Patricia J. Kelly

Cynthia Bowdoin died intestate, survived by her husband George Bowdoin and a minor child. Her mother, Mary Rinnier, petitioned to be appointed personal representative of the estate, while the husband filed a counter-petition seeking the appointment as surviving spouse. The circuit court granted the mother's petition after finding it in the best interest of the parties. The appellate court reversed, holding that under Florida Statutes section 733.301 the surviving spouse has statutory priority for appointment, and that absent evidence showing the preferred person is unfit to serve, the court must appoint the spouse. The case was remanded for an evidentiary hearing on whether the husband lacks the necessary qualities to administer the estate.

family lawpropertyprocedure

This case involves a custody dispute between Edward Thomas Slover, the natural father, and Phyllis Meyer, the maternal step-grandmother, over Slover's child following the mother's death. After the father complied with a prior parenting plan that awarded legal and physical custody to Meyer due to his substance abuse issues, he petitioned in Florida to modify the Colorado custody order, citing his recovery, stable marriage, employment, and suitable home. The trial court denied the petition, finding both parties fit and applying a standard that required showing a substantial change in circumstances not contemplated at the time of the original order plus that modification would serve the child's best interest. The appellate court reversed and remanded, ruling that the proper standard in a dispute between a fit natural parent and a third party is whether the parent is fit and whether awarding custody to the parent would be detrimental to the child.

family law

The case involved M.A.F., a juvenile, who was charged with introducing contraband into a county detention facility and possessing marijuana after a small amount was found in his backpack at the jail. The trial court adjudicated him delinquent on both charges, but on appeal, the court affirmed the possession finding and reversed the introduction charge. The core reasoning was that while M.A.F. knew the backpack contained marijuana and was entering the facility, he lacked the ability to maintain control over it once separated from the deputy, negating constructive possession necessary for the introduction offense.

criminal law

This case arose from an eminent domain proceeding in which the condemning authority appealed a trial court fee award to the defendant landowners, the heirs and beneficiaries of Prince Griffin's estate. The landowners moved for appellate attorney's fees and costs, which the appellate court initially denied but later granted on rehearing. The court remanded the matter to the trial court to determine the appropriate amount of the award. It relied on Florida precedents holding that a prevailing defendant landowner is entitled to such fees and costs when the condemning authority appeals a fee award, pursuant to section 73.131(2), Florida Statutes.

propertyprocedure

The case involves Otis Eugene Harrell challenging his convictions and sentences for attempted robbery with a firearm and aggravated battery with great bodily harm. The court affirmed the convictions and sentences without comment but remanded the matter for correction of scrivener’s errors in the written judgment. The judgment incorrectly indicated a guilty plea and conviction for robbery with a firearm rather than attempted robbery, and it failed to reflect the aggravated battery conviction that appeared in the trial transcript. The court directed entry of a corrected written judgment to match the actual convictions, citing prior precedent on such corrections.

criminal lawprocedure

The case involved former spouses disputing enforcement of child support obligations and division of proceeds from a "Turley Note Receivable" asset under two mediation agreements incorporated into their divorce judgment. The former wife appealed the trial court's denial of her contempt motion against the former husband and its grant of his motion to enforce the second agreement by awarding him all note funds. The appellate court reversed, ruling that the agreements were unambiguous: the second one settled only the pending custody modification issue and expressly left the prior equal-sharing provision for the note and other terms of the final judgment unmodified. It also reversed the denial of contempt relief and remanded for determination of the child support arrearage amount owed.

family lawproperty

This case arose from the City of Tampa's appeal of a trial court's denial of its motion for a new trial in a personal injury action brought by Mr. Companioni, based on alleged cumulative misconduct by plaintiff's counsel during trial. Following remand from the Florida Supreme Court, the appellate court applied the fundamental error standard from Murphy v. International Robotic Systems, Inc., requiring a showing that the misconduct was improper, harmful, incurable, and so damaged trial fairness that public confidence in the justice system required a new trial. The trial court had found the misconduct pervasive and prejudicial but insufficient to meet that threshold, given supporting evidence for the verdict, and the appellate court concluded there was no abuse of discretion in that determination or in rejecting challenges to the weight of the evidence and the damages award. The court therefore affirmed the denial of the motion for new trial and remittitur.

