Prescriptive easements, wrongful death, contracts and green curry lentil soup with shaved coconut

Appeals -- Jurisdiction -- District court -- Appeal from nonfinal order of county court ordering arbitration in small claims litigation and staying action until arbitration was completed, which appeal was transferred from circuit court to district court following statutory change in circuit court's appellate jurisdiction -- Motion to dismiss appeal, which was pending in circuit court at time of transfer and was premised on circuit court's lack of jurisdiction to review nonfinal orders, is denied, as district court has jurisdiction to hear appeal from nonfinal order compelling arbitration. DAVID L. MALLORY and PAULINE MALLORY, Appellants, v. ROBERT BRINCKERHOFF, individually, and MORGAN STANLEY SMITH BARNEY LLC, Appellees. 4th District.

Child custody -- Modification -- Competent substantial evidence supported trial court's modification of time-sharing -- Trial court did not abuse its discretion by giving mother ultimate decision-making authority as to medical issues if parties were unable to agree where court found that parties did not communicate and that their relationship was beyond acrimonious and considered other factors relating to father's conduct in connection with child's health care and knowledge of details concerning child's health care. CASSIO S. AIALA, Appellant, v. JAIME R. LARKIN, Appellee. 4th District.

Civil procedure -- Default -- Relief from judgment -- Appeals -- Timeliness -- Appeal of order denying motion to set aside default is dismissed as untimely -- Motion for rehearing of order did not toll the time for the filing of notice of appeal. KEVIN RHODY, Appellant, v. VEECO INSTRUMENTS, INC., Appellee. 5th District.

Civil procedure -- Default -- Vacation -- Trial court abused discretion in denying motion to vacate clerk's default where, prior to entry of default, there was correspondence between counsel for parties that indicated that defendant was represented by counsel and intended to defend suit. ACE FUNDING SOURCE, LLC, Appellant, v. A1 TRANSPORTATION NETWORK, INC., Appellee. 3rd District.

Civil procedure -- Summary judgment -- Affidavit in opposition to motion -- Declaration -- Where declarations submitted in opposition to summary judgment were based upon personal knowledge and sworn under penalty of perjury, and motion to exclude these documents was not made until summary judgment hearing, trial court erred in denying movant's motion for continuance to correct technical differences between a declaration and an affidavit in opposition -- Whether declarations, which are admissible under federal rules of civil procedure, are admissible in Florida summary judgment proceedings need not be decided in instant case. MICHAEL KING, Appellant, v. STANISLAV ZASLAVSKIY, Appellee. 3rd District.

Condominiums -- Assessment liens -- Foreclosure -- Damages -- Trial court erred when it adjudicated amount of damages owed to condominium association as a matter of law where there were genuine issues of material fact as to whether association was estopped from seeking pre-purchase assessments, fees, and costs based on purported representations regarding amount of outstanding assessments made by association's manager and president prior to defendant's purchase of unit. SVI TRUST, Appellant, v. WILLIAMS WALK CONDOMINIUM ASSOCIATION, INC., Appellee. 1st District.

Contracts -- Noncompete agreement -- Injunctions -- Temporary -- Temporary injunction order is facially deficient because it fails to include specific findings on each of the four required elements needed for issuance of an injunction -- Trial court erred in setting bond amount without conducting an evidentiary hearing. JOHN THOMAS PHELAN, JR., Appellant, v. TRIFACTOR SOLUTIONS, LLC, Appellee. 2nd District.

Corporations -- Injunctions -- Temporary -- Bond -- Replevin -- Monies -- Appeal of non-final orders denying defendants' motion for prejudgment replevin seeking to recover corporate funds that were intercepted by plaintiff and deposited in an undisclosed bank account, and granting a temporary injunction in favor of plaintiff which required defendants to provide plaintiff with health insurance -- Trial court erred in issuing temporary injunction where plaintiff did not request injunctive relief requiring the provision of health insurance -- An injunction entered in the absence of proper pleading and without an evidentiary hearing is a violation of due process -- Furthermore, injunction did not meet requirements of rule 1.610 -- Error to require plaintiff to pay bond without holding an evidentiary hearing -- While replevin was not available to recover deposited funds, defendants are entitled to possession of the checkbook and check card of the bank account where the funds were deposited -- Defendants established an immediate right to possession of the check card and checkbook where the bylaws of defendant corporation provided that the treasurer shall retain custody of corporate funds, and annual report shows that one of defendants was the treasurer -- Trial court improperly reasoned that alleged set-offs between plaintiff and defendants made forcing prejudgment conveyance of monies premature -- Recourse for potential set-off is money damages, not retention of property subject to replevin -- Additionally, trial court erred in analyzing defendant's motion for replevin under section 78.068 -- Section 78.068 was inapplicable because there was notice and hearing. THOMAS G. HINNERS, MARY J. WAMSER, and FLORIDA AFFORDABLE HOUSING, INC., Appellants, v. BRIAN J. HINNERS, Appellee. 4th District.

