Fraudulent transfers, habeas corpus, foreclosures and purple spinach with walnuts sauteed in olive oil, greek oregano and garlic

Appeals -- Summary affirmance is appropriate where initial brief fails to demonstrate preliminary legal or factual basis for reversal of the appealed orders

MARTINA SPENCER, Appellant, v. FLORIDA POWER LIGHT/ BROADSPIRE, Appellees. 1st District.

Attorneys -- Discipline -- Referee properly found counsel, in his repeated rude, abusive and threatening behavior, violated Rules Regulating the Florida Bar pertaining to making a statement a lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer; engaging in conduct intended to disrupt a tribunal; violations of the Rules of Professional Conduct; and engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including knowingly or through callous indifference disparaging or humiliating other lawyers -- Referee properly made recommendations as to guilt -- Considering prior similar misconduct, referee's recommended sanction of ninety-day suspension was improper and a two-year suspension is imposed instead

THE FLORIDA BAR, Complainant, v. JEFFREY ALAN NORKIN, Respondent. Supreme Court of Florida.

Bankruptcy -- Fraudulent transfers -- Avoidance -- Liability of transferee -- Chapter 7 trustee may not recover the value of debtors' donation from defendant church as an initial transferee under Section 550(a)(1) of Bankruptcy Code, because donation to church is avoidable as fraudulent transfer under Section 548 and defendant church served as mere conduit for debtors' donation and acted in good faith and as an innocent participant in debtors' fraudulent transfer -- Church did not have control over debtor's donation, even though funds were deposited into church's general operating account, where funds were specifically earmarked for a third-party charitable organization, defendant separately accounted for donation it received from debtors, and defendant ultimately transferred funds to a third-party charitable organization

In re: ULRICH FELIX ANTON ENGLER and PRIVATE COMMERCIAL OFFICE, INC., Debtors. U.S. Bankruptcy Court, Middle District of Florida, Tampa Division.

Civil rights -- Law enforcement officers -- False arrest -- District court properly denied qualified immunity for arresting officer where facts viewed in light most favorable to plaintiff show that he lacked arguable probable cause to arrest plaintiff -- Error to deny qualified immunity to defendant who was not present during alleged false arrest

MONIQUE WILKERSON, Plaintiff - Appellee, v. THEDIOUS SEYMOUR, Dekalb County Police Officer, O.B. PARKER, Dekalb County Police Sergeant, Defendants - Appellants. 11th Circuit.

Child custody -- Jurisdiction -- Trial court erred in finding home state of minor children to be Colorado where children had resided in Florida within six-month period prior to father's filing of petition -- Under Uniform Child Custody Jurisdiction and Enforcement Act, children's home state was Florida

ORION CHRISTIAN BARNES, Appellant, v. LACEY M. MORRISON BARNES, Appellee. 4th District.

Criminal law -- Attempted second degree murder -- Habeas corpus -- Ineffective assistance of appellate counsel -- Sentencing -- Trial court's incorrect statement that there existed “testimonial evidence that drugs were involved” indicated court was considering unsubstantiated allegations in its sentencing decision, and state failed to demonstrate that this improper consideration played no part in sentence imposed -- Prejudice -- Trial court's consideration of unsubstantiated factual claim undermines confidence in fairness, regularity, and propriety of petitioner's sentence -- Appellate counsel's failure to raise error on appeal was deficient performance that prejudiced petitioner -- Remand for resentencing

JUSTIN A. MARTINEZ, Petitioner, v. STATE OF FLORIDA, Respondent. 1st District.

