Court Filings

The Sixth District Court of Appeal reviewed a nonfinal trial-court order in a landlord-tenant dispute. The court affirmed the portions of the order that related to the landlord’s summary proceedings for possession, but dismissed the appeal as to the trial court’s determination on a tenants’ motion to determine rents for lack of appellate jurisdiction. The panel held that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) limits interlocutory appeals to orders determining the right to immediate possession, and an order resolving rents is not an enumerated, appealable nonfinal order.

The Fifth District Court of Appeal affirmed Neely Petrie-Blanchard’s conviction for first-degree murder but reversed her mandatory life sentence and remanded for resentencing because the trial court failed to renew the offer of counsel before sentencing. Although Petrie-Blanchard validly waived counsel and proceeded pro se at trial after an adequate Faretta inquiry, the court did not re-offer counsel at the separate, critical sentencing stage. The panel held that failing to renew the offer of counsel at sentencing is fundamental error and requires resentencing with appointed counsel or an explicit waiver.

The Fifth District Court of Appeal affirmed the trial court’s denial of J.J.A.’s motion to suppress but reversed the juvenile disposition order adjudicating him delinquent for possession of a firearm by a minor. The appellate court found the disposition order failed to state the statutory maximum penalty and did not award or specify predisposition credit for time served, as required by Florida Rule of Juvenile Procedure 8.115(d)(2). Because the commitment at issue is effectively determinate (it will end before the department’s authority expires), the court ordered the trial court to enter a corrected disposition specifying the maximum penalty and the amount of credit.

The Washington Supreme Court decided whether RCW 9.94A.640 permits a person who remains incarcerated on a separate conviction to seek vacation of earlier convictions and whether applicants must present evidence of rehabilitation. The court held that the statute’s time bars require release from complete confinement on all convictions before the statutory crime-free period runs, so a person never released into the community is ineligible. The court also held, following State v. Hawkins, that courts must consider evidence of rehabilitation and that applicants should present such evidence for a court to exercise its discretion. The case is remanded consistent with that ruling.

The Washington Supreme Court reviewed whether the six-year construction statute of repose (RCW 4.16.300-.310) bars estate claims by the executor of Lee Hetterly, who developed fatal mesothelioma decades after working at ARCO’s Cherry Point refinery. The court held that claims arising from Brand Insulations’ construction work installing asbestos-containing insulation during refinery construction are time-barred by the statute of repose, but claims premised on Brand’s role as a product seller or negligent supplier are not barred. The court affirmed in part, reversed in part, and remanded for further proceedings consistent with that division of claims.

The Court of Appeals reviewed five consolidated appeals arising from a Fulton County trial court’s appointment of a special master to manage pretrial matters in mass-tort litigation. Plaintiffs challenged the appointment, the denial of their indigency claims without a hearing, the contempt finding for nonpayment of special-master fees, and the order requiring payment of pro-rata fees. Defendants challenged the trial court’s imposition of joint-and-several liability for payment of the special-master fees. The appellate court affirmed the appointment in part, vacated the contempt ruling for lack of the required hearing on indigency, remanded for further proceedings, and vacated the joint-and-several-liability provision in the appointment order.

The Eighth District Court of Appeals reviewed a juvenile court’s orders on parenting time, modification of a shared-parenting plan, and a contempt finding. The appellate court affirmed most rulings: it upheld the denial of Mother’s motion to terminate the shared-parenting agreement and the juvenile court’s decision not to further modify parenting time based on the record and the guardian ad litem’s findings. However, the court reversed the contempt finding against Mother because she established a reasonable, good-faith basis for withholding Father’s parenting time due to concerns about his housing, utilities, and alleged substance use and she promptly sought court intervention. The remainder of the juvenile court’s orders were left intact.

The Eighth District Court of Appeals reviewed an administrative appeal by Dr. Joseph Badie Abdelmalak challenging the Cuyahoga County Common Pleas Court’s affirmation of the State Medical Board of Ohio’s revocation of his medical license and $20,000 fine. The appeals court upheld most rulings but found reversible error because the common pleas court failed to determine whether the Board’s order was supported by substantial evidence as required by R.C. 119.12(N). The court affirmed that the Board did not improperly shift the burden of proof and did not deny due process by admitting a two-page ombudsman excerpt, but remanded for the common pleas court to assess the substantial-evidence question.

