Mortgages, child support, excessive force, and organic fennel, rosemary cream, and Kalamata olives on a bed of handmade posta

Appeals -- Sanctions -- Failure to timely file initial brief -- Failure to obey court orders -- Appellate counsel referred to Local Professionalism Panel

NOCARI INVESTMENT, LLC, et al., Appellants, v. WELLS FARGO BANK, N.A., et al., Appellees. 3rd District.

  Bankruptcy -- Claims -- Objections -- Rule 3001(c) objections, asserting that proofs of claim did not attach a copy of writing upon which claims are based, lack merit -- Creditor was not required to prove that its claims are based on an open-end or revolving consumer credit agreement -- Objections to claims, which were scheduled as undisputed in amounts identical to amounts asserted by creditor in its proofs of claim, are not good faith objections -- Objections to claims on grounds that account summary statement attached to each proof of claim includes a notation that debt was “charged off” are legally insufficient -- Mere fact that proof of claim includes reference to a charge-off date is not, standing alone, a legal basis for a claim objection -- Even if court followed decisions disallowing claims where debtor received a Form 1099-C reflecting the cancellation of debt, validity of proofs of claim remain unrebutted and claims will be allowed where debtors did not present evidence that they received a Form 1099-C for any of debts subject of charge-off objections In re: AMAURYS RODRIGUEZ and ANAEN NUNEZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida.   Williams v. Poarch Band of Creek Indians Court: U.S. Court of Appeals for the Eleventh Circuit Docket: 15-13552 Opinion Date: October 18, 2016 Areas of Law: Constitutional Law, Native American Law Plaintiff filed suit against the Poarch Band of Creek Indians, alleging that she was terminated from her job because of her age pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621-634. The district court adopted the Magistrate’s Report and Recommendation to grant the Poarch Band's motion to dismiss the suit based on the doctrine of tribal sovereign immunity. In this case, there is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. The court rejected plaintiff's comparison of the definitions of the term "employer" found in the ADEA and Title VII, in conjunction with the Supreme Court's opinion in Fitzpatrick v. Bitzer; plaintiff's argument that the ADEA is a statute of general applicability is foreclosed by the court's precedent; and other circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. Accordingly, the court affirmed the district court's decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction. http://j.st/46tR    Bankruptcy -- Discharge -- Fraudulent transfer -- Discharge should be denied pursuant to Section 727(a)(2)(A) because debtor transferred property within one year before his bankruptcy petition with intent to hinder, delay, or defraud his creditors -- Debtor transferred property where debtor liquidated his pension fund, deposited the net proceeds of fund in his individual checking account, and within the two months between the deposit and filing of his bankruptcy petition made a number of transactions which had the effect of significantly diminishing his bank account -- Debtor cannot claim that proceeds of liquidated pension account were exempt from his Chapter 7 estate where he voluntarily withdrew funds from his pension plan, funds were never placed in designated individual retirement account or any other investment vehicle, Section 222. 21(c), Florida Statutes, did not provide an exemption for funds after they were paid to debtor and deposited into his checking account, and debtor did not claim an exemption for his checking account under that statute -- False oath or account -- Discharge should be denied pursuant to Section 727(a)(4) where debtors knowingly made a false oath on the bankruptcy schedules -- Where Statement of Financial Affairs signed by debtors did not disclose liquidation of pension fund; income received as a result of fund's liquidation; or gifts that debtor wife made from proceeds of fund, even though she was aware that the transactions had occurred within two months before bankruptcy petition was filed, debtors' nondisclosures constitute false oaths -- Debtors were obligated to disclose assets and transactions, despite their claim that pension proceeds were exempt -- Circumstantial evidence shows that debtors intended to hinder, delay, or defraud their creditors by disposing of proceeds of pension fund and misrepresenting the transactions on their bankruptcy schedules -- Based on circumstances, court could conclude that debtor husband had prior knowledge of bankruptcy process, that debtors were aware of claims of mortgage creditors who had foreclosed on their home, that husband liquidated his pension fund in effort to remove it from reach of creditors, and that debtors thereafter attempted to spend pension proceeds or otherwise conceal them from bankruptcy estate -- Failure to satisfactorily explain loss of assets or deficiency -- Discharge should be denied pursuant to Section 727(a)(5) because debtor experienced a loss of assets and failed to provide a satisfactory explanation for the loss -- Debtor's bank accounts were significantly diminished in weeks before bankruptcy petition was filed, and he was unable to provide even vague or speculative explanations of many transactions that took place on eve of his bankruptcy In re: JEFFREY LEONARD JONES, DARNELLA COLE JONES, Debtors. U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division.