Criminal law -- Counsel -- Appellate -- Ineffectiveness -- Burglary -- Second degree felony murder -- Jury instructions -- Appellate counsel was ineffective for failure to argue fundamental error where jury was provided with the circular instruction that, to commit the offense of burglary, the defendant was required to have a “fully formed, conscious intent to commit the offense of burglary in that structure” -- Remand for new trial

CHRISTOPHER DEAN, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Counsel -- Ineffectiveness claim may not be raised on direct appeal where ineffectiveness is not apparent on face of record

JAMES MICHAEL ZIMMERMAN, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Double jeopardy -- Increase in restitution -- Double jeopardy violation resulted when trial court imposed obligation to pay victim's student loans when original restitution order required restitution only for expenses related to victim's medical costs -- New hearing required

TONY LEMAR FISHER, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Habeas corpus -- Malice murder -- District court properly denied relief on claim that state trial court's jury instructions on venue, an essential element of crime charged, improperly shifted burden of proof to petitioner and claim that state trial court's 25-year delay in resolving petitioner's motion for new trial violated his due process rights under Fourteenth Amendment -- Venue is essential element of Georgia offense of malice murder -- Instruction that jurors “shall” consider cause of death to have occurred where body was found created mandatory presumption which violated petitioner's constitutional rights -- Error was harmless -- Delay in ruling on motion for new trial -- Supreme Court has never held that there is constitutional right to speedy direct appeal in state criminal case, and appellate court finds no precedent suggesting that constitutional violation arises from untimely ruling on motion for new trial -- It cannot be said that state court's decision denying petitioner's motion for new trial was contrary to, or unreasonable application of, clearly established federal law

CHARLES EDWARD OWENS, Petitioner - Appellant, v. GREGORY MCLAUGHLIN, Respondent - Appellee. 11th Circuit.

Dissolution of marriage -- Alimony -- In awarding alimony, trial court erred by not making findings regarding husband's net income

KARL RENTEL, Appellant, v. SUN RENTEL, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Trial court erred in entering order modifying timesharing agreement which exceeded scope of relief requested, and without notice that modification issue was set for hearing

HEATHER ANN WORTHINGTON, Appellant, v. TIMOTHY GAIL WORTHINGTON, Appellee. 2nd District.

Foreclosure -- Unpaid homeowners association fees -- Trial court erred in denying request to stay proceedings and to vacate summary judgment of foreclosure where defendant notified court that he was serving on active duty in the U.S. Army, attached copy of his military orders which required him to be in Pennsylvania two weeks before scheduled summary judgment hearing, and requested relief under the Soldier and Sailors Civil Relief Act -- Although defendant did not strictly comply with provisions of SCRA, in that he did not provide a letter or other evidence from his commanding officer stating that his military duty prevented his appearance, court should have given defendant an opportunity to supplement his request for stay before proceeding

DAVID S. HIGGINS, Appellant, v. TIMBER SPRINGS HOMEOWNERS, ETC., Appellee. 5th District.

Garnishment -- Wages -- Dissolution of writ -- Trial court erred in dissolving writ of garnishment served on debtor's employer based solely on debtor's affirmations that, pursuant to a vow of poverty, she had renounced all earnings and paid her wages directly to religious order of which she was a member and for which she was purportedly acting as agent -- Debtor lacks standing to assert religious order's claim to garnished wages -- Debtor failed to prove existence of agency relationship where there was no evidence of religious order's acknowledgment that debtor acted as its agent or that it controlled her actions and no evidence of a contractual agreement between employer and the religious order regarding debtor's employment

MERRIMAN INVESTMENTS, LLC, etc., Appellant, vs. THERESE UJOWUNDU, et al., Appellees. 3rd District.

Jurisdiction -- Civil procedure -- Service of process -- Evidentiary hearing -- Although summons was regular on its face in contradiction of defendant's allegation, trial court erred in not holding an evidentiary hearing after defendant submitted affidavit of non-service alleging summons was improperly left on her apartment doorstep

TIARA DAVIS, Appellant, v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2, a Delaware Statutory Trust, Appellee. 4th District.

Receivership -- Condominiums -- Court's inherent, equitable authority to appoint a receiver in cases involving a non-profit condominium association is not restricted by statutes

GRANADA LAKES VILLAS CONDOMINIUM ASSOCIATION, INC., Petitioner, vs. METRO-DADE INVESTMENTS CO., et al., Respondents. Supreme Court of Florida.

