We're back blogging with more Recent Decisions of Interest in Dissolution, Attorney's Fees etc. and Garlic White Pizza with Chanterelles and Arugula

I want to apologize to all for being so busy with work and our Recent Decisions of Interest Newsletters that have tripled over the last 6 months.  But I am back!  Stay healthy and safe everyone.

Attorney's fees -- Civil rights -- Prevailing party -- Award of prevailing party attorney's fees and expenses to plaintiff under 42 U.S.C. section 1988 must be vacated and remanded for additional proceedings where jury awarded only nominal damages for defendant's violation of plaintiff's Fourth Amendment right to be free from illegal seizure and district court in determining reasonableness of a fee award misapplied the law in measuring significance of the substantive issue on which plaintiff prevailed or public purpose served by totaling up number of times that Gray II, which was decided in plaintiff's favor, had been cited -- It was error of law for district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which plaintiff prevailed must be significant and public purpose served by her victory must be substantial -- When citation-counting is used as a method for assessing the significance of a decision in plaintiff's favor, citation of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation -- On remand, district court to decide whether plaintiff is entitled to award of attorney's fees and expenses, even though she recovered only nominal damages; and if so, whether she is entitled to enhancement for delay in payment of expenses and for delay in payment of attorney's fees; and if so, how much -- Calculation errors to be avoided on remand noted
LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant, EDMUND SEXTON, etc., et al., Defendants. 11th Circuit.

Elections -- Campaign financing -- Excess spending subsidy -- Injunctions -- Candidate for Republican Party for Governor of State of Florida, who is not participating in Florida system of public campaign financing, moved to preliminarily enjoin enforcement of provision of Florida Election Campaign Financing Act, which provides participating candidates with a subsidy to spend on their campaigns when a nonparticipating opponent spends in excess of statutory expenditure limit or $2 for each registered Florida voter -- Plaintiff is entitled to preliminary injunction enjoining State from releasing funds to opposing candidate under excess spending provision because he is likely to succeed on merits of First and Fourteenth Amendment claim that excess spending subsidy severely burdens his constitutional rights to spend unlimited sums of personal funds and private donations in furtherance of his campaign, burden on his right to free speech is irreparable, and, as district court concluded, balance of harms and public interest do not counsel against an injunction -- Under Davis v. Federal Election Commission, excess spending subsidy imposes substantial burden on nonparticipating candidate's right of free speech and is thus subject to strict scrutiny, which requires that Florida justify the subsidy by establishing that it furthers a compelling state interest -- Even if subsidy furthers stated interest of Florida by encouraging participation in public financing system and indirectly preventing corruption or appearance of corruption, excess spending subsidy is not least restrictive means of furthering the anticorruption interest -- Severability -- Even if issue of severance is premature, excess spending subsidy is severable from $500 contribution limit
RICHARD L. SCOTT, Plaintiff-Appellant, v. DAWN K. ROBERTS, In Her Official Capacity as Interim Secretary of State of the State of Florida, Defendant-Appellee, IRA WILLIAM McCOLLUM, JR., Intervenor-Defendant-Appellee. 11th Circuit.

Contracts -- Third-party beneficiaries -- Action by homeowners association seeking declaration of rights under crossing agreement between railroad and another homeowners association -- Trial court properly dismissed action on ground that plaintiff homeowners association is not a party to the agreement at issue and not a third-party beneficiary of the agreement -- Plaintiff is not entitled to relief as a third-party beneficiary where parties to agreement did not intend that the agreement be for the benefit of plaintiff, and agreement expressly excludes third-party beneficiaries
VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. CSX TRANSPORTATION, INC., Appellee. 3rd District.

Counties -- Injunctions -- Trial court erred in finding that county denied property owner due process by not giving proper notice of administrative hearing on code violation citation -- Record indicates that notice of hearing was sent to owner at both his address of record with county and the address listed at the top of his request for administrative hearing -- Further, it is evident from record that owner had actual notice of hearing -- Trial court erred in granting owner's motion for temporary injunction on ground that owner had been denied due process through administrative hearing process on citation, and trial court was therefore entitled to intervene in administrative hearing process
MIAMI-DADE COUNTY, Appellant, vs. KEITH WILSON, Appellee. 3rd District.

