judgment for defendant city on claim of false arrest where city police officers had probable cause to arrest plaintiff for obstruction without violence -- Where plaintiff had been called by police to pick up her son who was being detained for trespassing at a theater, after arriving at scene plaintiff continued to videotape and audiotape officers after being told to stop and obstructed officers' investigation and processing of her son's detention, there was probable cause for her arrest for obstruction without violence. SHARRON TASHA FORD, Appellant, v. CITY OF BOYNTON BEACH, a Florida municipal corporation, Appellee. 4th District.

Torts -- Jurors -- Challenge -- Trial court erred in denying plaintiff's motion to excuse prospective juror who specifically stated that his previous negative experience with a similar type of claim in an accident involving juror's son made it difficult for juror to remain impartial in his evaluation of facts and evidence in plaintiff's case -- Juror's later answer that he would keep an open mind because “every case is different” was not sufficient to rehabilitate juror -- New trial required where plaintiff was forced to use peremptory challenge against this prospective juror and trial court later denied plaintiff's request for additional peremptory challenge of juror over whom plaintiff expressed concern. ALEJANDRA RIVAS, Appellant, v. ALICIA SANDOVAL, Appellee. 3rd District.

Torts -- Negligence -- Excessive use of force -- Duty of care -- Amendment of complaint -- Appeals -- Action alleging that detention officers used excessive force during incident in which plaintiff was restrained and seriously injured after inmate medical services failed to conduct a mental evaluation -- Trial court erred in dismissing negligence counts against sheriff -- Plaintiff alleged an independent, common law duty of reasonable care by sheriff and the detention officers charged with his supervision -- Although plaintiff's negligence count did reference sheriff's use of force policy which does not create an independent duty of care, plaintiff's complaint stated a cause of action against sheriff for negligently failing to fulfill its independent duty of care because the detention officers allegedly used excessive force -- Sovereign immunity does not bar action against sheriff where allegations appear to be regarding sheriff's negligence in performance of established duties and failure to follow the policies already established -- These are operational level activities for which sheriff is not immune from suit -- No error in dismissing negligence claims against inmate medical services which alleged that inmate medical services had breached duties imposed upon it through its contract with the sheriff -- Contract clearly provides that it creates no right or cause of action to a third party -- Plaintiff waived any claim that he was entitled to amend his complaint for a third time because he failed to request leave to amend before or after court dismissed the complaint. CHARLES WILLIAMS, Appellant, v. GREGORY TONY, as Sheriff of Broward County Florida, ARMOR CORRECTIONAL HEALTH SERVICES, INC., and WANDA LOWES, R.N., Appellees. 4th District.

Torts -- Product liability -- Restaurants -- Service of contaminated food -- Action alleging that raw oysters served by defendant was legal cause of plaintiff's Guillain-Barré Syndrome -- Trial court erred in granting defendant's posttrial motion for entry of judgment in accordance with defendant's motion for directed verdict, which had been filed in a prior trial that had resulted in a deadlocked jury, based on determination that plaintiff's expert's testimony was based on impermissible inference stacking -- Defendant was required to move for directed verdict during second trial where parties did not stipulate that defendant's motion for directed verdict made during the prior trial would carry over to the second trial -- Additionally, motion for directed verdict made in prior trial could not apply to second trial where inferences identified by defendant in its motion in limine, which served as the premise for the motion for directed verdict, were stipulated facts in second trial -- While the legal theory might have been the same, the evidence upon which it would have been based was different -- Even if trial court could have considered posttrial motion for judgment in accordance with the motion for directed verdict, the trial court misapplied law with regard to directed verdicts -- Trial court's findings improperly evaluated testimony in favor of the moving party rather than the nonmoving party, and either disregarded conflicts in the evidence or resolved them in favor of defendant -- There was no stacking of inferences in this case -- Singular inference made by plaintiff's expert was the ultimate conclusion that GI infection, the stipulated cause of which was defendant's defective food, caused plaintiff's GBS -- Because plaintiff's expert did not simply provide a summary conclusion without a factual basis, jury was entitled to determine that the defective food was the legal cause of plaintiff's GBS. ANGEL MARTINEZ and MARIA ELENA MARTINEZ, Appellants, v. LOBSTER HAVEN, LLC, Appellee. 2nd District.

