Fisher v. Fisher
Case No. 4D10-383

The Fourth District Court of Appeal (“Fourth DCA”) addressed a direct appeal from a final judgment of dissolution of marriage. The trial court’s final judgment provided that the former wife and minor children would have exclusive use and possession of the marital home until the youngest child reached the age of eighteen or became emancipated. The former husband appealed, arguing that the trial court erred in including the provision for the former wife’s exclusive use and possession of the marital home where the trial court failed to provide for the termination of the former wife’s exclusive use and possession if she remarried. The Fourth DCA agreed with former husband. Citing its opinion in Arze v. Sadough-Arze, 789 So. 2d 1141 (Fla. 4th DCA 2001), the Fourth DCA reaffirmed that awards of exclusive use and possession of the marital home should specify a time duration and provide for termination of the award on the remarriage of the spouse in residence.

Block v. Tosun
Case No. 4D11-1594

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting a motion to vacate an eighteen year old default judgment without an evidentiary hearing. The plaintiff trustees had obtained a default judgment against Tosun in 1992. Eighteen years later, with no record activity having occurred, the trustees served Tosun with a subpoena duces tecum in aid of execution. Tosun moved to vacate the default judgment, claiming he never received service of process. Tosun alleged in his motion that the court file that would contain the return of service had since been destroyed. Tosun also attached an affidavit in which he claimed no recollection of having received the complaint and summons, or the default judgment. However, the clerk’s progress docket contained an entry indicating that Tosun had in fact been served with process. The trial court granted Tosun’s motion to vacate following a non-evidentiary hearing.

On appeal, the Fourth DCA agreed with the trustees that the trial court had erred in concluding that their failure to provide a return of service required the court to set aside the final judgment as a matter of law. The trustees had met their burden by providing the clerk’s progress docket as well as the default judgment. The court stated that “[t]ogether these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not service of process on Tosun was properly perfected in 1992.” The Fourth DCA reversed and remanded for the trial court to conduct an evidentiary hearing on the issue.

Rice v. Rice
Case No. 4D10-2523

We represented a former wife whose trial counsel succeeded in getting her former husband’s petition for modification of alimony dismissed, as well as attorney’s fees as a sanction. The parties had divorced in 2005 and entered into a Marital Settlement Agreement whereby the former husband paid the former wife alimony. In 2009, the former husband filed a Petition for Downward Modification of Alimony. The former husband originally alleged three separate grounds as changed circumstances for his petition, but later withdrew two of them and proceeded only upon his contention that the former Wife’s receipt of social security payments constituted a sufficient change in circumstances. However, the former husband was aware that former wife’s overall financial condition had declined, even with the receipt of social security, due to a decrease in her income from her business and investments. The trial court agreed with our client’s trial counsel that the former husband failed to make a sufficient prima facie (initial) showing of a basis for modification.

The former husband appealed, arguing that he had made a prima facie case for modification, and that the trial court’s finding that the former husband’s claims were “frivolous and non-meritorious” was also in error. We responded that the trial court had not in fact granted an involuntary dismissal and that the result should be affirmed regardless. The Fourth District Court of Appeal issued a per curiam affirmance of the trial court decision. This ruling by the appellate court affirmed the trial court’s dismissal of the Petition for Downward Modification, thereby maintaining the beneficial result for our client.

Baudanza v. Baudanza
Case No. 4D10-4068

The parties divorced in 2006 and Former Husband was ordered to pay child support pursuant to the parties’ Marital Settlement Agreement. Former Wife later remarried, and the parties agreed to a modification whereby Former Husband would pay half of the original child support amount and Former Wife’s new husband would file for formal adoption of the parties’ son, but Former Husband would have access to his son for life. An adoption proceeding was started with a new case number. However, the final order of adoption stated that Former Husband’s parental rights to his son were terminated. Former Husband later claimed in the dissolution of marriage proceeding that he did not have to pay child support since Former Wife had precluded him from seeing his son and his parental rights had been terminated by the adoption order. The family court judge ruled that she lacked further jurisdiction of the matter because the modification and adoption had closed the case.

On appeal, the Fourth District Court of Appeal held that the family court judge still had jurisdiction despite the order of adoption. The court cited case law for the proposition that a judge in the probate, juvenile, civil or criminal division “has the authority and jurisdiction to hear cases involving child custody or dependency.” In Interest of Peterson, 364 So. 2d 98, 99 (Fla. 4th DCA 1978). Additionally, the court noted that the family court had retained jurisdiction in its order on the modification agreement, whereas the trial court in the adoption had not reserved jurisdiction. The court held the family court could “determine the validity and enforceability of the [modification] agreement in light of the adoption of the child.” The court reversed and remanded for further proceedings.

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.

Rothman-Browning v. Marshall
Case No. 4D11-2079

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order approving a guardianship plan over objection from a co-trustee. The co-trustee had filed the objection exactly thirty days after the guardianship plan was filed. The trial court approved the guardianship plan despite the co-trustee’s objection. The trial court later denied the objection as untimely without addressing the merits.

On appeal, the Fourth DCA examined section 744.367(4), Florida Statutes (2010), which provides that an interested person may file an objection to a guardianship plan “within thirty days” after filing of the guardianship report. The court also reviewed section 744.369(7), Florida Statutes (2010), which provides that, “[i]f an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection.” The Fourth DCA held that the plain language of the statutes entitles one who files an objection to a guardianship plan within thirty days of the filing of the guardianship plan to a hearing. The co-trustee had filed the objection timely, so the court remanded and reversed for the trial court to consider the objection.

