Ineffective assistance of counsel, grand theft, and chocolate biscotti with almonds and sambuca

Criminal law -- Grand theft -- Limitation of actions -- Trial court properly dismissed grand theft charge where capias was issued within limitations period but was not executed until almost eight years after state filed information -- Section 812.035(10) provides five-year limitations period for theft, and that period could be extended for no more than one year based on defendant's continuous absence from state -- Specific statute setting forth statute of limitations for theft controls over provisions of general statute of limitations for third-degree felonies

STATE OF FLORIDA, Appellant, v. MARGARITA PEREZ, Appellee. 2nd District.

Criminal law -- Probation revocation -- Discrepancy between oral pronouncement and written sentence -- Remanded with directions to correct written order to conform to oral pronouncement

JEFFREY W. SIMPSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Trial court abused its discretion in summarily denying defendant's claim of ineffective assistance of counsel because it was facially insufficient without providing defendant at least one opportunity to amend

DANIEL BRIAN EMMERT, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Restitution -- Error to hold restitution hearing in absence of defendant without showing that defendant knowingly, intelligently, and voluntarily waived right to be present

KEITH KNESPLER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Delivery of cocaine -- Speedy trial -- Error to find that speedy trial period for charges of delivery of cocaine commenced on date defendant was taken into custody for acts of using a false name and riding his bicycle without a light -- Trial court misapplied “criminal episode” standard of speedy trial rule by placing great emphasis on ongoing investigation of police officers, rather than actions of defendant

STATE OF FLORIDA, Appellant, v. TILFORD BAYNHAM, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Petition claiming ineffective assistance of appellate counsel during appeal from resentencing proceeding was untimely, successive, and frivolous -- Further pro se filings barred

ALFRED WILCHER, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Juveniles -- Habeas corpus -- Court did not exceed its authority in placing juvenile on home detention with electronic monitoring and imposing 8 p.m. curfew pending placement in moderate risk residential program -- Statute does not place specific limit on home detention pending placement in moderate-risk residential program -- Provision that child who is awaiting placement in a moderate-risk residential program must be removed from detention within five days refers to secure detention

V.P., a child, Petitioner, v. STATE OF FLORIDA and DEPARTMENT OF JUVENILE JUSTICE, Respondents. 4th District.

Criminal law -- Second degree murder -- Evidence -- Sufficiency -- Defendant convicted of second degree murder for the shooting deaths of two victims after the victims and several others had surrounded defendant, defendant and victim began cursing at one another, and one victim struck defendant after being encouraged by second victim -- Evidence warranted conviction for manslaughter but was insufficient to sustain convictions of second degree murder because defendant's shooting of the victims was an impulsive overreaction to the victim's attack rather than an act out of ill will, hatred, spite, or evil intent where defendant was backed up against his vehicle when he was confronted by multiple men, victims had both been drinking, and defendant was struck by victim causing him to fall back against the vehicle -- State's argument that defendant's demeanor before the confrontation was sufficient to prove that he acted with a depraved mind is rejected -- Defendant's use of deadly force occurred after he was attacked, and state pointed to no evidence that defendant had a previous grudge or ongoing dispute with the victims -- Jury instructions -- Stand Your Ground law -- Trial court erred in instructing jury as to the Stand Your Ground law over defendant's objection and in rejecting defendant's requested special instruction where there was evidence that defendant was engaged in unlawful activity at the time of the shooting and defendant's special instruction adequately addressed the scope of the duty to retreat in such cases, was a correct statement of the law, and was not misleading or confusing -- New trial is warranted, rather than remand with instructions to reduce murder convictions to manslaughter convictions, given error in jury instruction on self-defense

JOHN THOMAS DORSEY, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Plea -- Withdrawal -- Counsel -- Adversarial relationship -- Trial court erred in summarily denying pro se motion to withdraw plea alleging that counsel did not handle the case properly, that defendant was lied to, pressured and frightened into taking the plea deal, and that defendant was unaware of his option to dismiss counsel -- Remanded for evidentiary hearing to determine the nature of defendant's attorney-client relationship and whether conflict-free counsel should be appointed before the issue of withdrawing defendant's plea is considered

