Arbitration, timesharing modifications, void judgments, and stoneground grits with fennel, roasted peppers, and spicy italian sausage

Arbitration -- Torts -- Residential communities -- Arbitration clause in home purchase and sale agreement and identical clause in deed encompassed purchaser/property owner's claim against developer for personal injuries sustained while riding his bicycle on roadway within residential community where clauses expressly and unambiguously included claims relating to personal injury or property damages “in the community” within the disputes to be submitted to arbitration. LENNAR HOMES, LLC, Appellant, v. MATTHEW WILKINSKY, Appellee. 4th District.

Attorney's fees -- Prevailing party -- Voluntary dismissal -- Where all counts in complaint involved the same facts and the same parties, trial court's order dismissing one of multiple counts was not a final order and did not dispose of the action for either party -- Plaintiff's subsequent notice of voluntary dismissal disposed of the action as to both parties and triggered 30-day time frame for filing motion for attorney's fees -- Trial court erred in reversing its initial award of fees to defendant after concluding that motion should have been filed within 30 days of court's non-final dismissal order. SARA WARD, Appellant, v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN, Appellee. 4th District.

 Child custody -- Time-sharing -- Modification -- Relocation with child -- Mother was not required to seek leave of court or to consult with father before relocating with children to another county where at time of move paternity had not been established -- Trial court reversibly erred by considering statutes which did not apply to mother's move when entering custody and time-sharing orders following father's filing of petition to determine paternity. DEARLYN LOJARES, Appellant, v. ALFONSO SILVA, Appellee. 1st District.

Civil procedure -- Default -- Vacation -- A trial court's failure to make oral or written findings in support of an order vacating a default judgment supports reversal only where the record does not contain any facts to support that decision -- Neither Florida Rule of Civil Procedure 1.540(b), Florida Supreme Court, nor Fourth District Court of Appeal has imposed any requirement that a trial court must make oral or written findings to support an order vacating a default judgment -- On the merits, the circuit court had a factual basis to grant escrow agent's amended motion to vacate both the clerk's default and the circuit court's default judgment against the escrow agent -- Defenses of due diligence, excusable neglect, and meritorious defense were, at least facially, meritorious. FI CAPITAL INVESTMENT 19, LLC, Appellant, v. SOUTH FLORIDA TITLE ASSOCIATES, LLC, et al., Appellees. 4th District.

Civil procedure -- Default -- Void judgment -- Damages -- Liquidated/unliquidated damages -- Action seeking collection on unpaid promissory note -- Default final judgment was void where judgment reflected unliquidated damages and was entered without a hearing -- The otherwise liquidated amount under original promissory note was rendered unliquidated where there was a separate default final judgment entered against a co-promisor and a satisfaction of judgment as to co-promisor without any indication of the amount paid. ANTHONY LIND MAIURI, Appellant, v. FIRST AMERICAN TITLE INSURANCE COMPANY, Appellee. 3rd District.

Civil procedure -- Dismissal -- Failure to comply with court order -- Error to dismiss lawsuit with prejudice where plaintiff was not given notice or opportunity to be heard and order was not accompanied by finding of deliberate and contumacious disregard for trial court's authority, bad faith, gross indifference, or conduct evincing deliberate callousness. DON SMITH, Appellant, v. LISA MELTZER, etc., Appellee. 3rd District.

Contracts -- Breach of contract -- Corporations -- Successor liability -- Alter ego -- No error in allowing plaintiff to file supplemental complaint to implead defendant corporation as alter ego and successor entity of separate corporation against which plaintiff had obtained money judgment -- Evidence supported three of the four exceptions to corporate law rule that the liability of a predecessor corporation is not imposed upon successor companies. J&R UNITED INDUSTRIES, INC., etc., Appellant, v. STEPHEN E. MIRON, etc., Appellee. 3rd District.

Contracts -- Dismissal -- Fraud on court -- No abuse of discretion in granting defendant's motion to strike complaint for fraud on court alleging that plaintiff submitted a fabricated contract and that plaintiff's corporate representative falsely testified at deposition that fabricated contract was true and correct copy -- Legibility of the sued-upon contract was material to plaintiff's claim, and plaintiff failed to file a response to the motion or present any evidence in opposition. ORACLE ELEVATOR COMPANY, etc., Appellant, v. 8660 BUILDING, LLC, etc., Appellee. 3rd District.

