Monthly Archives: July 2011

A Parent’s Efforts to Assume Parental Duties While Incarcerated is Relevant and Admissible in a Proceeding for Termination of Parental Rights.

By Robin Bresky |

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… Read More »

Past, Present, or Future Criminal Activity Necessary for a Constitutional Stop or Search When Acting on a Tip

By Robin Bresky |

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… Read More »

Revocation of Probation Reversed Where Warrant Fails to Allege Violation

By Robin Bresky |

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… Read More »

Statute of Limitations for a Legal Malpractice Action Begins When the Injured Party Knows or Should Know of the Injury or the Negligent Act

By Robin Bresky |

McLeod v. Elk, Bankier, Christu, P.A., 4D10 – 37 June 8, 2011 The Fourth District addressed the issue of whether the statute of limitations had expired before a claim for legal practice was filed.  In 1998, Robert McLeod hired Thomas Tew as his attorney in order to sue Fidelity Investments (“Fidelity”) for an alleged… Read More »

Fourth DCA Reverses Order Granting Attorney’s Fees in Lemon Law Arbitration as “Damages” Under Section 681.112(1), Fla. Stat.

By Robin Bresky |

Chrysler Group, LLC v. Musacchia, 4D10-212 June 8, 2011 The Fourth District Court of Appeal recently reversed a trial court decision granting a claim for attorney’s fees under section 681.112(1), Florida Statutes (2006).  The Musacchias filed a successful arbitration action against Chrysler with the Lemon Law New Motor Vehicle Arbitration Board after they experienced… Read More »

Police Exceeded Scope of Consensual Search of Juvenile Defendant

By Robin Bresky |

A.L.T. v. State of Florida, 4D10 – 2278 June 8, 2011 The Fourth District wrote to address whether a police search exceeded the scope of the suspect’s consent.  A.L.T., a child, was stopped by Officer Mandell of the Fort Lauderdale Police Department.  He asked A.L.T. specifically if he could “search him for weapons or… Read More »

Extended Turkish Vacation: Fourth DCA Affirms Trial Court’s Exercise of “Home State” Jurisdiction to Make Custody Determination Despite Children’s Absence From Florida for Seven Months

By Robin Bresky |

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… Read More »

Burden of Proof on the Party Asserting a Nonmarital Value to a Marital Residence

By Robin Bresky |

Konz v. Konz, 4D09-4454 June 1, 2011 The Fourth District addressed an issue of valuation regarding a marital residence during a dissolution of marriage proceeding.  At the time of the marriage, appellant, husband owned a home that had a fair market value of $380,000 with a $25,000 mortgage.  During the marriage, the home was… Read More »

A Party’s Attorney is Legally Insufficient to Execute Sworn Affidavit Under Fla. Stat. §222.12 ; Affidavit Must be Executed by Party Who Sued

By Robin Bresky |

Caproc Third Ave., L.L.C. v. Donisi Ins. Inc., and Donosi, 4D09-4792 June 1, 2011 The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi…. Read More »

Tipsy Coachman, Anticipatory Repudiation, and Adhering to Your Own Contractual Remedies: Fourth DCA Affirms Judgment for Prospective Home Buyers Despite Seller’s Assertion of Anticipatory Repudiation Defense

By Robin Bresky |

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… Read More »