DELBERT G. HALL, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Providing a false name to a law enforcement officer -- Conviction reversed where defendant was charged with providing a false name to a particular officer, but state presented only evidence that he provided a false name to a second officer -- It is fundamental error to convict a person of an uncharged crime -- Error was not harmless because defendant could, in theory, yet be convicted of providing a false name to the second officer -- Grand theft -- Burglary of a structure -- Evidence -- Taped interview -- Where pro se defendant, while cross-examining investigator, informed the court he wanted to impeach investigator's testimony using recording of interview with investigator, and prosecutor and standby counsel informed the court that the recording would need to be redacted to remove references to defendant's criminal history, trial court erred in finding, out of concern over making the jury wait, that there was insufficient time to redact the recording, giving defendant the option of playing the recording in its entirety or not at all, with the defendant choosing the latter -- This ruling prevented the defendant from exercising his constitutional right to impeach witnesses against him and was not harmless error as the jury's verdict could have been affected by impeachment of investigator's testimony with the recording

JUSTIN WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cannabis -- Search and seizure -- Warrant -- Where warrant authorized officers to enter and search the premises and curtilage, including any vehicles and/or temporary structures within the curtilage and all persons found on the premises, for certain items, including “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances,” officers were authorized to search truck and mailbox -- Officers could properly seize utility bills for property located at a different address as documents that would lead to identification of persons responsible for the unlawful possession of controlled substances, particularly when defendant's wallet contained receipt for payment of electric bill for that second property -- Error to grant motion to suppress evidence seized from mailbox and truck at first property and all evidence found at second property, which was searched pursuant to a warrant based upon affidavit the crux of which was the utility bills found at the first property

THE STATE OF FLORIDA, Appellant, vs. GUILLERMO MARTINEZ, Appellee. 3rd District.

Criminal law -- Juveniles -- Battery -- Closing argument -- No abuse of discretion in trial court's not allowing defense to argue self-defense in closing argument, a defense not previously raised, where defense could not reasonably have been inferred from any evidence at trial

M.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sexual offenders -- Violation of registration and reporting requirements -- Trial court correctly concluded that the rule of criminal procedure which extends a deadline where the deadline falls on a weekend or holiday is not applicable to reporting requirements for sexual offenders, which are not based on a computation of time

ALVIN WILLIAMS, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct Richardson hearing when state failed to disclose relevant evidence until second day of trial, in denying defendant's request to recall witnesses to question them about this new evidence, and in questioning jury about whether defendant's booking sheet, which was located in the jury room without being admitted into evidence, influenced its verdict

JAMEL RA SHAUD WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Appeals -- Order denying motion for appointed counsel for post conviction purposes is not among class of orders appealable pursuant to rule 9.140(b)(1) -- Appeal dismissed without prejudice to right to file petition for writ of mandamus seeking to compel ruling by circuit court on pending motion(s) requesting that defendant be granted relief from his conviction

DELMART E.J.M. VREELAND, II, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Double jeopardy -- Retrial after reversal by appellate court -- Where petitioner was prosecuted for first-degree murder based on alternative theories of premeditation and felony murder, jury returned guilty verdict without specifying the theory on which it relied, and state court reversed and remanded for retrial after finding that conviction for underlying felony was based upon legally insufficient theory and could not stand, retrial of defendant for premeditated murder did not violate Double Jeopardy Clause -- Petitioner failed to establish that state court's denial of relief was contrary to, or involved unreasonable application of, clearly established federal law

JESUS DELGADO, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. 11th Circuit.

Aliens -- Removal -- Conviction of crime involving moral turpitude -- Board of Immigration Appeals and Immigration Judge erred by considering extraneous evidence outside record of alien's false imprisonment conviction to determine that his false imprisonment conviction qualified as conviction of a crime involving moral turpitude -- Congress unambiguously intended adjudicators to use categorical and modified categorical approach to determine whether a person was convicted of crime involving moral turpitude

CAMILO ERNESTO SANCHEZ FAJARDO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. 11th Circuit.

