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.

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.

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.

D.F.J. v. State of Florida, 4D10-1763
May 25, 2011

The Fourth District addressed a juvenile defendant’s appeal of conviction for aggravated battery and robbery with a weapon. The evidence showed that the defendant and codefendant were present in the victim’s backyard, drinking beer with the victim and another man. At some point, the victim was grabbed from behind and struck. He did not witness who grabbed or struck him, although D.F.J. and the codefendant were witnessed fleeing the scene by jumping over a nearby fence. The victim could not identify who of the other three men may have committed the crime.

The defendant made a motion for judgment of dismissal, arguing that the only evidence presented against him showed that he was present at the scene and that he fled. The trial court denied the defendant’s motion. On appeal, the Fourth District agreed with the defendant that the State’s circumstantial evidence failed to exclude the reasonable hypothesis of innocence that the defendant was present at the scene and merely a witness to the crime. The Court cited J.R. v. State, 671 So.2d 278, 279 (Fla. 2d DCA 1996) and held that a motion for judgment of dismissal should be granted in cases where all of the evidence is circumstantial and the State fails to present evidence that excludes every reasonable hypothesis except guilt: “No matter how strongly the circumstantial evidence points toward guilt, the evidence must, nonetheless, rebut any hypothesis of innocence, including that D.F.J. was present at the scene, and was merely a witness to the crime.”

The Court reversed and remanded for dismissal of the charges.

Dedmon and Kelly v. Kelly, 4D09-3572
May 18, 2011

The Fourth District wrote to address an appeal from an order of dismissal of appellants’ complaint for failure to appear at a case management conference. A clerk’s default was entered in favor of appellants, and the appellee’s motion to set aside default was denied by the magistrate on September 3, 2008. On July 1, 2009 appellants’ new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee’s counsel and to appellants’ former counsel at an address different from the one used by former counsel in earlier pleadings.  The trial court set a case management conference was set for July 30, 2009, which stated that there had been no record activity since September 3, 2008.  The order was sent to appellants’ former counsel. Appellants’ new counsel failed to show up, and the trial court dismissed without prejudice pursuant to Fla. R. Civ. P. 1.200(c), which allows a court to dismiss for failure to attend a case management conference, and upon Fla. R. Civ. P. 1.420(e), which provides for dismissal for failure to prosecute an action.

On appeal, the Fourth District agreed with appellants that, under First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997), the trial court erred in imposing the harsh sanction of dismissal without finding that the party’s conduct was “willful and contumacious.”  The trial court’s order failed to include an express finding of willful and contumacious behavior. Without considering the lack of notice requirement to the appellants, the court also held that appellants’ alleged inaction for a period of time less than one year was insufficient cause for dismissal under Fla. R. Civ. P. 1.420(e). The court reversed and remanded.

Ross v. Ross, 4D11-107

The Fourth District recently wrote to address an appeal from an order that forced the sale of the Former Husband’s residence to satisfy his alimony arrearages. The Former Wife had drafted the ten-page order that the Court characterized as “very unfavorable” to the Former Husband, as it included findings that he acted in bad faith and committed fraud upon the court. The Fourth DCA found in favor of the Former Wife on four of the Former Husband’s five issues on appeal. However, the Fourth DCA agreed with the Husband’s argument that, under Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) the trial court erred by entering the order submitted by the Former Wife verbatim without Former Husband having the opportunity to review it first. The Former Wife’s overreaching resulted in the case being reversed and remanded for the entry of a new order after Former Husband had an opportunity to submit his own proposed order or to object to that submitted by the Former Wife.

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The issue was whether a trial court’s order denying exceptions to a general magistrate’s report and affirming the report, with several exceptions, was appealable as a final order or an appealable non-final order.

We represented the Father of an infant child in a contentious custody dispute over timesharing and other issues. A general magistrate entered a report with recommendations regarding a time-sharing schedule, child support, and daycare for the child.  The general magistrate also found that the Father had been involuntarily absent from the child’s life due to the Mother’s actions and her failure to facilitate a relationship between the Father and child.  The trial court judge affirmed and implemented the magistrate’s report with several exceptions, and the Mother appealed to the Fourth District Court of Appeal.

We filed a motion to dismiss the appeal, arguing (1) that the trial court’s order was neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), and (2) that the appeal should be dismissed based on the Mother’s failure to file an Initial Brief within the time frame required by Florida Rule of Appellate Procedure 9.130(e).  The court of appeals granted our motion, and we succeeded in obtaining dismissal of the Mother’s appeal for our client.