Dissolution of marriage -- Child support -- Income -- Requirement that former husband pay private school tuition for the parties' children reversed where evidence did not support former husband's ability to pay -- Trial court erred in failing to deduct rehabilitative alimony award from former husband's gross income for purposes of computing child support. RAMIZ MAALI, Appellant, v. GHARAM MAALI, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Businesses -- Valuation -- Goodwill -- Alimony -- No competent, substantial evidence supported trial court's valuation of the parties' insurance company -- Trial court's exclusion of company's liabilities in its determination of fair market value led to significant overvaluation of the company in equitable distribution plan -- Trial court's valuation of former husband's personal goodwill was not supported by competent evidence -- Expert's analysis of selected insurance company transactions contained in database and the reported values of the related noncompete clauses did not provide competent evidence to support trial court's determination of the amount of former husband's personal goodwill in company where expert did not provide any specific knowledge about the particulars of the insurance businesses that reported transactions in the database; did not disclose whether the owners of those businesses also sold insurance as former husband did; how involved the owners of those businesses had been with the companies; or anything about the day-to-day operations of those businesses -- Additionally, record showed that many transactions expert analyzed took place outside Florida, with some dating back almost twenty years -- Trial court erred in determining that former husband had the ability to pay amount of alimony awarded because, when determining former husband's gross income, trial court erroneously included all undistributed pass-through income from insurance company. MALCOLM C. KING JR., Appellant, v. KELSI KING, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/nonmarital assets -- Valuation -- Liabilities -- Alimony -- Trial court erred in classifying personal injury settlement funds received during the marriage as former husband's nonmarital asset where former husband did not overcome statutory presumption that the funds were marital in nature -- Although it was former husband and not former wife who was injured in accident underlying personal injury settlement, that fact alone does not transform the nature of the funds from marital to nonmarital -- Trial court abused its discretion by including the personal injury funds in equitable distribution because they had been dissipated by the time of the dissolution hearing and there was no evidence that dissipation resulted from either party's intentional misconduct -- Trial court abused its discretion by awarding marital home, which was parties' only significant remaining marital asset, to former husband without making any specific finding of fact to justify the unequal distribution of the marital residence -- On remand, trial court should reconsider both the unequal distribution of the marital home as well as the award of credit to former husband for postseparation payments on the marital home where trial court gave no reason for awarding the former husband a credit for half of mortgage payments made since date of parties' separation -- Absent evidence to support former wife's passive-appreciation argument, former wife failed to establish an abuse of discretion in trial court's selecting of the parties' date of separation as the valuation date of the marital home based on finding that parties had been separated for three years, and that former husband had remained in the home making improvements without assistance from former wife -- Error to treat vehicle title loan taken out by former husband as a marital liability because former husband incurred the debt after petition for dissolution was filed -- Error to decline to award alimony to former wife without making statutorily required findings regarding need and ability to pay. MARY P. ROTH, Appellant, v. MARTIN R. ROTH, Appellee. 2nd District.

Dissolution of marriage -- Interim partial equitable distribution -- Roth and traditional IRAs -- Trial court erred by distributing parties' traditional IRA where neither party requested its distribution and there was no good cause to support it. BRIAN CALVARESE, Appellant, v. JOANNE KENNEDY CALVARESE, Appellee. 4th District.

Dissolution of marriage -- Marital settlement agreement -- Enforcement -- Contempt -- Failure to make lump sum alimony payments to spouse as required by marital settlement agreement -- Trial court erred in finding husband in contempt for failing to make lump sum alimony payments because, under MSA's plain language, payments were non-modifiable alimony payments to effect the equitable distribution of marital property and therefore not subject to enforcement by contempt -- Trial court erred in considering parol evidence regarding parties' intent where language of MSA was unambiguous -- Trial court properly found that former wife's claim was not barred by laches. ANDRES SUAREZ, Appellant, v. ELSA SUAREZ, Appellee. 3rd District.