Child custody -- Jurisdiction -- Uniform Child Custody Jurisdiction Enforcement Act -- Florida is home state of child who was born in Florida and lived in Florida until mother relocated to New York when child was less than two weeks old -- Trial court erred in dismissing putative father's petition for determination of paternity, parental responsibility, child support, and related relief on basis that court lacked jurisdiction under UCCJEA because Florida was not child's home state -- Fact that child was born out of wedlock has no bearing on child's home state

JAMES BAKER, Appellant, v. CARA CATHERINE TUNNEY, Appellee. 5th District.

Child support -- Income -- Deductions -- Administrative support order erroneously allowed deductions for expenses against gross income that were not permitted by statute -- Remand for recalculation of parents' respective net incomes for purposes of child support guidelines

DEPARTMENT OF REVENUE on behalf of HOLLY N. HARRIS, Appellant, v. THADIUS DEMENTRIEL CRAWFORD, Appellee. 1st District.

Civil procedure -- Proposal of settlement -- Attorney's fees -- An offer of settlement is not invalid for failing to state, as required under Rule of Civil Procedure 1.442(c)(2)(F), whether the proposal includes attorney's fees and whether attorney's fees are part of the legal claim, where attorney's fees are not sought in the pleadings

SUSANNE L. KUHAJDA, Petitioner, vs. BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al., Respondents. Supreme Court of Florida.

Civil rights -- Search and seizure -- Arrests -- Excessive force -- Officer's multiple tasings of suspect, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated suspect's clearly established constitutional right to be free from excessive force -- Where law enforcement officers handcuffed and pinned down the suspect following a struggle and then tased him five times with at least two of those tases occurring after suspect had ceased resisting, a reasonable officer in arresting officer's position and under circumstances would have had fair warning that repeatedly tasing handcuffed suspect after he had ceased struggling and resisting was unreasonable and unconstitutionally excessive under Fourth Amendment -- Evidence construed in favor of plaintiff demonstrates that suspect was not flight risk or a threat to safety of officers or public prior to conclusion of tasings -- Officer was not entitled to qualified immunity on excessive force claim at summary judgment stage of proceedings

PATRICIA JUANITA WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. KENNETH KUBLER, Defendant-Appellant. 11th Circuit.

Consumer law -- Mortgage foreclosure -- Real Estate Settlement Procedures Act -- Loss mitigation -- Loan servicer had no duty to evaluate an application for loss mitigation options submitted by borrowers when, at time application was submitted, a foreclosure sale of borrowers' property was scheduled to occur in two days -- Under Regulation X, which implements RESPA, a loan servicer's duty to evaluate a borrower's loss mitigation application is triggered only when borrower submits the application more than 37 days before the foreclosure sale -- Borrowers' application was untimely, even where servicer postponed the foreclosure sale such that sale actually transpired more than 37 days after they submitted their complete loss mitigation application -- To evaluate the timeliness of an application, Regulation X requires counting the number of days between date a complete loss mitigation application is received and date of foreclosure sale, and directs using scheduled date of foreclosure sale as of date complete application was received to determine date of foreclosure sale -- It is irrelevant if servicer subsequently reschedules foreclosure sale to a later date -- Because borrowers completed their application too late to trigger servicer's duty to evaluate the application, summary judgment was properly granted to servicer on loss mitigation claim -- Notice of error -- Borrowers were not entitled to summary judgment on separate claim that loan servicer failed to respond adequately to their subsequent notice of error as required by Regulation X, because borrowers failed to present evidence that they suffered actual damages or were entitled to statutory damages based on pattern or practice of RESPA noncompliance -- Use of a template to respond to borrowers' notice of error was insufficient evidence from which to infer that servicer had a pattern or practice of issuing form letters that were unresponsive to borrowers' notices of error

JOHN LAGE, MARIA MANTILLA, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant - Appellee. 11th Circuit.

Mortgages -- Satisfaction -- Failure to timely record certificate of discharge -- Jurisdiction -- Plaintiff who used proceeds of real estate sale to satisfy a mortgage owned by defendant lacks standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied -- Because plaintiff has not alleged that the violation of New York law that occurred when defendant failed to timely record the discharge of mortgage caused or could cause him harm that could constitute a concrete injury in fact, appeal from dismissal of complaint must be dismissed for lack of jurisdiction

ROGER NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee. 11th Circuit.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, or  FEDERAL Recent Decisions of Interest.

