Torts, trespass, premises liability, dissolution, and Chicken Mole Poblano, nasturtium and heirloom cucumber salad

 Appeals -- Stay -- Automatic bankruptcy stay -- Appellate panel is bound by court's prior decision in Shop in the Grove, Ltd. v. Union Federal Savings and Loan Ass'n of Miami, 425 So. 2d 1138 (Fla. 3d DCA 1982), which held that bankruptcy automatic stay provision is inapplicable in appellate court where the debtor, who is the defendant below and who has filed for federal bankruptcy protection, is the appellant, but panel suggests that court should revisit and recede from that decision. NATIONAL MEDICAL IMAGING, LLC, et al., Appellants, v. LYON FINANCIAL SERVICES, INC., etc., Appellee. 3rd District.

Child custody -- Appeals -- Order approving report and recommendation of general magistrate regarding time-sharing and parenting plan affirmed -- Appellate review is limited to errors on face of order where no exceptions to report and recommendation were filed. MELISSA LYNN MURPHY, Appellant, v. LACY AUSTIN RAY HUTCHENS, Appellee. 5th District.

Civil procedure -- Setting of action for trial -- Failure to strictly comply with rule 1.440 -- Final judgment reversed where matter was tried prematurely and not properly noticed for trial. BENJAMIN CHANCEY AND ANGELIA CHANCEY, Appellants, v. MICHAEL YOUNG AND MARION COUNTY BOARD OF COMMISSIONERS, Appellees. 5th District.

Contracts -- Employment -- Termination/nonrenewal -- Action brought against employer claiming breach of contract and covenant of good faith, reformation, and negligent misrepresentation stemming from the employer's decision to not renew employee's contract after expiration of the initial term and place employee on administrative leave without following procedures outlined in termination provision of contract -- No error in entering summary judgment in favor of employer on breach of contract claim -- Administrative leave is not the same as termination, and employer's summary judgment evidence established that employee was placed on administrative leave, where he remained with full pay and benefits, until the agreement expired -- Although employee was relieved of his duties, fact remains that employee was not terminated during the term of the agreement and, as such, employer was not required to follow termination provision of contract when it declined to renew -- Additionally, other provisions of contract state that expiration is not dismissal or termination which would trigger contract's termination provision -- Trial court's interpretation of contract was reasonable and gave effect to the entire agreement -- Because there is no breach of contract claim, claim that employer breached the implied covenant of good faith and fair dealing necessarily fails -- No error in entering summary judgment in favor of employer on reformation claim where employee showed no wrongful or inequitable conduct by employer, and employee's evidence conclusively contradicted his claim of mistake -- Trial court's apparent erroneous ruling that the statute of frauds barred reformation claim does not warrant reversal because summary judgment was otherwise appropriate -- No error in entering summary judgment in favor of employer on claim of negligent misrepresentation -- Contract was not ambiguous and alleged misrepresentations made to employee reflected contract's language -- Although trial court adopted employer's proposed order verbatim, including erroneous legal conclusion that statute of frauds prohibited reformation claim, circumstances of the case do not create an appearance that the trial court failed to exercise independent judgment. DARREN WHITE, Appellant, v. FORT MYERS BEACH FIRE CONTROL DISTRICT, Appellee. 2nd District.

Contracts -- Jurisdiction -- Non-residents -- Action by Florida company against Puerto Rican company for breach of contract for plaintiff to install glass tiles in pools being constructed by defendant in Puerto Rico -- Trial court erred in denying motion to dismiss where plaintiff failed to establish that defendant had sufficient minimum contacts with Florida to satisfy due process requirements for personal jurisdiction over defendant -- Specific jurisdiction provision of long-arm statute was satisfied by allegation that defendant breached contract in Florida by failing to make payments in Florida as required by contract -- Substantial services under contract were performed in Puerto Rico, not Florida, and defendant did not purposefully avail itself of privilege of conducting business activities in Florida, and did not establish minimum contacts with Florida. JOHNNY'S POOL SUPER CENTER, INC., Appellant, v. FOREVERPOOLS CARIBBEAN, LLC, Appellee. 3rd District.