proceduretorts & liability

The case involved Emerson J. Pinkney, who was convicted after a jury trial of aggravated assault on a law enforcement officer, along with related charges, for allegedly driving a car toward an officer during an encounter at a gas station, causing the officer to fear imminent harm. Pinkney appealed only the assault conviction, challenging the trial court's denial of his motion for judgment of acquittal on grounds that the State failed to prove the required intent. The en banc court affirmed the conviction, ruling that the evidence was sufficient for a jury to find Pinkney intentionally drove in a manner creating a well-founded fear of imminent harm in the officer. The court clarified Florida assault law to require only intent to commit an act creating such fear, not a specific intent to do violence, and receded from its prior decision in State v. Shorette.

criminal law

In Fotinos v. Fotinos, the former wife appealed from a final judgment of dissolution of marriage, arguing that the trial court erred by making an unequal distribution of marital assets without providing required specific findings of fact. The appellate court affirmed the dissolution of the marriage but reversed the equitable distribution portion of the judgment. The court reasoned that under section 61.075, Florida Statutes, any distribution of marital assets, whether equal or unequal, must be supported by specific written findings identifying and valuing assets and explaining the rationale, which were absent here, as the judgment awarded the marital home to the former husband without valuation and allowed payment of the wife's share over more than eighteen years.

family lawprocedure

The case involved Kristopher Sanders appealing his conviction for second-degree murder with a firearm after the shooting death of Tyrie Gunn. The appellate court addressed his claim that the trial court fundamentally erred by instructing the jury on the lesser-included offense of manslaughter by act using language that required proof the defendant intentionally caused the victim's death. This instruction conflicted with controlling precedent from State v. Montgomery because it misstated the required mental state and the jury received no instruction on manslaughter by culpable negligence. The court held that the error necessitated reversal of the conviction, vacating the sentence, and remand for a new trial.

criminal lawprocedure

The case involved a dispute between neighboring homeowners, the Mickels and the Nortons, over a six-foot vinyl fence installed by the Mickels along their shared property line. The Nortons claimed the fence was a private nuisance and violated their riparian rights by obstructing their view of the water, seeking an injunction for its removal. The trial court granted the injunction, relying on precedent from Lee County v. Kiesel. The appellate court reversed, holding that the precedent was inapplicable because the properties bordered different bodies of water, the Nortons had no legal right to a view over the Mickels' property, and the fence served a useful purpose for privacy without constituting a nuisance.

propertytorts & liability

The case involved the State appealing a downward departure sentence given to Daniel Sweeney after he pleaded no contest to ten counts of possessing child pornography. The trial court had sentenced him to community control and probation instead of the minimum 127.5 months based on findings of an isolated unsophisticated incident with remorse and cooperation with law enforcement. The appellate court reversed, holding that the departure reasons lacked support in the record, as the offense was not shown to be unsophisticated or isolated, and the cooperation did not meet the threshold of assisting in solving crimes or arresting others.

criminal lawprocedure

Bradley Womack appealed a final summary judgment entered in favor of Dawn Larue, individually and as parent and natural guardian of Devan Larue. The appellate court conducted a thorough review of the record and determined there were no genuine issues of material fact. It concluded that Larue was entitled to summary judgment as a matter of law and therefore affirmed the trial court's decision. Davis and Black, JJ., concurred.

procedure

This case involves the appeal by Mary Elizabeth Mills from the final judgment dissolving her marriage to Darrell John Mills, challenging the trial court's decisions on asset division, alimony, and attorney's fees. The appellate court reversed the judgment, finding errors in the valuation and distribution of marital assets from the sale of a portion of the former husband's business, including failure to account for all proceeds and assets purchased with them. The court also determined that the trial court failed to make adequate findings regarding the allocation of payments made during separation, the former wife's need for alimony based on the marital standard of living, and the parties' relative abilities to pay attorney's fees. Consequently, the matter was remanded for further proceedings consistent with the opinion.