The appellate court reviewed a foreclosure action by Associated Bank against defendants including John Morrison. The court held that a 1995 quitclaim deed conveyed immediate title to Morrison and his siblings as tenants in common while reserving a life estate to the grantor, Rosa McShan. Because McShan had the authority to encumber only her life estate, the 2007 mortgage only attached to that life estate and was extinguished on her death. The court reversed the trial court’s grant of foreclosure and vacated related orders as to Morrison’s interest, but it affirmed denial of Morrison’s Consumer Fraud Act claim.

The Appellate Division reversed part of Supreme Court's order and granted the plaintiff leave to amend her complaint to add a negligence claim against the school district. The plaintiff, a former student who was struck on the head in class in 2019, had sought to add negligence after depositions showed the teacher testified the contact was accidental. The trial court had denied the amendment as unexplained delay and prejudicial; the appellate court found no undue delay or surprise, held the proposed negligence claim was not plainly meritless, and concluded the district would not suffer the type of prejudice that justifies denial.

The Appellate Division affirmed defendant Eugene Cobbins' November 30, 2023 conviction following a guilty plea to multiple charges, holding that his custodial statements were knowingly and voluntarily made and not subject to suppression. The court rejected his challenge that delayed filing of charges created a right-to-counsel issue because that right had not yet attached and any statutory-arraignment delay claim was unpreserved. However, the court reversed the February 9, 2024 resentencing on two grand larceny convictions because Cobbins was not produced and there is no indication he knew of or waived his right to be present, and remitted the matter for resentencing on those counts.

The Appellate Division, Third Department reviewed a combined CPLR article 78 petition and plenary action challenging a school board's termination of a bus driver, James Shara, and related claims of retaliatory discharge and constitutional violations. The court upheld Supreme Court's denial of defendants' motion to dismiss the retaliation claim under Civil Service Law § 75-b and the § 1983 due-process/freedom-of-association claim as sufficiently pleaded, and rejected the defendants' collateral estoppel argument because they did not provide the PERB record. But the court reversed as to claims brought against individual school officials, concluding plaintiff failed to plead their personal involvement. The order was otherwise affirmed.

The Appellate Division reviewed a combined CPLR article 78 proceeding and declaratory judgment action by Nicholas Nunez seeking vacatur of a default revoking his license and relief under the Freedom of Information Law (FOIL). The court agreed that Nunez was entitled to vacatur of the administrative default and remanded for a new hearing. It found Nunez substantially prevailed on his FOIL claims because the agency ultimately provided the requested records and metadata, but remanded to Supreme Court to determine whether the agency had a reasonable basis for its initial denial and thus whether Nunez is entitled to statutory counsel fees and costs.

The Appellate Division, Third Department, reversed part of a Supreme Court order that had denied a nursing assistant's motion to compel two internal incident reports (RL6 forms) and granted the hospital a protective order. The plaintiff sued for wrongful termination and retaliation after reporting safety concerns. The court held the hospital failed to carry its burden to show the reports were privileged under New York Education Law § 6527(3) or the federal Patient Safety and Quality Improvement Act, because there was no proof the reports were actually part of a medical peer‑review or submitted to a patient safety organization. The case was otherwise affirmed.

The Appellate Division reviewed a nonjury trial judgment in a contract and related action arising from the 2016 sale of a gas station business. The court modified the trial judgment to declare that plaintiff Yong Xu does not own an interest in defendant 401 Foster Gasoline, Inc., and awarded Xu $60,625.63 on his conversion claim against co-defendant Xiao Yan Wang for withdrawing funds from a joint bank account. As modified, the judgment is affirmed. The court relied on the asset purchase agreement's clear written terms and the parol evidence rule to reject oral-contract and fraud claims, but found evidence supported Xu's conversion claim against Wang as to funds taken beyond her one-half share of the joint account.

