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. **

Law Offices of Robin Bresky Obtains Affirmance of Order Limiting Successor Mortgagee’s Liability Following a Foreclosure Sale

The Sterling Villages of Palm Beach Lakes v. The Bank of New York, 4D11-3008

The Law Offices of Robin Bresky recently won an affirmance of an order limiting a successor mortgagee’s liability to the homeowner’s association (“HOA”) following a foreclosure sale. Our client held a mortgage on property located within the HOA. The unit owner defaulted. Our client foreclosed on the property, and joined the HOA in the foreclosure suit. Our client purchased the unit at foreclosure sale and obtained a certificate of title.

Following the foreclosure sale, our client sought to determine its liability to the HOA for the outstanding unpaid assessments on the unit. Our client took the position that it was a successor mortgagee whose liability for unpaid assessments was limited by the operation of section 718.116(1)(b), Florida Statutes, to the lesser of the preceding twelve months’ assessments prior to taking title, or one percent of the mortgage debt. The HOA sought discovery on the issue of whether our client was a successor mortgagee. The HOA also argued that our client was required to initiate a separate proceeding in which to determine the amounts due to the HOA. The HOA also sought various amounts for interest and other charges accruing prior to the time our client took title. The trial court rendered an order in our client’s favor denying discovery and limiting our client’s liability pursuant to the statute. The HOA appealed.

We argued on appeal that the trial court had already determined in its Final Judgment of Foreclosure that our client was a successor mortgagee and the HOA had failed to appeal the Final Judgment, so discovery on that issue would not be appropriate. We also argued that our client’s liability was limited by the statute and the statute did not include the various additional amounts sought by the HOA. The Fourth DCA issued a per curiam affirmance of the trial court’s order. This result in the appellate court preserved the beneficial outcome for 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.

Bovino v. MacMillan, 4D11-3105

The Law Offices of Robin Bresky recently won reversal of a trial court’s erroneous order finding that our client/Appellant, a Colorado attorney, engaged in the unauthorized practice of law. The Appellant had a broad power of attorney (POA) relating to the financial affairs of a man that he represented in Colorado. That man’s mother later initiated a guardianship proceeding over her son in Broward County, alleging that her son was unable to manage his own affairs. Our client filed an objection to the guardianship petition based on the existence of the POA that he held. The trial court struck our client’s filing based on a finding that it constituted the unauthorized practice of law because our client was not licensed as a Florida attorney.

On appeal, we argued that our client/Appellant had intervened in the guardianship proceeding as an interested person pursuant to the guardianship statutes rather than in his capacity as the proposed ward’s attorney. We called the appellate court’s attention to the fact that Appellant had clearly stated in his objection in the guardianship case that he was filing the documents on his own behalf. We argued it was error for the lower tribunal to find this attorney was engaging in the unauthorized practice of law and that our client believed it was his fiduciary duty to bring the existence of the POA to the attention of lower tribunal. We further argued public policy should encourage this disclosure.

The Fourth DCA held in a written opinion that Appellant’s objection in the guardianship proceeding did not constitute the unauthorized practice of law because Appellant did not purport to represent the client as his attorney in the proceeding. The Fourth DCA reversed the order on appeal and remanded for further proceedings. The reversal of the erroneous order finding that our client engaged in the unauthorized practice of law vindicates our client’s professional reputation.

“Possession Determinations Give Power To Bring Non-Final Appeals”: Fourth DCA Clarifies That Order Must Direct Immediate Possession To Qualify As Appealable Non-Final Order

Florida Atlantic Stock Transfer, Inc., v. Smith, 4D11-2955

Florida Atlantic Stock Transfer (“FAST”), a stock transfer agent, appealed from an order in an interpleader action it filed in a dispute over the transfer of stocks. The trial court’s order granted summary judgment against FAST. Specifically, the order determined that Smith was entitled to have certain stock certificated in her individual name with the restrictions on the stock lifted. FAST sought appellate review under Florida Rule of Appellate Procedure 9.130(a)(3)(ii), that allows for review of non-final orders that “determine the right to immediate possession of property.”