Criminal law -- Indictment -- Failure to state an offense -- Counts of indictment alleging state correctional officers knowingly falsified records with intent to impede, obstruct, and influence the investigation and proper administration of matter within jurisdiction of United States are insufficient as matter of law where indictment fails to identify “department or agency of the United States” conducting an investigation or for which administration would be impeded by defendants' alleged falsification of records -- Counts for falsification of records must be dismissed, because indictment neither tracks statutory language nor contains essential facts constituting the offenses charged -- Count alleging state correctional officer knowingly tampered with fellow correctional officer with intent to hinder, delay and prevent communication to federal law enforcement officer of information relating to commission of federal offense was insufficient and must be dismissed, where indictment fails to provide factual basis for charged offense

UNITED STATES OF AMERICA, Plaintiff, v. ALEXANDER MCQUEEN, et al., Defendants. U.S. District Court, Southern District of Florida, Miami Division.

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Peppered shrimp with lemon, capers and criminal law

Attorney's fees -- Proposal for settlement -- Contracts -- Prevailing party -- Mutuality of obligation -- Action against seller of business and real property by broker and co-broker who alleged they had fully performed brokerage commission agreement with seller by producing ready, willing and able buyer -- Seller's proposals for settlement were not ambiguous in this case for failing to include language stating which side would pay the amount offered or failing to clarify, in one paragraph, whether proposals applied to claims “in this action” as opposed to claims which may have accrued in the future -- Good faith -- Offer of $500 on commission claim which plaintiffs claimed was worth $300,000 bore reasonable relationship to amount of damages and realistic assessment of liability where seller contended that brokerage commission contract was unenforceable because the contract with the potential buyer was unenforceable -- Seller was entitled to recover its attorney's fees against contracting broker pursuant to section 57.105(7), which provides for reciprocal recovery of attorney's fees under contractual prevailing party provision -- Seller was not entitled to recover its attorney's fees against co-broker as intended third-party beneficiary of broker agreement containing prevailing party attorney's fees provision where contract between seller and broker did not express an intent to primarily and directly benefit co-broker, but simply mentioned that broker could co-broker the listing -- Co-broker, which alleged in complaint that it was third-party beneficiary of contract between brokerage and seller, not judicially estopped from denying status as third-party beneficiary of contract where co-broker did not successfully maintain that position in circuit court -- Costs -- Error to deny prevailing seller's motion for taxable costs against brokers

LAND & SEA PETROLEUM, INC., Appellant, v. BUSINESS SPECIALISTS, INC. and CONTINENTAL BUSINESS, INC., Appellees. 4th District.

Baker Act -- Involuntary commitment under Baker Act of defendant who had been found incompetent to stand trial on criminal charges -- Although evidence supports finding that defendant suffers from psychotic disorder, evidence was insufficient to support finding that defendant is suffering from “ongoing” psychosis -- Trial court properly found that defendant meets criteria for involuntary inpatient placement under Baker Act where evidence showed that there is a substantial likelihood that defendant will inflict serious bodily harm on himself or others, that defendant is manifestly incapable of surviving alone, that without treatment, defendant is likely to suffer from neglect or refuse to care for himself which would pose a real threat of substantial harm to himself or others, and that placement with defendant's family was not appropriate -- Defendant's due process rights were violated when his counsel's request to present closing argument at evidentiary hearing was denied -- Remand to allow parties' attorneys to make closing arguments

EDWIN BURLEY, Appellant, v. THE STATE OF FLORIDA, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to prosecute -- Good cause -- Plaintiff did not file timely showing of good cause where showing of good cause was filed four days before hearing on Notice of Lack of Prosecution -- Rule 1.420(e) provides that showing of good cause must be made “at least 5 days before the hearing,” and rule establishes a bright line for providing good cause -- Error to deny motion to dismiss for lack of prosecution

JAMES E. TURNER, Appellants, v. FIA CARD SERVICES, N.A., etc., Appellee. 3rd District.

