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Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff -- Choice of law provision calling for application of Nevada law, which does not have similar reciprocal attorney fee provision, was waived where plaintiff failed to plead that law of foreign state was dispositional when it initially filed its cause of action -- Evidence -- Hearsay -- Exceptions -- Business records -- Certification and declaration of records custodian of original creditor were sufficient to establish admissibility of cardholder agreement as records of regularly conducted business
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where ledger indicates that insured made payment to medical provider that resulted in zero balance due, provider no longer has claim against insurer for PIP benefits -- Provider's arguments that it intended to return monies to insured if it prevailed in suit against insurer and that insured's payment was intended only to reduce outstanding balance, not to be payment in full, are not supported by admissible evidence
VIEW OPINION

Landlord-tenant -- Storage unit -- Water damage to stored property -- Prohibition of Florida Residential Landlord and Tenant Act against disclaimers of landlord's liability to tenant is not applicable to contract to rent storage space as part of residential rental transaction -- Pursuant to liability disclaimer in storage addendum to lease, landlord is not liable for damage to tenant's stored property
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable charges and that in no event will insurer pay more than 80% of PIP statute's schedules of maximum charges, but also incorporating reasonableness analysis in definition section of policy provides clear and unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule despite commingling payment methodologies
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Under 2012 amendments to PIP statute, insurer is only required to provide notice that it may limit reimbursement to permissive statutory fee schedule, not clear and unambiguous notice required by Virtual Imaging in respect to 2008 amendments to PIP statute -- PIP policy that provides that insurer will not pay charges deemed to be unreasonable, will determine to be unreasonable any charges in excess of maximum charges set forth in No-Fault Act, and will limit reimbursement to no more than 80% of 200% of Medicare Part fee schedule gave sufficient notice of intent to utilize permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that defines “unreasonable or unnecessary medical benefits” to be anything in excess of maximum charges set forth in No-Fault Law and affirmatively states that insurer will limit reimbursement to no more than 80% of schedule of maximum charges clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Affirmative defenses -- Insurer's withdrawal of all affirmative defenses without prejudice rendered motion to strike affirmative defenses moot -- Insurer is under no affirmative duty to withdraw its affirmative defenses with prejudice
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that provides that insurer will pay 80% of reasonable charges and also provides that in no event will insurer pay more than 80% of 200% of Medicare Part B fee schedule does not unambiguously elect to limit reimbursement to statutory fee schedule -- Neither approval of PIP policy by Office of Insurance Regulation nor use of OIR sample language in policy constitutes per se compliance with requirement that policy provide unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Appraisal -- Action for breach of contract alleging that insurer accepted claim as compensable but failed to pay repair bill in full is dispute as to amount of loss, to which appraisal provision of policy is applicable, not coverage dispute -- Prohibitive cost policy is not applicable to appraisal process -- Case is stayed pending appraisal
VIEW OPINION

Consumer law -- Debt collection -- Limitation of actions -- Complaint alleges sufficient facts to establish that defendant engaged in acts or omissions prohibited by Fair Debt Collection Practices Act -- Claims are not barred by statute of limitations, which began to run when plaintiff was served with collection action, not when collection action was filed -- Motion to dismiss denied
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy notifies insured that benefits will be paid at 80% of rate of schedule of maximum charges pursuant to PIP statute and will only be paid at 80% of reasonable amount billed if schedule does not apply to covered medical expenses or does not exist, policy clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Insurer correctly applied statutory fee schedule to amount billed by medical provider before applying reduced amount to deductible -- PIP policy that provides that, in determining whether charges for medical expenses are reasonable, insurer may reduce payments for amounts that are billed to any lesser amount that results from application of any schedule of charges or alternative reimbursement method that is expressly referenced or authorized under No Fault Law clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- DUI checkpoint -- Where road closure was due to air show and was not DUI checkpoint, officer posted at closure site was not required to adhere to strict written guidelines applicable to DUI checkpoints -- Fact that officer was not familiar with guidelines is not material to lawfulness of arrest of defendant who stopped to ask directions from officer at closure site and was observed to have indicia of impairment and open container of beer in his hand -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer who observed defendant driving truck “all over the road” had probable cause to stop defendant for failure to maintain single lane and had reasonable suspicion for well-being check -- Detention -- Where stopping officer and fellow officer, who were both qualified to conduct DUI investigations, detained defendant for more than 15 minutes awaiting arrival of yet another officer to conduct DUI investigation, and officers did nothing to address traffic infraction or to investigate possible DUI charge during detention, detention was unreasonable -- Motion to suppress is granted
VIEW OPINION

