Law Offices of Robin Bresky Wins Affirmance of Grant of Summary Judgment of Foreclosure and Dismissal of Counterclaims in Suit by Subcontractor Against Lender’s Assignee

Pro-Frame Contracting, Inc. v. Highfields Development, LLC, 4D12-1886

The Law Offices of Robin Bresky successfully defended an appeal by a subcontractor from a summary judgment of foreclosure and dismissal of counterclaims in an action stemming from a construction project. The plaintiff was a subcontractor who had performed work on property that was being developed. A shareholder of the property-owner corporation later formed a separate corporation. The new corporation obtained an assignment of the mortgage from the lender and brought foreclosure proceedings. The subcontractor counterclaimed against the assignee corporation and the shareholder for unjust enrichment, quantum meruit, and foreclosure of equitable lien.

The trial court granted summary judgment of foreclosure in favor of the plaintiff, but initially allowed the subcontractor’s counterclaims to survive. The trial court later dismissed the counterclaims for failure to state a valid legal claim. The subcontractor appealed to the Fourth DCA.

The subcontractor argued on appeal that the assignment of mortgage the appellee obtained was not a valid assignment, but a satisfaction, because the individual appellee was a shareholder of both the owner and the assignee corporation. We argued in opposition that such assignments were valid under Florida law based on the separate nature of the corporate entities and their ability to obtain assignments in their own name from a third party. We also maintained that a subcontractor in the appellant’s position could not bring causes of action for unjust enrichment, quantum meruit, and foreclosure of equitable lien against the appellee because the subcontractor could not be said to have bestowed a direct benefit on appellee as the lender’s assignee.

The Fourth DCA entered a per curiam affirmance (“PCA”) of the trial court’s orders. This result preserves the trial court’s order of foreclosure in favor of our clients and dismissal of the counterclaims against them.

**The mandate in this appeal has not yet issued**

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.

Darian v. Weymouth
Case No. 4D10-550

Andrew Darian, personal representative of the estate of his father, James E. Hughes, and trustee of the James E. Hughes Living Trust, appeals a final summary judgment entered in favor of Elizabeth Ann Weymouth, personal representative of the estate of her mother, Martha Mayfield Hughes where the probate court awarded Mrs. Hughes’ interest in the Trust to her estate. James E. Hughes and Martha Mayfield were married in 1999. In August of the following year, James executed the James E. Hughes Living Trust Agreement in compliance with the parties’ prenuptial agreement. The Trust made provisions for disposition of Hughes’ estate upon his death. His will was a pour-over will that expressly incorporated the terms of the James E. Hughes Living Trust. The Trust did not specifically indicate what was to be done with the property bequeathed to Martha in the event that James survived Martha. On September 3, 2004, James and Martha Hughes were shot and killed by Martha’s adopted son from a prior marriage. Both died as a result of gunshot wounds to the head. Because the coroner was unable to determine which spouse predeceased the other, the probate court deemed their deaths to be simultaneous and entered an order to that effect in the probate of Mr. Hughes’ estate. Accordingly, Mr. Hughes’ property was to be disposed of as if he survived Mrs. Hughes. The probate court ruled that Mrs. Hughes’ interest, under the Hughes Trust, vested upon the creation of the Trust and did not lapse upon her death. Andrew Darian appealed.

The Fourth District Court of Appeal reversed the probate court’s ruling and found that no sufficient event existed to vest Mrs. Hughes’ interest in the Trust prior to her husband’s death. The Fourth noted that Mr. Hughes was the sole trustee and beneficiary under the Trust during his life. Mrs. Hughes was among the contingent residual beneficiaries whose interest came into creation only upon the death of Mr. Hughes and who were entitled to distribution of the then remaining corpus of the trust. Because it was judicially determined that Mrs. Hughes predeceased her husband, her interest in the Trust lapsed upon her death.