Contracts -- Sale of real property -- Option to purchase -- Specific performance -- Trial court did not err in declining to grant specific performance of an option to repurchase certain real property where, although option holder furnished notice of intent to exercise the option as authorized under original purchase contract, trial court found a dearth of proof that option holder stood ready, willing, and able to tender payment, along with a lack of compliance with certain contractually stipulated terms -- An option holder must strictly comply with the applicable provisions of the contract, necessarily accepting the terms of the option unqualifiedly. LUPETTO, INC., Appellant, v. SOUTH BAY DEVELOPERS GROUP, LLC, etc., et al., Appellees. 3rd District.

Dissolution of marriage -- Alimony -- Permanent alimony award reversed where, without explanation, the award falls short of former wife's basic monthly expenses while leaving former husband with a substantial surplus. JOY TRACHTMAN TORDINI N/K/A JOY TRACHTMAN, Appellant, v. RAPHAEL JOSEPH TORDINI, Appellee. 5th District.

Estates -- Attorney's fees -- Personal representative's counsel -- Substantial competent evidence supported contractual attorney's fees awarded for administration of the estate, and there were no allegations of bad faith or overcharging. QUANISHA HARRIS, Appellant, v. IN RE: ESTATE OF WILLIE HARRIS, Appellee. 3rd District.

Insurance -- Homeowners -- Bad faith -- Failure to attempt in good faith to settle claim -- Trial court erred in entering summary judgment for insurer in insureds' bad faith action on ground that insurer cured a Civil Remedy Notice of Insurer's Violations by invoking the appraisal process before the CRN was filed and paying the appraisal award more than sixty days after the CRN was filed -- CRN is not required to contain a specific amount sought to cure alleged bad faith. PATTI FORTUNE and JEREMY DOMIN, Appellants, v. FIRST PROTECTIVE INSURANCE COMPANY d/b/a FRONTLINE INSURANCE, Appellee. 2nd District.

Insurance -- Third-party beneficiaries -- Language of the policy of insurance clearly reflects that plaintiff was not intended to primarily and directly benefit from the policy where policy expressly stated that it was only between the named insured and the insurer, and that there was no contract of insurance between insurer and plaintiff. PAMELA GOINS, Appellant, v. PRAETORIAN INSURANCE COMPANY, Appellee. 5th District.

Mortgage foreclosure -- Judges -- Disqualification -- Adverse rulings -- Petition for prohibition seeking review of order denying disqualification of judge based on claim that judge discounted petitioner's credibility by ordering sequestration of rents despite petitioner's affidavit that petitioner lacked a tenant -- Petition is denied where record shows that challenged action did not stem from disqualifying personal bias or prejudice toward petitioner. NIDIA N. MAGARINO, Petitioner, v. THE BANK OF NEW YORK MELLON, etc., Respondent. 3rd District. Probate rules -- Amendments -- Petition to determine capacity -- Designation of health care surrogates or other advance directives -- Petition for appointment of guardian of an incapacitated person -- Petitioner required to state whether they have knowledge or belief that there are other possible alternatives to guardianship -- Guardian advocate -- Petitioner required to state whether they have knowledge that person with developmental disability has executed a designation of health care surrogate -- Expedited judicial intervention concerning medical treatment procedures -- Forms -- Adoption of new rules containing standardized forms to reduce costs and create uniformity statewide. IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES -- GUARDIANSHIP. Supreme Court of Florida.

Real property -- Homestead -- Insurance -- Assignment of post-loss benefits -- Question certified: Does Article X, section 4(c) of the Florida Constitution allow the owner of homestead property, joined by the spouse if married, to assign post-loss insurance benefits to a third-party contractor contracted to make repairs to the homestead property?. LANDMARK CONSTRUCTION INC. OF CENTRAL FLORIDA, AS ASSIGNEE OF CARMELO GONZALEZ AND VICTORIA GONZALEZ, Appellant, v. ANCHOR PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 5th District.