Heath v. Bear Island Homeowners Association, Inc.
Case No. 4D10-3779

The Fourth District Court of Appeal (“DCA”) reviewed a trial court’s final judgment in favor of the defendant homeowners association (“HOA”) and the HOA’s board member. Heath, the plaintiff, had filed suit against the defendants for injunctive relief to compel them to enforce the terms of the HOA’s Declaration of Covenants and Restrictions. Heath alleged that the HOA did not enforce the terms of the Declaration as to certain homeowners with regards to homeowners making changes, improvements, or modifications without HOA approval.

On appeal, the Fourth DCA examined the language of the Declaration at issue, noting that the language specifically provided that “[t]he Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration.” The Fourth DCA concluded that the language meant that enforcement of the Declaration by the HOA was purely in the HOA’s discretion, so that Heath did not have a clear legal right to an injunction to compel enforcement. Murtagh v. Hurley, 40 So. 3d 62, 66 (Fla. 2d DCA 2010). The Fourth DCA pointed out that the trial court had found in favor of the defendants for a different reason, but had still reached the correct result.

J.C. Penney Company, Inc. v. Dillard’s, Inc.
Case No. 4D10-1770

JCPenney sued Dillard’s for damage to its store at the Turtle Creek Mall in Mississippi. In 2005, the roof over the Dillard’s store (which was adjacent to the JCP store) collapsed from Hurricane Katrina, severing a sprinkler main and causing uncontrolled water flow into the mall and the JCP store. Dillard’s moved for partial summary judgment, arguing that pursuant to the Turtle Creek Mall Operating Agreement (OA), JCP and Dillard’s agreed to release each other from liability from any loss or damage to property covered by the party’s insurance policy. However, they expressly reserved the right to bring an action for any “deductible” amount contained in their insurance policies. Dillard’s also filed a second motion for partial summary judgment, arguing that JCP could not recover any damages because JCP had already recovered from its insurer the entire damage amount claimed without any deductible being applied. In opposition, JCP argued that the notion that it had been made whole for its Turtle Creek Mall losses was illusory because JCP’s insurer treated Hurricane Katrina-related losses at several covered JCP stores as one “occurrence” for coverage purposes and unilaterally elected to apply the policy’s entire $2.5 million-per-event deductible to one JCP store (the Biloxi, Mississippi store). JCP argued that it had not been made whole for its losses in the Turtle Creek Mall. The trial court granted both partial motions for summary judgment.

The Fourth District Court of Appeal disagreed with JCP’s argument that the trial court erred in limiting its recovery to the deductible because under Mississippi law, Dillard’s cannot contractually exculpate itself against breaches of duties imposed by common law and for torts involving gross negligence. Instead, the court noted the parties were sophisticated national retailers, occupying equal bargaining positions, in negotiations for a commercial operating agreement and that the exculpatory clause was valid and did not contravene public policy. The court also found that Dillard’s conduct did not rise to the level of gross negligence simply because a different Dillard’s roof, in a different store, sustained damage in a prior hurricane, and Dillard’s internal memoranda acknowledged the potential for damage due to hurricanes and the need to perform maintenance prior to such storms. The Fourth District Court of Appeal reversed the trial court’s summary judgment order and held that a genuine issue of material fact existed as to how the deductible was apportioned and whether the application of the deductible was beyond JCP’s control.

Hernandez v. Frontiero
Case No. 4D10-4122

The Fourth District Court of Appeal (“DCA”) reviewed a trial court order finding a father in contempt for failure to pay child support. The order also allowed the father to pay only $20 per month towards his total child support arrearage of $18,499.75. The Fourth DCA noted that pursuant to section 61.14(5)(a), Fla. Stat., the final judgment of support created the presumption that the father had the ability to pay the child support. The father had failed to appear at the contempt hearing and show his inability to purge the contempt. The magistrate still recommended the father be allowed to pay only $20 towards the arrearage.

Relying on Lamar v. Lamar, 889 So. 2d 983 (Fla. 4th DCA 2009), the Fourth DCA held that the record did not contain competent substantial evidence to support the magistrate’s recommendation. The court reasoned that at $20 per month it would take the father until the child was twenty-nine years old to pay off the arrearage, thus defeating the very purposes of child support. The Fourth DCA held that it was error for the trial court to allow such a prolonged payment schedule. The court also held that the mother was entitled to interest on the arrearage amount.

Westervelt v. Thyssenkrupp Elevator Corporation and Toscana North Condominium Association, Inc.
Case No. 4D08-3037

Westervelt worked as a concierge at a Toscana condominium building. Westervelt was injured as a result of riding in a condominium elevator, which suddenly stopped while traveling from an upper floor to the lobby. Toscana had hired Thyssenkrupp to maintain and repair the condominium elevators. Following Westervelt’s injuries, she filed a complaint alleging various counts of negligence against Thyssenkrupp and Toscana. During the trial, the trial court entered a directed verdict against Westervelt and she appealed.

The Fourth District Court of Appeal noted that although whether a legal duty exists in a negligence action is a question of law for the court, entry of the directed verdict was improper because Westervelt submitted evidence without objection that Toscana had a duty to maintain its premises. Thus, Toscana’s duty of care was clearly established at trial, and the evidence at trial established that Thyssenkrupp’s duty of care was to maintain and repair the elevators. Therefore, the court concluded that whether or not there was a breach of their respective duties should have been left for the jury to decide.

The court reversed the trial court’s directed verdict and remanded for a new trial “because a proper view of the evidence could sustain a verdict in favor of Westervelt.”