Criminal law -- Conspiracy to commit first-degree murder -- Limitation of actions -- Where victim was killed, but defendant was acquitted of murder charge and convicted of conspiracy to commit murder, prosecution of defendant for conspiracy to commit murder could be brought at any time -- Because defendant was convicted of a felony that resulted in a death, amended statute of limitations, providing that such prosecutions may be brought at any time, is applicable -- Acquittal of defendant on substantive murder charge did not prevent a finding that the conspiracy resulted in a death -- Prosecution was not barred by statute of limitations

MANUEL CALDERON, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Search and seizure -- Search of vehicle incident to arrest of driver -- Good faith exception to exclusionary rule -- Under precedent established by U.S. Supreme Court in Arizona v. Gant, several weeks after search in question, the search of defendant's vehicle incident to her arrest was unlawful where the search was conducted after defendant was handcuffed and in officers' patrol car -- Although trial court properly found that search was unlawful, it was error to grant motion to suppress where officers, in conducting search, relied in good faith on well-settled case law predating the decision in Arizona v. Gant in conducting the search

STATE OF FLORIDA, Appellant, v. KRISTY LYNN HARRIS, Appellee. 1st District.

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Petitioner was not entitled to habeas relief ordered by Court of Appeals, where state-court decision concluding that defendant had not established ineffective assistance of counsel under Strickland was not unreasonable application of either part of Strickland rule -- Under 28 U.S.C. section 2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits, unless, among other exceptions, state-court decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by” U.S. Supreme Court -- The relevant clearly established federal law is standard for ineffective assistance of counsel under Strickland, which requires a showing of “both deficient performance by counsel and prejudice”

JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, Petitioner v. RANDY JOSEPH MOORE. U.S. Supreme Court.

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Section 2254(d), which, as amended by Antiterrorism and Effective Death Penalty Act, limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court proceedings, applies to petition for federal habeas relief when state court's order denying relief is unaccompanied by an opinion explaining the court's reasoning -- Petitioner was not entitled to the habeas relief ordered by Court of Appeals, where that court failed to accord the required deference to decision of state court adjudicating same claims later presented in federal habeas petition, and Court of Appeals erred in concluding that petitioner demonstrated an unreasonable application of Strickland by the state court when state court summarily denied claim that counsel was ineffective for failing to present expert testimony on blood evidence

KELLY HARRINGTON, WARDEN, Petitioner v. JOSHUA RICHTER. U.S. Supreme Court.

Dissolution of marriage -- Child support -- Modification -- Error to find that each party should be responsible for half of child's unreimbursed medical expenses -- Where noncovered expenses were not factored into the child support guidelines calculations, responsibility for expenses should be apportioned based on parties' relative incomes

MICHELLE ROWE f/k/a MICHELLE BORYSEK-RODRIGUEZ, Appellant, v. JOSE A. RODRIGUEZ-SCHMIDT, Appellee. 2nd District.

In re Fidler ,(Bkrtcy.D.Nev.)

Bankruptcy - Debtor's discharge did not foreclose "bad check" prosecution.

While a bankruptcy court could not enjoin a prosecutor from pursuing "bad check" charges against a discharged debtor, for writing insufficient funds checks toward debts later discharged in bankruptcy, it could sanction the complaining witnesses to the extent that it found that they were attempting to do an end-run around the debtor's discharge by attempting to collect discharged debts as restitution. Thus, while denying the debtor's motion for injunctive relief to preclude the state criminal prosecution from proceeding, the court retained jurisdiction to consider possible sanctions against the complaining witnesses up to and including disgorgement of any restitution that might result from the debtor's conviction on the relevant charges.

Liens -- Mechanic's lien may not be imposed against condominium association encumbering condominium units for amount owed for cleaning, maintenance, concierge, and security services -- Mechanic's lien statute is to protect those who have provided labor and materials for the improvement of property, and services provided by plaintiff did not improve property -- Plaintiff does not have independent right to claim of lien under section 718.121, Florida Statutes

PARC CENTRAL AVENTURA EAST CONDOMINIUM, etc., Appellant, v. VICTORIA GROUP SERVICES, LLC, et al., Appellees. 3rd District.