 

Replevin -- Unclean hands -- Summary judgment -- Action by lender seeking to obtain mobile home from successor in interest to foreclosed property on which the mobile was located -- Trial court erred in granting summary judgment in favor of property owner based on unclean hands defense alleging that lender had made material misrepresentations to bankruptcy court concerning the value of, and equity in, the mobile home in order to maintain control of the asset -- Property owner failed to establish that it was injured as a result of lender's alleged misconduct where bankruptcy documents did not support property owner's position that misconduct caused its predecessor in interest to file responsive pleadings in bankruptcy case -- Even assuming that predecessor in interest's expenditure of time and resources could be relied upon to show an injury to property owner, it is clear from the record that no such expenditure was shown. 21ST MORTGAGE CORPORATION, Appellant, v. TSE PLANTATION, LLC, MERI L. HARRELL, CURTIS R. HARRELL, et al., Appellees. 1st District.

 

Rules of Supreme Court Relating to Admissions to the Bar and Rules Regulating the Florida Bar -- Amendments -- Court declines to adopt proposed emergency rules to provide for admission to the Florida Bar without examination, followed by a supervised practice requirement, of applicants who otherwise qualify for admission based upon graduation from an ABA-accredited law school and demonstration of good moral character to aid registrants for the July 2020 Florida General Bar Examination who have been severely impacted by the delays in administering the examination. IN RE: PETITION TO AMEND THE RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR AND THE RULES REGULATING THE FLORIDA BAR. Supreme Court of Florida.

 

Rules Regulating Florida Bar -- Amendments -- Conditionally admitted members -- Members admitted to Bar pursuant to consent agreement no longer treated as a separate class of “Conditionally Admitted Members” that are subject to term of probation -- Such members to be treated as any other members of Bar in good standing, except for the added terms of the consent agreement. IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR -- RULE 1-3.2(b). Supreme Court of Florida.

 

Torts -- Civil theft -- Default -- Damages -- Unliquidated damages -- Default entered for failure to answer complaint in an action alleging civil theft based on defendant's failure to compensate plaintiff with funds received from selling plaintiff's personal items -- Trial court erred in entering final judgment awarding plaintiff unliquidated damages without notice and an opportunity to be heard -- Complaint seeking a specified amount of damages, which was based upon plaintiff's attached list of values that she placed on the respective items of personal property stolen, was a claim for unliquidated damages that did not convert or become a liquidated damage claim by virtue of the later default entered against defendant -- Court recedes from precedent which held that unliquidated damages are converted to liquidated damages when a plaintiff alleges in its complaint that it was damaged in a sum certain and defendant is later defaulted for failing to answer the complaint. ANTHONY J. CIOTTI, AS EXECUTOR OF THE ESTATE OF ANTHONY G. CIOTTI, Appellant, v. NANCI HUBSCH, Appellee. 5th District.

 

Torts -- Civil theft -- Remedies -- Attorney's fees -- Trial court erred in denying defendants' motion for attorney's fees pursuant to section 772.11 because record shows that plaintiff's civil theft claims were without substantial fact or legal support -- Plaintiff's claims of civil theft were by definition without any factual evidentiary support where trial court had granted directed verdict in favor of defendants on grounds that there was no showing of criminal intent, which is an essential element of a civil theft claim. ISLAND TRAVEL & TOURS LTD. CO., a Florida Corporation, WILLIAM J. HAUF, an individual, ISMAEL O. SENE, an individual, and DANNY LOONEY, an individual, Appellants, v. MYR INDEPENDENT, INC., etc., Appellee. 3rd District.

 

Torts -- Malicious prosecution -- False arrest -- Absolute immunity -- State attorneys -- Appeals -- Certiorari -- Complaint against assistant state attorney and state attorney stemming from ASA's securing of a material witness warrant for plaintiff's arrest allegedly based on statements ASA knew to be false, and ASA's unsuccessful argument for plaintiff's continued detention -- Discussion of a prosecutor's entitlement to absolute immunity -- Trial court erred in denying ASA and SA's motions to dismiss based on absolute immunity where trial court based its analysis on whether ASA was acting in good faith -- In determining absolute immunity, courts must look to the nature of the function performed, not the identity of the actor who performed it -- Once it is determined that the challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused -- ASA's action in filing the motion for a material witness warrant and advocating for her continued detention were done in the course of an ongoing prosecution and, regardless of ASA's motives, he continued to function as an advocate and his actions were not administrative in nature. SYED MUNAWWAR QADRI, ESQUIRE, AND ARAMIS AYALA, STATE ATTORNEY, NINTH JUDICIAL CIRCUIT, ORANGE COUNTY, FLORIDA, Petitioners, v. SANDRA MARIE RIVERA-MERCADO, Respondent. 5th District.

