17 results for 'judge:"Kilbane"'.
J. Kilbane finds the trial court partially erred in denying defendant's motion to suppress and motion to dismiss wiretapping, battery on a law enforcement officer and resisting arrest charges against him. Denial of defendant's motion to suppress and motion to dismiss the battery and resisting arrest charges are affirmed, but the denial of defendant's motion to dismiss the wiretapping charge is reversed, in part because defendant's recording of calls with sheriff's deputies to capture police misconduct involved matters of public business in which the deputies were working in their official capacities and could not have had a reasonable expectation of privacy. Reversed in part.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: April 12, 2024, Case #: 23-1354, Categories: Resisting Arrest, Battery
J. Kilbane finds the trial court partially erred in its judgment in a case involving a dispute between the debt purchaser and the debtor over a security agreement and four promissory notes. The portion of the trial court's judgment holding the debtor liable for a $75,000 debt connected to the security agreement is affirmed, but it is reversed as to the potion of the judgment related to a nearly $300,000 additional liability connected to the four promissory notes because the trial court abused its discretion by giving the debt purchaser a rehearing when he claimed to have found the original notes after not producing them at trial. The case is remanded to enter a judgment dismissing with prejudice the debt purchaser's claims related to the promissory notes. Affirmed in part.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: March 22, 2024, Case #: 22-2104, Categories: Debt Collection
J. Kilbane finds the trial court improperly granted the son's motions to strike the trustees' petitions to determine homestead status of a residential property owned by the married couple before they passed away. The trustees are judicially estopped from arguing at this point that the rules of civil procedure should not have been applied to the motions to strike, as the parties carried out those proceedings as if they were adversary. However, because the trial court's handling of the motions was otherwise procedurally deficient, its order is reversed and the case is remanded for further proceedings. Reversed.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: March 8, 2024, Case #: 22-1369, Categories: Civil Procedure, Wills / Probate
J. Kilbane finds the lower court erroneously granted the wife's motion to dismiss the husband's support modification order. The wife continued to participate in the post-divorce litigation with her husband for nearly a year before she filed her motion to dismiss on the grounds of improper service, and evidence indicates the initial notice was mailed to the wife's proper address. Reversed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: March 7, 2024, Case #: 2024-Ohio-836, Categories: Civil Procedure, Family Law
J. Kilbane finds the lower court properly terminated the mother's parental rights and granted permanent custody of the child to family services. She failed to complete mental health or drug addiction programs as part of her case plan and continues to abuse alcohol as a means to escape from her problems, while the child has thrived in foster care. Affirmed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: March 7, 2024, Case #: 2024-Ohio-827, Categories: Evidence, Family Law
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J. Kilbane finds the trial court properly granted summary judgment to Walmart in the customer's slip-and-fall lawsuit. Given the evidence in the record, including testimony from a Walmart employee saying he believed the clear liquid had been on the floor less than 10 minutes when the consumer slipped on it and video footage showing multiple other customers walking through the same area without incident during the roughly nine minutes before the customer slipped, the customer has failed to show Walmart had constructive notice of the issue. Affirmed.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: February 22, 2024, Case #: 22-2281, Categories: Evidence, Premises Liability
J. Kilbane finds the lower court improperly granted the hospital's motion in limine to exclude the estate's expert witness. The physician testified with the required degree of medical certainty the hospital's failure to recognize symptoms of acidosis and renal dysfunction was the proximate cause of the decedent's death. Although the physician could not testify the exact cause of the decedent's ischemic bowel, such specificity was not necessary to establish proximate cause; therefore, the expert testimony should have been admitted and the hospital's motion for summary judgment denied. Reversed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: February 22, 2024, Case #: 2024-Ohio-659, Categories: Experts, Wrongful Death, Medical Malpractice
