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SPECIALTY LAW - Florida Property/Probate Law
Florida Property/Probate law cases
Updated through September 10, 2005
The Main File, containing the full text of over 5,110 Florida property/probate law cases dating back to 1954, is available on CD-ROM. Case coverage includes such toptics as real property, property taxation and zoning, leases, landlord tenant, eminent domain, mortgages and liens, guardianships, probate, wills and trust. The database features full word-phrase search capabilities, no on-line charges, monthly internet updates, retrieval of cases by title or citation, network capability, a separate file of recent cases and the ability to print individual cases or save them to a word processing file. Recent cases contained in the Supplemental File are available on this web site. See below for Case Summaries. Full-text of cases is available only to subscribers.
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Florida Property/Probate Law Case Summaries
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Florida Property/Probate Case Summaries
July 31 - September 10, 2005
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DReal property
USA Independence Mobile Home Sales, Inc. v. City of Lake City, No. 1D04-471 (Fla.App. 08/19/2005)
Appellant, USA Independence Mobile Home Sales, Inc., appeals from the trial court's Order Denying Plaintiff's Motion for Determination of Taking. We affirm the trial court's determination that no taking occurred on the basis of lost access, as well as its determination that no basis existed to impose liability upon Columbia County under a joint venture theory. We must, however, reverse the trial court's finding that appellant renounced its leasehold interest in the subject property and, therefore, forfeited its right to compensation altogether.
Rosado v. Vosilla, No. 5D04-2617 (Fla.App. 08/26/2005)
This is an appeal from a judgment quieting title to real property. John Vosilla, Emilio Cirelli, Kelly Scofield and Steve Semmelman (collectively referred to as "the Vosilla partners") filed a complaint to quiet title to property they obtained by quit claim deed from Edward Terry. Terry bought the property at a tax deed sale after Julio and Nannette Rosado ("the Rosados") failed to pay their property taxes. The Rosados defended, arguing that they failed to receive notice of the tax sale. The trial court entered a final judgment quieting title in the Vosilla partners.
Houlihan's Restaurants, Inc. v. APAC-Florida, Inc., No. 1D03-4755 (Fla.App. 08/11/2005)
Houlihan's Restaurants, Inc. (Houlihan's) appeals a final judgment apportioning the proceeds of a condemnation award between Houlihan's and CNL APF Partners, Inc. (CNL), appellee. Because competent substantial evidence supports the apportionment by the trial court, we affirm.
Savage v. Palm Beach County, No. 4D04-3530 (Fla.App. 08/31/2005)
Property owners appeal a judgment in an inverse condemnation action. They argue the trial court erred in excluding their experts from testifying about "property blight" and its effect on the value of the condemned property. We agree and reverse.
Penzell v. M & M Construction Group Corp., No. 3D04-2487 (Fla.App. 09/07/2005)
Beverly Penzell and Bank of America appeal from an order directing the Clerk of the Circuit Court in and for Miami-Dade County to distribute excess proceeds of a tax sale to the State of Florida, Department of Environmental Protection (DEP), and from an order denying Penzell's motion to distribute the excess proceeds of the tax sale to her. We affirm.
AT&T;Wireless Services of Florida, Inc. v. WCI Communities, Inc., No. 4D04-3285 (Fla.App. 09/07/2005)
We affirm the final judgment ordering the demolition and removal of a telecommunications tower from Sherwood Forest Park and permanently enjoining appellants from maintaining a tower on that property.
Verizon Wireless Personal Communications, L.P. v. Sanctuary at Wulfert Point Community Association, Inc., No. 2D04-2654 (Fla.App. 08/31/2005)
This case involves a dispute over the proposed placement of a telecommunications tower in the City of Sanibel. Verizon Wireless Personal Communications, L.P., gained permission from the Sanibel City Council to install the tower on city-owned property where the City maintains the Wulfert Road wastewater treatment plant. A neighboring homeowners' association, The Sanctuary at Wulfert Point Community Association, Inc., opposes the plan. The Association filed a certiorari petition in circuit court and obtained an order quashing the City's approval of Verizon's application. In turn, Verizon has petitioned us to issue a writ of certiorari quashing the circuit court's order. We grant the petition.
Taylor v. First National Bank of Chicago, No. 4D04-629 (Fla.App. 08/10/2005)
The Taylors appeal a final judgment denying First National Bank of Chicago's complaint to foreclose the mortgage on their home but ordering the Taylors to pay the bank monies on the mortgage, essentially rewriting the loan instruments. We affirm the final judgment to the extent it denied foreclosure, but reverse that portion of the final judgment that rewrote the terms of the mortgage.
Rasmussen v. Rasmussen, No. 2D04-3679 (Fla.App. 09/07/2005)
Dennis L. Rasmussen, the husband, appeals the final judgment adjudicating property rights entered in connection with the dissolution of his marriage to Janet Rasmussen, the wife. The husband challenges the equitable distribution of assets, which was based on the trial court's determination that a handwritten note made by the husband was effective to make a gift of all the husband's assets to the wife. Because the note did not express a present intent to transfer the husband's property to the wife, we conclude that it was not effective as a gift of that property and thus the property did not become marital property subject to equitable distribution. We therefore reverse the final judgment's distribution of the parties' assets. The remaining portions of the final judgment are not challenged on appeal and are therefore affirmed.
Profile Investments, Inc. v. Delta Property Management, Inc., No. 1D05-396 (Fla.App. 09/08/2005)
Appellant, Profile Investments Inc. (Profile), challenges a final summary judgment in favor of Appellees, Delta Property Management, Inc. (Delta) and CIT Lending Services (CIT), which was entered upon remand from the supreme court's decision in Delta Property Mgmt. v. Profile Investments, Inc., 875 So. 2d 443 (Fla. 2004), to quiet title to real property purchased in a tax sale. Because summary judgment is not appropriate in this case, we reverse.
I. Kushnir Hotels, Inc. v. Durso, No. 4D03-2837 (Fla.App. 09/07/2005)
Appellant, I. Kushnir Hotels, Inc. (Kushnir) filed two separate appeals, which were later consolidated. The first appeal was from the order granting appellees', Robert J. Durso and Carol R. Dender (Dender), motion to discharge lis pendens. The second appeal was from the final judgment, which was entered in favor of appellees in Kushnir's breach of contract action. Appellees filed a cross-appeal of the final judgment based on the court's failure to find them to be the prevailing parties and award them attorney's fees and costs. We affirm the order discharging the lis pendens, but reverse the final judgment and remand with directions that the trial court enter an amended final judgment after determining attorney's fees and costs.
Redland Estates, Inc. v. Lynn, No. 3D04-1093 (Fla.App. 08/10/2005)
Redland Estates, Inc., appeals the dismissal of an amended complaint against Sandra Lynn with prejudice. After a careful review of the amended complaint and taking the allegations therein most favorably to appellant as we are required, Williams v. Davanzo, 891 So. 2d 613, 1032 (Fla. 3d DCA 2005), we affirm the decision of the trial court.
Construction
Strack v. Fred Rawn Construction, Inc., No. 4D04-1963 (Fla.App. 08/10/2005)
The purchasers of a renovated home appeal the dismissal of their first amended complaint against the seller, which alleged counts for fraudulent misrepresentation and breach of an oral contract to repair defects in the home. They argue the trial court erred in dismissing their first amended complaint with prejudice. We agree in part and reverse the portion of the order dismissing the breach of contract count.
S and T Builders v. Globe Properties, Inc., No. 4D04-4911 (Fla.App. 08/03/2005)
S and T Builders, Inc., a contractor, seeks to impose and foreclose an equitable construction lien. The defendant/owner moved to dissolve lis pendens or alternatively to require posting of a bond. The motion was considered at a motion calendar hearing and, without an evidentiary hearing, the court set bond in the sum of $480,000.