 

Torts -- Premises liability -- Business invitee -- Trip and fall -- Depression in parking lot -- Open and obvious danger -- Trial court erred in entering summary judgment in favor of defendants based on conclusion that plaintiff was injured as a result of an open obvious danger -- Based on summary judgment record, a jury could conclude that depression in pavement was not so open and obvious that defendants could reasonably expect that it would be discovered by an invitee where plaintiff stated that the depression blended into the parking lot, and picture of depression depicted a man-made hole that was the same color as the surrounding asphalt and contained dried leaves -- Moreover, even when a dangerous condition is open and obvious, the occupier of the premises is not excused from its duties to protect and warn invitees if it reasonably should anticipate that the condition poses an unreasonable risk of harm to invitee notwithstanding the obvious nature of the condition -- A jury could conclude that defendants reasonably should have anticipated that an invitee negotiating the parking lot to visit defendant's establishment, which resembled an enormous ice cream cone, would be distracted by its striking appearance and by the need to watch for approaching vehicles. TRACY GREENE and JOSHUA GREENE, Appellants, v. TWISTEE TREAT USA, LLC; MISSION BELL, S.C., LLC; and KIMCO REALTY CORPORATION, Appellees. 2nd District.

 

Torts -- Trespass -- Homeowner's action against neighbor that allegedly hired construction company to trespass upon homeowner's property and remove and destroy sedimentary rock foundation beneath homeowner's fence -- Counterclaims and third-party claims seeking injunctive relief and damages -- Competent, substantial evidence supported judgment in favor of homeowner and award of damages -- No error in pretrial orders dismissing portions of neighbor's second amended third-party complaint and second and third amended counterclaims. MARSHALL IVES, Appellant, v. TATE GETTINGER and ANAMARIA GETTINGER, and ALEX FENCES, INC., Appellees. 3rd District.

 

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Fraud on the court, Engle-class decision, Jordanian law, and sage-rubbed roasted free range chicken, tomato-rosemary rissoto

Bankruptcy -- Voidable transfers -- Fraud -- Cash dividend transferred to shareholder in amount equal to shareholder's income tax attributable to his share of debtor's S-corporation taxable income was not avoidable -- Debtor received reasonably equivalent value in form of S-corporation election benefit obtained under shareholders agreement -- Shareholders agreement that requested shareholders' consent to pay a share of debtor's taxes if debtor ever elected to be treated as an S-corporation benefitted debtor because it secured shareholders' consent for debtor to shift to S-corporation status whenever it determined it was advantageous to do so -- Moreover, debtor enjoyed added benefit of freeing up cash that otherwise would have been dedicated to paying its tax liability -- Although agreement obligated debtor to pay out a dividend in an amount sufficient for shareholder to pay income tax attributable to the portion of the corporation's income included in shareholder's income in the preceding year, debtor gained added benefit of being able to delay payment to shareholders until a year after shareholders had incurred debtor's tax liability

In Re: NORTHLAKE FOODS, INC. a.k.a. North Lake Foods, Inc., Debtor. DAVID H. CRUMPTON, Plaintiff - Appellant, v. RICHARD STEPHENS, Defendant - Appellee. 11th Circuit.

Civil rights -- Americans with Disabilities Act -- Employment -- Medical examination -- Psychiatric/psychological fitness-for-duty evaluation of employee conducted at behest of employer was valid under Section 12112(d)(4)(A) of Americans with Disabilities Act, because evaluation was both “job related and consistent with business necessity” -- Statute protects non-disabled employees -- Evaluation was job-related and consistent with business necessity where employer had a reasonable, objective concern about employee's mental state, which affected job performance and potentially threatened the safety of other employees -- Evaluation was job-related because an employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.

