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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We're back blogging with more Recent Decisions of Interest in Dissolution, Attorney's Fees etc. and Garlic White Pizza with Chanterelles and Arugula

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Attorney's fees -- Civil rights -- Prevailing party -- Award of prevailing party attorney's fees and expenses to plaintiff under 42 U.S.C. section 1988 must be vacated and remanded for additional proceedings where jury awarded only nominal damages for defendant's violation of plaintiff's Fourth Amendment right to be free from illegal seizure and district court in determining reasonableness of a fee award misapplied the law in measuring significance of the substantive issue on which plaintiff prevailed or public purpose served by totaling up number of times that Gray II, which was decided in plaintiff's favor, had been cited -- It was error of law for district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which plaintiff prevailed must be significant and public purpose served by her victory must be substantial -- When citation-counting is used as a method for assessing the significance of a decision in plaintiff's favor, citation of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation -- On remand, district court to decide whether plaintiff is entitled to award of attorney's fees and expenses, even though she recovered only nominal damages; and if so, whether she is entitled to enhancement for delay in payment of expenses and for delay in payment of attorney's fees; and if so, how much -- Calculation errors to be avoided on remand noted
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant, EDMUND SEXTON, etc., et al., Defendants. 11th Circuit.

Elections -- Campaign financing -- Excess spending subsidy -- Injunctions -- Candidate for Republican Party for Governor of State of Florida, who is not participating in Florida system of public campaign financing, moved to preliminarily enjoin enforcement of provision of Florida Election Campaign Financing Act, which provides participating candidates with a subsidy to spend on their campaigns when a nonparticipating opponent spends in excess of statutory expenditure limit or $2 for each registered Florida voter -- Plaintiff is entitled to preliminary injunction enjoining State from releasing funds to opposing candidate under excess spending provision because he is likely to succeed on merits of First and Fourteenth Amendment claim that excess spending subsidy severely burdens his constitutional rights to spend unlimited sums of personal funds and private donations in furtherance of his campaign, burden on his right to free speech is irreparable, and, as district court concluded, balance of harms and public interest do not counsel against an injunction -- Under Davis v. Federal Election Commission, excess spending subsidy imposes substantial burden on nonparticipating candidate's right of free speech and is thus subject to strict scrutiny, which requires that Florida justify the subsidy by establishing that it furthers a compelling state interest -- Even if subsidy furthers stated interest of Florida by encouraging participation in public financing system and indirectly preventing corruption or appearance of corruption, excess spending subsidy is not least restrictive means of furthering the anticorruption interest -- Severability -- Even if issue of severance is premature, excess spending subsidy is severable from $500 contribution limit
RICHARD L. SCOTT, Plaintiff-Appellant, v. DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. 11th Circuit.

Contracts -- Third-party beneficiaries -- Action by homeowners association seeking declaration of rights under crossing agreement between railroad and another homeowners association -- Trial court properly dismissed action on ground that plaintiff homeowners association is not a party to the agreement at issue and not a third-party beneficiary of the agreement -- Plaintiff is not entitled to relief as a third-party beneficiary where parties to agreement did not intend that the agreement be for the benefit of plaintiff, and agreement expressly excludes third-party beneficiaries
VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. CSX TRANSPORTATION, INC., Appellee. 3rd District.

Counties -- Injunctions -- Trial court erred in finding that county denied property owner due process by not giving proper notice of administrative hearing on code violation citation -- Record indicates that notice of hearing was sent to owner at both his address of record with county and the address listed at the top of his request for administrative hearing -- Further, it is evident from record that owner had actual notice of hearing -- Trial court erred in granting owner's motion for temporary injunction on ground that owner had been denied due process through administrative hearing process on citation, and trial court was therefore entitled to intervene in administrative hearing process
MIAMI-DADE COUNTY, Appellant, vs. KEITH WILSON, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Modification -- Jurisdiction -- Uniform Interstate Family Support Act -- Trial court had no authority to transfer Florida post-final-judgment dissolution case to foreign state in which both former spouses now reside -- Under UIFSA, Florida court has continuing exclusive jurisdiction over spousal support order throughout the existence of the support obligation -- Correct procedure under UIFSA is to register spousal support judgment in another state for enforcement there; and even after registration, foreign state must send the case back to Florida court to consider any modification order
ANA ALVAREZ SOOTIN, Appellant, vs. JOHN SOOTIN, Appellee. 3rd District. Opinion filed August 4, 2010.