Mortgage foreclosure -- Default -- Vacation -- Trial court erred in denying motion to vacate default against junior mortgagee which had been joined as defendant in foreclosure action where junior mortgagee demonstrated excusable neglect, due diligence, and a meritorious defense -- In order for a party moving to set aside a default to demonstrate a meritorious defense the movant need only show that the defense is meritorious, not that it is likely to succeed -- Affirmative defenses, even when pled with minimal specificity, can qualify as meritorious

HOUSEHOLD FINANCE CORPORATION, III, Appellant, v. HENRY FRED MITCHELL, SR., DAVID W. PADOT, SR., and MARY ANN PADOT, his wife; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, OR AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AS INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; JOHN DOE and JANE DOE as unknown tenants in possession, and ANNE BARNETT; UNITED STATES OF AMERICA; and THE RIVERWALK OF FANNING SPRINGS HOMEOWNERS ASSOCIATION, INC., Appellees. 1st District.

Torts -- Medical malpractice -- Action which, in part, alleged that defendant laboratory was negligent in handling plaintiff's malignant tissue sample which got mixed up with tissue sample that was not malignant from another patient, with result that plaintiff was informed incorrectly that tissue sample was not malignant until she was informed of mistake seven months later -- Discovery -- Appeals -- Certiorari -- Review denied with respect to portions of trial court's orders requiring defendant diagnostic lab to produce information from medical records of the other patient, while protecting that patient's identity, because discovery request could lead to discovery of admissible evidence which was relevant to mix-up of tissue samples -- Trial court departed from essential requirements of law by requiring production of names and last known addresses of all medical providers known by lab to have treated the other patient and by allowing plaintiff's attorney and photographer to enter onto lab's premises

QUEST DIAGNOSTICS INCORPORATED, Petitioner, v. MARIA RAPIO, Respondent. 3rd District.

Privacy -- Disclosure of personal information -- Action by contract employees at National Aeronautics and Space Administration facility challenging questions on standard background check relating to employee's drug involvement and drug treatment or counseling received by employee and also challenging questionnaire form sent to employee's references that asks open-ended questions about whether they have “any reason to question” employee's “honesty or trustworthiness” or have “adverse information” concerning a variety of other matters -- Assuming, without deciding, that Constitution protects privacy interest in avoiding disclosure of personal matters, portions of government's background check challenged in present case do not violate this right -- Government's interests as employer and proprietor in managing its internal operations, combined with protections against public dissemination provided by Privacy Act, satisfy any “interest in avoiding disclosure” that may “arguably ha its roots in the Constitution”

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, et al., Petitioners v. ROBERT M. NELSON et al. U.S. Supreme Court.

U.S. v. Hall,(D.Me.)

Writs - United States could garnish debtor's funds to enforce criminal judgment requiring payment of costs of prosecution.

The garnishment method chosen by the United States to enforce a valid criminal judgment against the debtor for tax evasion, which imposed as part of the sentence an order that he pay a particular amount as costs of prosecution, was an enforcement mechanism available and authorized under federal law and therefore a writ of garnishment could issue listing the state as garnishee of debtor's non-exempt funds, which had been seized pursuant to a search warrant and controlled by state.

U.S. v. Diaz ,(C.A.11 (Ga.))

Criminal Justice - Government bore burden of proof in seeking order requiring that schizophrenic defendant be involuntarily medicated.

Joining most of the other Circuits that have addressed the issue and disagreeing with a contrary Tenth Circuit decision, the Eleventh Circuit Court of Appeals held that a district court's finding, in support of an order requiring that a defendant be involuntarily medicated, that the government had an important interest in proceeding to trial on the armed bank robbery charges against him, was a conclusion of law reviewable de novo, while the district court's findings on the other Sell factors were factual findings reviewable for clear error. The Eleventh Circuit also held that the government, as the party seeking to involuntarily medicate the defendant to render him competent to stand trial, bore the burden of proof on the factual findings needed to support an involuntary medication order, and had to satisfy that burden by clear and convincing evidence.