Deficiency judgments, lis pendens, child support, and cage free eggs over turnip greens, heirloom tomatoes, and manchego cheese

Appeals -- Timeliness -- Appellate court has no jurisdiction of appeal of trial court's denial of award of fees under wrongful act doctrine where notice of appeal was filed more than six months after final judgment -- Letter to court which reargued facts of case, raised rhetorical questions, and asked legal advice, did not constitute a motion for rehearing which would suspend rendition of final judgment

MILDRED M. RAYBURN, and BEVERLY MELTON, Trustee of the WILLIAM BURR RAYBURN TRUST, ETC. ET. AL., Appellants, v. WILLIAM C. BRIGHT and WILBERTA A. BRIGHT, ET AL., Appellees. 5th District.

Arbitration -- Contracts -- Settlement agreement -- Under terms of settlement agreement which ultimately provided for merger of two companies, disputes relating to pre-merger loans were subject to two-step process, which required that any dispute be submitted initially to accounting firm for evaluation using “generally accepted accounting principles, consistently applied, and past practices” as parameters and then, if a party disagreed with accounting firm's application of accounting principles or past practices, required that dispute be resolved through binding arbitration -- Trial court's order submitting case to accounting firm for a binding decision as an arbitrator was contrary to parties' settlement agreement -- Remand for entry of order submitting case to accounting firm and ordering arbitration in event that either party disputes resolution reached by accountants

ROBIN RESNICK, Appellant, v. J. WEINSTEIN AND SONS, INC., a Florida corporation, and ABRAHAM RESNICK, individually, Appellees. 4th District.

Attorneys -- Disqualification -- Conflict of interest -- Motion to disqualify defendant's counsel in action for breach of non-disclosure agreement where defendant's counsel had represented plaintiff in other non-disclosure agreement matters ten years earlier -- Trial court erred in denying motion for disqualification on grounds of the time that had passed since the prior representation of plaintiff and the circumstances of the non-disclosure agreement -- Attorney's representation of parties involved substantially related matters

ASI HOLDING COMPANY, INC., A FLORIDA CORPORATION D/B/A AMENITY SERVICES, INC., Petitioner, v. ROYAL BEACH & GOLF RESORTS, LLC, Respondent. 1st District.

Attorney's fees -- Prevailing party -- Action for unpaid wages -- Award of prevailing party attorney's fees in action for unpaid wages is discretionary rather than mandatory -- Trial court did not abuse discretion in denying award of attorney's fees to plaintiff in her action for unpaid bonuses where plaintiff prevailed on some of her claims, and defendant prevailed on other claims -- Award of costs to prevailing party in action for unpaid wages is also discretionary, and trial court did not abuse discretion by denying award of costs to plaintiff

FILOMENA RUFFA, Appellant, v. SAFTPAY, INC., Appellee. 3rd District.

Attorney's fees -- Proposal for settlement -- Proposal which clearly announced that it addressed any and all claims and causes of action resulting from accident giving rise to lawsuit brought by injured plaintiff against driver of vehicle and which included and described all relevant conditions of the proposal was unambiguous and sufficient to meet particularity requirements of statute and rule -- Proposal did not need to address spouse's separate and distinct loss of consortium claim -- Trial court erred in characterizing proposal as a joint proposal and in denying claims for attorney's fees based on finding that the proposal failed to state amount and terms attributable to each party -- Requiring that codefendant/owner of vehicle be dismissed was merely condition attached to acceptance of offer and did not render proposal joint or invalidate it in any other way

GLENN MILEY and KYLE MILEY, Appellants, v. MARTHA NASH, Appellee. 2nd District.

Civil procedure -- Dismissal -- Two-dismissal rule -- Under two-dismissal rule, which provides that a notice of voluntary dismissal operates as an adjudication on the merits when served by a plaintiff who has previously dismissed the action, a notice of voluntary dismissal does not operate as an adjudication on the merits when it is preceded by an “agreed order” granting a defense motion to dismiss the case with leave to amend

CYPRESS FAIRWAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. CYPRESS MADISON OWNERSHIP CO., ETC., ET AL., Appellees. 5th District.

Civil procedure -- Discovery -- Deposition of opposing counsel -- Order compelling litigant's in-house attorney, who is not the attorney of record but is directly involved in the litigation, to be deposed, is quashed because respondents failed to satisfy case law requirements for taking deposition of opposing counsel

ELLER-I.T.O. STEVEDORING COMPANY, L.L.C., Petitioner, v. LAZARO PANDOLFO and OLGA ALVAREZ a/k/a Olga Alvarez Sarria, Respondents. 3rd District.