Insurance -- Discovery -- Depositions -- Motion for reconsideration of order regarding insurer's failure to cooperate in scheduling deposition of its corporate representative is denied where motion contains arguments that should have been, could have been or were raised at hearing
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Driving pattern that included multiple U-turns, slowing to below speed limit, and briefly stopping at gas station was unusual but did not create reasonable suspicion of impairment -- Motion to suppress is granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Insurer improperly processed medical bills out of order by applying deductible to bill from emergency medical provider, which was sixth bill received, instead of applying deductible to first bill received -- Standing -- Assignment -- Insurer has waived any right to contest provider's standing based on provider's failure to attach assignment to demand letter where insurer did not apprise provider of deficiency when it received bill and subsequent demand letter, but instead applied bill to deductible and made reduced payment on remaining balance -- Provider has standing as real party in interest where provider was required by law to treat insured, insured has not made claim for provider's services, and insurer issued reduced payment directly to provider -- As member of class of persons that legislature intended to protect by enacting section 627.736(4)(c) requirement that PIP insurers reserve benefits for emergency service providers, provider has standing to enforce that statute
VIEW OPINION

Insurance -- Automobile -- Windshield repair -- Appraisal -- Action for unpaid balance of claim for windshield repair is stayed pending appraisal
VIEW OPINION

Criminal law -- Possession of cannabis and paraphernalia -- Expert witnesses -- Scientific evidence -- Law enforcement officers are allowed to testify as lay witnesses about observations of commission of crimes of possession of cannabis and possession of drug paraphernalia -- Mere fact that state, in abundance of caution, identified officers as expert witnesses does not make Daubert review appropriate -- Officers testifying to their observations do not need to be identified as expert witnesses -- Officers' testimony as to meaning of color change in presumptive field drug test is admissible as opinion testimony of lay witness -- Testifying officers and inquiring trial attorney shall not use terms “test,” “conclusion,” “confirm,” “positive,” or synonyms of equal dignity in describing observations of color change in drug test
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter in which medical provider failed to reduce unpaid charges to allowable amount under permissive statutory fee schedule elected in policy does not satisfy condition precedent to PIP suit -- Insurer did not waive affirmative defense of defective demand letter by explaining reasons for adjustments or denials of claim in response to demand letter without mentioning letter's deficiencies where insurer raised affirmative defense of defective demand letter in answer
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Insurer that paid claim in accordance with permissive statutory fee schedule is entitled to depose insured to verify that services were in fact provided, but may not depose insured about reasonableness of charges
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, insurer had right to limit benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition -- Insurer's payment of benefits in excess of $2,500 cap was gratuitous payment and does not constitute waiver which would obligate insurer to pay up to $10,000
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Timeliness of claim -- Insurer that issued payment in response to bill that it now claims was untimely submitted more than 35 days after date of treatment waived untimely billing defense -- Reasonableness of charges -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant's opinion is not based on sufficient facts, lacks data analysis, and erroneously relies on fee schedules and payments by HMOs and PPOs -- Relatedness and medical necessity of treatment -- Affidavit alleging deficiencies in medical provider's record-keeping does not create genuine issue of material fact regarding relatedness or necessity of treatment
VIEW OPINION

Insurance -- Personal injury protection -- Complaint -- Amendment -- Medical provider is granted leave to amend complaint to correct misnomer in name of plaintiff where there is no doubt as to identity of intended plaintiff, and amendment is not attempt to substitute different party into litigation -- Insurer is granted leave to amend answer to challenge provider's standing on basis that name of plaintiff differs from name of entity in assignment
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Affidavits of medical provider's operations and billing manager stating that charges billed to insurer were charged to all patients and insurance carriers and explaining how charges were set through phone calls to various medical providers who render similar services in community and consultation with provider's medical director are not sufficient to establish non-existence of disputed issue of material fact regarding reasonableness of charges where affidavits fail to establish which providers were called, when they were called, what charges they reported, and content of medical director's recommendation
VIEW OPINION

