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Significant Cases

Glenda Martinez v. The Guardianship of J. Alan Smith, No. 4D13-4095, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, March 18, 2015

HELD: The trial court erred in failing to honor a ward’s choice of guardian without finding that the appointment of his designated preneed guardian was contrary to the ward’s best interests as required by § 744.312(4), Fla. Stat. (2012). The trial court’s finding that appellant had moved the ward several times and did not communicate well with a care facility’s staff did not show that appellant “abused powers” granted to her by her designation as the ward’s health care surrogate such that those powers could be modified or revoked in accord with § 744.3115, Fla. Stat. (2012).

Rio Mar Assocs., LP, v. UHS of P.R. Inc., UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, 522 F.3d 159; 2008 U.S. App. LEXIS 7663, April 10, 2008

HELD:  In a negligence case, where a Pierringer release with a hospital was not disclosed until the first phase of a bifurcated trial against a hotel concluded, denial of a Fed. R. Civ. P. 59(e) motion and rulings foreclosing a second-phase allowing the hotel's claim against the hospital were improper because the verdict addressed damages caused by both.

Balfour Beatty Construction, Inc. v. Morrison Knudsen Corp., 275 F.3d 55, 2001 U.S. App. LEXIS 28926 (11th Cir. Fla. 2001)

HELD:  $4.4 million judgment in a construction dispute reversed.

Johnson v. FFE Transp. Servs., No. 06-12787, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT; 2007 U.S. App. LEXIS 7503, March 28, 2007, Decided, March 28, 2007

HELD:  District court did not abuse its discretion in awarding guardian new trial in suit to recover damages for injuries sustained by ward when bus was hit by tractor-trailer; evidence showed that tractor driver was at least partially negligent under Fla. Stat. §768.81(3) for driving very fast after observing slow-moving bus and entering patch of fog.

Advanced Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co., No. 4D11-4801, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 103 So.3d 866, 2012 Fla. App. Lexis 15326; 37 Fla. L. Weekly D 2186, September 12, 2012

HELD:  Circuit court erred in reversing a county court's order vacating a dismissal order on the basis that the county court abused its discretion when it granted the order based on unsworn testimony.  The insurer that appealed the order had not raised any evidentiary objections at the hearing nor did it raise any evidentiary arguments on appeal.

Bonney v. Bonney, Nos. 4D10-4041, 4D10-4042, 4D10-4319 and 4D10-4322, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 94 So.3d 702, 2012 Fla. App. LEXIS 13561; 37 Fla. L. Weekly D 1963, August 15, 2012

HELD:  District court reversed trial courts order awarding fees which relied on §733.609 and 733.106(3), Florida Statutes (2010).  Court held those statutes were not applicable.

Swergold v. Swergold, No. 4D10-1447, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 82 So.3d 1148; 2012

HELD:  Upheld equitable distribution and alimony award.

Levin v. Levin, Nos. 4D09-5143 & 4D09-5145, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 67 so.3d 429; 2011 Fla. App. LEXIS 12500; 36 Fla. L. Weekly D 1765, August 10, 2011, Decided.

HELD:  Attorney's fees award against beneficiary of estate who challenged decedent's will was reversed.

Levin v. Levin, Nos. 4D09-4291 and 4D09-4293, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 60 So.3d 1116; 2011 Fla. App. LEXIS 6654; 36 Fla. L. Weekly D 997, May 11, 2011, Decided, Appeal after remand at, Remanded by Levin v. Levin, 67 So.3d 429, 2011 Fla. App. LEXIS 12500 (Fla. Dist. Ct. App. 4th Dist., Aug. 10, 2011).

HELD:  Judgment that the decedent, the parties' mother, had testamentary capacity was reversed and remanded because the trial court never decided whether a contradiction in evidence rose to the level of insane delusion and whether an incorrect statement repeated by the decedent was linked to reducing the bequest to her daughter from an earlier will.

Conlan v. Conlan, No. 4D08-963, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 43 So. 3d 931 (2010)

HELD: Trial court abused its discretion under § 61.16(1), Fla. Stat., in denying a wife's request for fees and costs because, given the husband's ability to pay and the disparity in the parties' incomes, requiring the wife to pay for her attorney's fees would have resulted in an inequitable diminution of her equitable distribution funds.

Columbia/JFK Med. Ctr., Ltd. P'ship v. Sanguonchitte, No. 4D05-3852, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 920 So.2d 711 (2006)

HELD: Because the documents contained in a doctor's file were part of the credentialing and peer review process and directly related to the doctor's hospital staff membership privileges, the documents fell within the peer review privilege set forth in Fla. Stat. §§ 395.0191(8), 766.101(5); consequently, a medical center was entitled to certiorari relief.

Varela v. Bernachea, CASE NO. 3D05-105, COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 917 So.2d 295; 2005 Fla. App. LEXIS 20037; 31 Fla. L. Weekly D 8, December 21, 2005, Opinion Filed, Released for Publication January 6, 2006.

HELD: Because a boyfriend did not rebut a girlfriend's gift presumption when he openly admitted that he gave her access to their joint account via a check card, the trial court erred in finding that the boyfriend was the sole owner of the account.

