Law Offices of Robin Bresky Obtains Disqualification of Judge in Guardianship Case

Fourth DCA Case 4D13-368

The Law Offices of Robin Bresky recently prevailed in an original proceeding, a petition for writ of prohibition, to prevent the trial judge from presiding over further proceedings in a guardianship case where our client is the spouse and designated healthcare surrogate of the ward.

The American judicial system is built upon the principle of an impartial court where every litigant will be heard and treated fairly. A trial judge can be disqualified from further activity in a case if bias or prejudice is shown to a party and places that party in reasonable fear of not getting a fair trial or hearing. That is what happened at a hearing where the court made a critical decision about the guardianship of our client’s husband.

On review by the Fourth District Court of Appeal, the appellate court concluded that the judge’s acts of excluding the spouse from the courtroom, striking (refusing to consider) her testimony on the basis of a perceived insult to the judge, and making negative personal comments about the spouse, would lead any reasonably-prudent person to fear that she would not receive a fair hearing before the judge.

The appellate court also concluded that the judge’s actions and personal comments “far exceeded comments or actions necessary to control his courtroom and were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias.” Thus, the Fourth DCA granted the petition for disqualification and the case was assigned to a different judge.

The Law Offices of Robin Bresky continually fights for justice for our clients. We handle a wide variety of appeals and original petitions in state and federal appellate courts and are available to assist other lawyers with litigation support such as drafting or responding to motions to dismiss, motions for summary judgment, motions for rehearing, and other substantive motions in the trial court.

Jonathan Mann of Law Offices of Robin Bresky Obtains Reversal in Fifth District Court of Appeal of Final Judgment Modifying Timesharing Entered After Judge Disqualified Himself

Parnell v. Parnell, 5D12-785

Jonathan Mann of the Law Offices of Robin Bresky recently obtained reversal, in the Fifth District Court of Appeal, of a final judgment of modification of timesharing of a minor child. The parties’ son was two years old in 2008 at the time of the parties’ divorce. Two years after the divorce, the father sought to modify the timesharing schedule regarding the son. The trial court held a hearing on the father’s petition and at the end of the hearing made an oral ruling granting the modification.

However, the trial judge later disqualified himself from the case, and all cases involving the mother’s trial attorneys, shortly after the hearing due to a motion by the mother’s trial attorneys alleging fears they would not receive fair treatment. The parties then disagreed over the details of the final written judgment granting modification. The mother objected to the father’s proposed final judgment. The trial court rendered a written final judgment two months later granting the father’s petition for modification, despite the judge having disqualified himself.

On appeal to the Fifth DCA, Mann argued on behalf of the mother that the trial court’s final judgment was void because the trial judge rendered the written final judgment after disqualifying himself. Mann acknowledged the existence of the “ministerial act” exception that allows a disqualified trial judge to reduce a prior oral ruling to writing. However, the exception does not apply where the judge exercises any further discretion prior to rendering the written order. Mann argued that the exception was inapplicable in this case because the trial court had used further discretion regarding the parties’ disagreement over the proposed final judgment before rendering the written final judgment.

The Fifth DCA agreed that the ministerial act exception to the disqualification rule did not apply in this case. The Fifth DCA issued a written per curiam opinion reversing the final judgment of modification. This beneficial result in the appellate court undid the final judgment that was detrimental to our client.

Law Offices of Robin Bresky Defeats Motion for Relinquishment of Jurisdiction

In an appeal by a Former Husband who took his Former Wife’s jewelry and artwork, the Former Husband moved the Fourth District Court of Appeal to relinquish jurisdiction to the trial court. He argued that the trial judge should have an opportunity to vacate the final judgment because it was allegedly entered without sufficient notice to the Former Husband.

The courts have said that anyone moving for relinquishment of jurisdiction must show some very good cause for the request, or it should be denied. “Where a party seeks relinquishment of jurisdiction . . ., the burden is on the moving party to show entitlement to relief.” Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (Fla. 1st DCA 1992). “The presumption is . . . that judicial economy would be best served by leaving jurisdiction in the appellate court until issuance of mandate. A party wishing to overcome that presumption and obtain a relinquishment of jurisdiction must show entitlement to that relief. . . .” Id.

