L.K. v. Department of Children and Families, 4D10 – 5124
June 15, 2011

The Fourth District Court of Appeal addressed a final order terminating L.K.’s parental rights as to her daughter, G.B. The Department initiated dependency proceedings regarding G.B and took her into the Department’s custody. Shortly thereafter, L.K. was incarcerated for narcotics. The evidence showed that during L.K.’s incarceration, she made several attempts to contact G.B. as well as inquire about G.B’s general well-being through another family member. The Department then filed a petition for termination of parental rights on the basis of abandonment.  The trial court held that L.K. had not made a sufficient effort to establish a substantial relationship with G.B. and that it was in the child’s best interests to terminate her parental rights.  In so finding, the trial court ruled that L.K’s attempts to substantially comply with her case plan were irrelevant to its determination of abandonment.

L.K. argued that the trial court erred in excluding evidence that L.K. substantially complied with her case plan.  The Fourth District agreed.  In reversing, the Fourth District cited B.T. v. Department of Children and Families, which held that incarceration is a factor that can be considered in abandonment cases, but the parent’s efforts to assume parental duties while incarcerated must also be considered in light of the limited opportunities to assume those duties while in prison.  16 So.3d 940, 941 (Fla. 5th DCA 2009).  The Fourth District held that the trial court should have considered L.K.’s attempts to substantially comply with her case plan before terminating her parental rights.

Bryan v. State of Florida, 4D10-632
June 15, 2011

The Fourth District Court of Appeal wrote to address a trial court’s order denying a motion to suppress evidence obtained during a warrantless search.  Acting on an anonymous tip, police were dispatched to investigate a call about three black males in front of a home by a white sports utility vehicle (“SUV) with narcotics and a gun.  When police arrived, only the white SUV was present that coincided with the tip.  The officers heard voices from the backyard and proceeded to enter through a gate into the appellant’s back yard.  When the officers reached the back door, they noticed marijuana inside the home through a broken window and smelled marijuana coming from the house.  After verifying that one black male was inside the home, the officers performed a protective sweep of the home, for the safety of those on the street, to see if the other male was inside the house with a weapon. The trial court upheld the warrantless entry, finding that the tip was corroborated when the white SUV was spotted and when drugs were spotted inside the home.

On appeal, the Fourth District cited Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1057 (Fla. 4th DCA 2003) that held that any area within the curtilage of the home deserves the same protection as the home itself.  The Court also noted that the possession of a gun, without more, would not justify the intrusion, and that an anonymous tip without any signs of past, present, or future criminal activity cannot give rise to a constitutional stop or search.  Relgalado v. State, 25 So.3d 600, 606-607 (Fla. 4th DCA 2009). In reversing the denial of the motion to suppress, the Fourth District held that no exception to the warrant requirement applied. The Court held that the officers “entered the curtilage of the home acting solely on an anonymous tip” and that there was no indication a crime had been, was being, or would be committed. Since the police entry into the backyard was illegal, the entry into the home based on the sight of the marijuana gained as a result should have been suppressed.

Barrueta v. State of Florida, 4D10-2084
June 15, 2011

The Fourth District Court of Appeals addressed an appeal from a revocation of probation and resulting judgment and sentence. The appellant was on probation following a conviction on one count of trafficking in cocaine and one count of conspiracy to traffic in cocaine. The State later obtained revocation of appellant’s probation and the trial court sentenced appellant on both of those counts. On appeal, appellant argued that the trial court erred in sentencing appellant on the conspiracy count because the State’s warrant failed to allege a violation as to that count. The Fourth District agreed, relying on Baker v. State, 750 So. 2d 1115, 1116 (Fla. 4th DCA 2000). As a result, the Fourth District reversed the revocation, judgment, and sentence as to the conspiracy count, although it affirmed on the trafficking count. The Fourth District also remanded for entry of a more specific and detailed written judgment.

McLeod v. Elk, Bankier, Christu, P.A., 4D10 – 37
June 8, 2011

The Fourth District addressed the issue of whether the statute of limitations had expired before a claim for legal practice was filed.  In 1998, Robert McLeod hired Thomas Tew as his attorney in order to sue Fidelity Investments (“Fidelity”) for an alleged error that resulted in the wrongful liquidation of McLeod’s account. The parties to that action reached a settlement that contained a general release for Fidelity. McLeod believed that his account would be restored to the status quo ante.  It was not.