Mayersdorf v. Paramount Boynton, L.L.C., No. 4D04-1842 (Fla.App. 08/31/2005)
This case involves the interpretation of two provisions of the Interstate Land Sales Full Disclosure Act (the Act), 15 U.S.C. § 1701, et seq., which imposes certain obligations on developers of residential subdivisions in the interest of consumer protection. The purchasers in this case sought to revoke a purchase and sale agreement and have their deposits refunded due to the developer's alleged non-compliance with section 1703. The developer claimed exemption from the Act, specifically, the disclosure and registration requirements, and moved for summary judgment on the issue of whether the transaction was subject to the Act. The trial court granted summary judgment. We affirm.
Aberdeen Golf & Country Club v. Bliss Construction, Inc., No. 4D04-2545 (Fla.App. 09/07/2005)
We have a non-final order refusing to compel arbitration. The dispute arose from an aborted contract for the construction of a new $2 million facility at a private club. The contract between the owner of the club and the general contractor (GC) contained an alternative dispute resolution (ADR) provision that included arbitration. When the owner terminated the contract before completion, the GC commenced litigation and alleged that the owner's premature termination caused damages. The owner responded with a demand for arbitration. The trial judge found that the owner had forfeited any right to arbitration by its conduct leading up to the GC's suit. We affirm.
Landlord Tenant
Vance Realty Group, Inc. v. Park Place at Metrowest, Phases Six and Seven, Ltd., No. 5D04-1836 (Fla.App. 08/26/2005)
The appellant, Vance Realty Group, Inc. ("Vance Realty"), challenges the non-final order authorizing the disbursement to AmSouth on behalf of the appellees $21,337.80 in funds it paid into the registry of the court. Because the funds paid into the registry were not the proper subject of any claim for relief and were deposited without leave of court, they were not in the lawful custody of the court and were disbursed in error. We therefore reverse.
Premises Liability
Aaron v. Palatka Mall, L.L.C., No. 5D04-554 (Fla.App. 08/12/2005)
Diane Aaron appeals a final summary judgment in the premises liability action she filed to recover damages caused by her fall on a parking lot bumper on property owned by Palatka Mall, L.L.C., doing business as Interlachen Mall. The trial court held that there was no liability on the part of Palatka Mall because the bumper was open and obvious. The issue we must resolve is whether it was appropriate to enter summary judgment in favor of Palatka Mall based on the obvious danger doctrine when: 1) Aaron alleges that Palatka Mall breached its duty to keep its premises in a reasonably safe condition; and 2) evidence is present in the record that the alleged dangerous condition was located in a poorly lit parking lot and the accident occurred late at night when it was drizzling rain. Because material issues of fact exist, we conclude that the final summary judgment was improvidently rendered, and we reverse.
Miller v. Slabaugh, No. 2D04-3799 (Fla.App. 09/02/2005)
David and Erma Miller appeal a final summary judgment entered in favor of Calvin and Martha Slabaugh on the Millers' negligence claims against the Slabaughs. Because the record does not support that the Slabaughs were entitled to summary judgment as a matter of law, we reverse and remand for further proceedings. [¶] The Millers sued the Slabaughs after David Miller fell from a stairway on the Slabaughs' property while assisting them in moving a mattress and box spring set. The Millers alleged that the Slabaughs negligently constructed and maintained the stairway, which abutted a wall on one side and had no railing on the other side, and that David Miller fell and sustained an injury as a result of the Slabaughs' negligence. [¶] The Slabaughs moved for summary judgment, arguing that the undisputed facts established that the absence of the railing from the stairway was an open and obvious condition for which they could not be held liable as a matter of law. The trial court granted the Slabaughs' motion and entered a final judgment in favor of the Slabaughs.
Nuisance
Saadeh v. Stanton Rowing Foundation, Inc., No. 1D04-2092 (Fla.App. 08/23/2005)
Appellants, Anwar and Mary Anne Saadeh, brought a two-count action against appellee, Stanton Rowing Foundation, Inc. (Stanton), seeking monetary damages for an alleged nuisance and further seeking an order enjoining appellee's use of certain real estate in a manner the Saadehs contend violates the Jacksonville Ordinance Code. The trial court granted summary final judgment as to both counts. On appeal, appellants correctly argue that the trial court misapplied the rule of res judicata. Accordingly, we reverse and remand for further proceedings on both counts.
Accardi v. Hillsboro Shores Improvement Association, Inc., No. 4D04-2333 (Fla.App. 09/07/2005)
This appeal arises from a final judgment dismissing with prejudice Edmund Accardi's third amended complaint for nuisance and trespass against Hillsboro Shores Improvement Association ("the Association" or "HSIA") and its individual directors. We affirm in part and reverse in part.
Wills & Estates
Scott v. Reyes, No. 2D04-4610 (Fla.App. 09/09/2005)
In this case we are asked to determine whether the "trust exception" to the requirements of the claims provisions of the Florida Probate Code is applicable to the claim of a former co-tenant based on the joint ownership of two accounts that the decedent reestablished in his sole name without the knowledge or consent of the co-tenant. Because the decedent's act of reestablishing the accounts in his name alone amounted to an assertion of beneficial ownership in the accounts before his death, we conclude that the trust exception is inapplicable. Consequently, the co-tenant was required to file a statement of claim in the probate proceeding for the decedent's estate within the time allowed under section 733.702, Florida Statutes (2002), or her claim arising from her previous joint ownership of the two accounts with the decedent would be barred. The co-tenant failed to timely file a statement of claim. Accordingly, we affirm the probate court's order that granted motions filed by one of the heirs to dismiss two petitions seeking to determine the "ownership" of the accounts as impermissible requests for court authorization to pay a time-barred claim. We also affirm the probate court's order denying the co-tenant's petition to extend the time for filing a claim because no abuse of discretion has been shown.
McKean v. Warburton, No. SC04-1243 (Fla. 09/08/2005)
We have for review a decision of the Fourth District Court of Appeal which certified the following question to be of great public importance: [¶] WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT'S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? [¶] Warburton v. McKean, 877 So. 2d 50, 53 (Fla. 4th DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons discussed below, we answer the certified question in the negative, and hold that where a decedent is not survived by a spouse or minor children, the decedent's homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.
Longmire v. Estate of Ruffin, No. 4D03-4095 (Fla.App. 08/24/2005)
Longmire appeals an order denying her motion to extend the time to file a claim in probate. We have consolidated Longmire's appeal of a final judgment on cross-claim and order of dismissal in an underlying personal injury/wrongful death suit. The dismissal of the tort case is founded on the probate order rejecting Longmire's claim against the appellee estate as untimely. We reverse as to both.
Trusts
Karasek v. William J. Lamping Trust, No. 4D04-2803 (Fla.App. 08/31/2005)
The decedent executed a testamentary trust in 1967 which provided that, if certain events occurred, the proceeds of the trust would go to his deceased children's heirs at law. This provision became effective in 2003 when decedent's wife died; however, in the interim the statutory definition of heirs at law changed. We conclude that the trust property should be distributed to the heirs as defined in 1967.
Florida Property/Probate Case Summaries
June 26 - July 30, 2005
Click on case name to access full text
DReal property
Osceola County, Florida v. Best Diversified, Inc., No. 5D04-216 (Fla.App. 07/29/2005)
Osceola County and the Florida Department of Environmental Protection appeal from a final judgment which awarded damages, under a theory of inverse condemnation, to Peter Huff and Best Diversified, Inc. ("Huff") as the owner and operator of a landfill. We conclude there is no evidence to support a determination that the Department engaged in a taking of the property and thus reverse as to the Department. However, we find the evidence is sufficient to support a determination that Osceola County engaged in a taking of the property by unreasonably restricting Huff's efforts to close the landfill. Accordingly, we affirm the judgment as to Osceola County.
Dep't of Transportation v. RFT Partnership, No. 2D04-788 (Fla.App. 06/29/2005)
The Department of Transportation (DOT) appeals a final judgment awarding attorneys' fees for a non-monetary benefit in an eminent domain proceeding. We reverse. This case is procedurally unusual. We decline to resolve the procedural issues because we conclude that the benefit obtained by the lawyers for their client was not the type of non-monetary benefit for which the DOT is required to pay attorneys' fees.
