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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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Child support, standing, appeals, and red lentil penne with goat cheese, garlic tomatoes, and fresh herbs

 

Appeals -- Appellant lacks standing to appeal trial court's order denying motion to vacate final judgment entered against appellant's wife where appellant was not named as party and did not move to intervene in lower court proceedings -- Appeal dismissed for lack of jurisdiction. GABOR SIMMONDS, Appellant, v. IN RE: GRACE OLAECHEA VS. LIZETTE OLAECHEA, Appellee. 3rd District.

 

Child support -- Administrative order -- Assertions that Department of Revenue erred in calculating amount of child support obligation without considering father's ability to pay and that Department improperly considered child care costs in absence of competent, substantial evidence relating to those costs were not preserved for review where father failed to request administrative hearing -- Further, claims were raised on appeal that were unrelated to calculation of statutory child support -- Order affirmed without prejudice to father seeking relief as outlined in section 409.2563. RAYMOND FELICIANO, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, and STEFFANIE DANIELLE CACCIATORE, Appellees. 4th District.

 

Civil procedure -- Intervention -- Trial court did not abuse discretion by denying motion to intervene in action where party seeking to intervene would interject new and independent claims that would predominate over issues shared with main action. MARIA SOLEDAD LARRAIN TRONCOSO, et al., Appellants, v. MANUEL ANTONIO OSSANDON LARRAIN, Appellee. 3rd District.

 

Civil procedure -- Jurors -- Voir dire -- Challenge -- Cause -- Torts -- Product liability -- Tobacco -- Trial court committed reversible error by granting defendant's motion to exclude eight prospective jurors based solely on their written responses to particular question on jury questionnaire without first allowing counsel to question those jurors as permitted under rule 1.431(b) where it was not “conclusively clear” from their written answers that the excused prospective jurors could not be impartial -- New trial required -- Evidence -- Admission of individual photograph depicting decedent not smoking was not probative of how much decedent did or did not smoke -- Testimony that decedent could go into hotels owned by her family and “sign for things without paying” was also not relevant to any material fact. SHAN FROGEL, as personal representative of the Estate of Bette J. Cash, Appellant, v. PHILIP MORRIS USA, INC., Appellee. 4th District.

 

Declaratory judgments -- Trial court erred in dismissing declaratory judgment action where complaint stated cause of action for declaratory relief -- Allegation that plaintiff is in doubt as to right to distribution of certain royalties states real and substantial justiciable controversy, so that there is a need for declaration of rights as to distribution of royalties. MUSIC ROYALTY CONSULTING, INC., Appellant, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS (ASCAP) and JK ENTERTAINMENT, LLC, Appellees. 3rd District.

 

Dissolution of marriage -- Alimony -- Modification -- Change in circumstances -- Trial court erred in concluding that former husband failed to prove substantial change in circumstances with respect to his ability to pay alimony following entry of dissolution judgment where evidence showed that former husband's current available take-home pay as financial advisor had been substantially reduced due to certain deductions from his paycheck made by his current employer -- Decrease in income was not voluntary, but instead stemmed from factor outside husband's control -- Although trial court properly concluded that change in circumstances was not permanent, as deductions from paycheck would eventually end, husband failed to preserve for review his argument that trial court should have considered a temporary modification -- Order denying modification petition affirmed without prejudice to husband seeking temporary modification. PAUL DAVID SJOGREN, Appellant, v. MARY SJOGREN, Appellee. 4th District.

 

Dissolution of marriage -- Attorney's fees -- Trial court erred in including in fees awarded to former wife in connection with child support modification proceedings amounts attributable to clerical and secretarial work. dALBERT STEVEN CORIAT, Appellant, v. ENMA LARISSA CORIAT, Appellee. 3rd District.

 

Dissolution of marriage -- Child support -- Imputed income -- Voluntary underemployment -- No error in finding that former husband was voluntarily underemployed where, although former husband was involuntarily terminated from his logistics job, he pursued a lower paying career in real estate -- Error to impute a salary of $120,000 on former husband where there was insufficient evidence to show former husband had present ability to earn that amount in logistics in his community. YANN GERVILLE-REACHE, Former Husband, Appellant, v. INA GERVILLE-REACHE, Former Wife, Appellee. 1st District.

 

Dissolution of marriage -- Equitable distribution -- Alimony -- Child support -- Life insurance -- Trial court erred in including in equitable distribution a vehicle which was no longer in wife's possession -- Trial court improperly valued husband's vehicle by failing to consider negative equity in the vehicle where affidavit submitted by husband regarding the vehicle's value and outstanding debt was admitted into evidence without objection -- Trial court improperly valued investment accounts as of the date husband petitioned for dissolution rather than date of trial where, although accounts had been considerably depleted by time of trial, there was no finding of misconduct -- Trial court erred in requiring husband to maintain life insurance to secure support obligations where it failed to make findings as to the availability and cost of insurance, and husband's ability to pay -- Evidence was insufficient to support award of child support based on 50/50 timesharing where, although parties stipulated to 50/50 timesharing, husband's testimony established that he could not exercise equal timesharing. JOSEPH WILLIAM O'NEILL JR., Appellant, v. CAROLYN SWINK O'NEILL, Appellee. 4th District.

