Possession Determinations Give Power To Bring Non-Final Appeals

“Possession Determinations Give Power To Bring Non-Final Appeals”: Fourth DCA Clarifies That Order Must Direct Immediate Possession To Qualify As Appealable Non-Final Order Florida Atlantic Stock Transfer, Inc., v. Smith, 4D11-2955 Florida Atlantic Stock Transfer (“FAST”), a stock transfer agent, appealed from an order in an interpleader action it filed in a dispute over the transfer...

Bresky Law Obtains Affirmance of Summary Judgment Against Apartments That Sought to Evict Residents

Canterbury Apartments, Inc. v. Sokol, Case No. 10-21735 CACE (26); L.T. Case No. 09-7287 COCE (53) We represented the tenants of a unit of a co-operative apartment building. Prior to our involvement in the case, the apartment building management filed suit against our clients alleging five separate violations of the lease, corporation by-laws, and rules and...

Fourth DCA Rules in Favor of Homeowner and against Major Bank

McLean v. JP Morgan Chase Bank Case No. 4D10-3429 Chase filed a foreclosure action against McLean alleging that, as the legal and/or equitable owner and holder of the Note and Mortgage, it had the right to enforce the loan because McLean defaulted under the note and mortgage. Chase asserted that it could not obtain the Promissory...

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...

Saved by Sloppy Filing: Fourth DCA Reverses Summary Judgment of Foreclosure Where Bank Failed to Attach Assignment

Duke v. HSBC Mortgage Services, LLC, Case No. 4D09-5183 The Fourth District Court of Appeal (“DCA”) reviewed a trial court order granting summary judgment of foreclosure against the homeowners, who were husband and wife. At the time HSBC filed its complaint in the trial court, it attached a mortgage showing the Dukes as the borrowers and...

Fourth DCA Reverses and Remands Probate Court’s Distribution of Trust

Darian v. Weymouth Case No. 4D10-550 Andrew Darian, personal representative of the estate of his father, James E. Hughes, and trustee of the James E. Hughes Living Trust, appeals a final summary judgment entered in favor of Elizabeth Ann Weymouth, personal representative of the estate of her mother, Martha Mayfield Hughes where the probate court awarded...

U.S. Court of Appeals Reverses Summary Judgment Where Disputed Issue of Material Fact Exists – Win in Federal Appellate Court

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...

Factual Differences in the Complaint and Cure Letters in a Foreclosure Proceeding Preclude Summary Judgment

Valencia v. Deutsche Bank National Trust Company, 4D09-3297 June 22, 2011 The Fourth District addressed an appeal of an order granting summary final judgment in favor if the lender in a foreclosure proceeding. The complaint had alleged December 1, 2003 as the date of the borrower’s default. The mortgage required that the lenders provide the borrowers...

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”)...

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...