Dep't of Environmental Protection v. Hardy, No. 5D04-860 (Fla.App. 07/29/2005)
A jury returned a $1,538,000 verdict against the State Department of Environmental Protection ("DEP") on the Hardys' amended cross-claim alleging negligence, negligent supervision of its employees, and trespass. DEP argues that it did not owe any statutory or common law duty to the Hardys, and if it did, sovereign immunity barred a cause of action for breach of any duty. Because we conclude that the trial court erred in denying DEP's motion for directed verdict, we reverse.
Schwartz v. Estate of Schwartz, No. 4D04-962 (Fla.App. 07/06/2005)
This petition for writ of certiorari challenges an order which determined that a lis pendens was invalid. We deny the petition, because the 1996 notice of lis pendens was not founded on a duly-recorded instrument, so that it was no longer effectual in 2004, when respondent sought to declare it invalid.
Sandpiper Development and Construction, Inc. v. Rosemary Beach Land Co., No. 1D04-5211 (Fla.App. 07/29/2005)
Appellant Sandpiper Development and Construction, Inc. ("Sandpiper"), appeals a final summary judgment enforcing a fixed price repurchase option of limited duration in a land sale contract. The trial court found that the option was not an unreasonable restraint on the alienation of property. We affirm.
D.O.P. Investments, Inc. v. Oakland Hills Joint Venture, No. 4D03-3499 (Fla.App. 07/27/2005)
The buyer of commercial real estate appeals a summary judgment entered against it on its claims against the sellers for breach of contract and fraud. We affirm in part and reverse in part.
St. Joe Co. v. Leslie, No. 1D04-5462 (Fla.App. 07/29/2005)
Appellant, The St. Joe Company (St. Joe), dumped various paper mill waste products, such as wood chips, tree bark, lime grits, oil boiler ash, and slag onto locations throughout an area called "the sock." The properties were eventually sold to numerous individuals and contractors. Appellees are property owners who allege injury to their individual parcels, both directly and indirectly, as a result of the dumping. Appellees' motion for class certification was premised on the following counts: (1) continuing trespass; (2) continuing nuisance; (3) unjust enrichment; (4) strict liability; (5) negligence; and (6) statutory liability under section 376.313(3), Florida Statutes (providing a civil cause of action for damages suffered as a result of a prohibited discharge or other pollutive condition; no negligence need be proven). The trial court certified a class of property owners who own parcels within "the sock," and parcels outside "the sock." It is from this non- final order that Appellant appeals.
Garcia v. Stewart, No. 4D04-1836 (Fla.App. 07/27/2005)
The Association's motion for rehearing has called our attention to additional facts that were not previously made a part of the record. The facts pertain to the Association's participation in a separate circuit court lawsuit involving the foreclosure of a first mortgage on the property. These additional facts do not change the result in this case. Even though the Association filed a lien foreclosure cross-claim in the other lawsuit, Garcia still had the right to challenge the disbursement of funds in this action through a rule 1.540(b) motion.
Bitz v. Bitz, No. 04-2249 (Fla.App. 07/06/2005)
This is an appeal from a non-final order of the circuit court finding a portion of the parties' marital settlement agreement to be ambiguous and ordering the division of real property. We have jurisdiction. Art. 5, § 4 (b)(1), Fla. Const.; Fla. R. App. P. 9.130(3)(C)(ii). We affirm in part, reverse in part, and remand.
Chhabra v. Morales, No. 4D04-3396 (Fla.App. 07/27/2005)
This appeal arises from the entry of two summary final judgments which granted specific performance and compelled the transfer of title of a leased residential property from Sujan Singh Chhabra and Jasbeer Kaur Chhabra, his wife, as landlords to their tenants, Jimmy Morales and Caridad Vega-Morales. We reverse.
Chrestensen v. Erogest, Inc., No. 4D04-1948 (Fla.App. 07/13/2005)
Joleen Chrestensen appeals a final order dismissing with prejudice her amended complaint seeking a post-foreclosure deficiency judgment, based upon the alleged expiration of the statute of limitations period. We reverse, holding that the statute of limitations for a deficiency judgment does not begin to run until the foreclosure judgment and subsequent foreclosure sale, not at the default date of the underlying mortgage note.
Opportunity Funding I, LLC v. Otetchestvennyi, No. 4D04-2960 (Fla.App. 07/27/2005)
A mortgagee appeals a trial court order that denied its motion to vacate a certificate of title and foreclosure sale, thereby allowing the third-party purchaser to evict the mortgagor. It argues the court erred in denying its motion because it timely filed an objection to the sale, a motion to vacate the sale, a motion to vacate the certificate of title to the third-party, and a motion to stay enforcement of a writ of possession. Under the extraordinary facts of this case, we agree and reverse.
Trontz v. Winig, No. 4D04-226 (Fla.App. 07/06/2005)
Appellant challenges a summary final judgment foreclosing his attorney's charging lien on his homestead property. Because appellant failed to challenge, and in fact agreed to, the earlier final order that specifically applied the charging lien to appellant's homestead, we affirm. The order granting the lien was an appealable final order, and appellant did not appeal it. . . . . Moreover, unlike Sherbill v. Miller Manufacturing Co., . . ., on which appellant relies, here appellant specifically agreed to a charging lien on his homestead property, described in the order as an agreed disposition of his attorney's claim. He also specifically waived his homestead protection as to the property. This specific agreed waiver in settlement of the claim distinguishes this case from Sherbill.
Copeland v. Florida New Investments Corp., No. 3D03-2801 (Fla.App. 06/29/2005)
Appellant/Plaintiff, Ruquyya Copeland ("Copeland"), appeals a Final Summary Judgment entered against her. Copeland raises three issues in her appeal, only one of which needs to be addressed. She claims the trial court erred in entering summary judgment as there remain genuine issues of material fact. We affirm in part and reverse in part. [¶] This convoluted case arises out of a transaction for the purchase and sale of real property. Copeland alleges in her Amended Complaint that Florida New Investments ("FNI") and John Walters ("Walters"), individually, wanted to purchase property owned by her, and convinced her to execute two quitclaim deeds, one from Copeland to Florida New Investments and one from Florida New Investments to Copeland. Copeland claims that Walters represented that neither of the quitclaim deeds would be recorded until the transaction was consummated. The sale was not consummated and FNI recorded the quitclaim deed from Copeland to FNI. Copeland then brought a two-count amended complaint to quiet title and cancel the quitclaim deed and for damages for fraud.
Construction
Aberdeen Golf & Country Club v. Bliss Construction, Inc., No. 4D04-2545 (Fla.App. 07/20/2005)
We have a nonfinal order refusing to compel arbitration. The dispute arose from an aborted contract for the construction of a new $2 million facility at a private club. The contract between the owner of the club and the general contractor (GC) contained an alternative dispute resolution (ADR) provision that included arbitration. When the owner terminated the contract before completion, the GC commenced litigation and alleged that the owner's premature termination caused damages. The owner responded with a demand for arbitration. The trial judge found that the owner had forfeited any right to arbitration by its conduct leading up to the GC's suit. We affirm.
Vacation Beach, Inc. v. Charles Boyd Construction, Inc., No. 5D04-4073 (Fla.App. 07/22/2005)
The appellant, Vacation Beach, Inc., asserts in this appeal that the lower court erred in compelling arbitration without first ruling on the issue of whether the construction contract that it entered into with the appellee, Charles Boyd Construction, Inc. ("Boyd Construction"), was illegal or in violation of public policy. In view of the Florida Supreme Court's ruling in Cardegna v. Buckeye Check Cashing, Inc., 894 So. 2d 860 (Fla. 2005), . . ., we reverse.