Civil procedure -- New trial -- Abuse of discretion to grant defendant a new trial on the basis of cumulative unfair surprise where defendant either declined court offered continuance, or failed to request continuance, after each incident of claimed unfair surprise

RUVIM LONDON, Appellant/Cross-Appellee, v. VLADIMIR DUBROVIN, et. al., Appellees/Cross-Appellants. 3rd District.

Dissolution of marriage -- Attorney's fees -- Error to award attorney's fees to wife without making requisite written findings on husband's ability to pay and basis for specific payment plan imposed by court -- Judgment contained requisite findings on reasonableness of hours expended and hourly rate -- Husband cannot argue that trial court failed to make findings to support requirement that husband secure life insurance policy where husband agreed to purchase $100,000 life insurance policy and included such a provision in his proposed final judgment

CHRIS BECKSTROM, Appellant, v. JULIE BECKSTROM, Appellee. 4th District.

Dissolution of marriage -- Child support -- Modification -- Appeal from supplemental final judgment that modified husband's timesharing and child support based primarily on his relocation to foreign state -- Trial court abused its discretion in denying husband's requests for continuance based on late disclosure of wife's financial affidavit the day before final hearing -- Under controlling rule, requirement to provide financial affidavit in supplemental proceedings cannot be waived by parties; and in any event, there was no evidence of record that husband waived requirement -- Husband was prejudiced by late filing where he was unable to procure his own expert to review the alleged permanent decrease in income reflected in wife's affidavit -- Trial court erred in awarding retroactive support in absence of evidence that husband had ability to pay the amount ordered during the time period at issue -- No merit to husband's argument that trial court erred in including children's private school tuition as component on child support guidelines worksheets -- New hearing required on issue of child support

BRIAN K. GILROY, Appellant, v. PATRICIA A. GILROY, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Errors regarding amount of debt and tax liability

MARGARET LEVITT, Appellant, v. ADAM LEVITT, Appellee. 5th District.

Injunctions -- Demolition of building by city -- Portion of injunction finding that city did not give proper notice of proposed demolition proceeding affirmed -- Error to enjoin city from demolishing building until pending foreclosure action is concluded -- Injunction erroneously fails to specify reasons for its entry, and there is no record support for injunction that prevents city's exercise of its right to demolish property once property owners have received proper notice

CITY OF MIAMI, Appellant, v. JP MORGAN CHASE BANK NATIONAL BANK, et. al., Appellees. 3rd District.

Injunctions -- Repeat violence -- No error in denying motion to dissolve injunction where motion challenged merits of injunction rather than alleging change in circumstances since injunction was entered

ALFRED WASHINGTON, Appellant, v. THELMA S. WASHINGTON, Appellee. 1st District.

Landlord-tenant -- Guarantors -- Summary judgment granted in favor of tenant and guarantors reversed as to guarantors because the motion only sought relief on behalf of tenant -- Appeals -- Jurisdiction -- Remainder of appeal dismissed because it is not an appealable partial final judgment

KENDALL COMMERCIAL ASSOCIATES, LLC, etc., Appellant, v. DRAKES, LLC, et. al., Appellees. 3rd District.

Limitation of actions -- Amended complaint -- Relation back -- Trial court erred in granting substituted defendant's motion for summary judgment on ground that statute of limitations had run where mistake in naming proper defendant was merely a misnomer, all the parties knew which entity the plaintiff intended to sue, and there was substantial identity of interest between the original defendant and substituted defendant -- Moreover, incorrectly named defendant engaged in extensive discovery and did not reveal that it was not the proper defendant until after statute of limitations had run -- Plaintiff not at fault for failing to inquire further after original defendant made conclusory statement in its first affirmative defense that it was “not a proper party to this action,” an assertion which was legally insufficient and inconsistent with its conduct in engaging in discovery

PAUL MAY, individually and as legal guardian of Jean May, Appellant, v. HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Blake Medical Center; FRANCISCO ESPARZA, M.D.; DAVID DIVITA, M.D.; and PINNACLE MEDICAL GROUP, P.A., Appellees. 2nd District.

