Florida Supreme Court Clarifies Procedure for Seeking Attorney’s Fees for Original Proceedings

Florida Supreme Court Clarifies Procedure for Seeking Attorney’s Fees for Original Proceedings There has been some confusion about when and how a party must seek prevailing-party attorney’s fees for an original proceeding in an appellate court under Rule 9.100, including petitions for writs of certiorari, mandamus, prohibition, habeas corpus, quo warranto, and “all writs.” Until...

Motions for Recusal: Effective Tool for Litigants Faced With Judges They Perceive as Biased

Motions for Recusal: Effective Tool for Litigants Faced With Judges They Perceive as Biased In addition to handling appeals, Bresky Law frequently provides litigation support to attorneys and sometimes to pro se litigants (individuals who represent themselves without an attorney appearing on their behalf). Our firm recently assisted a pro se litigant in successfully obtaining...

Bresky Law Successfully Obtains Leave to Add New Issues to Initial Brief on Appeal After Opposing Counsel Threatens Sanctions*

Bresky Law Successfully Obtains Leave to Add New Issues to Initial Brief on Appeal After Opposing Counsel Threatens Sanctions* Bresky Law represented a former homeowner in the Fourth District Court of Appeal in an appeal from a final judgment of foreclosure. Our office filed an Initial Brief on the homeowner’s behalf that raised two issues...

Take Notice: Fourth DCA Reverses Summary Judgment of Foreclosure Where Homeowner Claimed Bank Failed to Provide Notice

Finnegan v. Deutsche Bank National Trust Co., 4D11-939 Deutsche Bank filed a mortgage foreclosure action alleging that Finnegan had failed to make payments on the promissory note. Deutsche Bank claimed that all conditions precedent to acceleration of the note, and the foreclosure action, had occurred. The mortgage document specified as a condition precedent that Deutsche...

Rip Van Winkle and Default Judgments: Fourth Reverses Order Granting Motion To Vacate Eighteen Year Old Default Judgment

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...

A Legitimate Stranger: Fourth DCA Holds Non-Party Had Standing to Attack Fraudulently Obtained Judgment

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...

Fourth DCA Settles Dispute over Collapsed Roof between J.C. Penny and Dillard’s

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...

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...

Fourth DCA Holds Order Dismissing Action for Failure to Attend Case Management Conference Insufficient Without Finding of “Willful and Contumacious Conduct”

Dedmon and Kelly v. Kelly, 4D09-3572 May 18, 2011 The Fourth District wrote to address an appeal from an order of dismissal of appellants’ complaint for failure to appear at a case management conference. A clerk’s default was entered in favor of appellants, and the appellee’s motion to set aside default was denied by the magistrate...

Entitlement to Attorneys’ Fees Awarded Following Grant of Motion to Dismiss

Florida Rule of Appellate Procedure 9.400(b) states: A motion for attorneys’ fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorney’s fees are assessed by the...