State Taxation of Gasoline Sales Outside of Indian Lands Does Not Violate Indian Commerce Clause of U.S. Constitution

Florida Dep’t of Revenue v. Seminole Tribe of Florida, 4D10-456 June 22, 2011 The issue of the taxability of gasoline sales to the Seminole Tribe made off the reservation was presented to the Fourth District Court of Appeal. The trial court granted the Seminole Tribe’s motion for summary judgment while denying the Department of Revenue’s (“DOR”)...

Available Income is the Proper Basis for an Alimony Award; A Marital Lifestyle That Exceeds the Parties’ Earnings is not a Proper Guide for Awarding Alimony

Cissel v. Cissel, 4D09-3029 & 4D10-1324 June 22, 2011 The Fourth District wrote to address an appeal of an alimony award and child support. The court below found the former husband, appellant, to have a gross monthly income of $18,109. The figure was based on his average earnings during the preceding fourteen months of trial. The...

Finding of Contempt for Failure to Pay Medical Expenses Improper Where Good Faith Dispute Existed as to Whether Procedure Was Reasonable and Necessary

Lustgarten v. Lustgarten, 4D09-4404 June 22, 2011 The parties entered into a settlement agreement that required the former husband, who is a physician, to pay former wife’s Medicare insurance premiums and medical expenses not covered by Medicare. Former wife later brought a motion for contempt, alleging that the former husband refused to pay for a medically...

Monetary Damages Not Available to Plaintiffs Under Firefighter’s Bill of Rights

Curtis v. City of West Palm Beach, 4D10-876 June 22, 2011 The Fourth District Court of Appeal addressed the issue of whether a firefighter could claim monetary damages under the Firefighter’s Bill of Rights (“FBR”). The firefighter sought monetary relief for alleged violations of the FBR by the City of West Palm Beach in imposing disciplinary...

A Motion for New Trial in a Small Claims Action Must Be Filed Within Ten Days and Such a Motion Tolls the Rendition of the Order of the Trial Court Until Disposition of the Motion.

Arafat v. U-Haul Center Margate, 4D10-1179 June 22, 2011 The Fourth District addressed a writ of certiorari challenging a circuit court’s dismissal of an appeal as untimely. Arafat filed a complaint in small claims county court for $5,000 based on a statement of claim for items that were removed from her storage unit. The court entered...

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

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...

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

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 error that...

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

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 numerous problems...

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

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...

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

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 demolished and...