Res judicata -- District court properly dismissed antitrust counterclaim in instant case where claim raised was identical to claim raised and litigated in another antitrust lawsuit between the same parties, and circuit court affirmed dismissal of that complaint -- Appellees' request for award of fees and costs under rule 38 denied

AKANTHOS CAPITAL MANAGEMENT, LLC, CNH CA MASTER ACCOUNT, L.P., et al., Plaintiffs-Appellees, v. ATLANTICUS HOLDINGS CORPORATION, Defendant-Appellant. 11th Circuit.

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Jurisdiction, mortgage foreclosure, attorney's fees, res judicata, and sage pudding with honey-whiskey sauce

Appeals -- Non-final orders -- Order declaring that certain provisions of a settlement agreement are binding and enforceable, and directing parties to reconvene settlement negotiations, is a non-appealable, non-final order -- Argument that court has jurisdiction under rule which provides for the appeal of non-final orders concerning injunctions is rejected -- Order is not designed to protect property or other rights from injury by prohibiting or commanding certain acts, and is more akin to a case management order regulating the conduct of parties before the court than an injunction

ROSS A. CLEVENS, Appellant, v. OMNI HEALTHCARE, INC. and OMNI HEALTHCARE, P.A., et al., Appellee. 5th District.

Attorney's fees -- Where condemning authority made pre-suit written offer to purchase parcel for a specified amount, “subject to all apportionment claims,” trial court erred in refusing to limit attorney's fees based on benefits obtained pursuant to section 73.092(1), Florida Statutes -- Section 73.015, Florida Statutes, the pre-suit offer statute, does not contemplate a separate offer to a fee owner for the value of his or her property excluding other interests -- The making of the written offer “subject to apportionment” did not render it too indefinite for use in determining the benefits achieved by landowners -- Remand for further consideration of landowners' argument that applying section 73.092(1) to limit fees denies constitutional right to full compensation because the condemning authority caused excessive litigation

ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Appellant, v. TUSCAN RIDGE, LLC, et al., Appellee. 5th District.

Contracts -- Real property sale -- Assignment agreement -- Ambiguities -- Trial court did not err in finding that agreement for assignment of sale and purchase agreement, which included provision of an additional purchase price to be derived by multiplying specific dollar amount times that number of lots approved by county having dimensions of 70' x 120' which exceeded 166 lots, was ambiguous with respect to approved lots which did not specifically measure 70' x 120' -- No error in determining that assignment agreement required reformation to reflect true intent of parties, which was to pay additional price for each “typical” 70' x 120' lot that exceeded 166 lots -- Vendor's lien -- Trial court erred in imposing vendor's lien on property in favor of assignor to secure payment of agreed upon purchase price -- Assignor was not vendor -- Assignment agreement expressly stated that purchase price for property was not owed to assignor, but to the seller of the property

PRIME HOMES, INC., a Florida corporation, PRIME HOMES AT PORTOFINO PRESERVE, LTD., a Florida Limited Partnership, and PORTOFINO PRESERVE BUILDERS, INC., a Florida corporation, Appellants, v. PINE LAKE, LLC, a Florida limited liability company, Appellee. 4th District.

Creditors' rights -- Foreign judgments -- Domestication -- In domesticating foreign judgment against husband, trial court did not err in entering summary judgment denying judgment creditor any lien on real property held by husband and wife -- Where conveyance to spouses did not contain any language expressly showing a contrary intent, tenancy by entireties was created -- Presumption is not rebuttable -- Supreme court decision establishing rebuttable presumption for joint bank accounts does not apply to real property

BRIDGEVIEW BANK GROUP, Appellant, v. DANIEL P. CALLAGHAN, et al., Appellees. 4th District.

