Valencia v. Deutsche Bank National Trust Company, 4D09-3297
June 22, 2011

The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding.  The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers written notification of the default that included the action necessary to cure the default, and gave the borrowers thirty days to comply. The lenders were unable to produce a hard copy of the letter that was actually sent to the borrowers. Instead, the lenders produced two possible letters that could have been sent to the borrower. Both letters contained a cure date of October 8, 2003. The actual letter was found by the borrowers after the summary judgment hearing. It contained a different cure date and a different amount owed than the complaint and the two hard copies produced by the lender.  The Fourth District held that there was a genuine issue of material fact because of these differences, and reversed the order of summary judgment.

Florida Dep’t of Revenue v. Seminole Tribe of Florida, 4D10-456
June 22, 2011

The issue of the taxability of gasoline sales to the Seminole Tribe made off the reservation was presented to the Fourth District Court of Appeal.  The trial court granted the Seminole Tribe’s motion for summary judgment while denying the Department of Revenue’s (“DOR”) motion for summary judgment.  The trial court held that the Indian Commerce Clause of the United States Constitution prohibited the State of Florida from taxing any fuel consumed by the tribe on the reservation.
The Fourth DCA performed a de novo review of the matter and held that the Seminole Tribe was not entitled to a refund for taxes on gasoline purchased off the reservation, regardless of where or how it was used. The Court relied on Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), where the Supreme Court upheld a motor-fuel tax imposed on non-Indian distributers who purchased the fuel off the reservation but ultimately delivered it to gas stations owned by the tribe and located on tribal lands.  In contrast, this case dealt with the purchase of gasoline outside of tribal lands by members of the Seminole Tribe. The Fourth DCA noted that it would be impossible to track the usage of the fuel.  Also, the Court acknowledged that because the tribe reaps the benefit of untaxed gasoline purchased on the reservation regardless of where it is used, common sense would suggest that fuel purchased off the reservation should be subject to the fuel tax, regardless of where it is used.  As a result, the Court reversed the trial court’s grant of summary judgment in favor of the Seminole Tribe and held that “off-reservation transactions, even by tribal members, are susceptible of taxation without running afoul of the Indian Commerce Clause.”

Cissel v. Cissel, 4D09-3029 & 4D10-1324
June 22, 2011

The Fourth District wrote to address an appeal of an alimony award and child support.  The court below found the former husband, appellant, to have a gross monthly income of $18,109.  The figure was based on his average earnings during the preceding fourteen months of trial.  The appellant argued that this error.  The Fourth District held that although it was acceptable to use this average, it was error to base any support from this figure in this case.  Citing §61.08(2)(i), Fla. Stat. (requiring consideration of all sources of income available to either party), the Fourth District found the trial court to have failed to deduct the husband’s undisputed business expenses.
The Fourth District also found error in the trial court’s award of alimony to former wife.  The trial court had only made findings as to the length of the marriage and the $20,000 per month standard of living that exceeded the parties’ incomes.  On appeal, the Fourth District again referred to §61.08(1), Fla. Stat. (requiring findings of facts relative to the factors enumerated in subsection (2) supporting an award of alimony).  Additionally, the court noted that the marital standard of living is not a useful guide in awarding alimony where the marital lifestyle costs more than the parties’ earnings.  Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005).  The Fourth District reversed and remanded.

Lustgarten v. Lustgarten, 4D09-4404
June 22, 2011

The parties entered into a settlement agreement that required the former husband, who is a physician, to pay former wife’s Medicare insurance premiums and medical expenses not covered by Medicare. Former wife later brought a motion for contempt, alleging that the former husband refused to pay for a medically necessary liver transplant. Former husband contended that the transplant was not medically necessary but was instead experimental, and that a less expensive treatment that Medicare covered had been recommended by former wife’s first physicians. The trial court granted former wife’s motion. The trial court found that the parties’ previous deletion of the phrase “reasonable and necessary” in the amended final judgment meant the former husband waived that requirement as to former wife’s procedure. The trial court found former husband willfully violated the amended final judgment by failing to pay for the transplant.