Landlord Tenant
Equity Residential Properties Trust v. Yates, No. 4D03-4571 (Fla.App. 07/06/2005)
Tammy Yates, Peter Miller, Maria Cruz, and Jose Ortega brought suit against their former landlord, . . ., alleging the landlord was collecting what amounted to double rent in violation of Florida's Consumer Collection Practices Act (FCCPA) and Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). According to the plaintiffs, the landlord was accomplishing this by charging tenants "early termination" and "insufficient notice" fees and then failing to credit the tenants charged such fees for rent collected upon the re-letting of the apartment unit. The four named plaintiffs sought certification of a class action suit on behalf of some ten thousand plus individuals who had been charged these "fees." In turn, the landlord sought to bring a class-wide counterclaim, seeking recovery of all fees and charges owed by these tenants; these charges included not only the unpaid "early termination" and "insufficient notice" fees, but also charges for damage and repairs to each tenant's particular unit. The trial court granted the plaintiffs' motion for class certification, but denied certification of the landlord's counterclaim. In this consolidated appeal, the landlord challenges the trial court's rulings certifying a class action on behalf of the former tenants, but declining to certify a class action with respect to its counterclaim. We affirm.
Real estate brokers
Rotemi Realty, Inc. v. Act Realty Co., Inc., No. SC04-210 (Fla. 07/07/2005)
We consider whether the common practice of paying real estate commissions contingent on consummation of the sale violates the public policy of this state when applied to a purchase or sale by the government. . . . For the reasons explained below, we reaffirm the general rule we announced more than fifty years ago and apply it to real estate brokerage commissions. We hold, first, that the brokerage agreement in this case complies with Florida public policy; and second, that competent, substantial evidence supports the trial court's ruling that the brokers were a procuring cause of the sale and therefore are entitled to their commission.
Taxation
Florida Dep't of Revenue v. Howard, No. SC03-2270 (Fla. 06/30/2005)
We have on appeal a decision of a district court of appeal declaring invalid a state statute. Fla. Dep't of Revenue v. Howard, . . . . For the reasons set out below, we reverse the decision of the First District Court of Appeal and uphold the constitutionality of section 193.016, Florida Statutes (2001), requiring a property appraiser to consider the results of an appeal before a value adjustment board (VAB) in the prior year in determining the current just value of tangible personal property.
Sunset Harbour Condominium Association v. Robbins, No. SC03-520 (Fla. 07/07/2005)
We have on appeal a decision of the Third District Court of Appeal declaring section 192.042, Florida Statutes (1997), unconstitutional. Section 192.042 requires property appraisers to assess all real property according to its just value as of January 1 of each year. However, if improvements to a parcel of property are not substantially completed on January 1, no valuation is to be placed on those improvements for that year. We hold that: (1) Sunset Harbour Condominium Association waived any objection to the property appraiser's affirmative defense that section 192.042 is unconstitutional; and (2) section 192.042 reasonably implements the provisions of article VII, section 4 of the Florida Constitution (which directs the Legislature to prescribe regulations that will secure a just valuation of property) and, therefore, is constitutional. We reverse the district court's decision and remand the case for proceedings consistent with this opinion.
Insurance
Coral Reef of Key Biscayne Developers, Inc. v. Lloyd's Underwriters At London, No. 3D04-2927 (Fla.App. 07/13/2005)
We review a petition for writ of certiorari filed by Coral Reef of Key Biscayne Developers, Inc. ("petitioner") challenging a court order disqualifying all of its counsel of record. The sole basis for the disqualification was the trial court's conclusion that the petitioner's counsel acquired useful information and an unfair tactical advantage from privileged documents afforded by a court order, which was subsequently quashed by this court. . . . Because the trial court's order departs from the essential requirements of the law, we grant the petition for writ of certiorari. . . . [¶] This case arises from an insurance dispute, which has been extensively litigated since 2000. The petitioner owns a rental apartment complex in Key Biscayne, Florida, and had obtained property insurance from Lloyd's Underwriters at London ("respondent"). In the fall of 1999, the petitioner submitted insurance claims to the respondent for the cost of repairing property damage due to hidden decay. Both parties retained adjusters. The respondent agreed to pay approximately $550,000 to commence repairs on the property, but held back $4.76 million.
Premises Liability
Sinfort v. Food Lion, LLC, No. 5D04-985 (Fla.App. 07/01/2005)
Maria Sinfort appeals a final summary judgment granted to Food Lion, LLC, d/b/a Save 'N Pack, ("Food Lion"), in which the trial court found no liability for personal injuries allegedly sustained by Sinfort when she slipped and fell in the produce section of a Food Lion store.
Sherwood v. Quietwater Entertainment, Inc., No. 1D04-0763 (Fla.App. 07/05/2005)
The trial court concluded that Appellee did not owe a duty of care to Appellant and entered summary judgment in Appellee's favor on Appellant's personal injury claim seeking damages arising from his grievous injuries. Appellant argues that the trial court reversibly erred; we agree and reverse.
Pisani v. Duffin, No. 4D04-673 (Fla.App. 07/06/2005)
Pisani, the owner of a home with a pool in which two young children drowned, appeals a judgment for damages, arguing that the trial court erred in allowing the jury to consider statutory and zoning violations which were not applicable. We reverse for a new trial.
Wills & Estates
Wehrheim v. Golden Pond Assisted Living Facility, No. 5D04-2724 (Fla.App. 07/01/2005)
Gary Wehrheim, Albert D. Wehrheim, Jr., and Debra L. Wehrheim appeal the final summary judgment rendered in the underlying adversarial probate proceedings between the Wehrheims and Golden Pond Assisted Living Facility that denied the Wehrheims' petitions to deny the decedent's will to probate, to remove the personal representative, and for administration. In essence, the summary judgment admits to probate the decedent's 2002 will, which leaves the estate to Golden Pond thereby excluding the Wehrheims, who are the decedent's children. There are three issues we must resolve: 1) whether the Wehrheims lacked standing to assert the invalidity of the will and to petition for removal of the personal representative based on prior wills of the decedent that did not include them as beneficiaries; 2) whether the doctrine of dependent relative revocation applies; and 3) whether the revocation clause of the will may be valid if the remainder of the will is declared invalid based on undue influence. We will address these issues separately even though we recognize that the latter two are interrelated with the first. However, before we address these issues, it is necessary to discuss the facts and procedural history of the instant case.
Brunson v. McKay, No. 2D03-5622 (Fla.App. 07/20/2005)
In this case we are called upon to review a probate court order approving the amount of a settlement in an action for damages under the Florida Wrongful Death Act, sections 768.16-.26, Florida Statutes (2002) (the Act), and authorizing payment of attorney's fees and costs from the settlement proceeds to the personal representative's attorney. The decedent's adult children contend that the probate court erred in ruling that they had no standing to be heard on their timely objection to the reasonableness of the amount of the settlement. We agree. Accordingly, we reverse the probate court's order, and we remand this case for further proceedings.
Hardie v. Falk, No. 3D04-3041 (Fla.App. 07/06/2005)
Carlos Harbie appeals a final summary judgment. The trial court concluded that appellant was not a beneficiary of his father's will. We agree with the trial court and affirm the judgment.
Foreman v. Northern Trust Bank of Florida, N.A., No. 2D03-5694 (Fla.App. 07/06/2005)
Michael L. Foreman appeals the order awarding him attorney's fees for work performed in connection with the administration of an estate. Because the trial court erroneously concluded that Foreman's fee petition sought fees he had previously been awarded, we reverse.
Trusts
Parker v. Shullman, No. 4D04-1337 (Fla.App. 07/28/2005)
The beneficiary of two trusts filed a claim against the trustee of the trusts, objecting to the compensation he had paid himself as CEO for running a retail company whose stock was owned in the name of the trusts. The trial court dismissed the claim with prejudice. We affirm.
Florida Property/Probate Case Summaries
May 22 - June 15, 2005
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DReal property
Castigliano v. O'Connor, No. 3D04-3019 (Fla.App. 06/22/2005)
The seller, Gerald A. Castigliano ("seller"), appeals from a final judgment and decree granting specific performance of a contract for the purchase of a condominium to the purchasers, Daniel O'Connor and Susette O'Connor ("purchasers"). We reverse.
International Alliance of Theatrical Stage Employees and Moving Picture Technicians v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Holding Company, Inc., No. 4D04-880 (Fla.App. 06/08/2005)
A dispute over a local union's real estate investment sets the stage for this appeal. The plot pits the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada Local 500 (Local 500), against the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators Holding Company, Inc., and its officers (Holding Company). The scene is Local 500's appeal of a judgment for the Holding Company. It argues the trial court erred in instructing the jury concerning the law on resulting trusts and refusing to submit a special interrogatory verdict form to the jury. We find no error and affirm.
