Law Offices of Robin Bresky Obtains Reversal of Order That Landlord Return “Advance Rent” Following Proper Termination of Tenant’s Lease

Atlantis Estate Acquisitions, Inc. v. DePierro, 4D11-295

The Law Offices of Robin Bresky recently obtained reversal of a final judgment following trial, which ordered a landlord of residential property to return a large sum of rent to a former tenant. The evidence showed that the tenants had made one large lump-sum rent payment intended to cover the entire year rental period. The trial court found that the landlord had properly terminated the tenants’ occupancy of the premises based on damage to the home. However, the trial court found that the large lump-sum rent payment the tenants had made prior to moving in was “advance rent” under Florida Statute 83.43(9). The trial court ordered the landlord to return the “unused portion” of rent based on the court’s finding that the rent was intended as advance rent for monthly payment periods. The trial court found that the landlord would be unjustly enriched if it kept the rent.

On appeal, we argued that the tenants’ rent payment could not be considered advance rent under the statute because there was only one rental period, rather than the multiple “future rent payment periods” discussed in the advance rent statute. We argued that the only “rent payment period” was the current rent payment period of one year for which the tenants paid. We also argued that the landlord was legally entitled to retain the “unused” portion of the rent money regardless, because the landlord’s termination of the lease was proper. Finally, we argued further that unjust enrichment was inapplicable since a written lease governed the agreement between these parties.

The Fourth DCA agreed with our position. The Fourth DCA held that the rent payment did not constitute advance rent and that, even if it was advance rent, the landlord should still not have been required to repay it where the landlord properly terminated the lease. The Fourth DCA also held that unjust enrichment did not apply. This reversal allows our landlord client to retain the $38,500 in rent that it was ordered to repay the client, and also affirmed that our client is not liable for the tenants’ attorney’s fees.
** At this time, the time for a motion for rehearing has not expired and the court’s mandate has not yet issued. **

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 Obtains Reversal of Temporary Attorney’s Fees Award in Modification of Alimony Proceedings

Giorlando v. Giorlando, 4D12-1220

The Law Offices of Robin Bresky recently won reversal of a trial court’s award of temporary attorney’s fees and costs in a petition for modification of alimony. The parties’ marriage was previously dissolved and a marital settlement agreement (“MSA”) was incorporated in the Final Judgment of Dissolution. The MSA imputed $40,000 of yearly income to the former wife for purposes of determining alimony and child support.

The former wife filed a petition for modification of alimony and child support six years after the dissolution of marriage, alleging that substantial changes had occurred in both parties’ financial situations that warranted an increase in the alimony and child support she received. The trial court held a hearing at which both parties testified. The trial court later awarded the former wife $79,333.71 in total professional fees and costs without imputing the $40,000 in yearly income to the former wife pursuant to the MSA.

On appeal, we argued that the trial court should have imputed $40,000 in yearly income to the former wife as provided in the Final Judgment of Dissolution and MSA. The Fourth DCA agreed, and held that the $40,000 must be taken into account in the trial court’s determination of whether to award temporary fees. The Fourth DCA noted that the former husband had testified on the record to the decline in his construction business due to the economy, and that there had been no explanation for why the former wife’s need had increased. The Fourth DCA stated that the former wife should have the burden of explaining why the imputed income should not be considered.

Michele K. Feinzig, along with Plaintiff’s trial counsel, Scott Sheftall of Sheftall & Torres, P.A., represented the Plaintiff/Appellant in an appeal of a defense final judgment following a zero verdict in a negligent security case (Third DCA Case No. 3D10-975). The Plaintiff was robbed and then raped at gunpoint while working the graveyard shift as a retail cash clerk early Christmas morning. She brought a negligent security action against the store due to its failure to provide adequate security despite a history of previous violent crimes, both on the premises and in the vicinity. During the trial, the Defendant store admitted that the Plaintiff was not negligent and in no way contributed to her being robbed and raped. Also, the Defendant store’s expert testified that had he been advising the store before the attack on the Plaintiff, he would have recommended that the store add an unarmed security guard to its security measures. The defense expert admitted that if such an unarmed security guard had been in place, the Plaintiff more than likely would not have been raped. Despite this and other compelling evidence supporting the Plaintiff’s case against the store, the jury came back with a zero verdict because it was allowed to hear improper, prejudicial testimony from the defense’s expert that this was a “victim-targeted crime” which could neither be foreseen nor prevented by any reasonable security measures. 

In February 2012, the Third DCA reversed for a new trial, finding that the store’s expert’s testimony that this was an unforeseeable, unpreventable “victim-targeted crime” was beyond the scope of his expertise, and should not have been admitted. The store moved for rehearing and rehearing en banc, and in November 2012, the Third DCA denied both motions. All of the appellate judges at the Third DCA, including those on the original panel, joined in the denial of rehearing en banc. With respect to rehearing, one Judge who was on the original panel change her mind and wrote a dissent, stating that she would grant rehearing and affirm the jury’s zero verdict. Nonetheless, the majority’s reversal and denial of rehearing, along with the entire Court’s denial of rehearing en banc, ensured Plaintiff’s entitlement to a new trial at which she could seek fair compensation for the damages she has suffered due to the store’s negligence, without being tainted by the store’s expert’s “victim-targeted crime” theory. The parties have since reached a confidential settlement.