Dissolution of marriage -- Alimony -- Modification -- Jurisdiction -- Uniform Interstate Family Support Act -- Trial court had no authority to transfer Florida post-final-judgment dissolution case to foreign state in which both former spouses now reside -- Under UIFSA, Florida court has continuing exclusive jurisdiction over spousal support order throughout the existence of the support obligation -- Correct procedure under UIFSA is to register spousal support judgment in another state for enforcement there; and even after registration, foreign state must send the case back to Florida court to consider any modification order
ANA ALVAREZ SOOTIN, Appellant, vs. JOHN SOOTIN, Appellee. 3rd District. Opinion filed August 4, 2010.

Guardianship -- Trial court abused discretion in appointing ward's son-in-law as her plenary guardian where ward had executed a declaration naming her three daughters as preneed guardians -- There was insufficient evidence to rebut the statutory presumption that the designated preneed guardian is entitled to serve as guardian
MARIANNE MAGILL ACUNA & MARILYN MAGILL, Appellants, vs. JACK DRESNER, ET AL., Appellees. 3rd District.

Jurisdiction -- Service of process -- Substitute service -- Service of process was defective where process server failed to note time of service on copy of complaint delivered to the person served -- Requirement to note time on copy of complaint is statutory requirement of service, and strict compliance with statutory requirements of service is mandated -- Second service of process while appeal was pending did not render appeal moot
JOSE E. VIDAL, Appellant, v. SUNTRUST BANK, Appellee. 4th District.

Receiverships -- Ex parte -- Mortgage foreclosure -- Error to appoint receiver for property involved in mortgage foreclosure action without providing notice and opportunity to be heard where mortgagee failed to establish that ex parte receivership was necessary to avoid immediate irreparable harm to mortgaged property or that giving notice and holding a hearing would accelerate or precipitate any injury -- Although loan documents contained provision for appointment of receiver as matter of right and without notice if foreclosure proceedings were instituted, this alone is not dispositive of whether to grant ex parte receivership and provisions of rule 1.610 are not thereby bypassed -- Argument that ex parte receivership was necessary to assist in sale of property rejected -- Argument that ex parte receivership was appropriate because mortgage documents contained assignment of rents provision which provided for appointment of receiver in that context was not raised as basis for appointing receiver; and, moreover, mortgagee did not present verified allegation that any rents were actually being collected on the property or that any such rents were being dissipated -- Trial court also failed to enter appropriate ex parte order where order did not contain any factual findings
JOHN R. DeSILVA, Appellant, v. FIRST COMMUNITY BANK OF AMERICA, a Federal Stock Savings Bank, Appellee. 2nd District.

Title insurance -- Trial court properly determined that title insurance company was not liable for title insurance agency's misappropriation of plaintiffs' escrow deposits for the purchase of condominium units where escrow deposits were received by agency in its limited capacity as escrow agency for developer, and the escrow deposits were not received in connection with a transaction involving the issuance of title insurance binders, commitments, policies of title insurance, or guarantees of title -- Escrow deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes
BERNARD WINKLER, ET AL., Appellants, vs. LAWYERS TITLE INSURANCE CORP., ETC., Appellee. 3rd District.

Torts -- Automobile accident -- Damages -- New trial is required where plaintiff's counsel made an improper appeal to passion and sympathy of jury in opening statement, improperly convinced trial judge to limit defense counsel's cross-examination of plaintiff's expert, improperly attacked character of main defense expert during cross-examination, and made improper and prejudicial closing argument
DANIEL GILBERT ANDREW CHIN, Appellant, v. WILLIAM ROGER CAIAFFA, Appellee. 3rd District.

Torts -- Damages -- Future medical expenses -- Abuse of discretion to deny defendants' motion for new trial and motion for remittitur where there was no competent substantial evidence presented at trial that plaintiff was reasonably certain to need future medical treatment -- Remand for new trial or, in the alternative, entry of amended final judgment remitting award for future medical expenses -- Past medical expenses -- Setoff -- Error to fail to determine and apply setoff for personal injury protection benefits to award of past damages
ALICIA E. MONTESINOS AND HUGHETTE ESQUIVEL, Appellants, vs. JAVIER ZAPATA, Appellee. 3rd District.

Torts -- Nuisance -- No error in dismissing with prejudice complaint in which plaintiff sought to recover damages to property allegedly caused by overhanging branches and roots of neighbor's trees encroaching on her property and damages resulting from plaintiff's removal of portions of neighbor's tree intruding on her property
VIRGINIA T. SCOTT, Appellant, v. JULIE L. McCARTY, M.D., Appellee. 4th District.

