Leo v. Leo
Case No. 4D10-5127

In this family law appeal, appellant, Former Wife, appealed an order finding her in civil contempt. This appeal stemmed from a final judgment of dissolution of marriage between the appellant and the appellee, Former Husband. Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court. Former Husband’s attorney filed this motion alleging the Former Wife failed to return Former Husband’s belongings.

A hearing was scheduled on Former Husband’s motion for civil contempt but prior to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. Former Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful non-compliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

The court reviewed the record and found that even though relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. “A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 355 (Fla. 4th DCA 2007). Because that civil contempt order was entered without an evidentiary hearing, the Fourth District Court of Appeal reversed and remanded this matter.

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.

Rahabi v. FIGA
Case No. 4D10-846*

The issue on appeal was whether our clients were entitled to an award of attorney’s fees because FIGA affirmatively denied our clients’ claim under the insurance policy prior to paying the appraisal award.

Our clients’ roof was damaged by Hurricane Wilma in 2005. Our clients sought coverage under the insurance policy to repair their roof. FIGA took over our clients’ insurance policy with Atlantic Preferred. In 2007, our clients filed a complaint and, initially, FIGA moved for dismissal. Later, FIGA filed an answer with affirmative defenses, and, after several months of discovery, FIGA decided to send the dispute for appraisal. An appraisal award was issued to our clients and FIGA paid the appraisal award. Our clients requested an award of attorney’s fees and costs from the trial court. The trial court denied the request reasoning that FIGA never affirmatively denied coverage of our clients’ claim. Our clients appealed arguing that FIGA affirmatively denied their claim by its actions.

The Fourth District Court of Appeal agreed. The court held that FIGA affirmatively denied our clients’ claim by asserting, in several of its affirmative defenses that our clients’ damages “were not caused by a covered loss.” The court disagreed with FIGA’s argument that its actions amounted to no more than a delay in payment of the claim. The court distinguished our clients’ decision from its recent decision in Ehrlich in which it held that FIGA did not affirmatively deny the party’s claim by filing its affirmative defenses because it was forced to file the pleading by a court order and sought an extension of time to complete its investigation. The court held that, in our clients’ case, FIGA neither sought an extension to complete its investigation nor had a court order compelling it to file a responsive pleading. The Fourth District Court of Appeal reversed and remanded with instructions that the trial court set an evidentiary hearing to determine our clients’ reasonable sum of fees and to determine whether our clients were entitled to a reimbursement of their costs.

* The Mandate has yet to be issued.

Bell v. Bell

This was a divorce case involving several issues regarding the parties’ marital and non-marital assets. Our client appealed and the opposing party cross appealed. Our client’s main issues were the trial court’s failure to (1) award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal agreed that the trial court erred in failing to award our client half of the husband’s accounts receivable. It reversed and remanded with instructions that the trial court make specific written findings regarding the assets. Likewise, Fourth District Court of Appeal agreed that the trial court reversibly erred in failing to make the appropriate findings regarding our client’s request for bridge-the-gap-alimony, and it also reversed on that point. Our client was awarded entitlement to attorney’s fees as the prevailing party. Shortly thereafter, the opposing party filed a motion for rehearing and/or clarification to which our client responded. In agreement with our response, the Fourth District Court of Appeal denied the opposing party’s request for rehearing and/or clarification.

L.K. v. Department of Children and Families, 4D10 – 5124
June 15, 2011

The Fourth District Court of Appeal addressed a final order terminating L.K.’s parental rights as to her daughter, G.B. The Department initiated dependency proceedings regarding G.B and took her into the Department’s custody. Shortly thereafter, L.K. was incarcerated for narcotics. The evidence showed that during L.K.’s incarceration, she made several attempts to contact G.B. as well as inquire about G.B’s general well-being through another family member. The Department then filed a petition for termination of parental rights on the basis of abandonment.  The trial court held that L.K. had not made a sufficient effort to establish a substantial relationship with G.B. and that it was in the child’s best interests to terminate her parental rights.  In so finding, the trial court ruled that L.K’s attempts to substantially comply with her case plan were irrelevant to its determination of abandonment.