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Tricked or treated, we got some things good and heated

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- Failure to investigate and present mitigating evidence concerning petitioner's mental health at time of crime -- State court's determination that petitioner's trial counsel was not constitutionally ineffective in preparing for sentencing phase of trial was neither contrary to nor an unreasonable application of clearly established federal law -- Court cannot say that state court unreasonably rejected claim in face of unanimous death-penalty recommendation from jury; finding of four statutory aggravators, including that murder was especially heinous, atrocious and cruel; finding that petitioner was triggerman; petitioner's boasting and detailed statement to a friend; weaknesses highlighted in petitioner's “new” mitigating evidence; and further aggravating evidence that this “new” mitigating evidence may have revealed
GREGORY ALAN KOKAL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents-Appellees. 11th Circuit.

Criminal law -- Medicare fraud -- Conspiracy to defraud United States, to cause submission of false claims, and to pay health care kickbacks -- Conspiracy to commit health care fraud -- Evidence -- Trial court improperly excluded, as hearsay, videotape which arguably showed coconspirators assuring defendant that there was no fraudulent scheme at clinic which employed defendant and which was established as front for massive Medicare scam -- Error was harmless because videotape was duplicative of witness testimony discussing the exculpatory content of videotape, which testimony was stressed by defendant's counsel in closing argument -- District court did not abuse discretion by refusing to exclude evidence that individual who provided funding and personnel necessary to start clinic was once defendant's ex-husband -- Evidence was sufficient to support convictions of both defendants on all counts -- Sentencing -- Reasons given by district court justified sentencing physician-defendant above the guidelines and imposing sentence which was far greater than that imposed on coconspirators who were more deeply involved in fraudulent scheme -- District court did not err in assigning little weight to post-verdict polygraph examinations after finding that evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway district court's decision to apply obstruction of justice enhancement -- Mandatory Victim Restitution Act -- Term “victim” as used in MVRA includes government -- Amount of loss -- No error in attributing entire loss to defendant-nurse, notwithstanding her argument that she knew clinic was providing medically unnecessary treatment, but there was no evidence that she knew clinic was billing Medicare for infusions that were not provided at all -- Risk of death or serious injury -- No error in applying two-level enhancement based on finding that nurse-defendant's offense involved “conscious or reckless risk of death or serious bodily injury”
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. 11th Circuit.

Medicaid Cuts: LA. CLASS ACTION CHALLENGES REDUCTION OF MEDICAID HOME-CARE SERVICES, Pitts v. Greenstein, 13 No. 9 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home October 22, 2010
A class of disabled Medicaid recipients in Louisiana has alleged the state health department's plan to reduce benefits for home-based care violates federal disability law and might unnecessarily force thousands into nursing homes. Lead plaintiffs Helen Pitts and Kenneth Roman asked the U.S. District Court for the Middle District of Louisiana to grant preliminary and permanent injunctions enjoining the state's Department of Health and Hospitals from denying long-term personal-care services.

Health Care Reform: STATES GET $49 MILLION TO BUILD INSURANCE EXCHANGES, 13 No. 9 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home October 22, 2010
The federal government has awarded $49 million in grants to 48 states and the District of Columbia to help them research and develop health insurance exchanges aimed at helping consumers shop for coverage. The state-based exchanges will make buying health insurance easier by providing eligible consumers and small businesses "one-stop shopping" where they can compare and purchase health insurance coverage, according a Sept. 30 statement released by the U.S. Department of Health and Human Services.

Health Care Reform: DOCTOR-OWNED HOSPITALS URGE COURT TO STRIKE BAN ON NEW FACILITIES, Physician Hosps. of Am. v. Sebelius, 13 No. 9 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home October 22, 2010
An industry group representing physician-owned hospitals has asked a federal judge to allow it to proceed with a lawsuit seeking to block part of the new health care reform law that limits the growth and construction of new doctor- owned facilities. Physician Hospitals of America, along with the Texas Spine and Joint Hospital, a 20-bed private facility in Tyler, Texas, are challenging the constitutionality of Section 6001 of the Patient Protection and Affordable Health Care Act.