Injunctions -- Contempt -- Trial court abused its discretion by finding that respondent was in contempt of injunction every time respondent traveled to respondent's property because the action brought respondent within 500 feet of petitioner's property -- Because original trial court's ore tenus explanation of its order imposing the injunction implied that respondent would not violate the 500-foot perimeter by merely passing petitioner's property while traveling through the neighborhood, injunction could not have effectively noticed respondent that said conduct would be prohibited. FRANCES OGDEN, Appellant, v. DONNA MINDREBO, Appellee. 1st District.

 Injunctions -- Domestic violence -- Due process -- Error to grant injunction for protection against domestic violence solely on basis of objected-to testimony that was not the subject of the petition for injunction. SKYLER P. WYNTER, Appellant, v. JAELYN GUTIERREZ, Appellee. 5th District.

Injunctions -- Mandatory -- Portion of injunction requiring respondent to immediately perform remediation measures is reversed where parties did not have a full opportunity to present their evidence on remediation issue -- Furthermore, remediation provision is deficient in that it fails to describe with reasonable detail the act or acts required to comply with the injunction. CENTER STATE TRANSPORTATION, INC., Appellant, v. MOTOR TREND ORLANDO SERVICE, LLC, Appellee. 5th District.

Insurance -- Bad faith -- Civil remedy notice -- Deficient notice -- No error in dismissing complaint against insurer based on finding that insured's civil remedy notice, which cited thirty-five statutory provisions and listed nearly every provision in insurance policy, failed to satisfy statutory requirement that an insured state with specificity the policy language and statutory provisions at issue -- Court rejects argument that notice was sufficient because the Department of Financial Services has statutory authority to return deficient notices but failed to do so -- Department's discretionary grant of authority did not determine the legality of the notice, nor is there evidence that the department even considered the issue -- Even if department made specific determination about notice's legality, the courts must independently review the notice. JUNIOR JULIEN, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Insurance -- Personal injury protection -- Civil procedure -- Discovery -- Non-parties -- Action seeking declaration that plaintiff is entitled to recover from defendant insurer payments made by plaintiff's assignors that should have been made by insurer -- Trial court departed from essential requirements of law in finding that insurer had no standing to challenge plaintiff's non-party discovery requests where items sought belong to insurer pursuant to master agreement between insurer and non-party. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Insurance -- Personal injury protection -- Declaratory action seeking declaration that plaintiff is entitled to recover from PIP insurer payments made by plaintiff's assignors that should have been made by insurer -- Jurisdiction -- Prohibition -- Petition for writ of prohibition seeking to prohibit court from exercising jurisdiction denied -- Where circuit court has jurisdiction of count of complaint for pure bill of discovery, court has jurisdiction of other counts which are limited to less than circuit court jurisdictional threshold -- Appeals -- Certiorari -- Discovery -- Defendant is not entitled to writ of certiorari to review order denying motion for protective order, as defendant has not demonstrated requisite irreparable harm. GEICO CASUALTY COMPANY, et al., Petitioners, v. MSP RECOVERY CLAIMS, et al., Respondents. 3rd District.

Mortgage foreclosure -- Conditions precedent -- Notice of default -- Error to enter summary judgment in favor of lender because issue of fact remains regarding whether lender complied with standard notice requirements contained in paragraphs 15 and 22 of mortgage -- Copy of default letter and unauthenticated “letter log history file” attached to motion for summary judgment were insufficient to prove that letter was mailed to borrower. MICHAEL J. PARKIN, JR., Appellant, v. EAGLE HOME MORTGAGE, LLC, Appellee. 5th District.

Nursing homes -- Residents' rights -- Settlement of daughter's action against nursing home concerning access to her 92-year-old mother -- Trial court acted reasonably in addressing daughter's concerns regarding enforcement of access provisions of settlement agreement in light of executive and administrative orders curtailing that access because of COVID-19 pandemic. ELIZABETH SNYDER, as the daughter and authorized agent of Judith Goldstein, Appellant, v. MERIDIAN PARK VILLAGE LIMITED PARTNERSHIP, Appellee. 4th District.