FRANKLIN OWUSU-ANSAH, Plaintiff-Appellant, v. THE COCA-COLA COMPANY, Defendant-Appellee. 11th Circuit.

Paternity -- Sperm donors -- Trial court erred in granting parental rights to biological father with respect to child who was conceived through artificial insemination in “do-it-yourself,” non-clinical, conditions, where the sperm donor was the brother of one of the same-sex partners who were to parent the child according to unwritten agreement, but whose relationship had later soured resulting in the biological mother's denying the former partner access to the child -- Statute denying parental rights to sperm donors still applies where donor's identity is known to the biological mother and where insemination is artificial but occurs outside the laboratory.

A.A.B., Appellant, v. B.O.C., JR., Appellee. 2nd District.

Public employees -- Whistle blowers -- Trial court improperly entered summary judgment in favor of defendant city in action by terminated fire chief because genuine issues of material fact remain for resolution -- Where fire chief had changed his recommendation about supporting a merger of city fire services with another governmental agency, preferring to proceed with caution, after which the mayor suspended him for failure to follow the direction to move forward with the consolidation and, after meeting with commissioners, effecting the chief's termination, differing versions as the motivation for the termination exist

PATRICK COMPETELLI, Appellant, v. CITY OF BELLEAIR BLUFFS, Appellee. 2nd District.

Torts -- Fraud -- Contracts -- Violations of Jordanian law -- Dispute arising out of agreements, acts, and communications relating to U.S. government procurement contracts -- Trial court did not abuse its discretion in excluding expert testimony concerning whether there is condition precedent, under Jordanian law, that notice be given to certain Jordanian ministry prior to plaintiff's instituting suit where condition precedent claim was not raised as affirmative defense prior to trial and was addressed for first time mid-trial -- Moreover, all jury instructions on Jordanian law had been extensively negotiated and were presented to court by stipulation, thereby removing any battle of experts on Jordanian law, and defendants failed to comply with disclosure requirements of pre-trial order -- Damages -- Lost profits -- New trial on damages not required because jury's damage award did not distinguish between fraud claims and Jordanian law claims where parties stipulated to verdict form and verdict was for precise amount sought, regardless of count -- Error to deny prejudgment interest where, even without verdict form breakdown, it was clear that total sum for lost profits was, at a minimum, fixed as of the end of last contract between the parties

HARRY SARGEANT, III, MUSTAFA ABU-NABA'A, and INTERNATIONAL OIL TRADING COMPANY, LLC, Appellants, v. MOHAMMAD ANWAR FARID AL-SALEH, Appellee. 4th District.

Torts -- Medical malpractice -- Proximate cause -- Action alleging negligent treatment of plaintiff's bedsore -- Error to deny defendants' motion for directed verdict on proximate cause grounds where there was no evidence that defendants' negligence more likely than not caused injury to plaintiff
ROBERT JEFFREY CHASKES, D.O., SANDRA SAINT-ELOI, ARNP and VOHRA HEALTH SERVICES, P.A., Appellants, vs. ZOILA GUTIERREZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DILIA DOLORES JAQUEZ, Appellee. 3rd District.

Torts -- Premises liability -- Slip and fall -- Discovery -- Surveillance video -- Defendant is not entitled to reconsideration of order requiring defendant to produce to plaintiff, prior to her deposition, a copy of surveillance video which captured plaintiff's fall on defendant's premises -- Defendant's failure to confer with opposing counsel is by itself grounds to deny motion -- Additionally, motion for limited reconsideration does nothing other than reiterate arguments previously made in response in opposition to plaintiff's motion for protective order and/or motion to compel.

ANISA MUZAFFARR, Plaintiff, v. ROSS DRESS FOR LESS, INC., a foreign profit corporation, Defendant. U.S. District Court, Southern District of Florida.

Tobacco -- Engle class membership -- Trial court erred in directing verdict in favor of plaintiff on issue of membership in Engle class, by removing the “addiction causation” requirement from the Engle class definition -- Engle class membership requires production of evidence that decedent's addiction was the legal cause of her COPD, and defendant introduced evidence sufficient to create jury issue on whether decedent's addiction caused her COPD -- Trial court erroneously instructed jury that issue for its determination was whether decedent's smoking of cigarettes containing nicotine was the legal cause of her death

PHILIP MORRIS USA INC. and R. J. REYNOLDS TOBACCO COMPANY, Appellants/Cross-Appellees, v. ANDY R. ALLEN, SR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PATRICIA ALLEN, DECEASED, Appellee/Cross-Appellant. 1st District.

