MOOT COURT BLOG
A Review of Recent Appellate Opinions
Brown & Brown, Inc. v. Gelsomino
43 Fla. Law Weekly D2642a
Fourth DCA; November 28, 2018
The plaintiff worked for his brother’s company, T&T Contracting. Subsequently, he and his brother incorporated T&T Services, and sought insurance for that company. In 2002, the plaintiff was injured while working on a project for T&T Services. The plaintiff filed a claim, but it was denied because the insured was listed as T&T Contracting; instead of T&T Services. The plaintiff sued. The trial and verdict were in 2014. The jury apportioned fault among the insurance broker, the plaintiff’s brother, T&T Contracting; T&T Services, and the plaintiff. Did the trial court err in holding the insurance broker jointly and severally liable?
The answer is:
Yes. In 2006, joint and several liability was abolished by statute, and in 2011, the statute was made retroactive.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Charthouse Associates v. Valencia Reserve Homeowners Assoc.
43 Fla. Law Weekly D2645a
Fourth DCA; November 28, 2018
The Brownes resided in a community governed by a homeowner’s association. The Declaration allowed the Brownes and their invitees to use the association’s fitness center. The Brownes hired a personal trainer. Subsequently, the association hired a vendor to provide fitness services, and enacted a rule prohibiting private trainers from doing so in the fitness center. The Brownes then sought a declaratory judgment regarding their right to use their private trainer in the fitness center. Did the trial court err in granting the motion for a summary judgment on the grounds that the private trainer was not a permitted invitee, but a prohibited licensee, because he was being paid?
The answer is:
Yes. A business visitor may be an invitee. The fact that the private trainer was being paid did not make him a licensee. A licensee is an uninvited persons, who’s presence is neither sought nor forbidden. Also, the association’s new rule prohibiting private trainers was invalid because it conflicted with the Declaration which allowed business non-business invitees.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Seligsohn v. Seligsohn
43 Fla. Law Weekly D2637c
Fourth DCA; November 28, 2018
In a final divorce judgment, the trial court ordered the wife to “attend weekly [parent effectiveness training] until further Court order. She shall demonstrate to the Court and in her parenting and verbally what has been taught to her, and that she understands what she has been taught and that she can put into practice what she has been taught.” The trial court further ordered the parties to exercise shared parental responsibility, but granted the former husband “ultimate decision-making authority as to all issues,” if the parties disagreed. The former wife appealed. Did the trial court err in so ordering?
The answer is :
Yes. The parent effectiveness training order was vague and ambiguous about the scope and the termination date of the parent effectiveness training. Also, ultimate decision-making authority over a child must be limited to specified decisions when the parents are awarded shared parental responsibility.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Reidy v. Reidy
43 Fla. L Weekly D2654a
Fourth DCA; November 28, 2018
An attorney represented the wife in a dissolution action. A final judgment was entered, and an appeal was filed. While the case was pending on appeal, the wife’s attorney was replaced. Her former attorney then filed a notice of intention to impose and enforce a charging lien for his services. Subsequently, the court adjudicated the lien. Did the court err in adjudicating the lien?
The answer is :
Yes. The trial court lacked jurisdiction to adjudicate the charging lien because it was filed after the final judgment had been entered.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Starboard Cruise Services v. DePrince
43 Fla. L Weekly D2581a
Third DCA; November 21, 2018
The plaintiff sued the defendant for specific performance, breach of contract and conversion. The defendant served the plaintiff with a proposal for settlement pursuant to Florida Statutes, §768.79. The proposal offered to settle the breach of contract and conversion claims for $75,000, in exchange for a release and dismissal with prejudice of all claims. The proposal was rejected, but the defendant prevailed. The defendant then moved for attorney’s fees. Was the defendant entitled to attorney’s fees under §768.79?
The answer is :
No. The proposal for settlement was invalid because it was a proposal to settle both monetary and non-monetary claims. Section 768.79 only applies to civil actions “for damages”. If you have an appeal involving an attorney’s fees issue, contact Samuel Walker right away, as there are deadlines that must be met.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Keystone Airpark Authority v. Pipeline Contractors
43 Fla. L Weekly D2601d
First DCA; November 27, 2018
The plaintiff hired a contractor to construct multiple airplane hangers and taxiways and, separately, it hired an engineer to monitor the construction. Not long after the project was completed, the hanger slabs and taxiways began deteriorating due to substandard materials and construction. The plaintiff sued the engineer for failing to monitor the construction. The plaintiff sought the cost of repairing the hangers and taxiways. The contract provided that the engineer shall have no liability for special or consequential damages. Did the court err in granting the engineer’s motion for summary judgment?