Guardianship -- Trial court abused discretion in appointing ward's son-in-law as her plenary guardian where ward had executed a declaration naming her three daughters as preneed guardians -- There was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian
MARIANNE MAGILL ACUNA & MARILYN MAGILL, Appellants, vs. JACK DRESNER, ET AL., Appellees. 3rd District.

Jurisdiction -- Service of process -- Substitute service -- Service of process was defective where process server failed to note time of service on copy of complaint delivered to the person served -- Requirement to note time on copy of complaint is statutory requirement of service, and strict compliance with statutory requirements of service is mandated -- Second service of process while appeal was pending did not render appeal moot
JOSE E. VIDAL, Appellant, v. SUNTRUST BANK, Appellee. 4th District.

Receiverships -- Ex parte -- Mortgage foreclosure -- Error to appoint receiver for property involved in mortgage foreclosure action without providing notice and opportunity to be heard where mortgagee failed to establish that ex parte receivership was necessary to avoid immediate irreparable harm to mortgaged property or that giving notice and holding a hearing would accelerate or precipitate any injury -- Although loan documents contained provision for appointment of receiver as matter of right and without notice if foreclosure proceedings were instituted, this alone is not dispositive of whether to grant ex parte receivership and provisions of rule 1.610 are not thereby bypassed -- Argument that ex parte receivership was necessary to assist in sale of property rejected -- Argument that ex parte receivership was appropriate because mortgage documents contained assignment of rents provision which provided for appointment of receiver in that context was not raised as basis for appointing receiver; and, moreover, mortgagee did not present verified allegation that any rents were actually being collected on the property or that any such rents were being dissipated -- Trial court also failed to enter appropriate ex parte order where order did not contain any factual findings
JOHN R. DeSILVA, Appellant, v. FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee. 2nd District.

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes
BERNARD WINKLER, ET AL., Appellants, vs. LAWYERS TITLE INSURANCE CORP., ETC., Appellee. 3rd District.

Torts -- Automobile accident -- Damages -- New trial is required where plaintiff's counsel made an improper appeal to passion and sympathy of jury in opening statement, improperly convinced trial judge to limit defense counsel's cross-examination of plaintiff's expert, improperly attacked character of main defense expert during cross-examination, and made improper and prejudicial closing argument
DANIEL GILBERT ANDREW CHIN, Appellant, v. WILLIAM ROGER CAIAFFA, Appellee. 3rd District.

Torts -- Damages -- Future medical expenses -- Abuse of discretion to deny defendants' motion for new trial and motion for remittitur where there was no competent substantial evidence presented at trial that plaintiff was reasonably certain to need future medical treatment -- Remand for new trial or, in the alternative, entry of amended final judgment remitting award for future medical expenses -- Past medical expenses -- Setoff -- Error to fail to determine and apply setoff for personal injury protection benefits to award of past damages
ALICIA E. MONTESINOS AND HUGHETTE ESQUIVEL, Appellants, vs. JAVIER ZAPATA, Appellee. 3rd District.

Torts -- Nuisance -- No error in dismissing with prejudice complaint in which plaintiff sought to recover damages to property allegedly caused by overhanging branches and roots of neighbor's trees encroaching on her property and damages resulting from plaintiff's removal of portions of neighbor's tree intruding on her property
VIRGINIA T. SCOTT, Appellant, v. JULIE L. McCARTY, M.D., Appellee. 4th District.

 

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Injunctions, voluntary dismissal, product liability, and spinach-rosemary gnocchi over glazed onions, tomatoes, and garlic

Injunctions -- Domestic violence -- Error to enter final judgment of injunction for protection against domestic violence where petitioner failed to present sufficient evidence that she was victim of domestic violence or was in imminent danger of becoming victim of domestic violence

AMY HAIR, Appellant, v. CAMMY HAIR, Appellee. 4th District.

Injunctions -- Repeat violence -- Amended final injunction against repeat violence was unsupported by competent, substantial evidence of any overt act on respondent's part that indicated an ability to carry out any of her alleged threats against petitioner or that justified belief that violence was imminent

SHERRY CORRIE, Appellant, v. DAVID LEE KEUL, Appellee. 1st District.

Name change -- Error to summarily dismiss facially sufficient amended petition for name change on ground that name change was being sought for fraudulent purpose without holding evidentiary hearing

THE NAME CHANGE OF: JAMES PATRIC WAGES, JR., Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Real property -- Partition by sale -- Where court had entered judgment providing for a private sale of property based on stipulation of parties, with a deadline for parties to negotiate a private sale, it was error to thereafter impose an earlier deadline by which parties were to submit their highest bids to one another, thereby creating a forced buyout between the parties -- Postjudgment order altered provisions of partition judgment by imposing an expedited bidding scheme that was neither stipulated to by parties nor authorized by statute governing actions for partition

MARY ANN MARKS, Appellant, v. STEFAN V. STEIN, as Personal Representative of the Estate of Janet C. Stein, Deceased, Appellee. 2nd District.