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Business law issues, torts, and biscuits with fresh thyme-strawberry jam

Appeals -- Non-final orders -- Order on defendant's motion to dismiss for lack of jurisdiction is not an appealable, non-final order where order granted the motion to dismiss, but allowed plaintiff time to amend the complaint, and did not actually determine jurisdiction at all -- Injunction -- Order granting temporary injunction is affirmed where defendants did not challenge injunction on its merits, but rather asserted that court lacked jurisdiction, and jurisdiction issues remain to be decided

MARGARET GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, and MICHELLE GRASSO, individually and as a purported Cotrustee of the Olga Grasso Revocable Trust, Appellants, v. OLGA T. GRASSO, Appellee. 2nd District.

Arbitration -- Waiver -- Action by partnership formed to purchase arena football team against defendant who expressed interest in becoming part owner of team, entered into agreement with partnership under which defendant was provided confidential business information, and then purchased part ownership in team after direct negotiations with owner without knowledge of partners -- Partners did not waive right to arbitrate action against defendant by suing defendant for injunctive relief -- Defendant consented to arbitration by submitting to arbitrator the issue of whether plaintiffs waived the right to arbitrate -- Having elected to proceed before arbitrator, defendant cannot claim that arbitrator exceeded his authority -- Trial court properly entered judgment confirming arbitration award

ROBERT NUCCI, M.D., Appellant, v. STORM FOOTBALL PARTNERS a/k/a collectively THOMAS BEGLEY, individually; JAY MIZE, individually; DOUG GRABER, individually; and ERIC SNOW, individually, Appellees. 2nd District.

Arbitration -- Where arbitration agreement provided an exception to arbitration for claims seeking equitable relief, trial court properly denied motion to compel arbitration of claims seeking injunctive relief and equitable accounting

APARTMENT INVESTMENT AND MANAGEMENT COMPANY, ET AL., Appellants, vs. FLAMINGO/SOUTH BEACH 1 CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to comply with discovery orders -- Final order dismissing with prejudice was deficient for failing to include explicit finding of willful noncompliance, even though lower court cited, with specificity, details surrounding plaintiff's failure to comply with court's orders and attend depositions

WENDY I. YOUNG, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee. 4th District.

Dissolution of marriage -- Alimony -- In denying wife's request for permanent periodic alimony and, instead, awarding her bridge-the-gap alimony, trial court miscalculated parties' monthly net incomes by adding their monthly retirement incomes to their net incomes after the parties themselves had included their retirement in their income calculations -- Trial court also erred by failing to address evidence that wife made financial and career sacrifices in moving from South Carolina to Florida to marry husband -- Remand for recalculation of parties' incomes and for findings of fact relating to parties' respective contributions to marriage and career building

LOUETTER BOOTH RUCKER, FORMER WIFE, Appellant, v. ROBERT MALCOLM RUCKER, HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Alimony -- Modification -- Order denying husband's petition to modify alimony alleging a substantial decline in husband's income is reversed where circuit court's finding that husband was in a “supportive relationship” was not supported by competent, substantial evidence -- Although circuit court did not ascribe to husband a specific financial benefit based on the relationship, circuit court's finding that he was in a supportive relationship strongly suggests that it factored the relationship into its decision to deny husband's petition -- Remand with instructions to reconsider petition without regard to husband's relationship

JONATHAN M. MORRELL, Appellant, v. FELICIA A. MORRELL, Appellee. 2nd District.

Dissolution of marriage -- Alimony -- Modification -- Supportive relationship between former wife and another person not basis for reducing former husband's alimony obligation where relationship existed prior to parties' divorce and alimony award -- Under terms of section 61.14(1)(b), reduction or termination of alimony based on existence of a supportive relationship between the obligee and another person is authorized only if the relationship has existed “since the granting of a divorce and the award of alimony”

PATRICK H. KING, Appellant/Cross-Appellee, v. CYNTHIA L. KING, Appellee/Cross-Appellant. 2nd District.