Contracts -- Employment -- Non-competition agreement -- Injunction -- Where non-compete agreement provided that employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within thirty-mile radius of employer's business address for two years after termination of employment, and after termination of employment employee opened a practice outside the thirty-mile radius which served clients within the thirty-mile radius, trial court erred in entering temporary injunction enjoining employee from delivering veterinary services within the thirty-mile radius -- Agreement did not prohibit employee from providing veterinary services within the thirty-mile radius as long as her business office is located outside the radius

HEATHER HEIDERICH, DVM n/k/a HEATHER FARMER, DVM and EQUINE PERFORMANCE VETERINARY PRACTICE, LLC., Appellant, v. FLORIDA EQUINE VETERINARY SERVICES, INC., Appellee. 5th District.

Consumer law -- Debt collections -- Florida Consumer Collection Practices Act -- Trial court properly granted judgment on the pleadings in favor of debt collector where plaintiff, seeking damages under FCCPA, failed to state a valid claim under the FCCPA -- Claim that debt collector violated FCCPA in leaving messages on answering machine requesting plaintiff return its call but without disclosing its identity is without merit because no provision of the FCCPA requires such disclosure -- While plaintiff may arguably have alleged violation of federal law prohibiting debt collectors from placing calls without meaningful disclosure of the caller's identity, her suing under the FCCPA rather than federal law was fatal to her complaint -- While a Florida consumer is entitled to the benefit of whichever statute, between state and federal, has the more protective provisions, the plaintiff must nevertheless bring her claim pursuant to the applicable statute -- Alternative claim that debt collector violated FCCPA in asserting a legal right that did not exist is without merit because plaintiff did not and cannot point to any legal right asserted in the answering machine messages

MELISSA READ, Appellant, v. MFP, INC., d/b/a FINANCIAL CREDIT SERVICES, Appellee. 2nd District.

Constitutional law -- Separation of powers -- Legislative privilege -- A member of Florida House of Representatives and his aide are entitled to claim legislative privilege as a ground for refusing to testify in a civil case -- Trial court erred in failing to quash subpoenas directing Representative and his aide to appear for depositions to ask them how they obtained documents which had been acquired and distributed in the course of debate within the House on the merits of a pending bill -- Legislative privilege is not absolute, and court will always have to make preliminary inquiry to determine whether information is within scope of privilege and whether the need for privacy is outweighed by a more important governmental interest -- Appeals -- Order compelling a nonparty to provide discovery is reviewable by appeal

THE FLORIDA HOUSE OF REPRESENTATIVES, on behalf of Rick Kriseman, in his official capacity as a Member of the Florida House of Representatives; and DAVID FLINTOM, in his official capacity as Staff of the Florida House of Representatives, Appellants, v. EXPEDIA, INC.; ORBITZ, LLC; INTERNETWORK PUBLISHING CORP., d/b/a Lodging.com; TRAVELOCITY.COM, LLP; PRICELINE.COM, INC.; TRAVELWEB LLC, HOTWIRE, INC.; HOTELS.COM, L. P.; BROWARD COUNTY, FLORIDA; and FLORIDA DEPARTMENT OF REVENUE, Appellees. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Error to designate wife's jewelry as nonmarital -- Error to value certificate of deposit awarded to husband as of date of filing due to CD's passive appreciation -- Trial court erred in failing to equitably distribute contents of marital home, instead acceding without husband's assent to wife's request that it defer equitable distribution in favor of mediation

ASHOK KUMAR, Appellant, v. SUJATA KUMAR, Appellee. 2nd District.

Dissolution of marriage -- Discovery -- Where, because of his being a convicted felon, husband resigned from his official ownership positions in companies which had been operated by husband and wife during marriage, and wife terminated husband from any position of importance in companies upon husband's filing for divorce, it was a departure from essential requirements of law for trial court to grant protective orders denying husband discovery of documents relating to financial status of companies -- Because husband is more than a mere employee of companies, and the companies form a part of the marital estate, husband is entitled to access requested documents in order to evaluate them for purposes of equitable distribution and alimony

GEORGE E. BUSHONG, Petitioner, v. SARAH M. PEEL, Respondent. 2nd District.