Garcia v. Stewart, No. 4D04-1836 (Fla.App. 05/25/2005)
The former owner of a condominium unit, Amado Garcia, appeals from an order denying his motion attacking an order that disbursed surplus funds generated by a foreclosure sale of his unit arising from a second mortgage. [¶] We reverse, holding that the circuit court lacked jurisdiction to distribute the funds to the holder of a lien superior to the second mortgage, after the lienholder had been dismissed as a party in the final judgment of foreclosure.
DiChristopher v. Board of County Commissioners, No. 5D05-393 (Fla.App. 06/10/2005)
DiChristopher appeals from a non-final order which denied and dismissed count one of his petition. DiChristopher sought a temporary injunction to enjoin the Board of County Commissioners of Brevard County from flooding his property as part of its mosquito control program. The trial court ruled DiChristopher was not entitled to an injunction because he, through counts two and three of the petition, sought damages for inverse condemnation and devaluation of his property. We find no abuse of discretion in denying DiChristopher a temporary injunction and affirm the order below.
Thomas v. Premier Capital, Inc., No. 3D04-1523 (Fla.App. 06/15/2005)
Peter and Linda Thomas appeal a deficiency judgment entered against them in favor of Premier Capital, Inc. (Premier). We affirm. [¶] After the Thomases became delinquent in their mortgage payments, Premier, their mortgage company, filed a foreclosure complaint against them. Premier was granted a final summary judgment of foreclosure against the Thomases in the amount of $364,295.80, plus statutory interest. After the property was sold at a foreclosure sale, Premier sought a deficiency judgment for the difference between the debt owed and the fair market value of the property. [¶] After a non-jury trial, the trial court found in favor of Premier, entering a judgment in the amount of $45,363.39. This amount represented the amount of debt owed minus the fair market value after taking delinquent property taxes into account. This appeal follows.
Siegel v. Boca Chase Property Owners' Association, Incorporated, No. 4D04-2242 (Fla.App. 06/01/2005)
In this appeal, Doreen Siegel challenges a final order of foreclosure due to delinquent payment of assessments to her homeowner's association, Boca Chase Property Owners Association, Inc. We reverse because the trial court erred in signing a proposed final judgment submitted by Boca Chase, which was not requested by the trial court and signed only three days after Boca Chase's simultaneous certificate of service of the proposed final judgment to both the trial court and Siegel, giving Siegel virtually no opportunity to file a meaningful response.
Morroni v. Household Finance Corp. III, No. 2D04-2846 (Fla.App. 06/08/2005)
Henry Morroni and Annette Morroni appeal the trial court's order granting summary judgment in favor of Household Finance Corporation in the mortgage foreclosure action filed by Household against the Morronis. The Morronis raised three points on appeal. The first two points are without merit, but the third point warrants reversal.
Construction
Puya v. Superior Pools, Spas & Waterfalls, Inc., No. 4D04-3733 (Fla.App. 06/08/2005)
This case involves a disagreement between a homeowner, appellant Ernest Puya, and a swimming pool contractor, appellee Superior Pools, Spas & Waterfalls, Inc., arising out of a contract to construct a swimming pool on the homeowner's property. We reverse the foreclosure of the lien for failure of the contractor to comply with a statutory condition precedent and reduce the amount of damages due to a failure of proof at trial.
Michael David Ivey, Inc. v. Salazar, No. 5D03-1706 (Fla.App. 06/10/2005)
Michael David Ivey, Inc. ("Ivey") appeals an order from an action arising out of the construction of a home. We reverse and remand this case to the trial court to award attorney's fees, costs and prejudgment interest to Ivey. Additionally, we reverse and remand the lien award for recalculation.
Bridgeport, Inc. v. Tampa Roofing Co., No. 2D04-1051 (Fla.App. 06/08/2005)
Bridgeport, Inc. (the Contractor), and Onebeacon Insurance Company (the Surety) appeal an Order Finding Common Law Bond, an Order Granting Summary Judgment, a Summary Final Judgment, and an Amended Summary Final Judgment entered in favor of Tampa Roofing Company (the Subcontractor). We reverse, in part, because the trial court incorrectly concluded that a bond issued by the Surety constitutes a common law bond rather than a statutory bond and that the Subcontractor's claim on the bond was not time-barred. We affirm without comment the trial court's award of damages against the Contractor and in favor of the Subcontractor on its breach of subcontract claim.
Royal Marble, Inc. v. Innovative Flooring & Stonecrafters of SWF, Inc., No. 2D05-877 (Fla.App. 06/15/2005)
Royal Marble petitions for writ of certiorari, seeking review of the trial court order denying its motion to increase the cash deposit to which a construction lien against Innovative Flooring & Stonecrafters of SWF, Inc., has been attached. Because Royal Marble has failed to allege irreparable harm, we dismiss the petition.
Zoning; Land Use
Lakewood Travel Park, Inc. v. Town of Davie, No. 4D04-4540 (Fla.App. 06/01/2005)
Petitioner, Lakewood Travel Park, seeks certiorari review of an order of the circuit court denying its petition for writ of certiorari review of a ruling of the Town of Davie, which approved a site plan for a truck stop . . . . The circuit court found that the site plan approval, with conditions, did not violate due process; the Town did not depart from the essential requirements of law; and the Town's action was supported by competent substantial evidence. We find that the circuit court afforded petitioner due process and applied the correct law; thus, the order of the circuit court does not depart from the essential requirements of law and we must deny the petition for writ of certiorari.
Snyder v. City Council of the City of Palmetto, No. 2D04-3406 (Fla.App. 06/03/2005)
Petitioners are the present owners of a tract of land in the City of Palmetto that was originally part of a larger property that was rezoned as a planned unit development (PUD) in 1981. Since that time, the larger parcel has been divided and sold to different owners. As the current owners of the tract, Petitioners now seek second-tier certiorari review of the circuit court's order ratifying the failure of the City Council of the City of Palmetto ("the City Council") to adopt a new ordinance that would increase the density of the subject tract. We deny the petition.
Landlord Tenant
Louie's Oyster, Inc. v. Villaggio Di Las Olas, Inc., No. 4D04-2711 (Fla.App. 06/01/2005)
For the third time, this commercial lease dispute finds its way to this Court. In Villaggio Di Las Olas, Inc. v. Louie's Oyster, Inc., . . . ("Louie I"), this Court affirmed a declaratory judgment in favor of the tenant, Louie's Oyster, Inc. ("Louie's"), finding that the landlord, Villaggio Di Las Olas, Inc. ("Villaggio"), had denied Louie's access to certain portions of the leased premises. [¶] In Villaggio Di Las Olas, Inc. v. Louie's Oyster, Inc., . . . ("Louie II"), this Court affirmed the trial court's finding that no fraud had been committed by Louie's in connection with the declaratory judgment affirmed in Louie I. [¶] Pursuant to section 86.061, Florida Statutes, Louie's then sought damages to recover the money it lost as a result of the landlord's denial of access to the full leasehold premises. Louie's sought loss of use and loss of profits damages which it alleged were caused by Villaggio's breach. [¶] The parties proceeded with pretrial discovery. Villaggio then filed its Motion for Summary Judgment, and moved the Court to strike the affidavits filed by two of Louie's witnesses, Karmin and Woltin, and to strike Louie's damage calculation summaries. The trial judge granted the motions, struck the affidavits and summaries, and entered summary judgment in favor of Villaggio. Louie's now appeals these orders.