Dissolution of marriage -- Equitable distribution -- Marital home -- Error to make husband solely responsible for expenses associated with marital home prior to its sale without addressing husband's entitlement to credits for these expenses

JON L. SWERGOLD, Appellant, v. JILL H. SWERGOLD n/k/a JILL H. KAZDIN, Appellee. 4th District.

Estates -- Prohibition -- Probate court is without jurisdiction to continue controlling party's interest in residence or in his share of net proceeds of sale of residence where they are not part of estate or otherwise under jurisdiction of probate court -- Liens against property and proceeds are to be recognized outside administration of estate

CARLTON FIELDS, P.A. AND GARY W. POLLACK, Petitioners/Appellants, vs. EDWARD J. LOCASCIO AND IN RE: ESTATE OF SILVIA M. LOCASCIO, Respondents/Appellees. 3rd District.

Mortgage foreclosure -- Affirmative defenses -- Truth in Lending Act violations -- Consumer law -- Plaintiff “originated” loan when it relied upon services of a mortgage broker to place it in touch with defendant, a prospective borrower and, accordingly, plaintiff was a creditor as defined by Truth in Lending Act, even though defendant initially sought out services of mortgage broker -- Trial court erred in ruling that TILA did not apply to transaction -- TILA defenses were not time-barred -- Consumer, relying on 15 U.S.C. section 1640(a)(1), is entitled to actual and statutory damages as a defense of recoupment or set-off to an action for collection of a debt, even when such claims would be barred by TILA's three-year statute of limitation -- However, consumer cannot assert the right of rescission as a defense in recoupment for TILA violations once the period for the statute of limitations has expired -- Accordingly, trial court properly found that, even if TILA does apply, defendant received all necessary TILA disclosures relating to her right of rescission, and her right of rescission was limited to three-business-day window following the closing of the transaction -- Because trial court did not make factual findings regarding plaintiff's alleged violations of TILA, other than those relating to defendant's right of rescission, case remanded for further proceedings -- Trial court properly ruled that defendant did not have private right of action for violations of Florida Fair Lending Act

DENISE L. MARTINEC, Appellant, v. EARLY BIRD INTERNATIONAL, INC. and LARRY MARTINEC, Appellees. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Prevailing party -- Error to deny insureds' motion for attorney's fees pursuant to section 627.428 where insurer's payments made after suit was filed were tantamount to confessions of judgment entitling the insureds to attorney's fees, and lawsuit served a legitimate purpose because it motivated the insurer to pay not only the amount of the appraisal award, but additional living expenses incurred as well

JESUS BARRETO and DANIA BARRETO, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee. 4th District.

Mortgage foreclosure -- Deficiency -- Trial court abused discretion by rejecting expert testimony of property appraiser as to fair market value of property and denying mortgagee's motion for deficiency judgment

BEACH COMMUNITY BANK, Appellant, v. FIRST BROWNSVILLE COMPANY, a Florida Corporation, ARTHUR C. BUNTON, III, and ARCHIBALD HOVANESIAN, JR., Appellees. 1st District.

Mortgage foreclosure -- Pleading -- Verification -- Appeals -- Certiorari -- Petition seeking review of non-final order denying without prejudice plaintiff's motion to amend complaint to add a count to reestablish lost promissory note on ground that verification of amended complaint was insufficient because it was based on “knowledge and belief” -- Trial court departed from essential requirements of the law where plain language of Florida Rule of Civil Procedure 1.110(b) allows verification language to include the phrase “to the best of my knowledge and belief,” and section 92.525, on which trial court relied, provides an exception that a document may be verified by a signed declaration including such language when permitted by law -- Error to find that rule 1.110(b) did not apply because it refers to verification of “documents,” whereas a complaint is a pleading -- A pleading is a document -- Injury cannot be remedied on appeal where, although court denied motion to amend complaint without prejudice to refile, order effectively left plaintiff without the ability to amend because plaintiff could not in good faith meet court's more stringent verification requirement

TRUCAP GRANTOR TRUST 2010-1, Petitioner, v. GLENN W. PELT; LINDA A. PELT; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MIN NO. 1002370-9000063487-7; BENEFICIAL FLORIDA, INC.; PNC BANK, N.A., SUCCESSOR BY MERGER TO NATIONAL CITY BANK; and LAKE JOVITA HOMEOWNERS ASSOCIATION, INC., Respondents. 2nd District.