 

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Fiduciary duties, contempt, marital liabilities, and coffee-garlic marinated bison with grilled fennel and rosemary

Contracts -- Real property -- Escrow agent -- Fiduciary duty -- Action against defendant escrow agent alleging that defendant breached fiduciary duty owed to plaintiff by distributing escrow funds to third-party developer for purposes not authorized in purchase agreement between developer and plaintiff, but which were authorized in escrow agreement between developer and defendant -- No error in granting summary judgment in favor of defendant -- There was no genuine issue of material fact about whether plaintiff's counsel negotiated, or had authority to negotiate, the escrow agreement -- Counsel's authority to negotiate terms of escrow agreement was immaterial to plaintiff's claims because defendant owed no duty to plaintiff who was not a party to the escrow agreement -- No genuine issue of material fact existed as to whether defendant had authority to disburse the escrow funds -- Fact that escrow agreement had not been fully executed when funds were transferred did not alter defendant's obligations as escrow agent because defendant's execution of the escrow agreement was not a condition precedent to implementing the terms of the agreement. CARTER DEVELOPMENT OF MASSACHUSETTS, LLC, Appellant, v. G. ALAN HOWARD and MILAM HOWARD NICANDRI DEES & GILLAM, P.A., Appellees. 1st District.


Dissolution of marriage -- Contempt -- Trial court erred by holding former husband in contempt for failure to pay alimony and child support pursuant to a marital settlement agreement entered into by parties in a dissolution action five years earlier which had been dismissed without the court having approved or adopted the agreement -- Trial court's conclusion that doctrine of laches has been abolished in Florida is legally incorrect -- Terms of settlement agreement may not be enforced nunc pro tunc five years later via contempt, as opposed to enforcement in an ordinary civil money judgment for the months of non-compliance prior to filing of current dissolution action. VINCENT J. THILLOY, Appellant, v. ANN M. CICCONE-CAPRI, Appellee. 3rd District.


Dissolution of marriage -- Equitable distribution -- Marital liabilities -- Loans -- Trial court erred in ruling that former wife had no obligations as to a loan given to the parties by former husband's mother during the marriage -- Trial court must treat the debt as a marital liability and order distribution of it accordingly where trial court made no finding of misconduct, failed to consider the factors listed in section 61.075(1), and failed to articulate a sufficient justification to allocate the loan solely to former husband -- On remand, trial court need not make any determinations as to the true value of the promissory note securing the loan where issue was not previously put before the trial court. DENNIS K. BURNS, Former Husband, Appellant, v. CYNTHIA S. COLE, Former Wife, Appellee. 1st District.


Dissolution of marriage -- Judgment -- Trial court, under facts of case, did not abuse discretion in adopting wife's proposed final judgment where both parties were represented by counsel, husband was given a copy of wife's proposed final judgment, trial court signed wife's proposed final judgment two-and-a-half months after receiving competing orders, husband raised no objections to proposed judgment, and trial court's hand-written notations on judgment before signing it implicate court's independent evaluation of submitted findings -- Record supports conclusion that trial court exercised independent decision-making where court actively participated in final hearing -- Moreover, husband, who failed to raise an objection to wife's proposed final judgment on rehearing, cannot for first time on appeal raise an objection to proposed final judgment based upon court's “virtually verbatim” adoption of proposed judgment -- Child custody -- Trial court abused discretion in awarding sole parental responsibility to wife where wife did not request sole parental responsibility and there is no “logical or reasonable justification” for award that would support conclusion that shared parental responsibility was detrimental to minor children -- On remand, trial court is instructed to amend final judgment to award shared parental responsibility, and to remove all findings and inflammatory remarks related to issue of parental responsibility -- Domestic violence injunction -- To extent final judgment grants wife what amounts to a de facto domestic violence injunction against husband, trial court acted without proper statutory authority where record is devoid of any facts showing wife had standing to file petition for domestic violence or showing husband was provided notice and hearing before entry of injunction -- Life insurance -- Trial court erred in requiring husband, who is receiving child support, to name wife as beneficiary to his existing life insurance, absent appropriate circumstances requiring him to maintain such policy -- Husband's advanced age of seventy with two minor children does not qualify as a special or appropriate circumstance. BENJAMIN A. MUSGRAVE, Appellant, v. LYNN M. MUSGRAVE, Appellee. 2nd District.