The answer is :
No. Consequential damages are damages caused by a third party. The damages here were caused by a third party, the contractor. Therefore, they were consequential damages, and were expressly excluded by the contract.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Law Offices of Herssein and Herssein v. United Services Auto. Assoc.
43 Fla. L Weekly S565b
Supreme Court of Florida; November 15, 2018
An attorney filed a motion to disqualify a judge on the grounds that an attorney representing a potential party in his case was listed as a friend on the judge’s personal Facebook page. The trial court denied the motion as legally insufficient, and the attorney petitioned the Third DCA for a writ of prohibition. The Third DCA denied the petition. The Third DCA’s holding was in conflict with a Fourth DCA holding. Did the trial court err in denying the motion to disqualify?
The answer is :
No. A Facebook “friend” may actually be a stranger. Therefore an allegation that a trial judge is a Facebook “friend,” with an attorney appearing before the judge, standing alone, is not legally sufficient to disqualify the judge.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Statute of Limitations Issue
D.H. v. Adept Community Services; 43 Fla. L. Weekly S533a
Supreme Court of Florida; November 1, 2018
A mentally disabled woman hired the defendant to provide live-in support for herself and her children. In April 2006, pursuant to an anonymous complaint of abuse, the sheriff’s office removed the children from their mother’s custody, and took them to their grandparents’ home. A dependency petition was then filed, and the Guardian Ad Litem Program was appointed to represent the children in that matter. In April 2007, the grandparents were appointed as the children’s guardians. In November 2010, the grandparents sued the defendant for failing to prevent their daughter from abusing the children. Did the trial court err in granting the defendant’s motion for summary judgment on the grounds that the four-year statute of limitations had expired?
The answer is :
Yes. Florida law tolls the statute of limitations for a minor’s tort claim when the child lacks a parent, guardian, or a guardian ad litem who is not adverse to the minor. The children lacked a parent who was not adverse. The guardian ad litem program was appointed for the dependency matter and, therefore, it had no authority to bring a tort claim on behalf of the children. The children’s grandparents were not appointed as permanent guardians until April 2007 and, therefore, the statute of limitations did not begin to run for them until then.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
MOOT COURT BLOG
A Review of Recent Appellate Opinions
Perez v. State
43 Fla. L. Weekly D2404f
Second DCA; October 26, 2018
One day, a young lady, living with her mother and step-father, discovered that one of the channels on the television in the living room displayed a live video feed from her bedroom. She reported the matter to her mother who then searched her husband’s laptop, and discovered several videos of her daughter in various stages of nudity. The mother called the police, and gave them permission to search the laptop. The police called an assistant state attorney and asked him it they may search the laptop with the wife’s consent, or whether they should get a warrant. The Assistant State Attorney told them that they could search the laptop with the wife’s consent. The police searched the laptop, seized the videos, and charged the stepfather with video voyeurism. Did the trial court err in deny the stepfather’s motion to suppress the videos.
The answer is :
Yes. A warrant was necessary because the wife had no authority to consent to the search of personal property that did not belong to her. A wife has not authority to consent to the search of her husband’s personal property, unless there is evidence of both common authority over and mutual usage of the property. The inevitable discovery doctrine was not applicable because the police were not in active pursuit of a warrant prior to the warrantless search of the laptop.
Attorney Samuel A. Walker is a partner at CPLS, P.A., and focuses his practice on civil and criminal appeals. If you are unhappy with the judge’s decision in your case, contact Attorney Walker today at swalker@cplspa.com to discuss an appeal.
Actual or Constructive Possession of a Firearm
D.V. v. State; 43 Fla. L. Weekly D988a
Third DCA; May 2, 2018:
Two officers approached a vehicle parked on the side of the road. There were three people in the vehicle. Two were sitting in the front seats, and D.V. was sitting in the back. When the officers looked through an open window, they saw a gun on the back seat, only inches from D.V. They seized the gun, arrested D.V., and charged him with unlawful possession of a firearm. Did the trial court err in convicting D.V.?
- Yes.
- Sitting in a jointly occupied vehicle, in close proximity to a firearm, is insufficient to prove actual or constructive possession of the firearm.
If you have an appeal involving a criminal law issue, contact Samuel Walker right away, as there are deadlines that must be met.