The Law Offices of Robin Bresky filed a response for the Former Wife, demonstrating that the Former Husband had failed to show any entitlement to having the case relinquished to the trial court. The Fourth District denied the Former Husband’s motion to relinquish jurisdiction. The appeal will proceed and the appellate court will decide the issues on the merits.

The Law Offices of Robin Bresky takes pride in depth of research to support the positions that we argue for our clients. We welcome referrals for appeals of all kinds in state and federal courts and often provide litigation support for dispositive motions or responses in the trial court.

Bell v. Bell,
Case No. 4D10-5122

This was a divorce case with several contested issues regarding the parties’ assets. Our client, the former wife, appealed the final judgment of dissolution of marriage. The former husband cross-appealed. Our client’s main issues were (1) the trial court’s failure to award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) the trial court’s failure to make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal (“Fourth DCA”) agreed with our position that the trial court had erred in failing to award our client half of the husband’s accounts receivable. The Fourth DCA reversed and remanded. On remand to the trial court, the former husband took the position that the issue required an evidentiary hearing to determine the new equitable distribution of the asset. We opposed the need for an evidentiary hearing, arguing that the Fourth DCA had clearly stated in its written opinion that the value of the omitted account receivable was $660,611 based on undisputed testimony from the trial. The trial court agreed and entered an order denying the former husband’s demand for an evidentiary hearing.

The former husband next argued that the former wife should receive the omitted equitable distribution amount as an in-kind distribution (i.e. in assets of the business such as the notes themselves). We opposed the former husband’s position and argued that the former wife should receive the omitted amount as a cash distribution. The trial court received proposed Final Judgments from the parties reflecting the parties’ positions. On June 7, 2012 the trial court rendered an Amended Final Judgment that conformed to the appellate court’s mandate and also ordered that the omitted amount would be payable to former wife in cash in an amended equalization payment.

This outcome preserved the positive result we achieved in the appellate court for our client, saved her the additional attorney’s fees associated with a lengthy evidentiary hearing following remand, and obtained an order that the former husband must pay her the omitted equitable distribution amount in cash.

Preudhomme v. Bailey
Case No. 4D10-3262

Our firm challenged the trial court’s final judgment on behalf of a former wife claiming that the lower court erred in dividing the assets, calculating income of the husband, awarding an inadequate amount of alimony, calculating child support payable by the wife, and including overly restrictive parenting provisions. The case involved a highly contentious divorce of a sixteen year marriage involving three minor children. Although the former wife had a CPA license, she stayed at home with the minor children. The former husband traded and managed properties.

In the final judgment, the lower court commented that much of the evidence was conflicting and the facts were disputed. The court then divided the various assets and awarded sole parental responsibility with the father. In addition, the court significantly prohibited the former wife from petitioning for modification of the parenting plan unless she completed: (1) fifty-two weeks of individual psychological therapy; (2) another twenty-six weeks of joint psychological therapy with the children; (3) five additional sessions on child discipline; and (4) two eight-week sessions in parental effectiveness training.

On Appeal, the Fourth District Court of Appeal reversed and remanded for further proceedings. The Appellate Court determined that the lower court erred in calculating stock due to the wife based upon the lower court’s failure to make factual findings as to whether the initial stock was purchased or a gift. Furthermore, the lower court’s findings regarding numerous bonus shares of stock were not supported by competent substantial evidence.

The Court also found that the lower court erred by refusing to determine whether real property owned by the former husband in Jamaica was marital or non-marital property. Specifically, section 61.075(3)(a) and (b), Florida Statutes, requires the court to make clear identification of marital and non-marital assets. Therefore, the lower court could not refuse to address the property in Jamaica, as it did here.