Landlord-tenant -- Eviction -- Lease renewal -- Where lease contemplates plural renewals, tenant is permitted two successive renewals
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Conditions precedent -- Examination under oath -- Child -- Where PIP statutes and policy required ten-year-old child, as omnibus insured, to submit to EUO and child failed to appear for three scheduled EUOs, material breach of policy relieves insurer of any further obligation to child or medical provider/assignee -- Mother's fears that child is shy or introverted and that participation in EUO may be detrimental to child's mental or emotional well-being are not summary judgment evidence establishing that child is not competent to testify at EUO
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable charges and also providing that in no event will insurer pay more than 80% of No-Fault Act schedule of maximum charges does not provide clear and unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule -- Approval of PIP policy by Office of Insurance Regulation does not satisfy requirement that policy provide unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule where there is nothing in insurer's submission to OIR or in OIR's response to insurer asserting that reason for approval was insurer's proper election of permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- In action seeking declaration that insurer cancelled or failed to renew PIP policy based on arbitrary or capricious reasons, insured is entitled to discovery of underwriting file, underwriting requirements and guidelines; underwriting requirements and guidelines that support non-renewal of insured's policy; and all documents considered in deciding not to renew policy -- Precedent holding that underwriting file is only discoverable in bad faith claim is not applicable since statute governing bad faith claims does not include claim for wrongful cancellation or non-renewal of policy
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Breath test and breath test results must be suppressed where state failed to comply with operating procedure requiring that deionized water be tested prior to use in analyzing alcohol reference solutions -- Public records -- Failure to provide access -- Where inspector for Florida Department of Law Enforcement intentionally failed to allow defense counsel access to public records, inspector is fined and reasonable costs of enforcement are assessed against FDLE
VIEW OPINION

Insurance -- Discovery -- Failure to comply -- Sanctions -- Medical provider is ordered to pay sanctions for serving discovery responses after court-ordered deadline and to provide better responses to discovery
VIEW OPINION

Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff -- Choice of law provision calling for application of Nevada law, which does not have similar reciprocal attorney fee provision, was waived where plaintiff failed to plead that law of foreign state was dispositional when it initially filed its cause of action -- Evidence -- Hearsay -- Exceptions -- Business records -- Certification and declaration of records custodian of original creditor were sufficient to establish admissibility of cardholder agreement as records of regularly conducted business
VIEW OPINION

Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff -- Choice of law provision calling for application of Nevada law, which does not have similar reciprocal attorney fee provision, was waived where plaintiff failed to plead that law of foreign state was dispositional when it initially filed its cause of action
VIEW OPINION

Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff -- Evidence -- Hearsay -- Exceptions -- Business records -- Certification and declaration of records custodian of original creditor were sufficient to establish admissibility of cardholder agreement as records of regularly conducted business
VIEW OPINION

Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff -- Evidence -- Hearsay -- Exceptions -- Business records -- Certification and declaration of records custodian of original creditor were sufficient to establish admissibility of cardholder agreement as records of regularly conducted business
VIEW OPINION

Attorney's fees -- Debt collection -- Prevailing party -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated and unjust enrichment, when relief sought was based on express credit card agreement that contained attorney's fees provision, defendant was entitled to attorney's fees under reciprocity statute where plaintiff voluntarily dismissed complaint and defendant timely pleaded notice of right and entitlement to award of fees in answer and affirmative defenses prior to dismissal of cause of action by plaintiff
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Motion for protective order to prevent depositions of physician and nurse regarding determination that insured suffered emergency medical condition is granted -- PIP statute does no permit insurer to dispute or challenge emergency medical condition determination
VIEW OPINION

Insurance -- Sanctions -- Court imposes sanction on plaintiff that withdrew motions one hour before hearing on motions
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Horizontal Gaze Nystagmus
VIEW OPINION