Brandon Tripp, Inc. v. U-Save Auto Rental of America, Inc., No. 2D04-2945 (Fla.App. 06/01/2005)
Brandon Tripp, Inc. ("Tripp") challenges the trial court order that granted U-Save Auto Rental of America, Inc.'s motion to dismiss Tripp's complaint. We affirm. [¶] Tripp, a commercial landlord, sought unpaid rent pursuant to a written lease agreement, which listed the tenant as "U-Save Auto Rental of Florida, Inc., a division of U-Save Auto Rental of America, Inc." In its second amended complaint, Tripp named as defendants U-Save Auto Rental of Florida, Inc., a Florida corporation, and U-Save Auto Rental of America, Inc., a foreign corporation. [¶] U-Save Auto Rental of America, Inc., moved to dismiss the complaint on the grounds that it was not properly considered a tenant pursuant to the terms of the written lease. The trial court agreed and granted the motion. We affirm the trial court's order dismissing the complaint as to U-Save Auto Rental of America, Inc., only and remand to the trial court for further consideration of the complaint as it relates to U-Save Auto Rental of Florida, Inc.
Real estate brokers
Meller v. Florida Real Estate Commission, No. 5D03-4094 (Fla.App. 05/27/2005)
Robert and Kristine Meller appeal an order rendered by the Florida Real Estate Commission that denied their request for payment from the Florida Real Estate Recovery Fund for losses caused by Revonda Cross, a real estate licensee. The specific issue we must resolve is whether disputed issues of material fact existed that prohibited disposition of the issues raised by the Mellers pursuant to the informal hearing proceedings under section 120.57(2), Florida Statutes (2003).
Worldwide Appraisal Services, Inc. v. Dep't of Business and Professional Regulation, No. 5D04-3685 (Fla.App. 06/24/2005)
Appellants, Fred R. Catchpole, Mark R. Faure, and Worldwide Appraisal Services, Inc. ("Worldwide"), appeal an order denying their motion for preliminary injunction and granting the motion of the Appellee, Department of Business and Professional Regulation, Division of Real Estate, to dismiss the complaint. We affirm.
Taxation
Ward v. Brown, No. 1D04-1629 (Fla.App. 06/17/2005)
Appellants challenge the trial court's ruling that they are equitable owners of the property improvements placed on their leaseholds at Navarre Beach in Santa Rosa County. They contend that their leasehold interests are exempt from ad valorem property taxes pursuant to section 196.199, Florida Statutes (2001). Because we agree with the trial court that appellants have sufficient rights and duties regarding the property to make them equitable owners, we affirm.
Schafer v. Abreu, No. 3D04-1762 (Fla.App. 06/22/2005)
Raymond and Selma Schafer purchased a home . . ., and applied for tax exemption for the 1996 tax year. Subsequently, Selma passed away and, in January 2000, Raymond executed a Warranty Deed, giving himself a life estate, with a fee simple remainder interest to his son, Ronald Schafer. The Warranty Deed erroneously reflected that the Schafers resided at "2309 W. Country Club Drive #709". The Record reflects, and the Schafers admit, that the Schafers did not pay their tax obligations for the 2000 tax year. The Schafers claim, however, that they never received notice of their property tax for the year 2000. [¶] On June 21, 2001, a tax certificate was issued on the Schafers' property and was purchased by a third party. Thereafter, a Notice of Application for Tax Sale was filed and the property was purchased by Eradio Abreu ("Mr. Abreu") on December 4, 2003. The Record reflects that all notices of the tax sale were mailed to "2309 W. Country Club Drive." In January of 2004, Mr. Abreu filed a Complaint to Quiet Title and a Notice of Lis Pendens. After Motions for Summary Judgment were filed by both parties, the trial court entered Final Summary Judgment Quieting Title in favor of Abreu. The Schafers' Motion for Rehearing was denied and this appeal followed. We reverse.
Higgs v. Armada Key West Ltd. Partnership, No. 3D05-768 (Fla.App. 06/08/2005)
The Monroe County Property Appraiser, the Monroe County Tax Collector, and the Florida Department of Revenue petition for a writ prohibiting the Circuit Court of the Sixteenth Judicial Circuit from continuing to exercise jurisdiction over an action filed by Armada Key West Limited Partnership contesting a 2001 ad valorem tax assessment. Because the circuit court lacks subject matter jurisdiction over this action, we grant the relief requested.
Premises Liability
T.W. v. Regal Trace, Ltd., No. 4D04-1725 (Fla.App. 06/15/2005)
T.W. and K.W. appeal from the entry of a final summary judgment in favor of Regal Trace, Ltd., Milton Jones Development Corporation, and Milton Jones Management Corporation (collectively "Regal Trace"). T.W. and K.W. contend that summary judgment was inappropriate because Regal Trace, the apartment complex at which daughter and mother were tenants, and its ownership and management, had a duty to warn about and a duty to investigate a child molester operating at the complex and believed to be a tenant. We agree that Regal Trace had a duty to warn T.W. and K.W., but not that Regal Trace had a duty to investigate the perpetrator. As such, we reverse the summary judgment.
Flagstar Companies, Inc. v. Cole-Ehlinger, No. 4D03-3248 (Fla.App. 06/01/2005)
While working as a waitress at a Denny's located on University Drive in Plantation, Florida, Sherryl Cole-Ehlinger fell and injured herself when she caught her heel on a kickplate, which had been installed to repair the base of the restaurant's salad bar. Cole-Ehlinger sued two corporate defendants, Denny's Inc. ("Denny's"), which was at the bottom of the corporate hierarchy, and Flagstar Companies, Inc. ("Flagstar"), which was at the top. A jury found in favor of Cole-Ehlinger with respect to the claims asserted against both defendants, awarding damages in excess of $550,000. Both defendants have appealed, asserting that the trial court should have granted their motions for directed verdict or, alternatively, for new trial. We reverse in part and affirm in part.
American Hospitality Management Co. of Minnesota v. Hettiger, No. 4D03-2001 (Fla.App. 06/01/2005)
A hotel operator appeals a mid-trial ruling in favor of a repairman injured on its premises while using one of its ladders. It argues that the trial court erred by instructing the jury as to a rebuttable presumption of negligence. We agree and reverse.
Tanner v. Beck, No. 3D04-1200 (Fla.App. 06/01/2005)
The defendants, Mae Tanner and Norma A. Atima, appeal from an order granting a new trial in favor of the plaintiff, Victor Beck, by and through Ruth Hagerty, Legal Guardian. We reverse.
[12] The plaintiff filed suit against the defendants claiming that he was injured when he slipped and fell while exiting their mobile home in March 2002. Prior to trial, the plaintiff moved in limine to preclude the introduction of any evidence regarding the plaintiff's 1993 slip and fall lawsuit that he filed in Bradenton, Florida. The trial court ruled that the defendants could introduce evidence of the slip and fall for the limited purpose of establishing the plaintiff's propensity to fall, but ruled that any evidence of the litigation stemming from that accident was inadmissible.
Wills & Estates
In re Estate of Sterile, No. 2D04-1251 (Fla.App. 06/03/2005)
In an allocation proceeding that ensued in the probate court after the settlement of an action for the wrongful death of Jean Michelet Sterile (the Decedent), the issue to be decided was whether Melissa Pierre, a/k/a Melissa Pierre Sterile, a/k/a Sodnie Duverge (Melissa), was the Decedent's surviving spouse. The probate court rejected Melissa's claim that she was married to the Decedent at the time of his death, and she appeals. Because the probate court improperly reached its decision by concluding that Melissa was estopped to assert that she was married to the Decedent instead of weighing the evidence concerning the existence of the marriage presented by the parties, we reverse the order under review and remand for further proceedings.
Cason v. Hammock, No. 5D04-2111 (Fla.App. 06/24/2005)
John Cason, on behalf of his granddaughter, Sarah Saferight, appeals the order denying his Amended Petition for Removal of Personal Representative and the order denying his Petition for Revocation of Probate. These orders emanate from probate proceedings regarding the estate of the decedent, Vivian Saferight, who is Sarah's paternal grandmother. The issues we must resolve are: 1) whether John Cason, Sarah's maternal grandfather, had standing to seek removal of the personal representative; and 2) whether the petitions were timely filed.
Trusts
Perry v. Agnew, No. 2D05-332 (Fla.App. 06/15/2005)
When three beneficiaries of the Seyburn Leonard Agnew Trust sued the trustee in Charlotte County, Florida, the trustee moved to dismiss for improper venue. The circuit court denied the motion. We reverse because the court failed to apply the controlling statute.