Dissolution of marriage -- Property settlement agreement -- Enforcement -- Jurisdiction -- Scope of family court's continuing jurisdiction -- Family court judge erred in awarding money damages for husband's breach of parties' settlement agreement where the agreement did not specify the damages sought by former wife and awarded by the court -- Award of damages for husband's delayed delivery of stock and failure to deliver accurate tax information, together with injunction intended to secure the payment of those damages, reversed. TODD KOZEL, Appellant, v. ASHLEY D. KOZEL, Appellee. 2nd District.


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Family law appeals, requested relief, shared parental responsibility, and proscuitto and nasturtium pizza

 It is well settled that courts cannot grant relief not requested in the pleadings, and to do so is both an abuse of discretion and reversible error. Worthington v. Worthington, 123 So. 3d 1189, 1191 (Fla. 2d DCA 2013) (reversing and remanding where court granted relief that was not requested); Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d DCA 2012) (reversing and remanding trial court’s award of shared parental responsibility where such relief was not pleaded or raised at the hearing). Nor should a court grant such relief without proper notice to the parties.  Sinton v. Sinton, 749 So. 2d 532, 533 (Fla. 2d DCA 1999). Doing so raises due process concerns. Sabine v. Sabine, 834 So. 2d 959, 960 (Fla. 2d DCA 2003); Cortina v. Lorie, 95 So. 3d 467, 469 (Fla. 5th DCA 2012); Randall v. Randall, 948 So. 2d 71, 74 (Fla. 3d DCA 2007).   If the relief granted is not requested in the pleadings, it can be reversible error.

Moreover, Florida Statutes 61.13(2)(c)(2) requires that a trial court must order shared parental responsibility “unless the court finds that shared parental responsibility would be detrimental to the child.” See also Smith v. Smith, 971 So. 2d 191, 195 (Fla. 1st DCA 2007). Numerous Florida courts of appeal agree that blanket awards that give one parent complete control over decisions does not give effect to the Statute. See, e.g., Markham v. Markham, 485 So. 2d 1299, 1300 (Fla. 5th DCA 1986) (“to lump all decision-making authority in one party for all matters, undermines the mandate of the law that decisions be "jointly made," unless there is a finding as required pursuant to section 61.13(2)(b)2”); Wheeler v. Wheeler, 501 So. 2d 729, 730 (Fla. 1st DCA 1987) (following Markham to reverse and remand blanket award of ultimate responsibility); Kuharcik v. Kuharcik, 629 So. 2d 224, 225 (Fla. 4th DCA 1993) (reversing order giving mother ultimate decision-making authority over all areas if parties can’t agree because it “undermines the intent of the child custody statute regarding shared parental responsibility”); Cranney v. Cranney, 206 So. 3d 162, 165 (Fla. 2d DCA 2016) (reversing award of ultimate decision-making authority to mother where court found both parents were capable of parenting the child even though father was less able to cooperate); McClure v. Beck, 212 So. 3d 396, 399 (Fla. 4th DCA 2017) (reversing open-ended award of ultimate decision-making authority to father over major decisions for trial court to specify which aspects over which he has authority). To make such an award of sole parental responsibility, there must be a finding that shared responsibility would be detrimental to the child. See id.; see also Maslow v. Edwards, 886 So. 2d 1027, 1029 (Fla. 5th DCA 2004) (holding court's failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action); Aranda v. Padilla, 216 So. 3d 652 (Fla. 4th DCA 2017) (reversing and remanding where final judgment does not contain finding that shared parental responsibility would be detrimental to the child).

If an order contains no finding that shared parental responsibility is detrimental to the child, the contrary is presumed by statute, and that order may be reversible on appeal.  The appellate court in Ziruolo v. Ziruolo, 42 Fla. L. Weekly D986 (Fla. 1st DCA Apr. 28, 2017), reversed and remanded an order providing one parent as the ultimate decision maker that did not provide justification for doing so. 

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Asylum injunctions and lamb with garlic and rosemary roasted on a bed of leaks and heirloom tomatoes

"The U.S. Supreme Court on Friday refused to allow President Donald Trump to begin implementing a new policy that allows asylum claims only by immigrants entering the country through points of entry." "The case is Trump v. East Bay Sanctuary." More.

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Originally posted by Debra Cassens Weiss, Dec. 21, 2018, ABA Journal Weekly