Mortgage foreclosure -- Deficiency -- Action at law by mortgagee to recover damages for breach of note after mortgagee had included prayer for deficiency judgment in foreclosure complaint and trial court reserved jurisdiction in foreclosure judgment to enter deficiency judgment -- Trial court did not err in entering judgment for damages on note after consolidating the action at law and the foreclosure action

ROBERT G. REID, Appellant, v. COMPASS BANK, Appellee. 1st District.

Mortgage foreclosure -- Jury trial -- Where lender brought promissory note count against defendants in conjunction with mortgage foreclosure suit, defendants were not entitled to jury trial on promissory note action -- Legal remedy on promissory note in this context is deficiency judgment, and foreclosure courts are explicitly granted authority to enter this remedy -- Moreover, mortgage at issue contained jury trial waiver for any action related to mortgage or note -- Argument that plaintiff was not entitled to enforce jury trial waiver because it was not party to original contract is without merit, as plaintiff was holder of note and mortgage by virtue of an endorsement

TRENDA KINNEY f/k/a TRENDA BOUTIN and PETER KINNEY, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., et al., Appellees. 4th District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

Attorney's fees, standing, dissolution of marriage, judges, and grilled squash with goat cheese and basal-balsamic vinaigrette over wild spinach

Appeals -- Appeal is premature where related indemnity claim is pending in trial court

PROFORMANCE PLASTERING OF PENSACOLA, INC., Appellant, v. THE WINDMERE OWNERS' ASSOCIATION, INC., CITIZEN PROPERTY INSURANCE CORPORATION; McCRORY BUILDING CO., INC., DELTA/UNITED SPECIALTIES, INC., ALL-SOUTH SUBCONTRACTORS, INC., BRADLEY MASONRY, INC., ET AL., Appellees. 1st District.

Attorneys -- Attorney's fees contract -- Trial court erred in denying petition for approval of a straight 40% contingency fee contract for representation of petitioner in a medical malpractice action -- Trial court is required by rule to approve petition as long as it finds that petitioner understood the rights that she was waiving and the terms of the fee contract

IN RE: CHARLES BUGGS, DECEASED, BY AND THROUGH LITA RENGIFO, PERSONAL REPRESENTATIVE, Appellant. 1st District.

Attorneys -- Disqualification -- Conflict of interest -- Trial court did not depart from essential requirements of law in determining that a conflict of interest existed and in disqualifying law firm representing both defendants in negligence suit and plaintiff's employer with respect to its workers' compensation lien against any judgment awarded to plaintiff as result of his lawsuit

ANHEUSER-BUSCH COMPANIES, INC. and ANHEUSER-BUSCH, INCORPORATED, Petitioners, v. CHRISTOPHER STAPLES, Respondent. 1st District.

Attorney's fees -- Appellate -- Trial court did not abuse discretion in using a fee multiplier of 1.5 in awarding appellate attorney's fees where the court had determined that a multiplier of 1.5 was appropriate in awarding trial court attorney's fees -- Claim that prevailing party attorney's fees provision in sections 175.061(5) and 185.05(5), Florida Statutes did not apply to a local government pension fund established pursuant to special law was not preserved where issue was not raised before trial court or argued on appeal

BOARD OF TRUSTEES OF THE JACKSONVILLE POLICE & FIRE FUND, Appellant, v. JOSEPH KICKLIGHTER, Appellee. 1st District.

Civil procedure -- Attorney's fees -- Timeliness of motion -- Tolling -- Pending post-judgment motion to set aside a final default judgment does not toll thirty-day time requirement for serving motion for attorney's fees and costs -- Trial court properly denied motion for attorney's fees and costs filed more than thirty days after final default judgment was filed

ASAP SERVICES, LLC, a Florida limited liability company, Appellant, vs. S A FLORIDA INTERNATIONAL, LLC, a foreign limited liability company, d/b/a OEC LATIN AMERICA, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to prosecute -- Error to grant motion to dismiss for lack of prosecution where movant did not provide required sixty-day notice required by revised rule and neither movant nor trial court recognized three instances of record activity preceding dismissal -- Any filing of record during applicable time frame is sufficient to preclude dismissal without requiring that court find that the filing is intended to affirmatively move case toward resolution on merits

AEGIS, LLC., ETC., Appellant, v. MOHAMED MAWJI, FATEMA MAWJI, et al., Appellees. 5th District.

