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.
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.
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.
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..
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?
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.
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%.
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.