Dissolution of marriage -- Child custody -- Time-sharing -- Error to establish time-sharing plan without addressing parental responsibility and without creating a parenting plan -- Remand for creation of parenting plan which complies with statutory requirements -- Record refutes wife's claim that trial court failed to consider best interests of children when fashioning time-sharing schedule

JAMECA MUNROE, Appellant, v. MACKENSON R. OLIBRICE, Appellee. 4th District.

Jurisdiction -- Service of process -- Substitute -- Error to deny motion to quash service and service of process where return of service stated that substitute service was obtained by serving defendant's father at defendant's home, where father resided, but defendant presented clear and convincing evidence, unrebutted by plaintiff, that father was not residing at her home -- Process server's testimony that he had no specific recollection of serving court papers upon father, but that it was his practice when attempting substitute service to inquire of recipients whether they resided with the parties to be served, was not sufficient to rebut father's testimony that he was not asked whether he resided at home and that he, in fact, did not reside at home

CHRISTY CARONE, Appellant, v. MILLENNIUM SETTLEMENTS, INC. and CAMBRIDGE GALAHER SETTLEMENTS AND INSURANCE SERVICES, INC., a foreign for profit corporation, Appellees. 4th District.

Mortgage foreclosure -- Trial court's grant of summary judgment of foreclosure was premature where there were outstanding discovery requests, and the information contained in the outstanding discovery could create genuine issues of material fact

DILCIA OSORTO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Natixis 2007-HE2, Appellee. 4th District.

Mortgage foreclosure -- Sale -- Failure to publish notice -- Trial court did not abuse its discretion in denying motion to confirm foreclosure sale and direct clerk of court to issue certificates of sale and title to highest bidder where order of foreclosure required clerk to sell property in accordance with section 45.031, Florida Statutes, and it is undisputed that notice of sale was not published as required by statute

CASTELO DEVELOPMENT, LLC, Appellant, v. AURORA LOAN SERVICES LLC, PATRICIA PEREZ; NIBALDO PEREZ; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES OR OTHER CLAIMANTS; CANTERBURY AT QUANTUM VILLAGE PROPERTY OWNERS ASSOCIATION OF PALM BEACH, INC.; QUANTUM PARK PROPERTY OWNERS' ASSOCIATION, INC.; JOHN DOE AND JANE DOE AS UNKNOWN TENANTS IN POSSESSION, Appellees. 4th District.

Torts -- Interference with a business relationship -- Attorney-client relationship -- Error to dismiss claim of tortious interference with a business relationship because plaintiff sufficiently pled cause of action where pleadings alleged that defendant knowingly, intentionally, and unjustifiably provided disparaging information about plaintiff to plaintiff's client for the purpose of inducing client to fire plaintiff and hire defendant, and that plaintiff suffered damages because it lost out on a legal fee due to defendant's actions -- Contracts -- Agreement that plaintiff would remove name from settlement that client obtained after hiring defendant in exchange for defendant holding a percentage of disputed funds in trust until fee dispute between parties was settled, which defendant allegedly failed to do -- Error do dismiss claim of breach of oral contract where plaintiff's allegations were sufficient to demonstrate a legal right to defendant's performance of the bargain, and, although plaintiff may not be able to establish value of that right at this point in pleadings, plaintiff's allegations demonstrated a right to at least nominal damages -- Trusts -- Constructive -- Dismissal of action for a constructive trust is affirmed because a constructive trust is a remedy, not a cause of action

SWOPE RODANTE, P.A., Appellant, v. THOMAS HARMON and HARMON, WOODS, PARKER, HENDRICKS & ABRUNZO, P.A., Appellees. 2nd District.