Tew withdrew from his representation of McLeod.  McLeod then hired Elk Bankier in 2002 to file an arbitration claim against Fidelity.  The arbitration panel found in favor of Fidelity in 2003. Bankier then suggested filing a malpractice suit against Tew and recommended an attorney who specialized in legal practice claims. That attorney advised McLeod that he had no valid claim against Tew.  In 2004, McLeod then sought the advice of another attorney, William Isenberg.  Isenberg recommended pursuing a legal practice claim against Tew.  McLeod filed a malpractice action against Bankier in 2008, arguing that Bankier negligently allowed the statute of limitations against Tew to expire. Bankier obtained summary judgment based on the two-year statute of limitations, which it contended began when Tew terminated his relationship with McLeod in 2000 or, at the latest, when the arbitration panel reached its decision in 2003.
On appeal, the Fourth District noted that section 95.031(1), Fla. Stat. states that “[a] cause of action accrues when the last element constituting the cause of action occurs.”  The Court reasoned that: (1) as Tew advised McLeod in March 2000 that he would not longer represent him, any possible action against Tew expired in March 2002 and Bankier could not be liable for failure to sue Tew for malpractice since they were not retained until December 2002; (2) even if the limitations to sue Tew began at the arbitration decision in 2003 and expired in 2005, McLeod was advised of his possible cause of action against Tew and did not file against Bankier until 2008, after the statute of limitations against it had expired in 2007; and (3) the latest date at which McLeod’s cause of action against Bankier accrued was 2004 based on when Bankier advised him of his cause of action against Tew, so that the two-year statute of limitations still barred McLeod’s claim against Bankier. The Fourth District affirmed.

Chrysler Group, LLC v. Musacchia, 4D10-212
June 8, 2011

The Fourth District Court of Appeal recently reversed a trial court decision granting a claim for attorney’s fees under section 681.112(1), Florida Statutes (2006).  The Musacchias filed a successful arbitration action against Chrysler with the Lemon Law New Motor Vehicle Arbitration Board after they experienced numerous problems with a Jeep Commander they had leased. The board determined that the vehicle was in fact a “lemon” and that the Musacchias were entitled to a refund. The Musacchias later filed suit under section 681.112(1) seeking their attorney’s fees from the arbitration as “damages” resulting from their purchase of the vehicle.  The trial court awarded the Musacchias their attorney’s fees.

On appeal, the Fourth District, citing its recent decision in General Motors v. Bowie, 58 So. 3d 934, 935 (Fla. 4th DCA 2011), held that “‘damages’ under section 681.112 do not include attorney’s fees incurred in pursuing the refund option through arbitration.” Consequently, the Fourth District reversed the decision of the trial court with directions to enter judgment for Chrysler.

A.L.T. v. State of Florida, 4D10 – 2278
June 8, 2011

The Fourth District wrote to address whether a police search exceeded the scope of the suspect’s consent.  A.L.T., a child, was stopped by Officer Mandell of the Fort Lauderdale Police Department.  He asked A.L.T. specifically if he could “search him for weapons or drugs.” A.L.T. consented. Officer Mandell removed a wallet from A.L.T’s pocket which did not belong to A.L.T.  A records check of the address on driver’s license in the wallet revealed that a burglary occurred six days prior at that address.

A.L.T. was arrested. He waived his Miranda rights and confessed to the burglary.  The State charged A.L.T. with burglary and grand theft. The defense filed a motion to suppress and argued that the discovery of the victim’s driver’s license and A.L.T’s confession exceeded the scope of A.L.T.’s consent.  The Fourth District agreed.  “The standard for measuring the scope of a consent under the fourth amendment is objective reasonableness.  There is no bright-line test for determining the scope of consent to a warrantless search.”  Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005).  The Fourth District held that a typical reasonable person would have understood Officer Mandell’s request to mean “a search for weapons and drugs, not an open invitation to remove all the contents from one’s wallet.”  The Fourth District reversed the denial of A.L.T.’s motion to suppress.

Sarpel v. Eflanli, 4D09-4828 & 4D10-3146
June 1, 2011

The Fourth District recently addressed a trial court’s jurisdiction to make a custody ruling under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The father had Turkish and American citizenship, and the mother was a Turkish citizen. The family members were longtime residents of Florida. On March 14, 2006, the family went to Turkey. The father returned to Florida on November 8, 2006 and filed a petition for dissolution seeking a custody determination. The mother and children did not return to Florida until January 28, 2007. Following a final judgment designating the father primary residential parent, the mother contended that Florida lacked jurisdiction to make the custody ruling.

“Home state” is defined under the UCCJEA as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.503(7), Fla. Stat. The statute makes temporary absences part of the time period. The mother contended the trip to Turkey was intended to be a permanent relocation and that the father had later changed his mind. The father maintained that the trip was only intended to be an extended vacation. The trial court agreed with the father, finding that the children’s absence was temporary, so that Florida was their “home state” for UCCJEA purposes and the court had jurisdiction to make the custody ruling.