The Appellate Division reviewed a County Court order that had designated Joshua Stewart a level three sexually violent offender under New York's Sex Offender Registration Act after his New Jersey conviction for promoting child prostitution. The court upheld the risk-point scoring and refused a downward departure, finding the Guidelines had adequately considered mitigating factors. However, the panel held that applying Correction Law § 168-a(3)(b) to label him a "sexually violent offender" was unconstitutional as applied because the underlying New Jersey offense would not qualify as a sexually violent offense under New York law. The court therefore modified the designation to "level three sex offender" and affirmed as modified.

The Appellate Division, Second Department, reviewed defendant Andrew Jointe’s challenge to his sentence following guilty pleas to third-degree rape and attempted sex trafficking of a child. The court found the 10-year period of postrelease supervision imposed for the attempted sex trafficking conviction was illegal and reduced it to five years. As modified, the concurrent determinate prison terms of 3.5 years and the remaining 10-year postrelease supervision on the rape conviction were affirmed. The court stated it may correct an illegal sentence even if the issue was not raised below.

The Appellate Division, Second Department, reviewed defendant Darrel Greenlee’s appeal challenging the excessiveness of a nine-year determinate sentence (plus five years postrelease supervision) imposed after his guilty plea to first-degree assault. The court exercised its discretion in the interest of justice and reduced the prison term to seven years while leaving the five-year period of postrelease supervision intact. The court cited sentencing excessiveness principles and People v Suitte in concluding the original nine-year term was greater than warranted and therefore modified the sentence accordingly.

The Appellate Division reviewed a nonjury trial judgment enforcing a 2016 judgment against B & A Demolition and related parties. The court dismissed appeals from two interlocutory orders as moot, modified the trial judgment to dismiss the plaintiffs' veil-piercing claims, but affirmed the trial court's setting aside of two truck transfers as fraudulent under the Debtor and Creditor Law, and awarded costs to the defendants. The court found insufficient proof that the owner exercised complete domination to pierce the corporate veil, but sufficient evidence and badges of fraud to avoid certain transfers and recover attorneys' fees under the fraudulent conveyance statutes.

The Appellate Division suspended attorney Adam Kalish for three years after confirming a Special Referee's findings that he misappropriated client funds held in his escrow (trust) account and engaged in conduct reflecting adversely on his fitness as a lawyer. The Grievance Committee brought a formal disciplinary proceeding based on a large shortfall in Kalish's escrow account. The court sustained two of three charges, rejecting one, and concluded Kalish abdicated his fiduciary responsibilities by allowing investor funds to pass through his trust account without adequate safeguards, failing to investigate or promptly report problems, and relying on an outside referrer despite his knowledge of ethical obligations.

The Appellate Division modified a Supreme Court order in a personal-injury action arising from a table-saw accident. The court held that the lower court erred by granting summary judgment dismissing the Labor Law § 241(6) claim against the property owners (the Cremoux defendants) and by denying leave for the contractor (Scott Bavosa Construction Corp.) to amend its third-party answer. The court found triable issues about whether the homeowner exemption applied and whether Industrial Code violations occurred, and it concluded the insurer-subrogation/antisubrogation defense Bavosa sought to add was not palpably insufficient.

The Appellate Division modified and affirmed in part a Kings County order in a personal-injury action arising from a worker's fall when perimeter safety netting gave way. The court reversed the trial court's grant of summary judgment that had dismissed contractual indemnification claims against the plaintiff's employer, Lippolis, and otherwise affirmed the denials of summary judgment for the defendants and third-party plaintiffs against subcontractor Monolithic. The court held triable issues remained about whether the injuries arose from Monolithic's work, whether the defendants were free from negligence, and whether Monolithic failed to procure required additional-insured coverage.