Contracts -- Action by manager of aircraft fleet against fixed base operator seeking damages pursuant to fixed base services agreement for damage caused to plaintiff's aircraft by defendant -- Claims for damage caused to some aircraft more than four years before breach of contract action was filed were barred by Texas statute of limitations -- Under Texas law, it was error to find that plaintiff was not entitled to recover damages for other damaged aircraft because plaintiff made an unreasonable pre-suit demand -- Remand for new trial on damages -- On remand, existence of, or amount of insurance coverage, is not relevant to issue of damages, and is not a proper matter for jury's consideration -- Similarly, defendant may not assert as an affirmative defense the duty to cooperate, which is an implied condition in the performance of a contract and, thus, relates solely to the issue of liability, not damages

BOMBARDIER AEROSPACE CORPORATION, Appellant/Cross-Appellee, v. SIGNATURE FLIGHT SUPPORT CORPORATION, Appellee/Cross-Appellant. 5th District.

Contracts -- Staffing agreement -- Indemnification -- Error to dismiss with prejudice fifth amended complaint alleging defendant breached duty to indemnify plaintiff for claims against plaintiff which were caused by defendant's employees -- Although defendant contended that plaintiff was not party to contract, plaintiff alleged the agreement extended coverage to contracting corporation's subsidiary, referred to on the contract's signature page as the plaintiff, and fifth amended complaint also alleged that the plaintiff was the contracting corporation's subsidiary and that defendant had contracted with the plaintiff for temporary employment services -- Further, although defendant alleged its duty to indemnify was limited to temporary employees listed in certain schedule, the contract required defendant to indemnify plaintiff for claims caused by the defendant's employees in general -- Accordingly, plaintiff adequately pled that the defendant breached contract by refusing to indemnify plaintiff for claim caused by defendant's employee

REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, d/b/a ALL SERVICE REFUSE a foreign limited partnership, Appellant, v. WORKERS TEMPORARY STAFFING INC., a Florida corporation, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Error to fail to include in final judgment findings relating to all factors listed in statute -- Equitable distribution -- Error to distribute marital assets and liabilities without stating value of each asset and amount of each liability -- Attorney's fees -- Award of attorney's fees to be reevaluated after clarification of equitable distribution scheme and alimony

RALPH PATINO, Appellant, v. YOLANDA PATINO, Appellee. 4th District.

Dissolution of marriage -- Alimony -- Where marriage fell in “gray area” between a short-term and long-term marriage, it was an abuse of discretion to award wife nominal alimony without factual findings regarding statutory factors for award of alimony

EMMANUEL TURCOTTE, Appellant, v. MICHELLE TURCOTTE, Appellee. 2nd District.

Dissolution of marriage -- Child custody -- Relocation of child -- Final judgment denying former wife's petition to relocate with child born of marriage is well-supported by evidence -- No merit to argument that trial court erred in applying factors enumerated in section 61.13001(7) to find that former wife failed to prove by preponderance of evidence that relocation was in best interest of child, but instead should have required former husband to prove that there had been a substantial change in circumstances since entry of initial judgment determining time-sharing, pursuant to section 61.13 -- Former husband was not required to prove a substantial change in circumstances because he was merely seeking enforcement of time-sharing schedule set forth in initial judgment, not a modification of time-sharing schedule

MISTIE FETZER, Appellant, v. KYLE T. EVANS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Qualified domestic relations order -- 401(k) -- Valuation -- In calculating one-half share of husband's 401(k) plan to be awarded to wife under terms of mediated settlement, trial court erred in including value of outstanding loans taken out by former husband to support parties' lifestyle -- Including outstanding loan balances in amount to be distributed to former wife would result in inequitable distribution and windfall to her and would leave undisposed marital liabilities represented by the loans -- Remand for modification of QDRO to provide that outstanding unpaid loans, as they existed on date of valuation, will not be included in distribution to former wife

JOEL C. TEAGUE, Appellant, v. LORA L. TEAGUE, Appellee. 4th District.

Dissolution of marriage -- Trial court abused discretion in requiring former husband to maintain life insurance policy as security for alimony without finding that husband could afford to maintain the policy and without finding that life insurance was necessary to secure alimony obligation

JEFFREY FROESCHLE, Appellant, v. LEONORE FROESCHLE, Appellee. 2nd District.