Torts -- Automobile accident -- Limitation of actions -- Amended complaint -- Relation back -- Trial court did not err in denying plaintiff's motion to amend complaint to substitute wife of defendant for defendant, filed after original defendant filed a motion for summary judgment with supporting affidavits establishing that wife was sole owner of vehicle involved in crash and that wife was driving vehicle at time of crash -- Trial court correctly determined that amended complaint was barred by statute of limitations and did not relate back to date of original complaint -- “Identity of interest” exception to general rule that amendment adding new party does not relate back to original complaint does not apply, as suit against one spouse is separate and distinct from suit against the other spouse -- Each spouse has own legal rights and obligations, and Florida law is clear that one spouse is not responsible for the torts of the other

SYLVIA A. RUSS, Appellant, v. CAROLYN WILLIAMS, Appellee. 1st District.

Torts -- Legal malpractice -- Arbitration -- Jurisdiction -- Where plaintiff served notice of voluntary dismissal of one of defendants after that defendant had filed motion to compel arbitration, trial court was without jurisdiction to order that defendant to proceed with arbitration -- Notice of voluntary dismissal terminated trial court's jurisdiction over party

ESTATE OF GENEVIEVE A. WILLIAMS, Appellant, v. KEVIN F. JURSINSKI, P.A.; and JAMES HARWOOD, P.A.; and JAMES HARWOOD, Appellees. 2nd District.

Torts -- Product liability -- Bicycle -- Negligent failure to warn -- Proximate cause -- Injuries suffered when an object got caught in the front wheel of plaintiff's bicycle, causing the wheel to suddenly stop when the object hit the front carbon fiber forks of the bicycle, resulting in plaintiff falling forward onto the handlebars -- Defendant manufacturer's failure to place a warning on the bicycle alerting plaintiff to the potential of carbon fiber to crack and possibly fail when damaged was not the proximate cause of injuries suffered by plaintiff -- Proximate cause was road debris getting caught in front spokes, causing wheel to suddenly stop -- Trial court erred in denying defendant's motion for directed verdict on claim of negligent failure to warn

TREK BICYCLE CORPORATION, etc., Appellant, vs. ANTONIO MIGUELEZ, Appellee. 3rd District.

Torts -- Product liability -- Tobacco -- Trial court did not err in denying defendant's motion for directed verdict as to plaintiff's membership in Engle class -- Expert and lay evidence was sufficient to prove that plaintiff was addicted to cigarettes -- Argument -- Where defendant, in opening statement and during closing argument, informed jury that it was not disputing any of Engle findings, but denied the existence of conspiracy to conceal, the fifth Engle finding, it was not reversible error for plaintiff's counsel to rebut such arguments in closing and rebuttal arguments -- Comments did not deny defendant its right to a fair trial -- Trial court did not abuse discretion in denying defendant's motion for new trial

R.J. REYNOLDS TOBACCO COMPANY, Appellant, vs. RALPH BALLARD, et al., Appellees. 3rd District.

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Business law issues, civil procedure and avocado soup with fresh mozzarrella and Greek oregano

Attorney's fees -- Construction lien law -- Subcontractor's claim against surety on general contractor's payment bond -- Prevailing party -- Where arbitrators declined to award either party attorney's fees under section 713.29 after finding that neither was the “prevailing party,” trial court erred in awarding fees pursuant to statutes which generally permit, inter alia, an award of attorney's fees to a subcontractor who obtains a judgment against a surety insurer under a payment or performance bond for pecuniary loss resulting from a contractual breach -- Where subcontractor's action against surety was a claim to enforce a section 713.23 bond, provisions of section 713.29 controlled over conflicting provisions of sections 627.756 and 627.428
CONTINENTAL CASUALTY COMPANY, Appellant, v. A.W. BAYLOR VERSAPANEL-PLASTERING, INC., ET AL., Appellees. 5th District.

Child support -- Department of Revenue abused its discretion when it imputed income equal to federal minimum wage to mother after finding there was lack of sufficient, reliable information concerning her actual earnings, but failed to presume that father had earning capacity equal to federal minimum wage, even though it had less substantial and less reliable information concerning his actual current income than it had concerning mother's income -- On remand, Department can either impute earning capacity equal to federal minimum wage to both parents or refer proceedings to Division of Administrative Hearings to determine if either parent is voluntarily unemployed
TONI BAULER, Appellant, v. DEPARTMENT OF REVENUE, Child Support Enforcement, Appellee. 4th District.