Wrongful death -- Product liability -- Tobacco -- In action by individual class member, trial court did not err in application of findings reached by jury and affirmed by Florida Supreme Court in class action case of Engle v. Liggett Group, Inc. -- Because those findings are accepted as to the conduct of tobacco companies and the health effects of smoking, to prevail on the theory of strict liability, plaintiff needed only to prove legal causation and damages -- Question certified: Does accepting as res judicata the eight Phase I findings approved in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), violate the tobacco companies' due process rights guaranteed by the Fourteenth Amendment of the United States Constitution?

PHILIP MORRIS USA, INC.; R.J. REYNOLDS TOBACCO COMPANY; and LIGGETT GROUP, LLC, Appellants, v. JAMES L. DOUGLAS, as Personal Representative for the Estate of CHARLOTTE M. DOUGLAS, Appellee. 2nd District.

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Tricked or treated, we got some things good and heated

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- Failure to investigate and present mitigating evidence concerning petitioner's mental health at time of crime -- State court's determination that petitioner's trial counsel was not constitutionally ineffective in preparing for sentencing phase of trial was neither contrary to nor an unreasonable application of clearly established federal law -- Court cannot say that state court unreasonably rejected claim in face of unanimous death-penalty recommendation from jury; finding of four statutory aggravators, including that murder was especially heinous, atrocious and cruel; finding that petitioner was triggerman; petitioner's boasting and detailed statement to a friend; weaknesses highlighted in petitioner's “new” mitigating evidence; and further aggravating evidence that this “new” mitigating evidence may have revealed
GREGORY ALAN KOKAL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents-Appellees. 11th Circuit.

Criminal law -- Medicare fraud -- Conspiracy to defraud United States, to cause submission of false claims, and to pay health care kickbacks -- Conspiracy to commit health care fraud -- Evidence -- Trial court improperly excluded, as hearsay, videotape which arguably showed coconspirators assuring defendant that there was no fraudulent scheme at clinic which employed defendant and which was established as front for massive Medicare scam -- Error was harmless because videotape was duplicative of witness testimony discussing the exculpatory content of videotape, which testimony was stressed by defendant's counsel in closing argument -- District court did not abuse discretion by refusing to exclude evidence that individual who provided funding and personnel necessary to start clinic was once defendant's ex-husband -- Evidence was sufficient to support convictions of both defendants on all counts -- Sentencing -- Reasons given by district court justified sentencing physician-defendant above the guidelines and imposing sentence which was far greater than that imposed on coconspirators who were more deeply involved in fraudulent scheme -- District court did not err in assigning little weight to post-verdict polygraph examinations after finding that evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway district court's decision to apply obstruction of justice enhancement -- Mandatory Victim Restitution Act -- Term “victim” as used in MVRA includes government -- Amount of loss -- No error in attributing entire loss to defendant-nurse, notwithstanding her argument that she knew clinic was providing medically unnecessary treatment, but there was no evidence that she knew clinic was billing Medicare for infusions that were not provided at all -- Risk of death or serious injury -- No error in applying two-level enhancement based on finding that nurse-defendant's offense involved “conscious or reckless risk of death or serious bodily injury”
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. 11th Circuit.

Medicaid Cuts: LA. CLASS ACTION CHALLENGES REDUCTION OF MEDICAID HOME-CARE SERVICES, Pitts v. Greenstein, 13 No. 9 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home October 22, 2010
A class of disabled Medicaid recipients in Louisiana has alleged the state health department's plan to reduce benefits for home-based care violates federal disability law and might unnecessarily force thousands into nursing homes. Lead plaintiffs Helen Pitts and Kenneth Roman asked the U.S. District Court for the Middle District of Louisiana to grant preliminary and permanent injunctions enjoining the state's Department of Health and Hospitals from denying long-term personal-care services.

Health Care Reform: STATES GET $49 MILLION TO BUILD INSURANCE EXCHANGES, 13 No. 9 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home October 22, 2010
The federal government has awarded $49 million in grants to 48 states and the District of Columbia to help them research and develop health insurance exchanges aimed at helping consumers shop for coverage. The state-based exchanges will make buying health insurance easier by providing eligible consumers and small businesses "one-stop shopping" where they can compare and purchase health insurance coverage, according a Sept. 30 statement released by the U.S. Department of Health and Human Services.

