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.

“Be Careful What You Ask For” or “Read The Contract Before You Sign It”: Third DCA Reverses For Enforcement Of Forum Selection Clause In Contract Despite Drafting Party’s Claim Of Mistake

Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc., 3D12-1147

The parties signed an agreement, drafted by Santana, with a forum selection clause that specified Illinois as the venue for any action pertaining to the agreement. However, Santana later sued Espresso in Miami-Dade County for breach of the agreement. Espresso made several motions to dismiss the complaint on the basis of the forum selection clause. Santana claimed that it had mistakenly designated Illinois instead of Florida in drafting the agreement because Santana had used a form contract and simply forgot to change the venue from Illinois to Florida. The trial court denied Espresso’s motions to dismiss.

On appeal, the Third District Court of Appeal (“DCA”) noted that Florida law has long presumed that forum selection clauses in contracts are valid and enforceable. The Third DCA further stated that “the party seeking to avoid enforcement of [a forum selection] clause must establish that enforcement would be unjust or unreasonable” and that Florida law only held that standard is met where enforcement of the clause would effectively result in “no forum at all.” Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089, 1092 (Fla. 3d DCA 2011). The Third DCA held that Santana could not establish that it would have “no forum” since the clause specified Illinois, which obviously has a functioning system of state courts. The court also held that it would be reversible error for a court to ignore a plain and unambiguous, mandatory forum section clause.

In a final warning to all practitioners, the court stressed that although modern computer word processing programs have eliminated the outdated need to physically cut and paste language between documents, “what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance.” The court finished by telling Santana, “Be careful what you ask for.” The Third DCA reversed the trial court’s denial of the motions to dismiss, and remanded for dismissal.

Cunha v. Cunha, 4D11-1892

The parties’ marriage was dissolved by a final judgment that incorporated a marital settlement agreement (“MSA”). The MSA gave the former husband the responsibility for paying a certain specific debt to a creditor, although the MSA did not specify the amount of that debt. The former wife filed a motion for contempt when the former husband failed to pay the debt. As a result, the trial court ordered the former husband to pay the debt, and named a specified amount of $5,722.

The former husband later fully settled the debt with the creditor by paying the creditor $2,400, an amount that was less than the total amount of the debt, and less than the $5,722 the trial court had ordered the former husband to pay. The former husband moved for relief from the $5,722 judgment under Florida Rule of Civil Procedure 1.540(b)(5) on the grounds that the specifically identified debt on which the judgment was based had been satisfied. The former wife opposed the motion and argued that the former husband had not paid the amount ordered by the court, and that paying an amount less than what was owed negatively affected her credit and tax liability. The trial court denied the motion.

On appeal, the Fourth District Court of Appeal (“DCA”) concluded that the former husband had satisfied the MSA’s requirement that he pay the specific debt. The Fourth DCA noted that the MSA only specified the debt and did not list any specific amount. The court also stressed that the MSA did not prohibit former husband from negotiating the amount of the debt. The court reversed and remanded for the trial court to vacate the judgment.

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.

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.

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.

Marcline v. Florida Insurance Guaranty Association, 4D09-4948
May 25, 2011

The Fourth DCA recently reversed a trial court order dismissing the appellants’ case with prejudice entered following a status conference. The appellants had filed a claim with the Florida Insurance Guaranty Association (“FIGA”) after their insurer became insolvent. The appellants eventually sued for breach of contract and were awarded $47,616.79 following an appraisal of the loss. The appellants sought to add claims for additional living expenses and to adjudicate their claim for attorney’s fees, but the trial court dismissed these additional claims following a status conference, on the basis that the case had been directed to appraisal and the appraisal award paid.

On appeal, the Fourth District Court of Appeal found that the trial court violated the appellants’ due process rights when it dismissed their additional claims following the status conference. Citing Hagen v. Fla. Drug, Inc., 402 So. 2d 57, 57 (Fla. 4th DCA 1981), the Court stated: “Dismissal should be predicated on a properly filed and noticed motion to dismiss or other dispositive motion to protect the parties’ rights to due process.” The Court noted that the hearing had been noticed only as a status conference. The Court also pointed out that, in addition to the fact the hearing was only noticed as a status conference, FIGA’s motion for summary judgment had been filed less than the twenty days prior to the hearing required by Florida Rule of Civil Procedure 1.510 and the documentary evidence in support of the motion was not authenticated.

The Fourth District reversed and remanded based on the insufficient notice.

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.

Need help with an appeal? Contact The Law Offices of Robin Bresky at 561-994-6272,  info@breskyappellate.com or http://www.breskyappellate.com. The Law Offices of Robin Bresky is a dedicated appellate law firm handling civil court appeals and providing effective trial and litigation support. The firm serves Boca Raton, Delray Beach, Boynton Beach, West Palm Beach, Coral Springs, Parkland, Margate, Lauderhill, Fort Lauderdale, Deerfield Beach, Broward County, Palm Beach County, and the trial courts and lower tribunals within the jurisdiction of the 4th District Court of Appeals.