McMullin v. Beaver, No. 4D04-1527 (Fla.App. 06/01/2005)
Appellant, Michael P. McMullin, is the trustee and beneficiary of an inter vivos trust. That trust owns the rights to a contract with Appellees. McMullin brought this suit on the contract in his capacity as trustee. The trial court entered final summary judgment, finding that McMullin lacked standing to bring the action because the trust provided that it would terminate on the settlor's death (which had occurred prior to the filing of the action).
In re Estate of Magee, No. 2D04-3294 (Fla.App. 06/03/2005)
Judith Magee, the beneficiary of a revocable trust created by her now-deceased father, appeals the order denying her objections to the elective share claimed by Edna Magee, the surviving spouse. As explained in Dempsey v. Dempsey, 30 Fla. L. Weekly D1067 (Fla. 2d DCA Apr. 27, 2005), an order determining the surviving spouse's entitlement to an elective share is a non-final and non-appealable order. In this case, the non-appealable nature of the order is further demonstrated by the circuit court's ruling that one of the claims, regarding whether the elective share statute was an unconstitutional impairment of contracts, was premature because it was too soon to tell whether trust assets would be needed to satisfy the elective share. Accordingly, we dismiss this appeal.
Florida Property/Probate Case Summaries
April 17 - May 21, 2005
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DReal property
Abdoney v. York, No. 2D04-5257 (Fla.App. 05/13/2005)
Emmett Abdoney seeks review of (1) the final summary judgment in favor of Janetta York in Abdoney's mortgage foreclosure action and (2) the final order that awarded York attorney's fees and costs. Because the trial court erred in determining that Abdoney's junior lien was extinguished by the filing of a certificate of sale in a prior foreclosure action concerning the same property, we reverse. In accordance with this ruling, we reverse the award of prevailing party attorney's fees and costs to York.
Staten v. Gonzalez-Falla, No. 1D03-5185 (Fla.App. 05/18/2005)
Shedrick Staten, as the personal representative of the Estate of Robert Taylor, appeals the trial court's award to Celso M. Gonzalez-Falla, as trustee for the Gilman Article III Trust, of a statutory way of necessity across the Taylor property. Because the trial court did not restrict this easement to the uses which are permitted in section 704.01(2), Florida Statutes (2001), we reverse and remand.
Prime West, Inc. v. Camargo, No. 3D04-471 (Fla.App. 05/11/2005)
Prime West, Inc. and Prime West Condominium Association appeal from an order requiring removal of a fence which blocks Appellees-Camargos' ingress and egress from the Camargos' property to N.W. 108th Avenue via N.W. 16th Street and deeming N.W. 16th Street a public road. We affirm that portion of the trial court's order requiring removal of the fence and reverse solely that portion of the order deeming N.W. 16th Street a public road.
Cicoria v. Gazi, No. 5D04-753 (Fla.App. 04/29/2005)
Jordan Cicoria, Anthony Cicoria, Terry Kasberg and George Scribano, purchasers of two parcels of property located in Hernando County at a foreclosure sale, appeal from the circuit court's order which vacated its summary final judgment of foreclosure, pursuant to Mohammed Gazi's (the mortgagor's) timely filing of his objection to sale and motion to vacate the judgment. Following the rendition of the set-aside order, Gazi's right to redeem the property was temporarily reinstated and he satisfied the mortgage debt in full. The issue in this case is whether the court abused its discretion in setting aside the foreclosure sale under the circumstances of this case. We reverse.
City of Temple Terrace, Florida v. Tozier, No. 2D04-1840 (Fla.App. 04/29/2005)
In this appeal, we are asked to decide whether the City of Temple Terrace had authority to impose conditions on the vacation of a right-of-way. We conclude that it did and reverse the partial summary judgment that ruled to the contrary.
Dudley v. City of Tampa, No. 2D03-5843 (Fla.App. 05/13/2005)
Appellants, residents of the Martin Luther King Village Subdivision in the City of Tampa, sued the City of Tampa and the Tampa Hillsborough Action Plan, Inc. [THAP] for negligence claiming that they and their homes have suffered substantial damage due to defective soil conditions of which the City and THAP were aware but failed to disclose. The residents appeal a partial final judgment that dismissed count X against the City and count XV against THAP. After careful review of the pleadings and record, we conclude the trial court did not err in dismissing these two counts of their third amended complaint with prejudice because the City and THAP owed no duty to the residents. We write only to discuss that portion of count X claiming that the City was negligent for failure to warn of the defective soil conditions.
Peters v. Ojeda, No. 3D04-2610 (Fla.App. 05/11/2005)
Defendants, David Peters and Pura Peters, appeal from a final judgment of foreclosure granting the plaintiffs' motion for summary judgment and dismissing their counterclaims on the basis that there existed no disputed issues of material fact. We reverse.
Sarasota County v. National City Bank of Cleveland, Ohio, No. 2D04-3297 (Fla.App. 05/13/2005)
Sarasota County ("the County") seeks certiorari review of an opinion issued by the circuit court sitting in its appellate capacity. The circuit court applied a statute of limitations to bar a code enforcement proceeding commenced pursuant to part I of chapter 162, Florida Statutes (2001), which is entitled the "Local Government Code Enforcement Boards Act." See § 162.01-.13, Fla. Stat. (2001). We grant relief, holding that section 95.11(3)(c), Florida Statutes (2001), has no application to such administrative enforcement proceedings. We are inclined to believe that all of chapter 95 has no application to such administrative proceedings. We decline to determine, at this time, whether such proceedings in specific cases could be barred by some legal theory based on unreasonable delay within the enforcement process.
Broward Marine, Inc. v. Palm Beach Polo Holdings, Inc., No. 4D03-4231 (Fla.App. 05/04/2005)
After an exchange of personal and real property in a commercial transaction, plaintiffs brought this lawsuit seeking rescission or damages based on alleged fraudulent misrepresentations which occurred before the parties entered into the contract. The defendants prevailed, and the trial court awarded prevailing party attorney's fees under a provision authorizing fees in the contract. Plaintiffs argue that Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002) does not authorize the award of attorney's fees under the contract, where the fraud was alleged to have induced the contract. We disagree.
Brill v. Brill, No. 4D03-882 (Fla.App. 04/27/2005)
Mary Brill appeals three postjudgment orders enforcing the provision of a final judgment that directed the marital home be sold when the youngest child reached majority. She contends the trial court entered the first two orders without notice and without full review and entered the third order, which is an order of contempt based upon the previous orders, without considering her objection. We affirm all three orders.
Construction
Turner Construction Co. v. Advanced Roofing, Inc., No. 3D04-3106 (Fla.App. 05/04/2005)
The appellants, Turner Construction Company and Austin-Commercial, Inc. d/b/a Turner-Austin Airport Team (collectively Turner) appeal from a non-final order denying their Verified Complaint for Temporary Injunctive Relief and Motion to Stay Arbitration. We affirm.
Zoning; Land Use
Miami-Dade County v. Fernandez, No. 3D04-2842 (Fla.App. 05/11/2005)
Miami-Dade County appeals a non-final order of the circuit court denying its motion for a temporary injunction to enjoin Jose Luis Fernandez, Rogerio and Beatriz Marzan, and Mildred Houdayer from continuing to violate section 33-8 of the Miami-Dade County Zoning Code. We have jurisdiction, Art. V, § 4(b) (1) of the Florida Constitution and Florida Rule of Appellate Procedure 9.130(a)(3)(B).
Coral Gables Youth Center Homeowners Association, Inc. v. City of Coral Gables, No. 3D04-3097 (Fla.App. 04/20/2005)
The petitioners (neighboring property owners) seek to overturn certain recent zoning action taken in relation to a five-story commercial structure which had been approved and built some thirty plus years ago with no objection by the property's neighbors at that time. What the neighbors seek is beyond their grasp. The only method of unraveling this zoning Gordian's knot would be to backwind the clock by those thirty odd years and prohibit the building's construction. Such is beyond our or anyone's ability. As Chief Justice of the United States John Marshall phrased it, "The past cannot be recalled by the most absolute power."