Wrongful death -- Nursing homes -- Arbitration -- Selection of arbitrator -- Appeals -- Certiorari -- Petition seeking review of order compelling plaintiff to select a nominating arbitrator to act along with defendant's chosen nominating arbitrator for the single purpose of selecting a sole arbitrator in plaintiff's action against defendant -- Trial court departed from essential requirement of the law in rewriting parties' agreement in defendant's favor by allowing defendant to choose a nominator despite having forfeited its right to do so by missing the express deadline set forth in its own residency agreement -- Trial court's conclusion that plaintiff's arbitrator selection was somehow impermissible because it was transmitted near the end of the business day on the day it was due is not supported by the agreement or any legal authority -- Relief granted by trial court was not appropriate under either section 682.031 or 682.04 where defendant presented no good cause to rewrite agreement, and parties' chosen method of appointing arbitrators did not fail -- Because plaintiff will be able to challenge eventual arbitration award on appeal, it cannot establish irreparable harm -- Petition denied. THE ESTATE OF GRACE QUINN, by and through BARBARA ECK, Personal Representative, Petitioner, v. CCRC OPCO FREEDOM SQUARE LLC; BKD TWENTY-ONE MANAGEMENT; BROOKDALE SENIOR LIVING, INC.; and SHELLY CRADDOCK, ADMINISTRATOR, (AS TO THE INN AT FREEDOM SQUARE), Respondents. 2nd District.

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Dissolution of marriage, personal injury, Bosc pears with herbed goat cheese, creamy angel hair pasta with shrimp and rosemary

 Appeals -- Certiorari -- Discovery orders -- Mortgage foreclosure -- Circuit court order allowing defendant to videotape deposition of substituted plaintiff's corporate representative but prohibiting petitioner from disseminating the video -- Petition dismissed for failure to demonstrate irreparable harm that cannot be remedied on direct appeal -- With respect to argument that lower court's order unconstitutionally gagged petitioner's speech, it is settled law that there is no First Amendment right of access to pretrial discovery materials. MARTHA L. VALENCIA, Petitioner, v. PENNYMAC HOLDINGS, LLC, et al., Respondents. 3rd District.

Appeals -- Order denying motion for reconsideration and rehearing of non-final order compelling arbitration is not an appealable order and does not toll rendition of an appealable order -- Appeal dismissed. MONICA SAMARA, Appellant, v. TENET FLORIDA PHYSICIAN SERVICES, LLC, etc., et al., Appellees. 3rd District.

Consumer law -- Warranties -- Magnuson-Moss Warranty Act -- Federal Trade Commission's “single document rule,” which requires that a warrantor disclose certain warranty-related items of information clearly and conspicuously in a single document, does not require disclosure of a binding arbitration agreement. LES KROL, Petitioner, v. FCA US, LLC, et al., Respondents. Supreme Court of Florida.

Dissolution of marriage -- Attorney's fees -- Appeals -- Non-final orders -- Portion of judgment determining entitlement to attorney's fees without determining amount is non-final and non-appealable. FLOYD MARLAND TYSON, Appellant/Cross-Appellee, v. TONYA P. TYSON, Appellee/Cross-Appellant. 1st District.

Dissolution of marriage -- Attorney's fees -- Trial court abused its discretion by denying former wife's motion for attorney's fees without making any findings as to former wife's need and former husband's ability to pay -- Even if trial court had intended to sanction former wife for her actions during litigation by making her pay her own fees, as argued by former husband, the fee order must contain sufficient findings to support the trial court's decision -- Where there was no finding by trial court of bad faith on former wife's part, there was no basis on which the court could have denied former wife's motion for attorney's fees on basis of inequitable conduct doctrine. JULIE SHAW, Appellant, v. ROBERT MARK SHAW, Appellee. 1st District.

Dissolution of marriage -- Contempt -- Settlement agreement -- Modification -- No error in holding former husband in contempt for failing to deliver child's passport as required by parties' mediated settlement agreement and parenting plan where findings were supported by competent, substantial evidence that former husband willfully refused former wife's reasonable request for passport -- Purge provision which requires former husband “to comply with former wife's prospective written requests for the child's passport” did not modify agreement's provision that request be reasonable. THOMAS EARL HARRINGTON, III, Appellant, v. JEANETTE MARIE POSPISHIL, f/k/a JEANETTE MARIE HARRINGTON, Appellee. 4th District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Home owned prior to marriage was properly considered a marital asset where debt incurred during marriage as result of advances from equity lines of credit secured by home used to fund family business dwarfed estimated premarital value, and marital income was used to satisfy repayment of the obligations -- Unequal distribution based on intentional misconduct of husband in secreting and dissipating assets, all purportedly in preparation for future dissolution filing, was supported by competent, substantial evidence, and valuations of marital property were grounded upon expert opinion -- Alimony -- Given evidence regarding length of marriage, needs of wife, and disparity in income and earning ability, along with lavish marital lifestyle, there was no abuse of discretion in retroactive and ongoing alimony awards. CELSO CORRALES, Appellant, v. JEANETTE CORRALES, Appellee. 3rd District.