On appeal, the Fourth DCA first noted that the order was non-final in nature because although styled as an order granting “Summary Final Judgment,” the substance of the order granted summary judgment in favor of Smith but did not contain any language indicating that it was actually entering final judgment. The court stated that it is the substance of the order, and not the order’s label, that controls for purposes of determining whether it may be appealed. The court pointed out that the order could not be considered final because it did not end all of the litigation between the parties.

The court then began its determination of whether it had jurisdiction of the appeal under rule 9.130(a)(3)(ii) by noting that orders ruling on motions for summary judgment are interlocutory in nature and generally do not determine the right to “immediate possession” even if they resolve legal issues. The court also noted that an interlocutory order determining a party’s ownership of stocks is not an appealable non-final order unless it actually orders disbursement or other immediate possession of property. Higgins v. Ryan, 81 So. 3d 588 (Fla. 3d DCA 2012). The court held that the summary judgment order at issue merely resolved the legal issues in the interpleader action but failed to determine “the right to immediate possession of property.” The court pointed out that FAST obviously had no immediate interest in the property to lose, which was clear from the nature of the case as an interpleader action. The court also found it important that the order did not order FAST to actually issue the restriction-free shares to Smith.

The court dismissed the appeal for lack of jurisdiction based on its determination that the case was not an appealable non-final order.

Miller v. Bohan, 4D11-1169

The Law Offices of Robin Bresky recently won an affirmance of a final judgment in our client’s favor in an appeal involving a trust amendment. Our client’s remaining living sister brought a lawsuit against our client contesting the trust amendment their deceased sister had executed in favor of our client. Our client’s remaining living sister argued that our client, who had helped care for her ill sister at the end of her life, had exercised undue influence over her sister in the execution of the trust amendment prior to her death. The trial court found that our client had successfully rebutted the legal presumption of undue influence arising from her involvement in the execution of the trust amendment. The trial court found after listening to all of the evidence at trial that the deceased sister knew what she was doing when she amended her trust, that she had her own valid reasons for amending the trust, and that she knew what she was doing on the day she executed the amendment.

On appeal, our client’s remaining living sister argued that the trial court had failed to correctly apply the burden-shifting procedure required by section 733.107, Florida Statutes, to evaluate whether our client successfully rebutted the presumption of influence. Our firm argued that the trial court had diligently applied the evidence to the appropriate legal framework established by the statute and had properly concluded that there was no undue influence. We also argued that competent substantial evidence in the record supported the factual findings made by the trial court in the final judgment.

The Fourth DCA issued a per curiam affirmance (“PCA”) affirming the trial court’s final judgment in favor of our client. The Fourth DCA also awarded our client attorney’s fees in connection with the appeal. This result preserved the final judgment in favor of our client and maintained the trust amendment in accordance with the wishes of her deceased sister.

Cook v. Cook, 4D11-2561

The parties were married for nineteen years and had four children. They filed for dissolution of marriage, and their marriage was later dissolved by a final judgment that incorporated a marital settlement agreement (“MSA”). The MSA set a specific child support obligation for the former husband. The MSA also set a $1 per month alimony amount. The MSA provided that the former wife did not waive alimony and that the alimony amount “may be modified upon any modification in custody of the minor children, such that the alimony obligation would be increased.”

The former husband later petitioned for modification of his child support payment once only one of the parties’ children was still a minor. The former wife counter-petitioned for an increase in alimony due to an alleged substantial change in circumstances. The trial court reduced former husband’s child support payment and granted summary judgment against former wife on her counter-petition for an increase in alimony. The trial court found that the MSA only allowed a modification of alimony in the event that custody was modified.

On appeal, the Fourth District Court of Appeal (“Fourth DCA”) examined whether the trial court was correct in construing the MSA such that modification of custody was a condition precedent that was required before alimony could be modified. The Court noted that the law does not favor conditions precedent and requires they be unambiguous, and that the MSA’s language specifically allowed for the modification of alimony if custody was modified but did not restrict modification of alimony to those circumstances. The Court held that modification of custody was not a condition precedent. Additionally, the former wife had not waived modification of alimony. The Court reversed and remanded for further proceedings.

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.

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. ] **

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.