On appeal, the Fourth District reasoned that Florida could be considered the children’s “home state” under section 61.514(1)(a) if it qualified as such at any time during the six months preceding the father’s filing of the petition for dissolution of marriage. Applying the six-month “lookback,” the Court focused on the date of May 8, 2006, at which time the children had been in Turkey only seven weeks. The Court affirmed the trial court’s finding of that seven week absence as temporary and the conclusion that Florida was the children’s “home state” on that date. The Court therefore affirmed the decision.

Konz v. Konz, 4D09-4454
June 1, 2011

The Fourth District addressed an issue of valuation regarding a marital residence during a dissolution of marriage proceeding.  At the time of the marriage, appellant, husband owned a home that had a fair market value of $380,000 with a $25,000 mortgage.  During the marriage, the home was demolished and the mortgage was paid off.  The parties built a new home on the same lot, with a fair market value of $520,000.  In the equitable distribution, the trial court treated the entire home as a marital asset and equally divided the equity.

On appeal, the husband argued that the trial court failed to award him a portion of the value of the home as a nonmarital asset. The Fourth District disagreed, holding that the former husband failed to meet his burden to establish the value of the nonmarital portion of the marital home.  See Jahnke v. Jahnke, 804 So.2d 513, 517 (Fla. 3d DCA 2001).  There was no evidence of the value of the lot by itself, which would have qualified as the nonmarital portion of the value of the marital home, when the original house was torn down.  The Fourth District noted that the failure to prove the nonmarital value of the lot distinguished the case from Oldham v. Oldham, 683 So. 2d 579, 580 (Fla. 4th DCA 1996). The Fourth District affirmed the equal equity distribution of the marital residence.

Caproc Third Ave., L.L.C. v. Donisi Ins. Inc., and Donosi, 4D09-4792
June 1, 2011

The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi. A writ of garnishment was issued against Donisi’s personal bank accounts. Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting his accounts were exempt from garnishment. In response, Caproc’s attorney filed an “attorney’s affidavit” that denied under oath the facts set forth in Donisi’s affidavit.  The trial court dissolved the writ and found the affidavit filed by Caproc’s attorney legally insufficient to satisfy Caproc’s burden under §222.12 to deny the facts under oath.

Caproc appealed, arguing that it was permissible under the statute for its attorney to execute the sworn denial of the debtor’s exemption affidavit. The Fourth District disagreed, holding that the language of the statute was clear and unambiguous in its requirement that the party who sued out the process, and not the party’s attorney, deny under oath the facts set forth by the debtor.  The Court stated S. Attractions, Inc. v. Grau for the proposition that “[u]nder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” 93 So.2d 120, 125 (Fla. 1967).  The Fourth District affirmed the dissolution of the writ.

Shelby Homes at Millstone, Inc. v. Cullinane, 4D10-289
May 18, 2011

Four months prior to expiration of the contractual time period for completion of a home, the buyers’ counsel sent a letter to the seller’s counsel stating that the home buyers “may not be able to obtain financing under the same terms and conditions as originally intended” and that certain allegedly fraudulent representations by the seller “may render closing impossible.” The buyers also requested various documents from the seller. The seller replied, in a letter from its counsel, that the seller would provide the requested documents once a closing date was scheduled and the buyers had confirmed they were in fact closing. The seller informed the buyers that if the buyers failed to close, the seller would consider them in default and keep their deposits. The buyers never replied. The seller completed the home (after expiration of the contractual time period), sold the home to a different buyer, and kept the original buyers’ deposits.

The buyers sued for breach of contract, seeking return of their deposits, based on the seller’s failure to complete construction of the home in the time required by the contract. The seller raised the defense of anticipatory repudiation based on the buyers’ letter and contract language allowing the seller to treat any written communication informing the seller that the buyers “may be unable or unwilling to close” as an anticipatory breach. The trial court found that the buyers’ letter did not amount to an anticipatory breach and that the seller’s letter in response did not require a response from the buyers confirming that they would close.

On appeal, the Fourth DCA held that the buyers’ letter fell within the contract’s provision allowing the seller to treat it as an indication of inability or unwillingness to close and therefore an anticipatory breach. Despite this holding, the Fourth DCA affirmed based upon the seller’s failure to treat the anticipatory breach according to the applicable procedures contained in the contract. The Fourth DCA stated that this failure to follow its own contract’s remedies led the seller to ultimately breach the contract by failing to timely complete the home. The Fourth DCA held that the trial court had reached the right result for the wrong reasons. In that situation, the Court can still affirm the result. This is sometimes called the “tipsy coachman” rule. See Dade Cty Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).