Judges -- Disqualification -- Challenge to blanket order from judge disqualifying herself from all cases involving a particular attorney employed by the public defender as the supervising division chief for the division in which the judge was the presiding judge -- Although trial judge had authority to disqualify herself in all cases involving a specific attorney under appropriate circumstances, judge departed from essential requirements of law by filing an “order” of blanket disqualification in a specific court file and including in this order the judge's personal opinions regarding the attorney's reputation and professionalism -- Order to be stricken from case in which it was filed -- If judge concludes that her relationship with this lawyer is such that she will be unable to treat lawyer's clients fairly, she can provide written notice of blanket disqualification to chief judge and clerk of circuit court and file typical notice of disqualification without further explanation in any affected court file

JULIANNE HOLT, Public Defender for the Thirteenth Judicial Circuit, Hillsborough County, Petitioner, v. HONORABLE TRACY SHEEHAN, Circuit Court Judge, Hillsborough County, Respondent. 2nd District.

Judges -- Disqualification -- Prohibition -- Disqualification required where, although motion was legally insufficient, judge took issue with facts alleged in motion

ALAN SCOTT MCPHERSON, Petitioner, v. DANA EARLE MCPHERSON, Respondent. 4th District.

Mandamus -- Judges -- Disqualification -- Motion to disqualify should have been deemed granted after expiration of 30-day period following service of motion -- Order denying motion more than three months after it was filed quashed -- Remand with directions to enter order directing clerk to reassign case to different judge

PEARLY BELGRAVE-SIMMONDS, Petitioner, v. CHRISTOPHER BELGRAVE, Respondent. 4th District.

Mortgage foreclosure -- Standing -- Summary judgment in favor of plaintiff, where note attached to complaint contained two allonges signed by the same individual, one of which contained an undated endorsement from original lender to another entity and the second of which contained an undated endorsement in blank from this other entity, was proper because defendants failed to offer any evidence to overcome the statutory presumption that the individual signing the allonges was authorized to do so

VIRGIL M. BENNETT and LISSETTE C. BENNETT, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees. 4th District.

Mortgage foreclosure -- Standing -- Trial court improperly granted summary judgment for mortgagors, holding that to have standing to foreclose, mortgagee must be both holder and owner of the promissory note -- Because party seeking foreclosure is required only to be the holder of the note, mortgagee who holds note but provided no evidence of ownership has standing to foreclose

WELLS FARGO BANK, N.A., Appellant, v. DANIEL P. MORCOM AND SHARON MORCOM, Appellees. 5th District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.

Dissolution of marriage, estates, Engle "manifestation", and brick oven pizza with prosciutto, fig, arugula, and goat cheese

Attorney's fees -- Prevailing party -- Condominiums -- Where bank obtained foreclosure judgments on condominium units, condominium association claimed assessment liens in excess of the statutory limit of bank's liability for condominium assessments, and bank filed post-judgment motions against association in foreclosure actions requesting application of the statutory cap to association's liens and an award of attorney's fees pursuant to statute which provides that prevailing party is entitled to attorney's fees in disputes between unit owners and condominium associations, trial court properly found that it had jurisdiction to entertain bank's post-judgment motions on the merits, but erred in finding that post-judgment procedure was not a proper forum to litigate the request for fees -- Having accepted post-judgment process as proper forum to decide the merits of disputes over unpaid assessments, association cannot now argue that post-judgment proceedings were an improper forum to award prevailing party attorney's fees -- Bank was not barred from recovering award of attorney's fees by the “no pleading, no fees” rule where entitlement to fees did not exist from the outset of bank's foreclosure actions against condominium unit owners

OCEAN BANK, Appellant, vs. CARIBBEAN TOWERS CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Contempt -- Dissolution of marriage -- Error to hold husband in indirect civil contempt for failing to pay substantial child support arrearages where all agreed husband did not receive proper notice of wife's motion and hearing date -- Error to set a purge amount without imposing a coercive sanction that the purge would remove -- Error to order husband to pay $25,000 within four weeks without sufficient evidence of ability to comply -- Gross receipts of business in which husband owned roughly a one-third interest not sufficient basis for valuation

GHASSAN MANSOUR, Appellant, v. DALAL HELMI MANSOUR, Appellee. 2nd District.

Creditors' rights -- Proceeding supplementary in aid of execution -- Discovery -- Business records -- Trial court departed from essential requirements of law, causing material injury for which there was no adequate remedy on appeal, by requiring non-party corporation with which one of judgment debtor's subsidiaries had loan agreement to divulge extensive business records that were tenuously related to litigation -- Trial court erred in denying corporation's motion for protective order limiting creditor to seeking information regarding assets of judgment debtor that were possibly subject to execution

GENERAL ELECTRIC CAPITAL CORP., Petitioner, v. RICHARD NUNZIATA, as Personal Representative of the Estate of ELVIRA NUNZIATA; TRANS HEALTH MANAGEMENT, INC.; and RUBIN SCHRON, Respondents. 2nd District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Written judgment regarding timesharing schedule to be corrected to conform to oral pronouncement -- Percentages for parties' overnights with children should also be corrected

JEFFREY LANCE BUTLER, father, Appellant, v. STEPHANIE HALL f/k/a STEPHANIE BUTLER, mother, Appellee. 1st District.