Patents -- Licensing -- Infringement -- Jurisdiction -- Subject matter -- Action brought by plaintiff with exclusive license to third-party patents used to create software stating causes of action against defendant for unjust enrichment for benefiting from its patrons' use of software that violates plaintiff's exclusive license; temporary and or permanent injunctive relief to enjoin defendant's violations of its exclusive rights; conversion by way of receiving illicit compensation for the unauthorized use of plaintiff's software; and violations of Florida's Deceptive and Unfair Trade Practices Act -- Trial court erred in dismissing complaint based on determination that it did not have subject matter jurisdiction because plaintiff's claims necessarily required a determination of the scope, validity or infringement of a patent -- Where it is clear that none of plaintiff's claims are created by federal law, those claims must meet all four factors set forth in Gunn v. Minton for federal court to have exclusive jurisdiction over plaintiff's proffered state law claims -- All of plaintiff's claims necessarily raise an issue of federal law where trial court would be required to evaluate the validity and scope of the patents to some extent -- Appellate court is unable to determine whether an issue of patent or copyright law is “actually disputed” because no answer has been filed to the complaint -- Defendant's anticipatory belief that an issue of federal law will be “actually” disputed is not sufficient -- Issue of patent infringement, while necessarily raised, is not substantial enough to confer federal jurisdiction over state law claims where deciding a pure issue of federal law will not be dispositive to any of plaintiff's four causes of action; trial court's resolution will not control numerous other cases; and, because the resolution of the case will not control numerous other cases, the government has no direct interest in the dispute between the parties -- Because issues of federal law within the four counts were not substantial, court also finds that bringing these claims in federal court would disrupt Congress's intended division of labor between state and federal courts. POINT CONVERSIONS, LLC, Appellant, v. WPB HOTEL PARTNERS, LLC, Appellee. 4th District.

Real property -- Prescriptive easement -- Motion to enforce judgment -- Appeals -- Non-final orders -- Appeal of interim order which had found a prescriptive easement appurtenant but did not determine whether to enforce prescriptive easement in final judgment -- To extent interim order was appealable based on theory that it determined immediate possessory rights to the easement, appellant had thirty days to appeal from it as a nonfinal order -- To the extent the trial court's interim order either was not appealable at all or was not timely appealed, it still would have been subject to review on appeal from the final order disposing of the motion to enforce the final judgment -- Since neither party appealed final order and time to file an appeal has expired, the subject appeal is dismissed as untimely. WINBAR, L.L.C., Appellant, v. RABIA ARDAN MORRIS, Appellee. 1st District.

Rules of Juvenile Procedure -- Rules of Appellate Procedure -- Amendments -- Abortions -- Minor's petition for judicial waiver of parental notice and consent to termination of pregnancy -- Forms -- Court adopts proposed amendments to Florida Rules of Juvenile Procedure which delete language regarding judicial waiver of notice only and clearly distinguish between seeking a waiver of notice and consent and consent only -- Title of form 8.987 amended to read “Petition for Judicial Waiver of Parental Notice and Consent or Consent only to Termination of Pregnancy” -- Paragraph in form 8.987 addressing appointment of counsel amended to inform minor that appointment of counsel will be at no cost to the minor as contemplated by section 390.01114(6)(a) -- Form 8.990 amended to eliminate possibility that the court could grant a waiver of notice only because waiver of consent will always be required if court grants petition -- References to petition for judicial waiver in Rules of Appellate Procedure amended to reflect amended title. IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420, THE FLORIDA RULES OF JUVENILE PROCEDURE, AND THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 JOINT FAST-TRACK REPORT. Supreme Court of Florida.