Health Care Reform: DOCTOR-OWNED HOSPITALS URGE COURT TO STRIKE BAN ON NEW FACILITIES, Physician Hosps. of Am. v. Sebelius, 13 No. 9 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home October 22, 2010
An industry group representing physician-owned hospitals has asked a federal judge to allow it to proceed with a lawsuit seeking to block part of the new health care reform law that limits the growth and construction of new doctor- owned facilities. Physician Hospitals of America, along with the Texas Spine and Joint Hospital, a 20-bed private facility in Tyler, Texas, are challenging the constitutionality of Section 6001 of the Patient Protection and Affordable Health Care Act.

Civil rights -- Municipal corporations -- Employment discrimination -- Retaliation -- Title VII -- Error to dismiss Title VII retaliation claim based on determination that factual findings of county personnel board, an independent state agency, were entitled to preclusive effect over the federal action -- District court improperly failed to draw distinction between Title VII and section 1983 with regard to preclusive effects of state administrative proceedings on actions brought thereunder
PATRICK L. BISHOP, SR., Plaintiff-Appellant, v. BIRMINGHAM POLICE DEPARTMENT, CITY OF, Defendant, BIRMINGHAM, CITY OF, THE, Defendant-Appellee. 11th Circuit.

Federal jurisdiction -- Torts -- Removal of state court action to federal court -- Timeliness -- Appellate court need not decide whether defendant's notice of removal was timely in instant case because any error in failing to remand case to state court on ground that notice of removal was untimely would be procedural error and would be insufficient to warrant vacating judgment and remanding for new trial in state court where it was undisputed that requirements for diversity jurisdiction were met by time district court entered judgment
BRIAN MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA TRIATHLON, a foreign company, Defendants-Appellees. 11th Circuit.

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed
CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. MICHIGAN CONDOMINIUM ASSOCIATION, Appellee. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal
JOSE ALEJANDRO PINEDA AND MARTHA PINEDA, Appellants/Cross-Appellees, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant. 3rd District.

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy
LLOYD BEVERLY and EDITH BEVERLY, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 2nd District.

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where plaintiff failed to file with court the original note, evidence of assignment of mortgage and note, or affidavit of ownership and filed no other admissible evidence establishing plaintiff's status as holder and owner of note and mortgage -- Appellate court unable to determine whether trial court considered copy of original note and affidavit of ownership presented by plaintiff at summary judgment hearing, as these documents were not part of record at time the motion for summary judgment was granted -- Moreover, the documents were not authenticated, filed, and served more than twenty days before hearing, as required by procedural rules
GUISEPPE SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure of commercial mortgage loan where lender accepted a substantial paydown after an initial default and acceleration, and the parties entered into an agreement to reinstate the mortgage after the entry of an earlier judgment -- Summary judgment was improper where there exists a triable issue regarding the reinstatement agreement and the parties' performance under it
ONE 79TH STREET ESTATES, INC. and DARRELL WILSON a/k/a Keith D. Wilson, a single man; PO BOY REALTY INVESTMENT, INC., Appellants, vs. AMERICAN INVESTMENT SERVICES, Appellee. 3rd District.

Mortgage foreclosure -- Receivership -- Trial court erred in allowing receiver to sell mortgaged property, over objection of record owner, before final judgment foreclosing owner's interest in the property -- Contracts -- In absence of statute authorizing court-appointed receiver in foreclosure case to sell mortgaged property before mortgage is foreclosed by final judgment, such authority must be provided in loan agreement between lender and borrower represented by promissory note and mortgage -- Receivership provision in instant case did not purport to give receiver any power of sale of mortgaged property before entry of final foreclosure judgment, but instead explicitly limited receiver's powers to a caretaker role, which included the authority only to operate the property and collect rents -- Under common law, mere appointment of receiver does not itself confer any of the owner's power or authority to sell property -- Finally, recognizing general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene mortgagor's statutory right of redemption
SHUBH HOTELS BOCA, LLC, and ATUL BISARIA, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Mutual Bank (Illinois); and NEIL MERIN, as Court Appointed Receiver for Mortgaged Property, Appellees. 4th District.