Estates -- Trusts -- Action against trustee, his son, and their law firm by beneficiaries of trust, alleging breach of fiduciary duties -- Trustee breached fiduciary duty resulting in damages by failing to diligently ascertain the value of real property which was the sole asset of trust, by undervaluing the property for federal estate tax purposes, by failing to post bond and to render annual accountings to beneficiaries, and by making unilateral payment to himself from trust monies without prior disclosures of alleged entitlement and amount to beneficiaries or the court -- Trial court did not abuse discretion in refusing to strike testimony of beneficiaries' expert appraiser -- Trial court did not abuse discretion in requiring disgorgement of trustee's and attorney's fees previously paid -- Trial court did not abuse discretion in removing trustee or in granting beneficiaries' preemptive request to preclude trustee's sons from serving as successor trustee

ARTHUR F. MCCORMICK, etc., et al., Appellants, vs. GAIL C. COX, et al., Appellees. 3rd District.

Estates -- Wills -- Revocation -- Error to dismiss second amended petition for revocation of probate of will in which petitioner alleged that, due to undue influence and testamentary incapacity based upon lack of capacity and insane delusions, all wills executed by decedent after a 1983 will in which petitioner was beneficiary were invalid -- Petitioner pleaded sufficient allegations of standing

MARLENE GORDON, Appellant, v. LAURIE KLEINMAN, individually, and as Personal Representative of the Estate of JOEL H. DAVIS, Deceased; and M. TAMARA RIMES as Curator, Appellees. 4th District.

Foreclosure -- Jurisdiction -- Error to enter final judgment while appeal of non-final order was pending -- Error to enter final judgment when related counterclaim was pending

DENNIZ DILICAN and LORI DILICAN, Appellants, v. NORMANDY VILLAGE PROPERTY OWNERS ASSOCIATION, INC., Appellee. 4th District.

Injunctions -- Mortgage foreclosure -- Trial court acted within its inherent authority to sanction abusive litigant when it issued omnibus order granting permanent injunction barring future filings relating to foreclosure proceeding or filing future actions arising out of foreclosure proceedings in the circuit

LINDSAY JENKINS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Appellees. 4th District.

Torts -- Municipal corporations -- Law enforcement officers -- DUI arrestee's action against city alleging negligent supervision and retention, failure to protect, battery, and negligent infliction of emotional distress based on conduct of police officers while plaintiff was in holding cell and while plaintiff was in police station garage awaiting transport to jail -- Trial court erred in denying city's motion for new trial on claim of negligent retention/supervision of particular police officer where jury found that officer acted within course and scope of his employment at all times -- City cannot show it was prejudiced by this ruling because of two-issue rule -- Although jury was asked to determine liability on four separate negligence claims, three of which were based on city's vicarious liability for officer's actions, damages were determined only once and not apportioned to any particular claim -- Sovereign immunity -- City could be found liable under doctrine of respondeat superior for acts of officer where officer was acting within course and scope of his employment when he committed battery, and jury found battery was not done in bad faith, with malicious purpose, or in manner exhibiting wanton and willful disregard of plaintiff's rights -- City could also be held vicariously liable for negligent infliction of emotional distress where jury found plaintiff had been battered, which by definition requires touching or impact

CITY OF BOYNTON BEACH, Appellant, v. ADAM WEISS, Appellee. 4th District.

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Manifestation of disease for purpose of inclusion in Engle class membership -- Trial court did not err in instructing jury that decedent's manifestation of peripheral vascular disease occurred when he had symptoms of the disease, instead of when decedent was on notice of the causal connection between his smoking and the disease -- Conflict certified -- Trial court did not err in denying defendant's motion for directed verdict on the basis that plaintiff failed to introduce reliable medical evidence demonstrating that decedent experienced symptoms of PVD prior to class membership cutoff date -- Trial court erred in allowing plaintiff to recover punitive damages under theory of gross negligence since that cause of action was not pled in original Engle class case and jury found for defense on concealment and conspiracy claims

R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. PAMELA CICCONE, as Personal Representative of the Estate of GEORGE N. CICCONE, deceased, Appellee. 4th District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.