Mortgage foreclosure -- Relief from judgment -- Fraud -- Substituted plaintiff -- Trial court erred in granting defendant's motion to vacate judgment of foreclosure based on fraud and misrepresentation of the plaintiff because defendant's fraud allegations were indefinite -- Neither defendant's motion nor the record supported a prima facie case of fraud based on alleged discrepancies regarding dates when plaintiff's right to foreclose came to exist where documents show trial court was promptly informed of the changes to the identity of party seeking to foreclose, and defendant did not contend he was prejudiced by any alleged confusion regarding creditor's identity

FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellant, vs. JEFFERSON DE SOUZA, Appellee. 3rd District.

Torts -- Automobile accident -- Rear-end collision damages -- Jury instructions -- Trial court did not abuse its discretion in giving jury instruction informing jury that a tortfeasor is responsible for additional injuries caused by medical negligence of a physician treating plaintiff for original injuries where defense expert opined that back surgery performed on plaintiff in attempt to alleviate back pain plaintiff experienced following accident was unnecessary to treat the injuries sustained in the accident and recognized that plaintiff had an impairment rating based on that surgery -- Moreover, care physician provided following accident was called into question by defense counsel in closing argument

JOEY JAMES PEDRO and JILL PEDRO, Appellants, v. BETSY BABER, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Rebuttable presumption of negligence by rear driver -- Exceptions -- Plaintiff's vehicle hit in rear after she had to come to an abrupt stop when another vehicle cut in front of lead vehicle she was following -- Trial court erred in denying plaintiff's motion for a directed verdict where defendants did not adequately rebut presumption that defendant driver was negligent -- Sudden-stop exception was inapplicable where facts were not sufficient to support finding that plaintiff's stop could not be reasonably anticipated at the time and place it occurred -- Alternatively, plaintiff's car was not illegally or improperly stopped due to her failure to move immediately after the lead vehicle resumed driving, as fact that lead vehicle realized it could safely continue does not mean plaintiff had a duty to follow within the time interval involved

DIANNA DOUGLAS-SEIBERT, F/K/A DIANNA DOUGLAS, Appellant/Cross-Appellee, v. LOUIS RICCUCCI AND TARMAC AMERICA, LLC, Appellees/Cross-Appellants. 5th District.

Torts -- Civil procedure -- Discovery -- Privilege -- Nursing homes and related health care facilities -- Internal risk management and quality assurance program -- Incident reports -- Adult protective services -- Reports and records -- Trial court departed from essential requirements of law by ordering production of documents and answer to interrogatories without first conducting in camera inspection to determine precise nature of ostensibly privileged documents and to further determine applicability of work product and statutory privileges

SPRINGHILL HEALTH CARE ASSOCIATES, LLC, ET AL., Petitioners, v. LINDA BENLEIN, PERSONAL REPRESENTATIVE OF, ETC., Respondent. 5th District.

Torts -- Premises liability -- Discovery -- Trade secrets -- Action by employee of management company for restaurant franchisee against franchisor, alleging liability of franchisor for assault on plaintiff by another employee of management company -- Trial court departed from essential requirements of law in compelling production of franchisor's operation and training manuals to the extent the court ordered production of potential trade secret information without conducting in camera review to determine if material is a trade secret and relevant -- Trial court's order was deficient in that it failed to specify findings to support determination that plaintiff demonstrated reasonable necessity for production despite existence of trade secrets

McDONALD'S RESTAURANTS OF FLORIDA, INC., Petitioner, v. JANE DOE; J & I MANAGEMENT COMPANY, INC.; CONSTANCE MOLNAR; MICHELE SALERNO; JUAN VAZQUEZ; and J.V. & SONS, INC., Respondents. 2nd District.

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