Sunday, March 4, 2012

Opinions for the Week of March 2, 2012

In Kopsho v. State, 84 So. 3d 204, 2012 Fla. LEXIS 454 (Fla. 2012), the supreme court held that the trial court properly allowed the State to present Williams rule evidence during the guilt phase that he had previously abducted his wife at knifepoint because the evidence was necessary to show that the crime was premeditated, as the defense was that defendant murdered his wife in the heat of passion.

Darling v. State, 81 So. 3d 574, 2012 Fla. App. LEXIS 3132 (Fla. 3d DCA 2012) affirmed the denial of a motion to dismiss under the "stand your ground" law.  Additionally holding that the law specifically requires that the person invoking the defense "not [be] engaged in an unlawful activity." F.S. § 776.013(3).  Thus, in this case, the trial court properly determined that evidence of defendant’s convicted-felon status was admissible so that the jury could properly evaluate whether defendant’s use of force was justified under the circumstances. Although the trial court initially and properly severed the charge of possession of weapon by a felon, subsequently, it became evident that to decide the issue of self-defense the jury should know that defendant’s possession of the weapon was not lawful because he had a prior felony conviction.


United Prop. & Cas. Ins. Co. v. Concepcion, 83 So. 3d 908, 2012 Fla. App. LEXIS 3164 (Fla. 3d DCA 2012) held that the alleged dispute as to whether the insured complied with post-loss obligations created a fact issue which had to be resolved by the court through an examination of the evidence, in this case, by conducting an evidentiary hearing.
Higgins v. Ryan, 2012 Fla. App. LEXIS 3158 (Fla. 3d DCA Feb. 29, 2012) dismissed an appeal from an order determining the percentages of ownership of a business because it was not a final order determining immediate possession of property appealable under Florida Rule of Appellate Procedure 9.130 (a)(3)(C)(ii).

Wolfe v. Culpepper Constructors, Inc., 81 So. 3d 588, 2012 Fla. App. LEXIS 3263 (Fla. 2d DCA 2012) reversed the trial court for concluding that the offer of judgment was invalid because it was a joint offer that could only be accepted by plaintiff were plaintiff to dismiss its then pending claims against both defendants.  The Wolfes' joint offer specifically stated that it was made to resolve all claims and counterclaims pending in the litigation. The settlement amount was $25,000, of which $12,500 would be paid by Mr. Wolfe and $12,500 by Mrs. Wolfe. To accept the $25,000 as the full amount due, including attorney's fees and costs, plaintiff would have to dismiss all claims against both Mr. and Mrs. Wolfe with prejudice. Additionally, plaintiff would have to agree to discharge the claim of lien and notice of lis pendens filed against the real property. Plaintiff rejected this offer of judgment and the final judgment in its favor was $9074.06, which is considerably less than $18,750, or twenty-five percent less than the $25,000 offer.
Harbor Cmtys., LLC v. Jerue, 81 So. 3d 568, 2012 Fla. App. LEXIS 3255 (Fla. 4th DCA 2012) held that "where a judgment implicitly resolves the issues raised by the defendant's counterclaim, it is a final judgment even though the judgment makes no explicit reference to the counterclaim." State ex rel. Nixon v. Hoester, 930 S.W.2d 52, 53 (Mo. App. 1996).  Here, the first final judgment implicitly denied defendant’s counterclaim. Therefore, by entering final summary judgment in favor of the plaintiffs on their claim for breach of contract, the first final judgment necessarily rejected the counterclaim that the plaintiffs breached the contract by failing to close on the condominium unit.  The trial court did not have jurisdiction to enter a second final judgment after the first final judgment was affirmed on appeal.  The trial court has no authority to alter, modify or vacate an order or judgment, except under Rules 1.530 and 1.540, Florida Rules of Civil Procedure.  Here, the first final judgment did not reserve jurisdiction to award prejudgment interest and the plaintiffs did not timely file a motion for attorney's fees within thirty days of the first final judgment. See Fla. R. Civ. P. 1.525.


Walker v. Walker, 80 So. 3d 1128, 2012 Fla. App. LEXIS 3256 (Fla. 4th DCA 2012) reversed the dismissal for lack of subject matter jurisdiction.  The parties were divorced in 2003, and  the court incorporated the parties' marital settlement agreement into the final judgment, which awarded the wife rehabilitative alimony for 10 years and reserved jurisdiction to "modify and enforce" the judgment.  In 2008, the wife filed a petition for modification. The summons was served on the husband.  Chapter 61 vests a circuit court with continuing jurisdiction to enforce and modify an alimony award.  Circuit courts have the subject matter jurisdiction to consider timely petitions for such modification, whether or not the court has expressly reserved jurisdiction in a final judgment.

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