Unfair labor practices -- School boards -- Public Employees Relations Commission properly affirmed General Counsel's summary dismissal of teacher's unfair labor practices complaints, where General Counsel found that teacher failed to prove by preponderance of evidence that his protected conduct was a substantial and motivating factor in school principal's retaliatory actions -- There was not sufficient evidence of animus, or relation of adverse events to employee's participation in protected activity, to sustain allegations of unfair labor practices
JUSTIN KOREN, Appellant, vs. SCHOOL DISTRICT OF MIAMI-DADE COUNTY, FLORIDA AND PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellees. 3rd District.

Torts -- Action against corporate defendant and county by plaintiff who claimed that she was injured when escalator at airport stopped short, causing her to fall -- Error to enter directed verdicts in favor of defendants on ground that there was insufficient evidence of negligence on their part where plaintiff presented evidence showing that defendants were notified that subject escalator stopped running earlier on the day of plaintiff's fall and there was no evidence that any work was performed on the escalator, allowing jury to reasonably infer that defendants negligently failed to determine what was causing it to stop running and correct the problem -- Jury instructions -- Error to refuse to give jury instruction on negligence per se as to county -- Error to overrule plaintiff's objection to defense closing argument that there was no evidence of prior problems with subject escalator where trial court had excluded such evidence -- Plaintiff's treating physician was not required to be an expert back surgeon in order to testify to his belief that plaintiff would need surgery in the future, and it was error to exclude this testimony -- Accordingly, it was error to deny plaintiff's motion for new trial
BONNIE GREENBERG, Appellant, vs. SCHINDLER ELEVATOR CORPORATION, ETC., ET AL., Appellees. 3rd District.

Torts -- Civil theft -- Complaint which alleged that plaintiffs made a loan to defendant pursuant to an oral agreement, and that at the time of the loan, defendant had no intention to repay it and/or intended not to repay the funds, stated cause of action for civil theft -- Error to grant defendant's motion for judgment on pleadings -- Allegation that defendant had no intention to repay the funds and/or intended not to repay the funds is sufficient to state claim for common law fraud, and common law fraud is explicitly included in the theft statute -- Economic loss doctrine does not bar statutory claim for civil theft -- There is no merit to defendant's contention that it is impossible to have an action for civil theft where there has been a failure to repay money unless there has been a conversion of a specific fund
WILLIAM P. WALKER, III AND GEMMA M. WALKER, HIS WIFE, Appellants, vs. JAIME A. FIGAROLA, Appellee. 3rd District.

Torts -- Res judicata -- Action by insurance company against attorney who had litigated personal injury protection lawsuits against company on behalf of insureds, alleging claim for restitution and fraud based on monies company paid out in connection with the PIP suits -- Trial court erred in dismissing complaint on ground that it stemmed from PIP lawsuits, and had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements -- Application of res judicata was not appropriate because neither the parties nor the cause of action were the same -- Application of collateral estoppel was not appropriate where issues were not the same as those adjudicated in PIP suits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. LAW OFFICES OF MICHAEL I. LIBMAN, AND MICHAEL I. LIBMAN, ESQUIRE, Appellees 3rd District.

Wrongful death -- Negligent entrustment -- Negligent undertaking -- A defendant cannot be held liable for negligent entrustment or negligent undertaking based on his having taken his alcohol-impaired brother's car keys and then put the keys in a place where his brother easily found them, resulting in his brother causing a fatal collision
GERALD CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. PAUL J. LEWIS, Appellee. 4th District.

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