Beseau v. Bhalani, Case Nos. 5D04-1847 & 5D04-2118 , COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 904 So.2d 641 (2005)

HELD: The trial court erred in assessing attorney's fees and costs against the personal representative in her individual capacity because the personal representative, individually, was never a party to the proceeding. Thus, the entry of judgments against her was erroneous, notwithstanding the lack of objection.

Blitz v. Fla. Dep't of Revenue, CASE NO. 4D03-3974 , COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 898 So.2d 121 (2005)

HELD: Trial court erred in establishing arrears against a husband's child support obligation by failing to consider subsequent valid modifications to the parties' settlement agreement and failing to credit him with a lump sum payment, but the wife's acceptance of a reduced amount did not constitute a waiver.

Bollaci v. Nieporte-Bollaci, CASE NO. 4D03-226, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 863 So.2d 440 (2003)

HELD: Where no evidence was presented to determine whether the proceeds from a former husband's personal injury claim were subject to equitable distribution, the trial court erred in treating them as marital assets and equally distributing them.

Magwood v. Tate, CASE NOS. 4D01-3785, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 835 So.2d 1241 (2003)

HELD: There was no cause of action for a quasi contract as it was inequitable to force the child, whose estate won a large wrongful death award, to reimburse the mistaken father. The father discharged the duty of the biological father, not the child.

M.M. v. Adoption of J.T.M., CASE NO. 4D01-3447, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 821 So.2d 1134 (2002)

HELD: Trial court erred in granting grandparents' motion to withdraw consent from birth mother in anticipation of adoption, where they failed to present clear and convincing evidence of her complete abandonment of the child and her responsibilities.

Seelbinder v. County of Volusia, CASE NO. 5D00-3308, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 821 So.2d 1095 (2002)

HELD: To say that a jury question of negligence arose post hoc from the fact of a lightning strike would impose an unfair and undue burden on county akin to strict liability.

M.M. v. Adoption of J.T.M., CASE NO. 4D01-3447, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 2002 Fla. App. LEXIS 4988; 27 Fla. L. Weekly D 876, April 17, 2002.

HELD: Trial court's finding of abandonment against birth mother was reversed, where abuse of neglect of the child, no matter how egregious, did not satisfy clear and convincing standard. Mother still remained with child, despite her substandard care.

Colbert v. Rolls, CASE NO. 99-1974, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 746 So.2d 1134 (1999)

HELD: The trial court was correct in denying petitioner's protective order because the discovery sought to determine whether petitioner's religious beliefs influenced his medical treatment or contributed to alleged negligence.

Columbia Hosp. Corp. v. Barrera, CASE NO. 99-1695, COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 738 So.2d 505 (1999)

HELD: An order instructing defendant hospital to turn over a doctor's application for medical privileges was quashed, as such material was protected from discovery by statutory privilege.

M.S. v. D.C., CASE NO. 98-3296 & 98-3453, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 763 So.2d 1051 (1999)

HELD: Father's egregious abuse and abandonment of children due to murder conviction was cause for termination of parental rights, but grandparents' visitation was denied where there was no cause for state intervention into surviving parent's privacy.

Amba-An v. Arias-Turecious, CASE NO. 97-0781, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 704 So.2d 1093 (1997)

HELD: Under Florida's dangerous instrumentality doctrine, a long-term lessor of an uninsured flatbed truck was vicariously liable for injuries inflicted on a motorist in a traffic accident caused by the negligence of the lessee.

Sholkoff v. Boca Raton Community Hosp., CASE NO. 95-3865, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 693 So.2d 1114 (1997)

HELD: Because a hospital patient and hospital made clear in their agreement that costs included fees, it was not error to award attorney's fees in the award of costs to the hospital.

K.D. v. Department of Juvenile Justice, CASE NO. 96-4051, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 694 So.2d 817 (1997)

HELD: The statute under which appellant was confined to restore her competency was constitutional because the rules did not require a psychiatrist for either juveniles or incompetent adult defendants.

Karr v. Sellers, CASE No. 94-1347, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 668 So.2d 629 (1996)

HELD: The lower court erroneously struck dentists' answer to plaintiff's complaint in a dental malpractice action and sanctions were only permissible if defendants were not in compliance with the reasonable investigation requirements.

Rodriguez v. Loxahatchee Groves Water Control Management Dist., CASE No. 92-3583, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 636 So.2d 1348 (1994)

HELD: The court reversed an order granting a new trial because the evidence of other similar acts was relevant to show appellee's knowledge of dangerous conditions and because a curative jury instruction remedied inflammatory statements made by counsel.

Armstrong v. Armstrong, CASE Nos. 92-1102, 92-2477, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 623 So 2d 1216 (1993)

HELD: In granting dissolution of marriage, the trial court improperly rejected stipulations by the parties on their incomes, and it lacked evidence to support its resolution of financial issues between the parties.

Psychiatric Inst. of Delray, Inc. v. Palm Beach Newspapers, Inc., Case No. 91-2021, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 588 So. 2d 14(1991)

HELD: Where the record revealed substantial uncertainty as to whether the trial court intended to hear respondent newspaper's motion to vacate certain protective orders on a particular hearing date, petitioner did not receive adequate notice.

Boca Raton Community Hosp. v. Jones, Nos. 91-1526, 91-1546, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 584 So.2d 220 (1991)

HELD: In a medical malpractice action, various hospital documents were privileged from discovery in view of the confidentiality of investigations, proceedings, and records of medical review committees and boards.