Landlord-tenant -- Eviction -- Default -- Landlord entitled to immediate default for possession without further notice or hearing where tenants failed to deposit into court registry sufficient funds to cover accruing rent
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judicial candidate may post message on candidate's Facebook page asking public to vote generally or to vote specifically for candidate
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Neither judge nor judge's court personnel may directly solicit donations of used books for jail library
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Fundraising -- Neither judicial candidate nor candidate's committee of responsible persons may solicit contributions for “electioneering communications organization” to be used to support candidacy of judicial candidate or oppose candidacy of judicial candidate's opponent -- Judicial candidate may not coordinate campaign activities with ECO
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Judge may attend and be recognized at reception for domestic violence center so long as event contains no fundraising component, center's advocacy activities are limited to general education and do not favor or disfavor specific gender, and attendance and recognition do not cast doubt on judge's capacity for impartiality
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge may not own interest in closely held business with another person who is not a member of judge's family, work for, and be compensated by that business -- Judge may not be employed by business that is owned in part by his or her spouse with another person who is not member of judge's family
VIEW OPINION

Judges -- Code of Judicial Conduct -- Senior judges -- Dual service -- Senior judge may not serve as litigant-paid special magistrate in circuit in which judge is currently presiding as a senior judge
VIEW OPINION

Mortgages -- Foreclosure -- Attorney's fees -- Prevailing party -- Where, during pendency of mortgage foreclosure action, notice of voluntary dismissal was filed by plaintiff bank because parties entered into HAMP loan modification agreement, neither party is prevailing party for purposes of award of attorney's fees -- Costs -- Defendants are entitled to costs pursuant to rule 1.420(d)
VIEW OPINION

Contracts -- Biomass supply agreement -- Operator of biomass-fueled energy plant breached contract with supplier of biomass material by unilaterally prohibiting inclusion of yard waste in material, requiring screening of all material, imposing “no plastics” directive despite allowance for some plastic in contract, limiting supplier to use of one of three available delivery bays at plant and prohibiting biomass gathered from land zoned as agricultural, irrespective of whether material gathered was agricultural material prohibited under contract, and by failing to provide plant that could adequately process ground biomass material -- Supplier was justified in invoking early termination provision of contract and is entitled to past and future damages -- Where there is evidence that equipment purchased by supplier to meet demands of contract is being utilized on other contracts, supplier is not entitled to damages associated with liquidation of equipment -- Plant operator's counterclaim for costs related to shutdown of plant due to ash problem is denied where supplier's biomass material was not proven to be cause of problem -- No merit to counterclaims for expense of plant having to extend fuel yard hours in order to process supplier's deliveries or cost of installing in-house ash-testing capability after off-site lab was found not to be timely and reliable
VIEW OPINION

Insurance -- Automobile liability -- Third-party bad faith claim -- Plaintiff who was involved in motor vehicle accident with insured, resolved dispute with insured confidentially, and agreed to order dismissing case against insured with prejudice cannot bring third-party bad faith claim against insured's liability insurer where plaintiff holds no judgment against insured -- Trial court did not have jurisdiction to vacate order of dismissal and enter final judgment more than two years after entry of order of dismissal -- Although insurer was not party to action between plaintiff and insured, it may challenge validity of void judgment since its rights are affected by that judgment
VIEW OPINION

Criminal law -- Search and seizure -- Investigatory stop -- Where officer who had to swerve around defendant and group of his acquaintances standing in middle of road activated emergency lights and siren before approaching group with other officers, and officer called out to defendant with show of authority as he attempted to walk away from group, defendant was seized within meaning of Fourth Amendment -- Defendant's presence in high-crime area late at night, odor of marijuana emanating from group, defendant's attempt to walk away from group, and unusual circumstances that toddler was present in group and that group was blocking roadway provided officer with reasonable suspicion for investigatory stop -- Pat down -- Where officer observed L-shaped bulge in defendant's pocket, pat down search and seizure of firearm were lawful -- Motion to suppress evidence or testimony regarding firearm is denied
VIEW OPINION