 

Dissolution of marriage -- Jurisdiction -- Default -- Out of state service of process on husband was valid to confer jurisdiction on court although return did not list time of day that service was effected -- Amended statute removes requirement that out of state return of service forms include the time, manner, and place of service -- Trial court did not err in entering default judgment dissolving marriage, but it was error to determine child custody by default -- Best interest of child standard precludes determination of child custody based on parent's default. KEVIN CHRISTOPHER CORRIDON, Appellant, v. GRACE-ELIZABETH CAROLYN CORRIDON, Appellee. 3rd District.

Dissolution of marriage -- Marital home -- Sale -- Distribution of proceeds -- Prejudgment interest -- Trial court's factual determinations relating to distribution of sale proceeds, which took into consideration former husband's mortgage, insurance, and tax payments that former wife was required to make, were supported by competent substantial evidence -- Former wife was afforded due process -- Court lacks jurisdiction to address portion of order determining that former husband is entitled to attorney's fees where order merely grants entitlement to fees without liquidating the amount -- Trial court erred by awarding prejudgment interest to former husband for the total amount of his mortgage, insurance, and tax payments -- Prejudgment interest should be calculated separately for each payment made by former husband that, pursuant to settlement agreement, should have been made by former wife. DULCE SCHUENZEL, Appellant, v. JOHN SCHUENZEL, Appellee. 3rd District.

Insurance -- Bad faith -- Denial of coverage -- Failure to defend -- Assignment of claim -- Limitation of actions -- Action brought against insurance company after plaintiff and insured entered into Coblentz settlement, assigning plaintiff the right to collect judgment against insurer -- Error to enter summary judgment in favor of insurer based on finding that plaintiff's action was barred by statute of limitations because insured, whose claim plaintiff asserted, was required to file action against insurer within five years of denial of coverage -- Statute of limitations began to run not at time insurer refused to cover or defend insured, but at time plaintiff's bad faith claim became cognizable. LARRY D. BUTLER, Appellant, v. FLORIDA PENINSULA INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Homeowners -- Conditions precedent -- Failure to comply -- Waiver -- Insurer waived its defense that insured failed to comply with conditions precedent where insurer failed to plead non-compliance with specificity as required by rule 1.120(c). JUAN SAAVEDRA, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 5th District.

Insurance -- Homeowners -- Water damage -- Error to enter summary judgment in favor of insurer where disputed issues of material fact remain as to whether covered peril caused opening in door of home, allowing rain water to enter and damage interior. YOANI FERNANDEZ and YADIRA SOMOZA, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Paternity -- Contempt -- Failure to pay attorney's fee award -- Remand for trial court to make required findings as to whether failure to pay was willful and whether he has the present ability to pay fees as ordered. JAMES LESTER WILLIAMS, JR., Appellant, v. JAMAI F. SAMUELS, Appellee. 2nd District.

Torts -- Personal injury -- Dismissal -- Fraud on the court -- Trial court abused discretion by setting aside jury verdict in plaintiff's favor and dismissing case based on plaintiff's giving of inconsistent testimony regarding prior medical treatment -- Inconsistent testimony was known to defense counsel and was tested via cross-examination so that jury was able to determine whether plaintiff had lied or provided a reasonable explanation -- Defense counsel could have sought pretrial or in-trial remedy, but made tactical decision to present issue to jury, and jury returned verdict in favor of plaintiff despite inconsistencies. JEAN CARLOS SALAZAR, Appellant, v. MIGUEL ROGELIO GOMEZ, Appellee. 3rd District.