Civil procedure -- Discovery -- Expert witness -- Torts -- Trial court erred in overruling defendant's objection to plaintiff's notice of intent to serve subpoena and notice of service of expert witness request for production directed to defendant's liability expert -- Rule 1.280(b)(4) does not allow a party to serve a subpoena or request for production
RICHARD T. SMITH and DIEBOLD INCORPORATED, Petitioners, v. WILLIAM V. ELDRED, Respondent. 4th District.

Contracts -- Real property sale -- Appeals -- Appellate court's affirmance of final judgment not to be interpreted as approval of trial court's comment that purchasers may later move to amend claim for specific performance to seek damages in lieu of specific performance, or as an indication that such a procedure is appropriate
McDANIEL RANCH PARTNERSHIP, a Florida Partnership; J.W. McDANIEL, SR., INC., a Florida corporation; MARY McDANIEL, ROBERT E. McDANIEL, JR., and JOHN L. McDANIEL, as Trustees of the Robert E. McDaniel, Sr. Residuary Marital Trust; MARY McDANIEL, individually; ROBERT E. McDANIEL, JR., individually; and JOHN L. McDANIEL, individually, Appellants, v. McDANIEL RESERVE REALTY HOLDINGS, LLC, a Florida limited liability company; and McDANIEL RESERVE HOLDINGS, LLC, a Delaware limited liability company, Appellees. 2nd District.

Contracts -- Loan refinance agreement -- Action by lender against borrower and borrower's attorney, filed after lender discovered that money transferred to borrower's attorney for purpose of paying off a mortgage that was subject to separate foreclosure proceedings by a bank was never transferred to the foreclosing bank -- Injunctions -- Circuit court erred in denying defendant's motion to dissolve temporary injunction requiring borrower and her attorney to deposit payoff amount into court registry without holding evidentiary hearing on borrower's motion to dissolve -- Further, temporary injunction did not specify reasons for its entry and court erroneously failed to require lender to post bond -- Remand for evidentiary hearing -- Severance -- Circuit court departed from essential requirements of law when it granted lender's motion to sever some of borrower's counterclaims where those counterclaims were inextricably intertwined with lender's claims -- On remand, circuit court to try all claims together, with jury to decide any legal claims and court to decide any equitable claims -- Appellate court lacks jurisdiction to review order dismissing some of borrower's counterclaims for failure to state cause of action where dismissal was with leave to amend
HEATHER MINTY, Appellant/Petitioner, v. MEISTER FINANCIALGROUP, INC. and LAW OFFICES OF CLAUDINE T. SMIKLE, P.L., Appellees/Respondents. 4th District.

Dissolution of marriage -- Attorney's fees -- Trial court erred in denying former husband attorney's fees to which he was entitled as prevailing party under marital settlement agreement on ground that claim had not been properly pled -- Exception to pleading requirement is applicable when opposing party raises no objection to clearly asserted claim to fees
DOUGLAS FERNANDEZ, Appellant, vs. ANGIE CRESPO, F/K/A ANGIE FERNANDEZ, Appellee. 3rd District.

Domestic violence -- Injunctions -- Where nothing in petition or evidence presented at injunction hearing indicated that petitioner ever lived in same single dwelling unit as respondent, petitioner did not have standing to seek injunction for protection against domestic violence under section 741.30(1)(e), and trial court did not have authority to enter injunction
EDWARD S. MORRIS, Appellant, v. JOHN P. MASCIA, Appellee. 5th District.

Injunctions -- Florida Deceptive and Unfair Trade Practices Act -- Action by developer of vacation resorts and seller of new timeshares to consumers against company in the business of providing advertising services to assist timeshare owners in resale and rentals of their timeshare interests, contending, among other things, that defendant's direct use of plaintiff's confidential owner information and defendant's misrepresentations about a relationship between itself and plaintiff constituted deceptive or unfair trade practices subject to injunctive relief -- Trial court erred in granting summary judgment in favor of defendant on claim for injunctive relief on ground that injunctive relief was not available in absence of actual damages -- Section 501.211(1) permits claim for injunctive relief by “anyone aggrieved” by an unfair or deceptive act, regardless of whether the aggrieved party can recover actual damages, and there existed disputed issue of material fact as to plaintiff's status as aggrieved party under FDUTPA
WYNDHAM VACATION RESORTS, INC., Appellant, v. TIMESHARES DIRECT, INC., ETC., ET AL., Appellee. 5th District.