Contracts -- Employment -- Arbitration -- No error in denying motion to compel arbitration where substantial competent evidence in record supports trial court's finding that plaintiff did not electronically sign the arbitration agreement. GR OPCO, LLC, etc., Appellant, v. ANA PAOLA MURILLO, Appellee. 3rd District.

Creditors' rights -- Proceedings supplementary -- Fraudulent transfers -- Uniform Fraudulent Transfer Act -- Subsequent transferees -- Final summary judgment declaring transfer of condominium unit void as a fraudulent transfer was supported by evidence establishing undisputed existence of seven badges of fraud -- Discussion of badges of fraud in section 726.105(2) in context of case at issue involving series of transfers and shifting corporate entities -- Good faith -- Trial court properly rejected good faith defense asserted by corporate transferee that paid nothing for condominium unit -- Civil procedure -- Summary judgment -- Trial court did not abuse its discretion in denying motion for rehearing in light of new affidavits asserting additional facts. MANE FL CORP., Appellant, v. CALE BECKMAN and MALGORZATA BECKMAN, Appellees. 4th District.

Declaratory judgments -- Wrongful death -- School shooting -- Action against firearm manufacturer and seller of firearm used by gunman -- Trial court did not err in dismissing complaint for declaratory relief after concluding that plaintiffs' request for declaration that section 790.331 prohibits only suits by state actors against firearms manufacturers, not those brought by private citizens, was, in fact, an impermissible attempt to solicit advisory opinion that would help them decide whether they should file a suit. FREDRICK GUTTENBERG and JENNIFER GUTTENBERG, as Co-Personal Representatives of the ESTATE OF JAIME T. GUTTENBERG, Appellants, v. SMITH & WESSON CORP., n/k/a SMITH & WESSON SALES COMPANY, INC., and SUNRISE TACTICAL SUPPLY, LLC, Appellees. 4th District.

Dissolution of marriage -- Child support -- Modification -- Marital settlement agreement -- Trial court erred in granting mother's exceptions to general magistrate's report and recommendation concerning father's child support obligations based on its determination that trial court lacked inherent or statutory authority to modify child support -- Trial court maintained authority to modify father's child support obligations despite language in parties' marital settlement agreement setting a minimum amount of support that the father must pay -- Because the general magistrate's findings regarding the parties' financial status, change in circumstances, and children's best interests were supported by competent substantial evidence, the trial court should have accepted them. JAMES W. FUNDERBURK, Appellant, v. MARCI L. RICENBAW f/k/a MARCI L. FUNDERBURK, Appellee. 2nd District.

 

Judges -- Disqualification -- Taking allegations that trial court made improper comments at calendar call as true, disqualification of judge is warranted and petition for writ of prohibition is granted. ALFREDO RODRIGUEZ, et al., Petitioners, v. ROHAN HALSALL, Respondent. 3rd District.

Limited liability companies -- Shareholders -- Direct/derivative actions -- Contracts -- Torts -- Jury trial -- Entitlement -- Action alleging both direct and derivative legal and equitable claims against defendant shareholder and separate entity owned by defendant shareholder -- Breach of contract claim sufficiently alleged direct harm and special injury where plaintiff claimed that defendant's breach of LLC's operating agreement by misappropriating loan proceeds diluted plaintiff's ownership percentage in the LLC -- Because plaintiff sufficiently alleged direct harm and special injury, breach of contract claim was a direct legal claim for which a right to jury trial existed -- Trial court erred by trying equitable, derivative claims against defendant shareholder's other business separately in a non-jury trial while breach of contract claim was still pending -- Contract claim and the derivative equitable claims were intertwined because they all revolved around underlying factual issues regarding defendant's purported mismanagement of LLC and alleged misappropriation of loan proceeds -- Because contract claim was factually intertwined with equitable claims, a jury was required to resolve the common factual issues -- Proper procedure would have been for trial court to first proceed with jury trial and then apply jury's factual findings to determine whether plaintiff established entitlement to relief on his equitable claims -- Trial court erred in relying on business judgment rule to decide derivative claim against separate entity alleging that entity aided and abetted defendant shareholder's breach of fiduciary duty where defendant shareholder was not a disinterested party to any of the transactions at issue -- Key inquiry is whether defendant shareholder's self-interested transactions were valid under law governing conflict-of-interest transactions for limited liability companies. ALDO DISORBO, Appellant, v. AMERICAN VAN LINES, INC., Appellee. 4th District.