The Appellate Division reviewed plaintiffs’ appeals from two Supreme Court orders in a dispute over whether plaintiffs (children from the decedent’s first marriage) are entitled to the decedent’s 50% interest in unimproved Martha’s Vineyard property. The court held that the trial court should not have dismissed the complaint on its own motion, but it affirmed the denial of the plaintiffs’ request for a preliminary injunction because the plaintiffs failed to show irreparable harm. The appeal of the denial of reargument was dismissed as not appealable. The case is remanded for further proceedings on the complaint.

The Third District affirmed most of the trial court's summary judgment in favor of FAM Productions and Herrera, holding that plaintiff Saldana's claims based on four successive loans are limited to a single claim against FAM Productions (Washington) on the fourth loan and that neither FAM (Florida) nor Herrera are liable on the notes. The panel reversed the portion of the judgment dismissing Saldana’s claim against FAM (Washington) without prejudice to arbitration because the trial court did not resolve Saldana’s argument that FAM (Washington) waived arbitration by its litigation conduct. The case is remanded for the trial court to decide waiver in the first instance.

The Third District Court of Appeal reviewed George Madison’s challenge to his enhanced sentences for kidnapping, carjacking, robbery, and two identity-fraud counts. Madison argued the trial judge, rather than a jury, made the factual findings that triggered statutory enhancements and that the findings were made by a preponderance standard. The court held that any constitutional error under Erlinger was harmless beyond a reasonable doubt because the State presented unrebutted evidence at sentencing that plainly supported the enhancements. The court affirmed the enhancements but reversed and remanded to correct errors in the written sentencing order so it matches the oral pronouncements.

The Fourth District Court of Appeal reviewed a final judgment in a divorce case. The court affirmed most issues raised by Husband but reversed two rulings affecting Wife: the denial of retroactive child support and the omission of family photographs and videos from equitable distribution. The court found the record contained uncontroverted evidence of the child’s needs and Husband’s ability to pay, and held that family photographs and videos created or acquired during the marriage are marital assets. The case is remanded for the trial court to determine the retroactive support amount and to include and distribute the photographic materials.

The Fourth District Court of Appeal reviewed a dissolution of marriage judgment after both parties appealed. The appellate court found multiple deficiencies in the trial court’s final judgment — missing asset and liability designations, insufficient factual findings (including valuation of the husband’s law practice, temporary support modification, prejudgment interest, and attorney’s fees) — but concluded many issues were preserved by a timely motion for rehearing. The court also held the trial court erred in treating a premarital Wells Fargo brokerage account as marital property because the record shows marital funds used to pay a secured margin loan were traceable and did not commingle the account except possibly for a de minimis amount. The matter was remanded for specific findings and correction of errors.

The Fourth District Court of Appeal partially reversed and partially affirmed Devonte Baker’s convictions related to multiple tire-slashing incidents. The court held the State failed to prove Baker’s identity for the first incident and failed to prove he was armed for two armed-trespass counts. It reversed counts 1 and 2 (identity insufficiency), reduced counts 4 and 6 from armed trespass to simple trespass, and ordered vacation of counts 8 and 9 from the judgment because they had already been acquitted. The court affirmed convictions for counts 3, 5 (criminal mischiefs), and 7 (stalking), and remanded for amended judgments and resentencing.

The Fourth District Court of Appeal affirmed Christopher J. Porter’s convictions for sexual battery and related lewd offenses but reversed part of his sentence. The court found the trial judge had orally imposed life imprisonment for the sexual-battery count and concurrent mandatory minimums for two molestation counts, but the written judgment mistakenly listed a 25-year minimum for the sexual-battery count. The court ordered correction of the written sentence to strike the improper 25-year mandatory minimum for the sexual-battery count and also directed removal of misdemeanor costs; it upheld a $65 county ordinance court cost as properly imposed.

The Appellate Division, First Department, reviewed defendant Julsean Thompson’s conviction and sentence following his guilty plea to first-degree custodial interference. The court unanimously modified the trial court’s judgment by reducing Thompson’s term of imprisonment from two-to-four years to 1 1/3-to-3 years as a matter of discretion in the interest of justice, finding the original sentence excessive. In all other respects the judgment was affirmed, leaving the conviction and other components of the trial court’s decision intact.