 

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Fiduciary duties, contempt, marital liabilities, and coffee-garlic marinated bison with grilled fennel and rosemary

Contracts -- Real property -- Escrow agent -- Fiduciary duty -- Action against defendant escrow agent alleging that defendant breached fiduciary duty owed to plaintiff by distributing escrow funds to third-party developer for purposes not authorized in purchase agreement between developer and plaintiff, but which were authorized in escrow agreement between developer and defendant -- No error in granting summary judgment in favor of defendant -- There was no genuine issue of material fact about whether plaintiff's counsel negotiated, or had authority to negotiate, the escrow agreement -- Counsel's authority to negotiate terms of escrow agreement was immaterial to plaintiff's claims because defendant owed no duty to plaintiff who was not a party to the escrow agreement -- No genuine issue of material fact existed as to whether defendant had authority to disburse the escrow funds -- Fact that escrow agreement had not been fully executed when funds were transferred did not alter defendant's obligations as escrow agent because defendant's execution of the escrow agreement was not a condition precedent to implementing the terms of the agreement. CARTER DEVELOPMENT OF MASSACHUSETTS, LLC, Appellant, v. G. ALAN HOWARD and MILAM HOWARD NICANDRI DEES & GILLAM, P.A., Appellees. 1st District.


Dissolution of marriage -- Contempt -- Trial court erred by holding former husband in contempt for failure to pay alimony and child support pursuant to a marital settlement agreement entered into by parties in a dissolution action five years earlier which had been dismissed without the court having approved or adopted the agreement -- Trial court's conclusion that doctrine of laches has been abolished in Florida is legally incorrect -- Terms of settlement agreement may not be enforced nunc pro tunc five years later via contempt, as opposed to enforcement in an ordinary civil money judgment for the months of non-compliance prior to filing of current dissolution action. VINCENT J. THILLOY, Appellant, v. ANN M. CICCONE-CAPRI, Appellee. 3rd District.


Dissolution of marriage -- Equitable distribution -- Marital liabilities -- Loans -- Trial court erred in ruling that former wife had no obligations as to a loan given to the parties by former husband's mother during the marriage -- Trial court must treat the debt as a marital liability and order distribution of it accordingly where trial court made no finding of misconduct, failed to consider the factors listed in section 61.075(1), and failed to articulate a sufficient justification to allocate the loan solely to former husband -- On remand, trial court need not make any determinations as to the true value of the promissory note securing the loan where issue was not previously put before the trial court. DENNIS K. BURNS, Former Husband, Appellant, v. CYNTHIA S. COLE, Former Wife, Appellee. 1st District.


Dissolution of marriage -- Judgment -- Trial court, under facts of case, did not abuse discretion in adopting wife's proposed final judgment where both parties were represented by counsel, husband was given a copy of wife's proposed final judgment, trial court signed wife's proposed final judgment two-and-a-half months after receiving competing orders, husband raised no objections to proposed judgment, and trial court's hand-written notations on judgment before signing it implicate court's independent evaluation of submitted findings -- Record supports conclusion that trial court exercised independent decision-making where court actively participated in final hearing -- Moreover, husband, who failed to raise an objection to wife's proposed final judgment on rehearing, cannot for first time on appeal raise an objection to proposed final judgment based upon court's “virtually verbatim” adoption of proposed judgment -- Child custody -- Trial court abused discretion in awarding sole parental responsibility to wife where wife did not request sole parental responsibility and there is no “logical or reasonable justification” for award that would support conclusion that shared parental responsibility was detrimental to minor children -- On remand, trial court is instructed to amend final judgment to award shared parental responsibility, and to remove all findings and inflammatory remarks related to issue of parental responsibility -- Domestic violence injunction -- To extent final judgment grants wife what amounts to a de facto domestic violence injunction against husband, trial court acted without proper statutory authority where record is devoid of any facts showing wife had standing to file petition for domestic violence or showing husband was provided notice and hearing before entry of injunction -- Life insurance -- Trial court erred in requiring husband, who is receiving child support, to name wife as beneficiary to his existing life insurance, absent appropriate circumstances requiring him to maintain such policy -- Husband's advanced age of seventy with two minor children does not qualify as a special or appropriate circumstance. BENJAMIN A. MUSGRAVE, Appellant, v. LYNN M. MUSGRAVE, Appellee. 2nd District.


Dissolution of marriage -- Property settlement agreement -- Enforcement -- Jurisdiction -- Scope of family court's continuing jurisdiction -- Family court judge erred in awarding money damages for husband's breach of parties' settlement agreement where the agreement did not specify the damages sought by former wife and awarded by the court -- Award of damages for husband's delayed delivery of stock and failure to deliver accurate tax information, together with injunction intended to secure the payment of those damages, reversed. TODD KOZEL, Appellant, v. ASHLEY D. KOZEL, Appellee. 2nd 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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