Finally, the Court found that the trial court abused its discretion in parts of the parenting plan as there was no competent substantial evidence to support the specific type and length of therapy ordered by the court for the former wife. Furthermore, there was no evidence to support the specific time restrictions on the former wife’s ability to petition for modification of the parenting plan which severely impacted her ability to parent her children. Thus, the lower court could not arbitrarily determine that the therapy must last a specific time before the former wife could request to spend more time with her children.

The issue was whether our client was entitled to an award of attorney’s fees, under the settlement agreement between the parties and as a prevailing party, after the opposing party failed to honor certain provisions in their settlement agreement.

After years of litigating a probate matter, our client and the opposing party entered into a settlement agreement. A provision in the settlement agreement stated that the opposing party would provide, within 45 days, possession and access to medical records that were necessary for the treatment and diagnosis of our client’s medical conditions, or pay for the reasonable cost incurred from compelling performance. When the opposing party failed to provide possession and access to the records, our client filed a motion to compel compliance and requested an award of reasonable attorney’s fees. The trial court granted our client’s motion, but held that the breach of the settlement was not material and denied our client’s request for attorney’s fees. The opposing party appealed the trial court’s order arguing for an award of attorney’s fees because our client failed to prove that the breach was material. Our client cross-appealed arguing for attorney’s fees as the true prevailing party.

The Fourth District Court of Appeal performed a de novo review of the matter and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but the trial court did err in failing to award our client the reasonable attorney’s fees requested and also erred in determining that the opposing party’s breach, as a whole, was not material. Thus, the Fourth District Court of Appeal affirmed the denial of attorney’s fees to the opposing party, but reversed and remanded the denial of attorney’s fees to our client with directions to award our client reasonable attorney’s fees under the settlement agreement and as a prevailing party.

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.

The law of the case doctrine states generally that questions of law that actually have been decided on appeal must govern the case in the same court and in the trial court through all subsequent states of the proceedings. State Dept. of Revenue v. Bridger, 935 So. 2d 536, 538 (Fla. 3d DCA 2006). We were recently successful affirming a trial court’s decision to deny a motion to compel arbitration.  In this case, a luxury automotive dealership in Kendal had originally filed a motion to compel arbitration under the arbitration provision of a contract that was signed by the consumer. The trial court entered a favorable order and the parties proceeded to arbitration. At arbitration, however, the car dealership argued that the contract was in fact not executed, and therefore that the consumer was not entitled to relief under a contract that was not executed.  In essence, the car dealership argued that there was no contract. The dealership was successful in obtaining an arbitration award in its favor.

On appeal, the consumer was successful in having the Third District Court of Appeal reverse the trial court’s order, which had confirmed the original arbitration award.  The Third District held that that if there is no contract, there can be no arbitration clause of a non-existent contract. Niven v. G.F.B. Enterprises, LLC, 849 So. 2d 1093, 1094 (Fla. 3d DCA 2003), citing, Henderson v. Coral Springs Nissan, Inc., 757 So. 2d 577 (Fla. 4th DCA 2000). Thus, the law of the case was established.

Nevertheless, the dealership, after subsequent litigation, again moved for a renewed motion to compel arbitration, citing that an exception to the law of the case doctrine existed. The trial court denied said motion, and the dealership appealed. We were successful in arguing to the Third District, however, that under the facts of this case, there were no grounds sufficient to support the application of any exception and that the law of the case had been established. The Court agreed with our position and affirmed.

While there are specific mandates under Florida law that require the Florida Supreme Court to grant review in certain instances, for most practitioners, getting your case heard by the Florida Supreme Court can seem as daunting as getting a front seat at the Kodak Theater during the Oscars.  Alas, Robin I. Bresky and Diana L. Martin have offered a practical guide for those practitioners seeking entry into the highest court in the state.  Robin Bresky co-authored Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, which was featured in the November 2009 issue of the Florida Bar Journal.  The article is intended to help practitioners navigate the Florida Supreme Court’s red carpet and assess the likelihood of gaining access behind its discretionary velvet ropes.

