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

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 by a...

Revocation of Probation Reversed Where Warrant Fails to Allege Violation

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 later obtained...

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...

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

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. A writ...

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

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 as originally...

Entitlement to Attorney’s Fees in Probate Matter Resolved – Win at the Supreme Court:

Carlin v. Javorek The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client. The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was...

Reverses Order Dismissing Suit Entered Following Hearing Noticed Only as Status Conference

Marcline v. Florida Insurance Guaranty Association, 4D09-4948 May 25, 2011 The Fourth DCA recently reversed a trial court order dismissing the appellants’ case with prejudice entered following a status conference. The appellants had filed a claim with the Florida Insurance Guaranty Association (“FIGA”) after their insurer became insolvent. The appellants eventually sued for breach of contract...

Circumstantial Evidence Must Rebut Any Reasonable Hypothesis of Innocence to Withstand a Motion For Judgment of Dismissal

D.F.J. v. State of Florida, 4D10-1763 May 25, 2011 The Fourth District addressed a juvenile defendant’s appeal of conviction for aggravated battery and robbery with a weapon. The evidence showed that the defendant and codefendant were present in the victim’s backyard, drinking beer with the victim and another man. At some point, the victim was grabbed...