Goldstein v. Goldstein
Case No. 4D10-3081

We represented a former wife in an appeal from an amended final judgment of dissolution of marriage. The trial court had denied our client her attorney’s fees and costs without making any findings as to our client’s need and the former husband’s ability to pay. Additionally, in the equitable distribution the trial court had attributed to our client a marital account that she had used to pay living expenses after the former husband had moved out and stopped paying any of the bills associated with the marital home.

On appeal, we argued that the trial court abused its discretion in denying our client her fees and costs without making the appropriate findings as to need and ability to pay. We also argued that the trial court had erred in attributing the depleted account to our client in equitable distribution where the trial court had not made the required finding that depletion of the account was due to any misconduct by our client.

The Fourth District Court of Appeal agreed that the trial court had erred in failing to make the findings regarding need and ability to pay attorney’s fees and costs. The Fourth DCA further held that the trial court erred in denying our client her fees and costs, based on the significant income disparity between the parties as shown by the record. The Fourth DCA also held that the depleted account could not be attributed to our client in equitable distribution without a finding of misconduct, and that our client’s actions in spending the funds on reasonable living expenses did not qualify as such misconduct. See Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010); Sheehan v. Sheehan, 943 So. 2d 818, 822 (Fla. 4th DCA 2006). The Fourth DCA reversed the amended final judgment and remanded it to the trial court for an award of fees to our client and a credit to her of her marital portion of the depleted account to be included in her equalizing payment.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing. ] **

Parris v. Silveira and Parris
Case No. 4D11-3006

Angelica Parris gave birth to a child while married to Joseph Parris. Angelica later filed for divorce, representing in her petition for dissolution that there were no minor children of the marriage. The trial court entered a final judgment of dissolution of marriage. Silveira later filed a paternity action pertaining to the child Angelica had given birth to while still married to Joseph Parris. The trial court dismissed the paternity action based upon the presumption of Joseph Parris’ paternity during the marriage. The trial court later discovered Angelica’s representation in the dissolution of marriage action that there were no children of her marriage to Joseph Parris. The trial court vacated its previous order dismissing the paternity action. The court held a contempt hearing and found Angelica in contempt for her false representations in both cases. The court ordered that Angelica could purge the contempt by arranging for a DNA test to determine the child’s paternity.

In a written opinion, the Fourth District Court of Appeal (“DCA”) held that the trial court erred in finding Angelica in civil contempt. The Fourth DCA stressed that civil contempt is a coercive sanction that is used to compel compliance with a court order. Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985). Although Angelica may have previously lied, she could not properly be held in civil contempt because she was under no court order to perform any act. The Fourth DCA reversed.

Davis v. M&M Aircraft Acquisitions, Inc.
Case No. 4D11-706

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order denying a non-party’s motion to vacate a final judgment. Robert Davis owned 40% of Aerovision, LLC, and Daniel McCue owned 60%. McCue sold his interest in Aerovision to M&M Aircraft. Davis then sought a declaratory judgment in federal court that he was the only member authorized to manage Aerovision. M&M sued Aerovision in state court seeking a similar declaration of status for McCue. The trial court, unaware of Davis’ interest in Aerovision, granted a final judgment in which it found that McCue was Aerovision’s “sole managing member.” Davis filed a motion to vacate the final judgment on the grounds of fraud, pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court denied Davis’ motion because it found that the final judgment did not directly affect his rights.

On appeal, the Fourth DCA held that the facts of the case showed that the final judgment directly affected Davis’ rights such that he had standing to bring a motion to vacate the final judgment under rule 1.540(b) if the judgment was obtained by fraud or collusion, despite his status as a non-party to the state court action. The court pointed out that the parties stipulated to Davis’ 40% ownership of Aerovision and authority to manage it, as well as that the final judgment had been fraudulently obtained. The court reversed and remanded, with the instruction that the trial court could consider additional evidence.

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.

Florida Rule of Appellate Procedure 9.400(b) states:

A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorney’s fees are assessed by the court, the lower tribunal may enforce payment.

We recently filed a motion for attorneys’ fees in the Fourth District Court of Appeal after the opposing party voluntarily dismissed her own motion for contempt and petition for modification of the final judgment as to child custody in the trial court. We had appealed the trial court’s order denying our client’s motion to dismiss for lack of personal jurisdiction. Neither the parties nor the child in this family law case had any relationship to the State of Florida.

After we submitted an Initial Brief in the appellate court, the opposing party voluntarily dismissed her motion for contempt and petition for modification in the trial court and asked the appellate court to dismiss the pending appeal. We then filed a successful motion for attorneys’ fees in the Fourth District Court of Appeal. Having secured entitlement to fees, we will now be going back to the trial court to obtain the actual award of fees.

If you have any questions regarding this case, or if you have any other appellate or trial support questions,  contact The Law Offices of Robin Bresky (http://www.breskyappellate.com) at 561-994-6273.