L.K. argued that the trial court erred in excluding evidence that L.K. substantially complied with her case plan.  The Fourth District agreed.  In reversing, the Fourth District cited B.T. v. Department of Children and Families, which held that incarceration is a factor that can be considered in abandonment cases, but the parent’s efforts to assume parental duties while incarcerated must also be considered in light of the limited opportunities to assume those duties while in prison.  16 So.3d 940, 941 (Fla. 5th DCA 2009).  The Fourth District held that the trial court should have considered L.K.’s attempts to substantially comply with her case plan before terminating her parental rights.

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.

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.

Shelby Homes at Millstone, Inc. v. Cullinane, 4D10-289
May 18, 2011

Four months prior to expiration of the contractual time period for completion of a home, the buyers’ counsel sent a letter to the seller’s counsel stating that the home buyers “may not be able to obtain financing under the same terms and conditions as originally intended” and that certain allegedly fraudulent representations by the seller “may render closing impossible.” The buyers also requested various documents from the seller. The seller replied, in a letter from its counsel, that the seller would provide the requested documents once a closing date was scheduled and the buyers had confirmed they were in fact closing. The seller informed the buyers that if the buyers failed to close, the seller would consider them in default and keep their deposits. The buyers never replied. The seller completed the home (after expiration of the contractual time period), sold the home to a different buyer, and kept the original buyers’ deposits.

The buyers sued for breach of contract, seeking return of their deposits, based on the seller’s failure to complete construction of the home in the time required by the contract. The seller raised the defense of anticipatory repudiation based on the buyers’ letter and contract language allowing the seller to treat any written communication informing the seller that the buyers “may be unable or unwilling to close” as an anticipatory breach. The trial court found that the buyers’ letter did not amount to an anticipatory breach and that the seller’s letter in response did not require a response from the buyers confirming that they would close.

On appeal, the Fourth DCA held that the buyers’ letter fell within the contract’s provision allowing the seller to treat it as an indication of inability or unwillingness to close and therefore an anticipatory breach. Despite this holding, the Fourth DCA affirmed based upon the seller’s failure to treat the anticipatory breach according to the applicable procedures contained in the contract. The Fourth DCA stated that this failure to follow its own contract’s remedies led the seller to ultimately breach the contract by failing to timely complete the home. The Fourth DCA held that the trial court had reached the right result for the wrong reasons. In that situation, the Court can still affirm the result. This is sometimes called the “tipsy coachman” rule. See Dade Cty Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).

Carlin v. Javorek

The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client.

The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was not entitled to attorney’s fees despite finding that the opposing party was in breach of the parties’ settlement agreement. The trial court found that the opposing party breached the settlement agreement by failing to produce the required medical forms and failing to execute a medical release. However, the trial court held that the breach was not material and denied both parties’ requests for attorney’s fees. The Fourth District Court of Appeal reviewed the issue de novo and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but erred in finding that the opposing party’s breach was immaterial and in denying our client’s request for reasonable attorney’s fees pursuant to the parties’ settlement agreement. The Fourth District Court of Appeal found that the opposing party materially breached the settlement agreement and that the settlement agreement’s clear and unambiguous terms mandated an award of attorney’s fees to our client as the prevailing party. The opposing party petitioned the Supreme Court for discretionary review claiming that the Fourth District Court of Appeal’s decision expressly and directly conflicted with other district court and Supreme Court decisions. Our law firm continued representation of our client in the Supreme Court. Jurisdictional briefs were filed by both parties.

In agreement with the arguments in our jurisdictional brief, the Supreme Court declined to exercise its discretionary jurisdiction, denied opposing party’s petition for review, and awarded additional attorney’s fees to our client.