On appeal, the Fourth DCA agreed with former husband’s argument that former wife had to prove the transplant was reasonable and necessary. Relying upon McBride v. McBride, 637 So. 2d 938, 940-41 (Fla. 2d DCA 1994), the Court stated: “It is implicit within a final judgment of dissolution that medical expenses for which payment is sought must be reasonable and necessary.” The Court also agreed that the former husband had not waived the requirement. Despite these findings, the Court held the error harmless because former wife had provided substantial competent evidence the transplant was reasonable and necessary. However, the Court held the former husband’s violation was not willful because he had a good faith basis to question whether the transplant was reasonable and necessary based on the recommendation of the former wife’s first physicians. The Court remanded for the trial court to vacate the order of contempt and for an order requiring former husband to pay the medical expenses within thirty days.

Curtis v. City of West Palm Beach, 4D10-876
June 22, 2011

The Fourth District Court of Appeal addressed the issue of whether a firefighter could claim monetary damages under the Firefighter’s Bill of Rights (“FBR”). The firefighter sought monetary relief for alleged violations of the FBR by the City of West Palm Beach in imposing disciplinary action against him. The City obtained summary judgment because the trial court concluded monetary damages were unavailable under the FBR.
On appeal, the Fourth DCA affirmed, holding that the FBR permitted only injunctive relief. The Court noted that the remedies available for a statutory violation are to be determined by the clear and unambiguous language of that statute.  The Fourth DCA held that the FBR’s language clearly permits injunctive relief as the sole remedy for a violation of its terms.  The Court rejected the appellant’s argument that section 112.84, Florida Statutes (2007) permitted monetary relief for a violation of the FBR as a “right and privilege guaranteed to all citizens.”  While section 112.84 states that “[t]hese rights include the right to bring suit against any…organization… for damages, either monetary or otherwise, suffered during the performance of the firefighter’s official duties or for abridgment of the firefighter’s rights…,” the Court held that the language of section 112.84 refers only to other rights or remedies available under the statute in question.  The Court looked to the legislative intent behind the statute and found that the legislature intended injunctive relief to be the sole remedy for a violation of the FBR.

Arafat v. U-Haul Center Margate, 4D10-1179
June 22, 2011

The Fourth District addressed a writ of certiorari challenging a circuit court’s dismissal of an appeal as untimely. Arafat filed a complaint in small claims county court for $5,000 based on a statement of claim for items that were removed from her storage unit. The court entered judgment for the defendants on May 21, 2009. Arafat filed a motion for rehearing on June 1, 2009 but did not actually serve it until June 3, 2009.  The trial court denied the motion but ruled the denial would not take effect until September 1, 2009.  On September 24, 2009 Arafat filed a notice of appeal.  The defendants moved to dismiss the appeal, arguing that Arafat’s motion for rehearing was untimely and that because the judgment came from a nonjury trial, Florida Rule of Civil Procedure 1.530 mandates that a motion for rehearing be filed within ten days of the final judgment.  The circuit court agreed and dismissed the appeal.
On appeal, the Fourth District noted that Florida Small Claims Rule 7.180 provides that a motion for new trial must be filed within ten days. Florida Rule of Civil Procedure 1.530 provides that a motion for new trial or rehearing must be served within ten days. Because this case originated in small claims, and because the Florida Small Claims Rules do not incorporate Florida Rule of Civil Procedure 1.530, the Fourth District held that the motion for rehearing was timely. Florida Small Claims Rule 7.230 provides that appeals from small claims court shall be governed by the Florida Rules of Appellate Procedure. Under Florida Rule of Appellate Procedure 9.020(h), an authorized and timely motion for new trial or rehearing tolls rendition of the order of the trial court until disposition of the motion. The Fourth District quashed the dismissal of the appeal and remanded the case to be decided on the merits.