Thursday, January 12, 2012

Releases from the 4th DCA 01/11/12


In Schein v. Ernst & Young, LLP, 77 So. 3d 827, 2012 Fla. App. LEXIS 160 (Fla. 4th DCA 2012) the court applied Illinois’ audit interference doctrine, which permits evidence of a client’s negligence where the client interferes with an auditor’s services, but found that there was no evidence that appellants had interfered, so the trial court erred in denying their motion for a directed verdict on this comparative negligence defense.  See


In Krock v. Rozinsky, 78 So. 3d 38, 2012 Fla. App. LEXIS 161, (Fla. 4th DCA 2012), the court affirmed an award of attorney’s fees and cost in the amount of $163,415, pursuant to a proposal for settlement.  The court found no abuse of discretion in the denial of a third request for continuance, despite appellant’s medical condition.  In reaching its decision, the court listed the factors to be considered, including the fact that: (1) the motion had been pending for almost a year and (2) the issue was such as to require expert attorney testimony, rather than the testimony of the appellant.  See


Rodgers v. After Sch. Programs, Inc., 78 So. 3d 42, 2012 Fla. App. LEXIS 165 (Fla. 4th DCA 2012) affirmed the denial of plaintiff’s motion to interview four jurors for failure to disclose information because of plaintiff’s lack of diligence in uncovering the information during voir dire.  See


In Beaulieu v. JPMorgan Chase Bank, 80 So. 3d 365, 2012 Fla. App. LEXIS 181 (Fla. 4th DCA 2012), the court affirmed the denial of a motion to vacate a final judgment of foreclosure challenging appellee’s standing because it had not proved that it was duly assigned the mortgage note.  Because appellant was defaulted, she could not contest the allegation of the complaint.  The original note and mortgage were filed in the foreclosure action and entitled appellee to the final judgment it obtained.  Appellant’s other challenges were barred because a motion under Rule 1.540(b) cannot be used as a substitute for a motion for rehearing or an appeal.  See


In Keybank Nat'l Ass'n v. Passport Marine, Inc., 76 So. 3d 1137, 2012 Fla. App. LEXIS 187 (Fla. 4th DCA 2012), the court reversed a final judgment in a replevin action at a hearing scheduled to determine appellant’s motion for prejudgment possession of a boat under F.S. § 78.067, because the hearing was not noticed as a final hearing.  See


In Baudanza v. Baudanza, 78 So. 3d 656, 2012 Fla. App. LEXIS 176 (Fla. 4th DCA 2012), the court reversed the trial court sitting in the family division for dismissing a case for lack of jurisdiction because there had been an adoption of the child subsequent to the dissolution action.  The adoption court had not retained jurisdiction over the matter, while the family division had retained jurisdiction of the parties and the subject matter.  See

In Khan v. Khan, 79 So. 3d 99, 2012 Fla. App. LEXIS 190 (Fla. 4th DCA 2012), the court reversed an order striking a motion for an increase in temporary alimony and attorney’s fees and costs based on a Marital Settlement Agreement in which the parties had agreed to pay their own attorney’s fees in any dissolution proceeding. An agreement that waives or limits the right to request temporary support and attorney’s fees to a spouse in need in a pending dissolution action is a violation of public policy.  See


Ross v. Ross, 77 So. 3d 238, 2012 Fla. App. LEXIS 186 (Fla. 4th DCA 2012) granted a writ of prohibition barring the trial judge from continuing to preside over post-dissolution proceedings after the judge had granted a motion to disqualify.  See

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