family lawproperty

In State v. Cadore, the State appealed the trial court's dismissal of cocaine trafficking charges against Conisha Cadore under Florida Rule of Criminal Procedure 3.190(c)(4), which Cadore had sought on the basis that undisputed facts failed to show she had dominion and control over the drugs found in her jointly occupied residence. The trial court granted the motion after determining that the elements of constructive possession could be resolved pretrial. The appellate court reversed and reinstated the charges, holding that questions of knowledge and dominion and control in constructive possession cases, particularly those relying on circumstantial evidence, present factual issues that must be decided by a jury rather than on a (c)(4) motion, and that the facts here—viewed most favorably to the State—established at least a prima facie case.

criminal lawprocedure

In Hayes v. State, the case involved the revocation of the defendant's probation and sentencing for the offense of failure to return hired or leased personal property or equipment, along with a challenge to costs imposed at sentencing. The court affirmed the probation revocation and the sentence. It remanded the case for entry of an amended cost order because the trial court had granted a motion to reduce the public defender fee from $200 to $100 under Florida statute but had not updated the cost order to reflect the change, consistent with precedent requiring accurate documentation of costs.

criminal lawprocedure

In this case, Gries Investment Fund sued Anthony Francel for breach of a stock buyback agreement after Francel failed to repurchase 50,000 shares of stock by the agreed date. Francel raised affirmative defenses including usury, claiming the transaction disguised a usurious loan, and discharge, asserting he had fulfilled an alternative remedy under the contract by transferring his stock interests. The trial court granted summary judgment in favor of Gries, but the appellate court reversed, holding that Francel's affidavit and filings raised genuine issues of material fact regarding those defenses. The court reasoned that Gries had not factually refuted the defenses or shown them to be legally insufficient, and that the trial court should have considered the supporting documents under the summary judgment rule.

business & regulatoryprocedure

In Kinney v. Kinney, the husband appealed an order denying his motion to modify a judgment of dissolution of marriage, which addressed issues including retroactive child support. The court found that the underlying judgment was not final because it anticipated additional judicial decisions on retroactive child support, and the husband's motion essentially sought reconsideration of matters not yet finally determined. As a result, the order denying the motion was deemed nonappealable, leading the court to dismiss the appeal.

family lawprocedure

The case involved the Buckeye Road Trust's counterclaims for fraud against officers of Chamax, LLC, stemming from a 2005 purchase agreement for undeveloped land in Manatee County, Florida, where the Trust alleged misrepresentations about parity with another buyer's terms and inflated costs to be reimbursed under the contract. The trial court dismissed all fraud claims with prejudice. On appeal, the court affirmed dismissal of the fraudulent inducement claims because the defendants lacked intent to induce reliance by the Trust, which did not exist when the statements were made to Lerian Investment Corporation, but reversed dismissal of the other fraud claims as they were not barred by the economic loss rule since the misrepresentations concerned contract terms rather than performance and no contract existed with the individual defendants. The court also held that the trial court abused its discretion by denying leave to amend to allege assignment of claims from Lerian.

business & regulatorypropertyproceduretorts & liability

In All Real Estate Title Services, Inc. v. Minqh Quang Vuu, the Vuus sued a title company and its employee for negligence after the defendants prepared a satisfaction of mortgage that mistakenly satisfied the note securing a loan the Vuus had made. The trial court found the defendants negligent and awarded damages equal to the unpaid balance on the note. On appeal, the court reversed, holding that the Vuus suffered no damages because a mistaken satisfaction of mortgage does not extinguish the underlying note obligation and is subject to rescission under Florida law. The court reasoned that without proof of injury proximately caused by the alleged negligence, the negligence claim fails.

torts & liabilityproperty