Torts -- Discovery -- Denial -- Judicial estoppel -- Attorney-client privilege -- Appeals -- Certiorari -- Parties stipulating in federal court that no further discovery was required in order to resolve defendant's summary judgment motion asserting that plaintiff's claims against her had been settled -- Trial court departed from essential requirements of the law by relying on judicial estoppel to prohibit parties from engaging in any discovery related to defendant's affirmative defense that the underlying personal injury claims were settled prior to suit being filed -- In judicial proceedings, a party is not estopped from asserting a later inconsistent position unless the party's initial position was successfully maintained -- Defendant did not successfully maintain position that all facts had been successfully developed and presented where, although both parties stipulated that no further discovery was needed, federal judge disagreed by finding too many unanswered factual questions to permit entry of summary judgment in defendant's favor -- A party such as defendant is not estopped from relying upon such an adverse ruling and asserting any position consistent with that ruling -- Furthermore, trial court erroneously treated federal court's denial of defendant's motion for summary judgment as though it was a binding, substantive ruling -- Because federal court ultimately determined that it lacked subject matter jurisdiction, it could not make binding, substantive rulings -- Plaintiff cannot demonstrate that he was prejudiced by the parties' stipulation -- Trial court also departed from essential requirements of the law by applying attorney-client privilege without consideration of its waiver as a basis for banning discovery into settlement defense -- Prohibiting all discovery on settlement issue eviscerated defendant's settlement defense, resulting in irreparable harm. ALEYSSA MARIE ARROYO MARRERO, Petitioner, v. TERENCE REA, Respondent. 5th District.

Wrongful death -- Damages -- Limitation -- For purposes of section 768.24, which provides that survivor's death before final judgment limits the survivor's recovery to lost support and services to the date of his or her death, the term “final judgment” means the moment the trial court's judgment becomes final; and this finality is reached when trial court's judicial labor ends -- Survivor who died while defendant's motion for new trial was pending died before final judgment and, accordingly, recovery of damages was limited to lost support and service to date of death -- Because there was no claim for lost support or services, trial court correctly reduced damages awarded by jury to zero dollars. MICHAEL HAMBLEN, as Personal Representative of the Estate of Samantha Hamblen, Appellant, v. PILOT TRAVEL CENTERS, LLC, d/b/a FLYING J, Appellee. 1st District.

Wrongful death -- Product liability -- Tobacco -- Engle-progeny case -- Punitive damages -- Trial court properly applied pre-1999 version of section 768.73 in wrongful death action which arose upon decedent's death in 2000 -- Wrongful death complaint related back to Engle class-action complaint, and plaintiff's right to file the wrongful death action was based on decedent's status as an Engle class member -- Conflict certified. R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. JANICE DURRANCE JONES and JULIAN DALE DURRANCE, as personal representative for the Estate of Dorothy Watson Durrance, Appellees. 2nd District.

 

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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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FDIC sues Peninsula Bank, and then sues Akerman Senterfitt for malpractice

After the Federal Deposit Insurance Corp. filed a lawsuit seeking over $48 million in damages against former executives and directors of the failed Peninsula Bank, "Akerman Senterfitt and two of its attorneys are facing a lawsuit by the Federal Deposit Insurance Crop. over their handling of a $7 million loan for Peninsula Bank."   More

                         Originally posted by Paul Brinkmann, Reporter- South Florida Business Journal

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Fla. Couple Ready to Seize Bank of America Furniture After Winning Foreclosure Fight

Posted in ABA Journal Law News on Jun 7, 2011 6:48 AM CDT By Debra Cassens Weiss
A Florida couple fighting a mistaken foreclosure called 25 law firms before they found a lawyer willing to take their case.
Finally Warren and Maureen Nyerges hired Todd Allen, who won their foreclosure fight and obtained a court order for payment of $2,500 in attorney fees, report the Associated Press and the Naples Daily News. When the bank didn’t pay, Allen got a judge’s permission to seize assets.
On Friday, Allen showed up at a Bank of America branch office with a moving truck and sheriff’s deputies, ready to seize furniture to pay the debt, the story says. An hour later, the branch manager had written a check.  More.


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Arbitration, automobiles, coverage, mortgages al dente

Attorney's fees -- Contracts -- Prevailing defendant in collection action based on contract that provides for recovery of attorney's fees is entitled to award of fees -- Justiciable issues -- Motion seeking attorney's fees under section 57.105(1) on grounds that plaintiff could not recover because it is unlicensed contractor was not required to state that plaintiff has 21 days to withdraw complaint and avoid sanctions -- It was not necessary for defendant to re-file motion for attorney's fees after plaintiff amended complaint where amendment did not alter claim for breach of contract, which remained meritless -- Defendant is not entitled to award of section 57.105(1) attorney's fees where plaintiff and his attorney knew or should have known that plaintiff did not have general contractor's license, but evidence does not establish that they knew or should have known that general contractor's license was required
VIEW OPINION