Landlord Tenant
Sunshine Properties, L.L.C. v. State of Florida Dep't of Transportation, No. 4D04-869 (Fla.App. 04/27/2005)
Sunshine Properties appeals the trial court's order interpreting Sunshine's condemnation settlement with the Department of Transportation as requiring it to apportion part of the agreed settlement amount to compensate its lessees for their trade fixtures. We hold that the agreement between only Sunshine and DOT, and not the lessees, included only Sunshine's condemnation damages. Even though the settlement was "subject to apportionment, if any," it did not constitute a settlement of the lessees' damages through payment to Sunshine.
Boxer Max Corp., v. Cane A. Sucre, Inc., No. 3D04-884 (Fla.App. 05/11/2005)
Plaintiff/Appellant, Boxer Max Corporation ("Boxer Max"), appeals the trial court's order denying attorney's fees for its breach of contract action. Boxer Max claims on appeal it was the prevailing party and, as such, is entitled to fees. We find the Court did not abuse its discretion in not awarding attorney's fees and affirm the Court's order.
Taxation
Parrish v. Pier Club Apartments, LLC, No. 4D03-2458 (Fla.App. 04/20/2005)
The issue in this appeal is whether Pier Club Apartments, LLC, was entitled to an affordable housing tax exemption on apartment units that were vacant on January 1st, but which were occupied by low or very low income tenants in the preceding year. Under the particular facts present here, we answer this question in the negative and reverse the order appealed.
Crescent Miami Center, LLC v. Florida Dep't of Revenue, No. SC03-2063 (Fla. 05/19/2005)
On February 25, 2000, Crescent Equities transferred a tract of real property, which is the subject of the present case, in fee simple to CMC. According to the deed, CMC paid ten dollars and "other good and valuable consideration" for the property. This transfer was made to separate the property from Crescent Equities' other assets in order to facilitate future unsecured financing. The deed was recorded, and CMC paid $1,212,750 in documentary stamp tax, which was comprised of the state documentary stamp tax and a Dade County documentary surtax. [¶] The documentary stamp tax as applied to deeds conveying real property is set out in section 201.02(1), Florida Statutes (2003), which states: [¶] On deeds, instruments, or writings whereby any lands, tenements, or other real property, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or any other person by his or her direction, on each $100 of the consideration therefor the tax shall be 70 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 70 cents for each $100 or fractional part thereof of the consideration therefor. For purposes of this section, consideration includes, but is not limited to, the money paid or agreed to be paid; the discharge of an obligation; and the amount of any mortgage, purchase money mortgage lien, or other encumbrance, whether or not the underlying indebtedness is assumed. If the consideration paid or given in exchange for real property or any interest therein includes property other than money, it is presumed that the consideration is equal to the fair market value of the real property or interest therein. [¶] . . . [¶] After paying this tax, CMC filed for a refund of the documentary stamp tax, but the Florida Department of Revenue (DOR) denied the application. CMC filed suit and asserted that it should not have been required to pay the tax because it was not a purchaser of real property under section 201.02(1). Since beneficial ownership of the property did not actually change, CMC argued, the transfer was a mere book transaction and thus not subject to the documentary stamp tax. The DOR argued that the plain language of the statute, including its 1990 amendment, required CMC to pay the documentary stamp tax. . . .
Insurance
Florida Windstorm Underwriting v. Gajwani, No. 3D04-1392 (Fla.App. 05/11/2005)
Appellant, Florida Windstorm Underwriting Association (FWUA), appeals a final summary judgment entered against it in favor of plaintiffs, Anil Gajwani and Suresh Gajwani. The Gajwanis cross appeal a final summary judgment entered against them in favor of Lexington Insurance Company (Lexington). We reverse the summary judgment entered against FWUA and dismiss the cross appeal. [¶] Anil Gajwani and Suresh Gajwani each owned a house and maintained a homeowner's insurance policy through Lexington and a windstorm insurance policy through FWUA. The houses were located next door to each other, and both suffered "wind-driven rain" damage when Hurricane Irene struck South Florida in 1999. In the instant case, the evidence presented indicated that rain entered the respective homes through window and sliding glass door openings, and by seeping through second floor patio tiles and cracks in the stucco. The Gajwanis filed claims with both FWUA and Lexington, each of which denied their claims. FWUA denied coverage based on the wind-driven rain exclusion of its policy. Lexington denied coverage based on an exclusion in its policy which stated that it did not insure for loss caused directly or indirectly by a windstorm.
Premises Liability
Rio v. City of Hialeah, No. 3D03-2929 (Fla.App. 05/11/2005)
Plaintiff/Appellant, Esther Del Rio ("Del Rio") appeals from a summary judgment entered in favor of Defendants/Appellees, Hector Abreu and Ileana Padron ("Abreu and Padron"). Del Rio argues on appeal that the trial court erred in entering a summary judgment claiming there are issues of material fact as to whether Abreu and Padron created the dangerous condition on the sidewalk in question which caused her to fall. Appellee, City of Hialeah, argues on appeal that the trial court erred in granting summary judgment claiming a Hialeah ordinance creates a third party cause of action. We reverse and remand for further action.
Wills & Estates
In re Estate of Mahaney, No. 2D03-5358 (Fla.App. 04/22/2005)
Mary Ellen McEnderfer appeals an order determining the homestead status of real property. We affirm.
Dempsey v. Dempsey, No. 2D04-2392 (Fla.App. 04/27/2005)
Kelley L. Dempsey, individually and as personal representative of the Estate of David L. Dempsey, deceased (the Personal Representative), appeals a probate court order determining the entitlement of Bertha Dempsey, the decedent's widow (the Widow), to the elective share. On our own motion, we directed the Personal Representative to show cause why this appeal should not be dismissed for lack of jurisdiction because the order on appeal is non-final and non-appealable. After reviewing the response, we conclude that we lack jurisdiction to hear this appeal because an order determining that a surviving spouse is entitled to the elective share is a non-final, non-appealable order. Therefore, we dismiss the appeal without prejudice to appeal a subsequent final order determining amount of elective share and contribution.
James v. Carr, No. 3D03-2952 (Fla.App. 04/20/2005)
This is an appeal from the denial of a Motion to Vacate an Agreed Order Authorizing Payment of Attorney, Accountant and Appraiser Fees and Costs. Appellant contended below by its motions and contends here that the lower court erred by modifying the agreed order to include a release of all claims in favor of appellees when it was presented for signature by one of the appellees at an ex parte hearing attended solely by that appellee. We agree with the contention made by appellant and reverse the decision below.
Trusts
Whitener v. First Union National Bank of Florida, No. 5D04-1145 (Fla.App. 05/06/2005)
Petitioner Jane Whitener seeks a writ of certiorari to review the trial court's non-final "Order on Plaintiff's Notice of Intent To Seek Compulsory Judicial Notice and Motion for Reconsideration." For the reasons set forth below, we grant the writ and quash the order. [¶] This is at least the fifth petition for writ of certiorari filed in this court involving this case. Whitener is one of two beneficiaries of a trust created by her father. She sued the trustee, First Union National Bank of Florida, ("trustee"), for breach of fiduciary duty, claiming that the trustee, through its neglect or misconduct, diminished the value of the only asset of the trust, an interest in a purchase money mortgage on a marina and waterfront property. The petition at issue involves the disqualification of Whitener's attorneys who were retained after disqualification of her original counsel.
Morton & Oxley, Ltd. v. Eby, No. 2D04-2690 (Fla.App. 04/29/2005)
Appellants, defendants below, Morton & Oxley, Ltd., and Greg Mayer, an officer of Morton & Oxley, Ltd. (collectively the Trustee), challenge three non-final orders in this action dealing with the alleged misappropriation of trust assets. We have jurisdiction to review the "Order on Jean Eby and Charles Ebys' Motion to Release Money Held in Court Registry to Pay Taxes" as an order determining the right to the immediate possession of property, see Fla. R. App. P. 9.130(a)(3)(C)(ii), and we affirm that order without comment.
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