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.”

Fourth DCA:  Trial Court Order of Juvenile Detention Pending Placement in Residential Program Did Not Violate Florida Law

V.P. v. State
Case No. 4D11-3001

The trial court adjudicated V.P. delinquent on a first-degree petit theft count, and revoked V.P.’s probation for counts of battery, second-degree petit theft, and grand theft. Pending placement in a moderate risk residential program, the trial court put V.P. on home detention with electronic monitoring and an 8 p.m. curfew. V.P. brought a petition for writ of habeus corpus, arguing the trial court’s order violated the requirement of section 985.27(1)(b), Florida Statutes (2011) because “there is no statutory authority for unlimited home detention and . . . the phrase ‘must be removed from detention within 5 days’ in the first sentence [of section 985.27(1)(b)] limits all forms of detention to five days,” unless extended an additional ten days upon request of the Department of Juvenile Justice.

The Fourth District Court of Appeal stressed that the statute needed to be read in its entirety. The court reasoned that (1) home detention pending placement in a residential program was the least restrictive form of detention care available, (2) the “detention” that the statute referred to and limited to fifteen days is secure detention rather than home detention, and (3) parts of the statute would be rendered meaningless if the child had to be removed from home detention within five days. The Fourth DCA also noted that post-commitment juveniles have been found guilty of an offense and therefore no longer enjoy the presumption of innocence. The court concluded:

The legislature has structured the post-commitment detention statute in a manner that ensures that all committed juveniles awaiting placement in residential programs are physically detained or supervised in some fashion, not released without restrictions. The statute insures that those juveniles who are awaiting placement in low or moderate risk facilities do not languish in secure detention.

The court therefore denied V.P.’s petition.

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.

Fourth DCA:  Trial Court Erred in Holding Mother in Contempt Without Finding of Ability to Comply With Order

Harris v. Hampton
Case No. 4D11-966

The Fourth District Court of Appeal wrote to address an appeal of a non-final order of contempt entered after a final order in a post-dissolution of marriage case. The trial court had entered an order containing the parties’ agreement to enroll their minor child at a certain private school. The father then filed a motion for contempt, alleging the mother had failed to register the child in the school as required by the court’s order. The court granted the motion for contempt and ordered the mother to enroll the child immediately. The father later filed another motion for contempt and enforcement based on the mother’s failure to enroll the minor child in the school. The court granted the motion and ordered the mother to enroll the child within fifteen days or face ten days in the Broward County Jail, and to pay the father’s attorney’s fees.

On appeal, the Fourth District stated that “Florida courts . . . require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Dep’t of Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002). The Fourth DCA noted that the trial court failed to make a finding that the mother had the ability to comply with the previous order by sending the child to the private school and paying the associated tuition and fees. Additionally, the court noted that the original order where the parties agreed to enroll the child at the school had failed to specify that the mother was the party responsible for enrolling the child. The Fourth District reversed and remanded the case based on the order’s failure to find the mother had the ability to comply.

VOIS, Inc. v. Michael Spindel and Edward Spindel,
Case No. 10-15668-D

We represented a corporation that had gone through multiple changes of ownership since issuing promissory notes to two of its investors and former directors, the Spindels. The corporation sued the Spindels for corporate wrongdoing, and the Spindels countersued claiming they were never paid under the promissory notes relating to their investments. The Spindels removed the case to federal court. During the litigation, the corporation discovered that it possessed the original promissory notes, giving rise to the legal presumption that the debts had been satisfied. However, the trial court granted summary judgment in favor of the Spindels, despite evidence showing that the corporation properly mailed the original promissory notes to the Spindels, supporting the corporation’s position that its debt under the notes had been satisfied.

On appeal, we argued that the trial court erred in granting summary judgment in favor of the Spindels where evidence existed from which a finder of fact could conclude the corporation mailed the spindles the original promissory notes. Summary judgment is inappropriate where there exists conflicting evidence as to an issue of material fact. The U.S. Court of Appeals for the Eleventh Circuit agreed. The court reasoned that the trial court’s finding the evidence was undisputed was erroneous because the corporation had produced evidence indicating that it sent the Spindels the original notes. The Eleventh Circuit reversed and remanded to the trial court.

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.