Contracts -- Automobile sale -- Arbitration clause -- Validity -- Arbitration clause that waives buyer's right to seek punitive damages or pursue action under consumer protection statutes with fee-shifting provisions and prohibits class relief is substantively unconscionable -- Clause is also procedurally unconscionable where contract is in English but buyer barely speaks English, salesman did not furnish buyer with copy of contract, salesman rushed buyer into signing contract without disclosing that buyer was purchasing older vehicle with substantially more mileage than vehicle buyer had originally selected, and buyer was confronted with “take it or leave it” proposition to take substituted car or forfeit deposit -- Arbitration clause is unenforceable

Contracts -- Shipping -- Action by carrier against shipper for unpaid transportation charges paid by shipper to now-insolvent trucking broker which did not forward payment to carrier -- Where there was no credible evidence that carrier agreed to look solely to now-insolvent trucking broker to be paid, shipper is not relieved of liability to pay carrier

Attorney's fees -- Arbitration -- Trial de novo following court-ordered nonbinding arbitration -- Trial court correctly refused to hold individual who controlled corporate plaintiff liable for fees incurred in trial de novo, which was requested by the corporate plaintiff which had received favorable arbitration award but which did not prevail in trial de novo, where, by stipulation, the individual had been voluntarily dismissed from the lawsuit before trial, so that, under applicable statute, he was not a “party” subject to a fee award -- Moreover, language of stipulated dismissal stated that parties agreed to bear their own attorney's fees and costs incurred with respect to the claim and the parties that were being dismissed with prejudice and, accordingly, circuit court was without jurisdiction to reconsider attorney's fees claim after trial against the plaintiffs who were dismissed from the lawsuit
Reported at 35 Fla. L. Weekly D250a

Contracts -- Resort Affiliation Agreement between developer of interval ownership resort and company in the business of providing time share exchange services that provided for the inclusion of the resort in an interval network, a vacation exchange service to facilitate the exchange of accommodations between owners of time share or other vacation ownership interests at participating resorts -- Trial court properly entered summary judgment for defendant in developer's action seeking declaration that contract is not in force or that defendant breached implied covenant of good faith and fair dealing -- Mutuality of obligations -- Agreement is not rendered illusory because of fact that defendant reserved right to modify terms and conditions of interval network in its sole discretion where agreement delineated specific contractual duties owed by defendant to plaintiff which did not comprise the terms and conditions of the interval network itself -- Defendant's modification of the interval network would not relieve it of its obligations to plaintiff -- Even if there were a lack of mutuality of obligation at the inception of the contract, the lack of mutuality was cured by the parties' subsequent performance according to the terms of the agreement -- Where agreement provided that it would automatically renew for a second term at the end of the initial term unless a party provided written notice of its intent not to renew, and plaintiff failed to provide such notice, the agreement did not expire by its own terms -- Defendant is not equitably estopped from asserting that the agreement automatically renewed where there was no representation by defendant that reasonably indicated to plaintiff that it was relieved of its obligation to give defendant timely written notice of its intent not to renew -- Defendant did not breach implied covenant of good faith and fair dealing by revoking plaintiff's Five Star resort rating where there was nothing in agreement which obligated defendant to confer such rating -- Trial court did not abuse discretion in granting defendant leave to amend its answer to assert claim for attorney's fees
Reported at 35 Fla. L. Weekly D252a

Mortgages -- Capacity to sue -- Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue -- Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint -- Case dismissed without prejudice
VIEW OPINION

Mortgages -- Foreclosure -- Standing -- Motion for final judgment of foreclosure denied -- Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action -- Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage -- Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge
VIEW OPINION

Torts -- Arbitration -- Arbitrable issues -- Action by purchasers of home against contractors, alleging that personal injuries suffered by plaintiffs from mold exposure were caused by negligent design and construction of the home -- Trial court properly compelled arbitration where arbitration provision in purchase agreement mandated arbitration of claims of defects in the home and claims for personal injury
Reported at 35 Fla. L. Weekly D245a