Mortgage foreclosure -- Sale -- Objection -- Timeliness -- No error in denying borrower's objection to sale of foreclosed property alleging that clerk's advertisement was defective where objection was raised more than ten days after sale -- While borrower was granted a stay of the sale, that stay was entered to allow borrower to redeem and purchase the property, not to raise further objections. CEDRIC McINTYRE, etc., Appellant, v. CIT BANK, N.A., Appellee. 3rd District.

Real property -- Easements -- Injunctions -- Trial court erred in determining that proposed development of servient estate was precluded by easement and agreed permanent injunction enforcing the easement, which enjoined servient estate from “interfering with” dominant estate's right to ingress and egress, based on finding that increased traffic resulting from development of servient estate would “interfere” with dominant estate's easement rights -- While broad dictionary term of “interfering” could, in isolation, support dominant estate's position that interference means delaying or slowing down ingress and egress, such a definition is not supported by the easement or by the entire text of the agreed permanent injunction itself -- In context, best interpretation of “interfering” is not something that simply hinders, but rather something that obstructs access. 7 AT BLUE LAGOON (1), LLC, et al., Appellants, v. BLUE LAGOON CONDOMINIUM ASSOCIATION, INC., Appellee. 3rd District.

Torts -- Jurors -- Peremptory challenge -- Race-neutral explanation -- Genuineness -- No abuse of discretion in determining that plaintiff's proffered reason for exercising peremptory challenge as to Hispanic female juror was not genuine. AIRAM BULTE, Appellant, v. DOLLAR TREE STORES, INC., etc., Appellee. 3rd District.

Wrongful death -- Product liability -- Tobacco -- Punitive damages -- Excessive award -- Remittitur -- Trial court abused its discretion in denying remittitur of punitive damages that exceeded net compensatory damages award by a ratio of 106.7 to 1 -- While it was not unreasonable to conclude that facts and circumstances of case under review supported a departure from the 3:1 statutory cap, a trial court in a wrongful death action abuses its discretion by denying remittitur of a punitive damages award that does not bear a reasonable relation to the amount of damages proved and the injury suffered by the statutory beneficiaries -- Court rejects argument that the injury suffered in a wrongful death action is decedent's death because Wrongful Death Act provides that the injury suffered in such an action is to the decedent's statutory beneficiaries, not the decedent -- Injury suffered by the survivors in case under review is the injury reflected in the compensatory damages award that the jury found to represent the total amount of the damages that decedent's survivors sustained for the loss of parental companionship, instruction, and guidance, and from their mental pain and suffering as a result of decedent's illness and death -- Although higher dollar awards of punitive damages have been approved in other tobacco cases, statutory analysis of whether a punitive damages award bears a reasonable relation to the amount of damages proven and the injury suffered is necessarily case-specific. BRINDA COATES, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent. Supreme Court of Florida.

Wrongful death -- Suicide -- Arbitration -- Arbitrable issues -- Trial court erred in denying motion to dismiss or to compel arbitration in action against private school and individual defendant brought by parent of student who committed suicide following school's request that he withdraw from school for selling vape pen to another student, alleging school violated its policies and procedures and common law duty to assess and provide suicide prevention and crisis support to a disciplined student -- Arbitration clauses in enrollment contract and student handbook were sufficiently narrow in scope -- Although sounding entirely in tort and not specifically including breach of contract claim, claims alleged in complaint have direct relationship to the enrollment contract and handbook's terms and provisions, and complaint expressly relies on enrollment contract and handbook to establish school's duty to student. CALVARY CHAPEL CHURCH, INC. d/b/a CALVARY CHRISTIAN ACADEMY, CALVARY CHAPEL OF FT. LAUDERDALE, INC., and JOSEPH WILSON, Appellants, v. COLLEEN HAPP, as Personal Representative of the ESTATE OF COLIN CHARLES HAPP, 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, or  FEDERAL Recent Decisions of Interest.

 

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.

 

 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.