Civil rights -- Municipal corporations -- Employment discrimination -- Retaliation -- Title VII -- Error to dismiss Title VII retaliation claim based on determination that factual findings of county personnel board, an independent state agency, were entitled to preclusive effect over the federal action -- District court improperly failed to draw distinction between Title VII and section 1983 with regard to preclusive effects of state administrative proceedings on actions brought thereunder
PATRICK L. BISHOP, SR., Plaintiff-Appellant, v. BIRMINGHAM POLICE DEPARTMENT, CITY OF, Defendant, BIRMINGHAM, CITY OF, THE, Defendant-Appellee. 11th Circuit.

Federal jurisdiction -- Torts -- Removal of state court action to federal court -- Timeliness -- Appellate court need not decide whether defendant's notice of removal was timely in instant case because any error in failing to remand case to state court on ground that notice of removal was untimely would be procedural error and would be insufficient to warrant vacating judgment and remanding for new trial in state court where it was undisputed that requirements for diversity jurisdiction were met by time district court entered judgment
BRIAN MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA TRIATHLON, a foreign company, Defendants-Appellees. 11th Circuit.

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed
CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. MICHIGAN CONDOMINIUM ASSOCIATION, Appellee. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal
JOSE ALEJANDRO PINEDA AND MARTHA PINEDA, Appellants/Cross-Appellees, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant. 3rd District.

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy
LLOYD BEVERLY and EDITH BEVERLY, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 2nd District.

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where plaintiff failed to file with court the original note, evidence of assignment of mortgage and note, or affidavit of ownership and filed no other admissible evidence establishing plaintiff's status as holder and owner of note and mortgage -- Appellate court unable to determine whether trial court considered copy of original note and affidavit of ownership presented by plaintiff at summary judgment hearing, as these documents were not part of record at time the motion for summary judgment was granted -- Moreover, the documents were not authenticated, filed, and served more than twenty days before hearing, as required by procedural rules
GUISEPPE SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure of commercial mortgage loan where lender accepted a substantial paydown after an initial default and acceleration, and the parties entered into an agreement to reinstate the mortgage after the entry of an earlier judgment -- Summary judgment was improper where there exists a triable issue regarding the reinstatement agreement and the parties' performance under it
ONE 79TH STREET ESTATES, INC. and DARRELL WILSON a/k/a Keith D. Wilson, a single man; PO BOY REALTY INVESTMENT, INC., Appellants, vs. AMERICAN INVESTMENT SERVICES, Appellee. 3rd District.

Mortgage foreclosure -- Receivership -- Trial court erred in allowing receiver to sell mortgaged property, over objection of record owner, before final judgment foreclosing owner's interest in the property -- Contracts -- In absence of statute authorizing court-appointed receiver in foreclosure case to sell mortgaged property before mortgage is foreclosed by final judgment, such authority must be provided in loan agreement between lender and borrower represented by promissory note and mortgage -- Receivership provision in instant case did not purport to give receiver any power of sale of mortgaged property before entry of final foreclosure judgment, but instead explicitly limited receiver's powers to a caretaker role, which included the authority only to operate the property and collect rents -- Under common law, mere appointment of receiver does not itself confer any of the owner's power or authority to sell property -- Finally, recognizing general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene mortgagor's statutory right of redemption
SHUBH HOTELS BOCA, LLC, and ATUL BISARIA, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Mutual Bank (Illinois); and NEIL MERIN, as Court Appointed Receiver for Mortgaged Property, Appellees. 4th District.