Insurance -- Commercial general liability -- Coverage -- Insurance dispute arising out of state court slip-and-fall suit against underlying defendants that culminated in Coblentz agreement, which was subsequently reduced to consent judgment -- Duty to defend -- Insurer was relieved of its duty to defend, given the omission in underlying complaint of plaintiff's uncontroverted receipt of workers' compensation benefits and her employment status and the impairment of insurer's right to assess plaintiff's claims and exercise control over litigation before parties entered into Coblentz agreement -- Insurer is therefore entitled to judgment as matter of law that it has no obligation to reimburse plaintiff or insured for any defense costs or attorney's fees incurred in underlying litigation -- Duty to indemnify -- Even assuming, arguendo, that insurer had duty to defend, workers' compensation and employer's liability exclusions in CGL policy issued to underlying defendants preclude coverage for plaintiff's state law claims where plaintiff's injuries comprised “an obligation of the insured under a workers' compensation law” and “arose out of and in the course of her employment” by insured -- Insurer is entitled to judgment as matter of law that it has no duty to indemnify plaintiff or its insureds for plaintiff's injuries or for consent judgment entered in underlying tort action
Reported at 22 Fla. L. Weekly Fed. D137a


Contracts -- Motion for relief from default judgment entered in action by company providing sitework and fill material against contractor and owner of construction site -- Contract attached to complaint for foreclosure of mechanic's lien, breach of contract and quantum meruit is inadequate for failure to attach change orders that materially affect amount owed on contract, but not for failure to attach plan drawings -- Mechanic's lien -- Where exhibit attached to complaint contradicts statement in complaint that notice was provided within one year of date plaintiff first provided labor, services or material to defendant, exhibit controls and nullifies allegation that plaintiff complied with statutory prerequisites to impose and foreclose mechanic's lien -- Failure to state cause of action for foreclosure of mechanic's lien and breach of contract is fatal deficiency in complaint warranting setting aside judgment -- Where contract is not for fixed amount, and amount defendant owes plaintiff can only be determined by reference to evidence outside contract, plaintiff's damages were unliquidated when judgment was entered, and defendants were entitled to notice and opportunity to be heard on amount owed -- Judgment and all events that flowed from it are declared void ab initio
VIEW OPINION

Civil rights -- Sexual discrimination -- Employment -- Hostile work environment -- District court erred in granting summary judgment in favor of employer where, in addition to evidence of general, indiscriminate vulgarity, plaintiff presented ample evidence of gender-specific, derogatory comments made about women on account of their sex to permit reasonable jury to find that workplace exposed plaintiff to disadvantageous terms or conditions of employment to which members of the other sex were not exposed -- Remand for further proceedings
Reported at 22 Fla. L. Weekly Fed. C477a

Racketeering -- City's action against company which sells cigarettes online to residents of city, alleging business failed to comply with federal law requiring out-of-state vendors to submit customer information to states into which they ship cigarettes, which information was forwarded by state to city for use in tracking down cigarette purchasers who do not pay their taxes, and thereby committed mail and wire fraud which ultimately caused city to lose revenue in form of unrecovered cigarette taxes -- Because city cannot show that it lost tax revenue “by reason of” defendant's alleged RICO violation, city cannot state claim under RICO -- City was required to show that predicate offense “not only was a ‘but for' cause of his injury, but that it was the proximate cause as well,” and proximate cause for RICO purposes requires some direct relation between injury asserted and injurious conduct alleged -- City's causal theory cannot satisfy RICO's direct relationship requirement
Reported at 22 Fla. L. Weekly Fed. S113a

Torts -- Death resulting from traffic collision in Iraq with truck operated by defendant, which was incorporated under Kuwaiti law and had its principal place of business in Kuwait -- Civil procedure -- Default -- Vacation -- No error in vacating default judgment, which was entered against foreign defendant for failure to appear or otherwise answer after service, after district court conducted evidentiary hearing on personal jurisdiction and concluded that the defendant lacked minimum contacts with Georgia sufficient to support jurisdiction under Georgia's long-arm statute -- Defendant did not waive challenge to personal jurisdiction by ignoring service, retaining counsel in the United States, monitoring court proceedings, and then filing motion to vacate judgment after default judgment was rendered against it -- Defendant did not waive personal jurisdiction defense by entering into contracts with U.S. government that contained section of Federal Acquisition Regulation requiring contractors to maintain liability insurance to indemnify and hold harmless the government against third-party injury and property loss claims
Reported at 22 Fla. L. Weekly Fed. C473a

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