Florida Rule of Appellate Procedure 9.120 sets out the procedural mandates necessary to invoke the Florida Supreme Court’s jurisdiction.  The more challenging task, however, becomes convincing the Court to exercise its jurisdiction.  For example, Florida Supreme Court Clerk statistics indicate that of the cases submitted to the high court for consideration, only 7% of cases seeking discretionary review, which do not involve cases of certified questions or certified conflicts, are granted review.  On the other hand, the Court grants review in approximately 67% of cases that involve certified questions and approximately 83% of certified conflict cases.  See, Florida Appellate Practice § 3.21.  Therefore, in cases where the district court has not certified a question or certified a conflict, the true hurdle remains convincing the Court to accept discretionary jurisdiction.

In addition to outlining the relevant constitutional provisions and appellate rules, the article discusses eight categories of discretionary review and provides practical guidance, including outlining timeframes for attorneys considering an appeal to Florida’s Highest Court.  As highlighted above, the article cites useful statistics that illustrate the types of cases that make it through and those that do not fare as well.  It proves helpful not only to appellate practitioners, but more so to any attorney that has found himself in the position of advising a client on a decision to seek review in Florida’s Highest Court.  Afterall, it will take more than a “Best Dressed” nod from Joan Rivers to get you through these velvet ropes.  For more on Taking the Pathway of Discretionary Review Toward Florida’s Highest Court, please visit www.breskyappellate.com for the complete article or refer to the November 2009 issue of the Florida Bar Journal.

Many of us are taught at a young age to trust the men and women of the cloth; cloth in this case consisting of a white poly-cotton blend lab coat.  In most cases, we trust our physicians with our lives and the lives of our loved ones.  As patients, we listen and do as directed by our doctors because afterall, they do know best.  In the context of medical malpractice, however, this doctor/patient relationship can become tenuous when the patient feels the doctor’s care has dropped below the acceptable standard and resulted in injury.   Trusting patients who feel they have been injured at the hands of a physician quickly turn into inquisitive clients in search of justice.  Our firm recently received a favorable Opinion from the Fourth District Court of Appeal in the context of a medical malpractice action.  Specifically, the decision hinged on the statute of limitations in the medical malpractice arena and when the time for said cause of action begins to accrue.

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.

Florida Rule of Appellate Procedure 9.200 dictates what documents shall be included in the record on appeal.  In relevant part, the rule states:

Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcripts(s) of proceedings, if any, filed in the lower tribunal….

9.200(a)(1), Fla. R. App. P.  The record, and the documents that comprise the record, become of great import when an appellate court is reviewing a final decision of a lower tribunal.  Generally, decisions of lower courts are presumed to be correct and unless the presumption of correctness is overcome by matters crystallized in the record of the proceedings, the appellate court will affirm the order or judgment on review.  There are, however, instances in which a document that was not formally filed in the lower tribunal may be permitted to supplement the record on appeal.

For example, we recently handled a family law appeal wherein a psychologist in the case below rendered an opinion that the wife had been the victim of battered spouse syndrome throughout the marriage.  At trial, however, the doctor testified orally but his deposition testimony was never entered into evidence.  Nevertheless, opposing trial counsel sought to impeach the doctor’s oral testimony and alluded to his deposition testimony in an attempt to show that the doctor’s opinion had changed from the time of the deposition to that of trial.

One of the findings the trial court made in its final order was that the doctor had changed his expert opinion at trial from that which he gave at his deposition.  On appeal, we sought to introduce the doctor’s deposition testimony to show that his opinion had not in fact changed when he gave his oral testimony at trial.  We filed a motion to supplement the record on appeal with the doctor’s deposition testimony, pursuant to Fla. R. App. P. 9.200(f).  Opposing appellate counsel objected to our motion on the ground that the doctor’s deposition was not entered into evidence.  The District Court, however, ruled in our favor, based on our argument that the trial court below relied upon the deposition testimony to the extent the final order included a finding that the doctor’s deposition testimony changed at trial.  Therefore, as you can see factual situations do arise in which a District Court may permit the record on appeal to be supplemented with a document that was not officially included in the record, even over the objection of opposing counsel.