J. Kilbane finds the trial court properly granted the estate's motion to add a claim for punitive damages to its complaint against the nursing home. Though the trial court failed to make affirmative findings in its order as required by statutes, the error was harmless because the record upholds the trial court's order based on the evidence and arguments. Affirmed.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: January 12, 2024, Case #: 22-1867, Categories: Civil Procedure, Damages
J. Kilbane finds the trial court improperly denied the trust's motion to intervene in a foreclosure case because the trust was not notified that its motion would be considered and ruled upon at a case management conference where no one appeared on its behalf. The notice sent to the trust regarding the conference said nothing about its motion being considered, and this lack of full notice and consent from both parties before hearing the trust's motion violated the trust's procedural due process rights. The case is remanded for a properly noticed hearing on the trust's motion. Reversed.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: January 12, 2024, Case #: 23-0152, Categories: Due Process, Foreclosure
[Consolidated.] J. Kilbane finds the lower court properly refused to grant defendant a new trial after a witness who identified him in a photograph at trial told the jury he was attempting to break into a store in the picture. While the remark dealt with charges from a separate case, it was isolated and was immediately stricken from the record. Furthermore, the prosecutor's statement during closing arguments that "there's nobody sitting over at that table" other than defendant did not deprive him of a fair trial or impugn the presumption of innocence because it was made to refute defendant's vague claims at trial that someone else had been responsible for the robberies. Affirmed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: December 14, 2023, Case #: 2023-Ohio-4531, Categories: Fair Trial, Prosecutorial Misconduct, Robbery
J. Kilbane finds the trial court properly denied defendant's motion to correct an illegal sentence after he was tried and convicted of second-degree fleeing or eluding an officer and sentenced to 15 years' imprisonment. The erroneous appearance of the "aggravated" modifier in defendant's amended information, judgment and verdict form are scrivener's errors that do not change the fact that the documents otherwise accurately portray defendant's charges and do not make his sentence illegal. Defendant's sentence is upheld but the case is remanded for the trial court to remove the word "aggravated" from the judgment's handwritten description of the second count against him. Affirmed.
Court: Florida Courts Of Appeal, Judge: Kilbane, Filed On: December 1, 2023, Case #: 23-0684, Categories: Criminal Procedure, Sentencing
J. Kilbane finds the trial court erroneously failed to inform defendant of the state's right to extend his prison sentence if certain conditions were met at the conclusion of the minimum portion of his indefinite sentence and, therefore, the case must be remanded to allow for proper sentencing instructions. Meanwhile, the trial court properly denied defendant's motion to withdraw his guilty plea because at the time he entered the plea, he was not under duress or the influence of any drugs, and was represented by competent counsel whom he admitted was "a great attorney." Affirmed in part.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: October 12, 2023, Case #: 2023-Ohio-3713, Categories: Sentencing, Plea, Kidnapping
J. Kilbane finds the trial court erroneously denied defendant's motion for a mistrial in a rape case. The state's failure to disclose a 46-minute video interview of the victim with police until the middle of defendant's trial on a rape charge violated his due process and fair trial rights. Although the prosecutor claimed it inadvertently failed to disclose the video and had also not seen it prior to trial, the defense theory of the case relied on inconsistencies in the victim's story, several of which were included on the video. Reversed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: July 6, 2023, Case #: 2023-Ohio-2292, Categories: Fair Trial, Sex Offender, Discovery
J. Kilbane finds the trial court properly assessed attorney fees against the wife because the evidence in the record supports the husband's claim for frivolous conduct, including the wife's attempt to voluntarily dismiss the case 15 minutes before a hearing was set to begin and false accusations of abuse made only after she disagreed with the court's division of assets. Because the amount of fees is $15,000 less than the amount requested by the husband and the wife offers no documentation to support her claim the award is excessive, it will not be overturned on appeal. Affirmed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: June 15, 2023, Case #: 2023-Ohio-1969, Categories: Family Law, Attorney Fees
J. Kilbane finds the lower court properly terminated the mother's parental rights and granted permanent custody of the child to family services. She failed to complete all objectives of her case plan and the child ran away several times, which indicates the mother was unable to control and provide a stable home for the child. Affirmed.
Court: Ohio Court Of Appeals, Judge: Kilbane, Filed On: May 18, 2023, Case #: 2023-Ohio-1674, Categories: Evidence, Family Law