Unfair labor practices -- School boards -- Public Employees Relations Commission properly affirmed General Counsel's summary dismissal of teacher's unfair labor practices complaints, where General Counsel found that teacher failed to prove by preponderance of evidence that his protected conduct was a substantial and motivating factor in school principal's retaliatory actions -- There was not sufficient evidence of animus, or relation of adverse events to employee's participation in protected activity, to sustain allegations of unfair labor practices
JUSTIN KOREN, Appellant, vs. SCHOOL DISTRICT OF MIAMI-DADE COUNTY, FLORIDA AND PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellees. 3rd District.

Torts -- Action against corporate defendant and county by plaintiff who claimed that she was injured when escalator at airport stopped short, causing her to fall -- Error to enter directed verdicts in favor of defendants on ground that there was insufficient evidence of negligence on their part where plaintiff presented evidence showing that defendants were notified that subject escalator stopped running earlier on the day of plaintiff's fall and there was no evidence that any work was performed on the escalator, allowing jury to reasonably infer that defendants negligently failed to determine what was causing it to stop running and correct the problem -- Jury instructions -- Error to refuse to give jury instruction on negligence per se as to county -- Error to overrule plaintiff's objection to defense closing argument that there was no evidence of prior problems with subject escalator where trial court had excluded such evidence -- Plaintiff's treating physician was not required to be an expert back surgeon in order to testify to his belief that plaintiff would need surgery in the future, and it was error to exclude this testimony -- Accordingly, it was error to deny plaintiff's motion for new trial
BONNIE GREENBERG, Appellant, vs. SCHINDLER ELEVATOR CORPORATION, ETC., ET AL., Appellees. 3rd District.

Torts -- Civil theft -- Complaint which alleged that plaintiffs made a loan to defendant pursuant to an oral agreement, and that at the time of the loan, defendant had no intention to repay it and/or intended not to repay the funds, stated cause of action for civil theft -- Error to grant defendant's motion for judgment on pleadings -- Allegation that defendant had no intention to repay the funds and/or intended not to repay the funds is sufficient to state claim for common law fraud, and common law fraud is explicitly included in the theft statute -- Economic loss doctrine does not bar statutory claim for civil theft -- There is no merit to defendant's contention that it is impossible to have an action for civil theft where there has been a failure to repay money unless there has been a conversion of a specific fund
WILLIAM P. WALKER, III AND GEMMA M. WALKER, HIS WIFE, Appellants, vs. JAIME A. FIGAROLA, Appellee. 3rd District.

Torts -- Res judicata -- Action by insurance company against attorney who had litigated personal injury protection lawsuits against company on behalf of insureds, alleging claim for restitution and fraud based on monies company paid out in connection with the PIP suits -- Trial court erred in dismissing complaint on ground that it stemmed from PIP lawsuits, and had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements -- Application of res judicata was not appropriate because neither the parties nor the cause of action were the same -- Application of collateral estoppel was not appropriate where issues were not the same as those adjudicated in PIP suits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. LAW OFFICES OF MICHAEL I. LIBMAN, AND MICHAEL I. LIBMAN, ESQUIRE, Appellees 3rd District.

Wrongful death -- Negligent entrustment -- Negligent undertaking -- A defendant cannot be held liable for negligent entrustment or negligent undertaking based on his having taken his alcohol-impaired brother's car keys and then put the keys in a place where his brother easily found them, resulting in his brother causing a fatal collision
GERALD CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. PAUL J. LEWIS, Appellee. 4th District.

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Free Gitmo Detainee, Judge Orders, Says US Position ‘Defies Common Sense’

Posted Jun 22, 2009, 07:26 pm CDT
By Martha Neil

Finding that a captured videotape of Abd Al Rahim Abdul Rassak shows him being tortured by al-Qaida as a suspected American spy, a federal judge has rejected as ridiculous a U.S. government position that he continues to be a legitimate detainee in a terrorism case.

In a 13-page habeas corpus opinion today, U.S. District Judge Richard Leon of the District of Columbia says the government is "taking a position that defies common sense" and orders Rassak freed from the military detention facility at Guantanamo Bay in Cuba. The judge also resorts to unusual punctuation ("I disagree!") to make his point, according to the Politics blog of FOX News. Rassak now uses the last name Janko, the news agency notes. . . .more

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