Judges -- Disqualification -- Appeals -- Action arising out of appellate court's relinquishment of jurisdiction to trial court to clarify ruling -- No error in denying motion to disqualify judge where motion to disqualify was not proper vehicle to address judge's impatience with the proceedings -- While judge's impatience may have created issues for appeal, no other judge could clarify his ruling, and movant was essentially using motion as a method to attempt to force a new trial to gain a more favorable outcome -- Once trial court amended final judgment after jurisdiction was relinquished in first appeal, the order on appeal in the first appeal became the final judgment as clarified -- Thus, issues relating to clarification should have been raised and briefed in first appeal
McDANIEL RANCH PARTNERSHIP, a Florida Partnership; J.W. McDANIEL, SR., INC., a Florida corporation; MARY McDANIEL, ROBERT E. McDANIEL, JR., and JOHN L. McDANIEL, as Trustees of the Robert E. McDaniel, Sr. Residuary Marital Trust; MARY McDANIEL, individually; ROBERT E. McDANIEL, JR., individually; and JOHN L. McDANIEL, individually, Appellants, v. McDANIEL RESERVE REALTY HOLDINGS, LLC, a Florida limited liability company; and McDANIEL RESERVE HOLDINGS, LLC, a Delaware limited liability company, Appellees. 2nd District.

Judges -- Disqualification -- Social networking website -- Trial judge's status as Facebook friend of prosecutor constitutes legally sufficient ground for disqualification -- Writ of prohibition granted
PIERRE DOMVILLE, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where answer and opposing affidavit raised material issues of fact as to whether plaintiff satisfied contractual conditions precedent to foreclosure by giving proper presuit notice
JOANNE FINNEGAN, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-R11, Appellee. 4th District.

Trade secrets -- Misappropriation -- Discovery -- Appeals -- Certiorari review of order denying defendant's motion for a protective order seeking to prevent discovery of its own trade secrets until plaintiff identified with reasonable particularity the trade secrets allegedly misappropriated -- Trial court's order was overbroad to the extent that it encompassed two trade secret areas that were not before the trial court for consideration at evidentiary hearing -- Argument that trial court was required to make threshold finding that plaintiff's allegedly misappropriated trade secrets existed before ordering defendant to disclose its own trade secrets is rejected -- In misappropriation cases, plaintiff is only required to identify with reasonable particularity the trade secrets at issue before proceeding to discovery
AAR MANUFACTURING, INC., et al., Petitioners, v. MATRIX COMPOSITES, INC., Respondent. 5th District.

Torts -- Automobile accident -- Jurors -- Interview -- Trial court abused discretion in denying defendant's motion to interview jurors who failed to reveal that they had been injured in automobile accidents after having been asked by court whether they had ever been injured -- Trial court did not err in denying plaintiff's motion for attorney's fees under offer of judgment statute where motion was untimely filed 73 days after judgment was filed
NORMA BORROTO, Appellant, vs. JOSE GARCIA, Appellee. JOSE GARCIA, Appellant, vs. NORMA BORROTO, Appellee. 3rd District.

Torts -- Negligence -- Damages -- New trial -- Error to deny plaintiff's motion for a new trial on damages due to jury's zero verdict where defendant stipulated that his negligence caused the accident and that plaintiff sustained permanent injury because of the accident, and trial court instructed jury that defendant was a legal cause of some loss, injury, or damage to the plaintiff -- Plaintiff's challenge to defense's closing argument is not preserved for appeal where plaintiff did not object or raise this challenge in her motion for a new trial
JANINE SANTIAGO, Appellant, v. MIER ABRAMOVITZ, Appellee. 4th District.

Torts -- Premises liability -- Slip and fall -- Argument -- Defense counsel improperly insinuated in closing argument that personal injury law firms transported their clients to plaintiff's expert witness and treating neurologist en masse where there was no evidence to support this insinuation or to establish that expert had any business relationships with personal injury law firms -- It cannot be concluded that improper comments did not contribute to verdict -- Remand for new trial on damages only
HEATHER REFFAIE, Appellant, v. WAL-MART STORES, INC., Appellee. 4th District.

Wrongful death -- Product liability -- Tobacco -- Judges -- Disqualification -- Statements made by trial judge comparing defendant tobacco company's former CEO to Nazi war criminal raised reasonable question as to judge's ability to remain impartial -- Judge was required to enter order of disqualification where motion to disqualify was legally sufficient -- Petition for writ of prohibition granted
PHILIP MORRIS USA, INC., Petitioner, v. MARY BROWN, as Personal Representative of the Estate of Rayfield Brown, as surviving spouse, and on behalf of the estate, Respondent. 1st District.

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