Sorry for the lack of postings lately, but my wife and I took a trip to France. After a brief stop in Paris, we explored the Normandy region, a truly beautiful area.
PONZI SCHEMES / BAILMENTS
O'Brien v. Stermer, 2012 Fla. App. LEXIS 17346
(Fla. 3d DCA Oct. 10, 2012)
affirmed an order which basically denied the victim of a Ponzi scheme her claim
for an implied-in-fact bailment because the assets were never segregated and
for failure to conduct an evidentiary hearing because she agreed to have the
issue decided by affidavits and other documentary records.
STAYS
Sunbeam TV Corp. v. Clear Channel Metroplex,
Inc., 2012 Fla. App. LEXIS 17184 (Fla. 3d DCA Oct. 9, 2012) refused to grant relief on a motion for stay
until the lower court first ruled on it, but extended the temporary stay,
encouraging the trial judge to get with it and rule.
APPELLATE JURISDICTION
Portis v. Seatruck, Inc., 2012 Fla. App.
LEXIS 16543 (Fla. 3d DCA Oct. 3, 2012) reversed an order dismissing a case for lack of prosecution but held
that it had no jurisdiction over two-year-old order granting summary
judgment. If those orders were final,
the time for appeal has long since passed.
If not final, appellant could seek the entry of a final order and
perfect her appeal then.
Longleaf C & D Disposal Facility, Inc. v.
Green’s Fill Dirt, Inc.,
--- So. 3d --- (Fla. 1st DCA Oct. 10, 2012) dismissed an appeal of a “Final
Judgment” which reserved jurisdiction over a trespass claim, but disposed of a
boundary dispute because there was a factual overlap between the pending claim
and the claim resolved by the court; as a nonfinal order determining the right
to immediate possession of property, the notice of appeal was untimely because
the motion for rehearing did not toll the final judgment.
ALIMONY
Murphy v. Murphy, 2012 Fla. App. LEXIS 16541
(Fla. 3d DCA Oct. 3, 2012) a
divided court reversed the order granting the petition for downward
modification of alimony based on the trial court’s conclusion that the wife had
entered into a “supportive relationship” as identified in F.S. §
61.14(1)(b)1. The reversal was based on
the fact that the trial court made a series of factual findings that negated
its legal conclusion where there was no economic support being supplied to the
recipient spouse by the third party cohabitant..
DUTY
Reider v. Dorsey, 2012 Fla. App. LEXIS 16035
(Fla. Dist. Ct. App. 3d Dist. Sept. 27, 2012) reversed over a $1.5 million verdict because it held that the defendant
did not owe a duty of care to the plaintiff when he was struck by an
independent third party.
PROPOSAL FOR SETTLEMENT
Knecht Properties, LLC v. Carreira, --- So. 3d --- (Fla. 3d DCA September 27,
2012) is a short opinion authored by Judge Rothenberg. Who said it couldn’t happen?
MEDICAL MALPRACTICE
Rell v. McCulla, 2012 Fla. App. LEXIS 17688
(Fla. 2d DCA Oct. 12, 2012)
quashed an order denying a motion to dismiss a malpractice complaint where the
plaintiffs failed to comply with the requirement for a corroborating affidavit
from a medical expert. The attorney’s
affidavit did not qualify and the doctor’s affidavit never stated that the
defendant provided negligent care or treatment or that there were reasonable
grounds to believe that medical negligence had occurred.
SERVICE OF PROCESS
Koster v. Sullivan, 2012 Fla. App. LEXIS 17423
(Fla. 2d DCA Oct. 10, 2012)
held that meeting the requirement of F.S. § 48.21 sufficed to make the return
of service regular on its face. Here the
return indicated that the “manner of service” was substitute service on the
sister-in-law. The court rejected the
defendant’s argument that the return also had to indicate under F.S. §
48.031(1)(a) that the sister-in-law was 15 years of age or older and informed
the person of their contents. The court
certified conflict with the Third District.
FORECLOSURE / DISCOVERY / SUMMARY JUDGMENT
Almond Entm't, Inc. v. Bayview Loan
Servicing, LLC, 2012 Fla. App. LEXIS 17012 (Fla. 2d DCA Oct. 5, 2012) reversed a summary judgment in a foreclosure
action where there was discovery pending, namely the defendant’s attempt to
depose a corporate representative on the issue of whether the plaintiff was the
owner of the note and mortgage on the date it filed suit.
DEPOSITIONS v. AFFIDAVITS
Slominski v. Citizens Prop. Ins. Corp., 2012
Fla. App. LEXIS 16730 (Fla. 4th DCA Oct. 3, 2012) explaining that when the insured delays
noticing the claim, it is the insured’s burden to show lack of prejudice to the
insurer. Here the insured had repaired
the property, and the experts’ affidavits were contradicted by their deposition
testimony. Because the depositions were
given before the affidavits, they could not be used to defeat summary
judgment. Affirmed.
ATTORNEY’S FEES
Fidelity Warranty Servs. v. Firstate Ins.
Holdings, Inc., 2012 Fla. App. LEXIS 16726 (Fla. 4th DCA Oct. 3, 2012) reversing that portion of the fees award for
attorneys who had voluntarily withdrawn from representation where they were
working on a contingency fee agreement.
Furthermore, an attorney who voluntarily withdraws cannot avoid the
consequences of his withdrawal by subsequently modifying the fee agreement. There was no error in awarding interest on
the fees it affirmed and using the date of entitlement, but stated that the
rate used should have been 6%.
RELEASES
Give
Kids The World, Inc. v. Sanislo, 2012 Fla. App. LEXIS 17750 (Fla. 5th DCA Oct.
12, 2012) is a case where the defendant selected plaintiff’s child, a young
girl with a serious illness, to grant her wish to visit defendant’s village in
the State of Washington. When the mother
was injured, she showed her appreciation to this charitable organization by
suing. The court held that summary
judgment should have been granted in favor of the defendant based on the
following release language: (1) One provision releases GKTW from “any and all
claims and causes of action of every kind arising from any and all physical or
emotional injuries and/or damages which may happen to me/us . . . which may
occur while staying at the Give Kids the World Village.” (2) A second provision
releases GKTW from “any liability whatsoever in connection with the
preparation, execution, and fulfillment of said wish…” The court said this
language was broad enough to encompass negligence claims arising from the
injuries suffered by the mother.
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