 

Employer-employee relations -- Whistle blowers -- Retaliation -- Jury instructions -- Causation -- New trial -- Discussion of proper standard of causation to be applied in cases involving employer retaliation under Whistle Blower's Act -- Trial court abused its discretion in denying defendant's request to instruct jury that it could return a verdict in favor of plaintiff only if it found that plaintiff's termination would not have occurred but for defendant retaliating against plaintiff's protected activity -- United States Supreme Court's decision in Univ. of Tex. Sw. Med. Ctr. v. Nasser requires the use of a “but for” rather than a “motivating factor” causation standard when analyzing claims under the state's Whistle Blower's Act -- New trial on liability and causation is required using “but for” jury instruction -- Damages -- No error in granting defendant's motion to set aside damages for future loss of earning capacity where only speculative testimony was presented to the jury -- There was no competent substantial evidence to support plaintiff's expert's assumption that plaintiff would have been compensated at the same rate as those who were in the top ten percent earning strata of plaintiff's field or who had obtained leadership positions because plaintiff had no such earnings history, no such demonstrated competency, never held any such leadership positions, and those few high paying jobs went to more senior practitioners. DR. AHMAD Z. CHAUDHRY, Appellant/Cross-Appellee, v. ADVENTIST HEALTH SYSTEM SUNBELT, INC., D/B/A FLORIDA HOSPITAL AND/OR FLORIDA HOSPITAL TRANSPLANT INSTITUTE, Appellee/Cross-Appellant. 5th District.

 

Insurance -- Homeowners -- Coverage -- Appraisal -- Waiver -- Trial court erred in compelling appraisal of residential home under policy where there were disputes over coverage and policy specifically precluded appraisal for coverage issues -- Moreover, any right of appraisal was waived where suit was filed and litigated for a year prior to appraisal request. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. EMPIRE MITIGATION RESTORATION AND CONSULTING, LLC a/a/o Steve Wexler and Paula Wexler, Appellee. 1st District.

 

Mortgage foreclosure -- Standing -- Lost note -- Reestablishment -- Res judicata -- Collateral estoppel -- No error in entering final summary judgment in favor of borrowers for lack of standing where there was a break in the assignment of the note prior to the purported assignment to plaintiff -- Previous assignee in chain of assignment had no interest in the note to transfer to plaintiff because the former assignment to previous assignee only transferred interest in the mortgage -- Trial court erred in finding that res judicata barred plaintiff's foreclosure action because, in a prior foreclosure action between the same parties, the trial court made a specific finding that plaintiff failed to reestablish the lost note -- Section 673.3091 does not create an independent cause of action -- The right to enforce a lost note, in foreclosure context, travels with the breach that triggers the need to seek enforcement, a default by mortgagor -- Plaintiff may pursue foreclosure based upon borrower's subsequent defaults, each of which furnishes a separate cause of action -- No abuse of discretion in denying plaintiff's motion for rehearing to present additional evidence regarding the assignment to previous assignee -- Failure of proof is not a basis to reopen evidence -- Court rejects argument that evidence plaintiff sought to produce was newly discovered where the evidence existed well before trial and plaintiff knew borrowers contested its standing. FORTY ONE YELLOW, LLC, Appellant/Cross-Appellee, v. YOEL REMON ESCALONA and NURIA GONZALEZ, Appellees/Cross-Appellants. 2nd District.

 

Rules of Appellate Procedure -- Amendments -- New rules -- General provisions -- Addition of new subdivision requiring every court to publish on its website written opinions not covered by Rule of Judicial Administration 2.420 -- Notice of appeal -- Orders of lower tribunals and orders granting new trial in jury and nonjury cases -- Requirement that notice of appeal indicate that a motion tolling rendition is pending in lower tribunal -- Nonfinal orders and specified final orders -- Orders disposing of motions for rehearing are not reviewable separate and apart from a review of a final order -- Constitutional challenge to state statute or state constitutional provision -- Parties in cases other than criminal and collateral criminal proceedings where constitutionality of statute or constitutional provision is challenged are required to provide notice of such to attorney general -- Attorneys -- Limitation of appearance -- Attorney of record for party in appeal or original proceeding shall be attorney of record unless, at time of appearance, attorney files a notice specifically limiting appearance to one particular matter or portion of proceeding -- Court declines to adopt proposed amendments to rules regarding uniform citation system and notice of supplemental authority. IN RE: AMENDMENTS TO THE FLORIDA RULES OF APPELLATE PROCEDURE -- 2020 REGULAR-CYCLE REPORT. Supreme Court of Florida.

 

Torts -- Medical malpractice -- Sovereign immunity -- University is entitled to sovereign immunity for services rendered by its employee physician at Public Health Trust teaching hospital where university provides healthcare services -- Pursuant to terms of university's agreement with hospital, it was hospital's agent at time physician treated plaintiff -- University is immune from suit because physician treated plaintiff while acting as hospital's statutory agent. MARIA JOANNA LAZZARI, etc., Appellant, v. PABLO GUZMAN, M.D., etc., et al., Appellees. 3rd District.

 

Torts -- New trial -- Trial court did not abuse discretion by granting plaintiff's motion for new trial where defense counsel intentionally misrepresented to court that Fire Rescue Report had not been admitted into evidence, leading court to remove the report from evidence during closing argument, and made improper and inflammatory remarks during closing argument. WE THE BEST MUSIC, INC., Appellant, v. KENDRICK STAFFORD, Appellee. 3rd District.

 

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