Block v. Tosun
Case No. 4D11-1594

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting a motion to vacate an eighteen year old default judgment without an evidentiary hearing. The plaintiff trustees had obtained a default judgment against Tosun in 1992. Eighteen years later, with no record activity having occurred, the trustees served Tosun with a subpoena duces tecum in aid of execution. Tosun moved to vacate the default judgment, claiming he never received service of process. Tosun alleged in his motion that the court file that would contain the return of service had since been destroyed. Tosun also attached an affidavit in which he claimed no recollection of having received the complaint and summons, or the default judgment. However, the clerk’s progress docket contained an entry indicating that Tosun had in fact been served with process. The trial court granted Tosun’s motion to vacate following a non-evidentiary hearing.

On appeal, the Fourth DCA agreed with the trustees that the trial court had erred in concluding that their failure to provide a return of service required the court to set aside the final judgment as a matter of law. The trustees had met their burden by providing the clerk’s progress docket as well as the default judgment. The court stated that “[t]ogether these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not service of process on Tosun was properly perfected in 1992.” The Fourth DCA reversed and remanded for the trial court to conduct an evidentiary hearing on the issue.

Duke v. HSBC Mortgage Services, LLC,
Case No. 4D09-5183

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting summary judgment of foreclosure against the homeowners, who were husband and wife. At the time HSBC filed its complaint in the trial court, it attached a mortgage showing the Dukes as the borrowers and a company called First NLC Financial as the lender. HSBC alleged in the complaint that it owned the Dukes’ note and mortgage pursuant to an assignment. However, HSBC failed to attach the assignment to its complaint. HSBC later filed a notice of assignment and attached a copy of the assignment that was executed after HSBC filed the complaint. The trial court granted summary judgment for HSBC.

On appeal, the Fourth DCA held that the discrepancy between the attached mortgage showing First NLC Financial as the lender and HSBC’s allegation in the complaint that it owned the note and mortgage created a genuine issue of material fact regarding ownership of the note and mortgage that precluded summary judgment. Citing BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010), the Fourth DCA noted that exhibits control over allegations in a complaint, and therefore the at the time of filing the complaint, the attached mortgage listing First NLC Financial as the lender controlled over HSBC’s allegation in the complaint that it owned the note and mortgage pursuant to an assignment. The court reversed the order granting summary judgment.

Fourth DCA:  Trial Court Erred in Holding Mother in Contempt Without Finding of Ability to Comply With Order

Harris v. Hampton
Case No. 4D11-966

The Fourth District Court of Appeal wrote to address an appeal of a non-final order of contempt entered after a final order in a post-dissolution of marriage case. The trial court had entered an order containing the parties’ agreement to enroll their minor child at a certain private school. The father then filed a motion for contempt, alleging the mother had failed to register the child in the school as required by the court’s order. The court granted the motion for contempt and ordered the mother to enroll the child immediately. The father later filed another motion for contempt and enforcement based on the mother’s failure to enroll the minor child in the school. The court granted the motion and ordered the mother to enroll the child within fifteen days or face ten days in the Broward County Jail, and to pay the father’s attorney’s fees.

On appeal, the Fourth District stated that “Florida courts . . . require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Dep’t of Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002). The Fourth DCA noted that the trial court failed to make a finding that the mother had the ability to comply with the previous order by sending the child to the private school and paying the associated tuition and fees. Additionally, the court noted that the original order where the parties agreed to enroll the child at the school had failed to specify that the mother was the party responsible for enrolling the child. The Fourth District reversed and remanded the case based on the order’s failure to find the mother had the ability to comply.

VOIS, Inc. v. Michael Spindel and Edward Spindel,
Case No. 10-15668-D

We represented a corporation that had gone through multiple changes of ownership since issuing promissory notes to two of its investors and former directors, the Spindels. The corporation sued the Spindels for corporate wrongdoing, and the Spindels countersued claiming they were never paid under the promissory notes relating to their investments. The Spindels removed the case to federal court. During the litigation, the corporation discovered that it possessed the original promissory notes, giving rise to the legal presumption that the debts had been satisfied. However, the trial court granted summary judgment in favor of the Spindels, despite evidence showing that the corporation properly mailed the original promissory notes to the Spindels, supporting the corporation’s position that its debt under the notes had been satisfied.

On appeal, we argued that the trial court erred in granting summary judgment in favor of the Spindels where evidence existed from which a finder of fact could conclude the corporation mailed the spindles the original promissory notes. Summary judgment is inappropriate where there exists conflicting evidence as to an issue of material fact. The U.S. Court of Appeals for the Eleventh Circuit agreed. The court reasoned that the trial court’s finding the evidence was undisputed was erroneous because the corporation had produced evidence indicating that it sent the Spindels the original notes. The Eleventh Circuit reversed and remanded to the trial court.

Bell v. Bell

This was a divorce case involving several issues regarding the parties’ marital and non-marital assets. Our client appealed and the opposing party cross appealed. Our client’s main issues were the trial court’s failure to (1) award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal agreed that the trial court erred in failing to award our client half of the husband’s accounts receivable. It reversed and remanded with instructions that the trial court make specific written findings regarding the assets. Likewise, Fourth District Court of Appeal agreed that the trial court reversibly erred in failing to make the appropriate findings regarding our client’s request for bridge-the-gap-alimony, and it also reversed on that point. Our client was awarded entitlement to attorney’s fees as the prevailing party. Shortly thereafter, the opposing party filed a motion for rehearing and/or clarification to which our client responded. In agreement with our response, the Fourth District Court of Appeal denied the opposing party’s request for rehearing and/or clarification.

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.

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.