Torts -- Civil conspiracy -- Judgment notwithstanding verdict -- Motions for judgment notwithstanding verdict in favor of plaintiff on complaint alleging three episodes of wrongdoing in civil conspiracy by bail bondsman and others to defraud plaintiff or convert his property in course of providing bond for pretrial release of plaintiff's son and recapturing son after he absconded -- Defendant's failure to disclose relationship with other bondsmen and supposedly illegal fee-splitting among bondsmen does not establish fraud where plaintiff received bond for which he bargained and suffered no damage from nondisclosure and fee-splitting -- Claim that defendant committed tort by demanding that plaintiff put up additional monies for payment of expenses of recapturing his son fails where defendant was entitled to up-front payment of expenses under terms of contract, and plaintiff, who would have suffered one million dollar loss had defendant decided not to try to recapture son, did not suffer any loss from advancing expenses -- Claim based on defendant's failure to return all or any portion of expense money after son was recaptured and bond was released, alleging that only surety and not defendant who is surety's agent had right to incur expenses in finding son and that amount spent was unreasonable and excessive, lacks merit -- Both surety and agent had right to spend funds to recapture son, and funds that defendant was contractually entitled to receive and use cannot be subject of claim for conversion -- Additionally, even if funds could be subject of conversion claim, there is no evidence that defendant conspired with anyone not to return funds to plaintiff -- Motions granted
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that adopts hybrid method of calculating reimbursement that includes elements of both Medicare fee schedule and reasonable amount method does not provide clear and unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Civil procedure -- Relief from judgment -- Independent equitable action -- Fraud on court -- Intrinsic fraud -- Independent action seeking relief from judgment which resolved prior litigation in which plaintiffs in instant action were enjoined from trespassing over property other than for ingress and egress although plaintiffs claimed they had right to use the property based on express easements and easements by necessity -- Where plaintiffs did not contend that defendants prevented them from participating in prior litigation, but instead contended that they had concealed evidence of prior chancery court decisions recognizing the easements on which plaintiffs relied, plaintiffs' claim was one of intrinsic fraud, which may not form basis for independent action seeking to set aside final judgment -- Judicial estoppel -- No merit to plaintiffs' contention that, even if case is premised solely upon allegations of “intrinsic” fraud, plaintiffs should be allowed to proceed by way of an independent action because opposing counsel in that prior litigation successfully defended a motion to amend the pleadings in the earlier case to raise these newly discovered chancery court decisions by arguing that there were alternative avenues for relief -- Moreover, plaintiffs were not entitled to rely on any advice from adverse counsel or trial court bas basis for pursuing independent action for intrinsic fraud -- Doctrine of judicial estoppel cannot be invoked to confer on trial court power to entertain independent action based on alleged intrinsic fraud in prior proceeding because that power is not authorized by law -- Torts -- Plaintiffs cannot state cause of action based on defendants' alleged negligence in preparation of pleadings in prior case because no duty of care was owed to plaintiffs
VIEW OPINION

Attorney's fees -- Proposal for settlement -- Ambiguity -- Offer proposing that plaintiff would be paid $75,000 in satisfaction of damage claims and, in exchange, plaintiff would release and dismiss with prejudice all claims in case was not ambiguous -- Offer of judgment statute is not applicable where plaintiff filed equitable claim for specific performance as well as damage claims for breach of contract and conversion, and defendant sought general release of all claims as condition of proposal for settlement -- Court questions whether “true relief” exception to general rule precluding enforcement of proposals for settlement in cases involving both legal and equitable claims remains viable after Florida Supreme Court ruling in Diamond Aircraft -- Even if exception remains viable, court cannot conclude that “true relief” sought by plaintiff, who sought to obtain benefit of bargain made when shipboard shop mistakenly quoted price of $235,000 for diamond worth millions of dollars, was monetary -- Motion for attorney's fees is denied
VIEW OPINION

Insurance -- Property -- Sinkhole loss -- Evidence -- Scientific opinion -- Where principles of original horizontality and gravitational compaction relied upon by insured's expert to opine that there is sinkhole activity on insured's property are not applicable to limestone and sandy/clay soils found on property, and application of these principles to sinkhole analysis is not generally accepted or used by professional engineering or geological community, opinions of expert based on these principles do not satisfy requirements for admissibility -- Expert's testimony regarding N-values he would expect to see if property does not have sinkhole activity is inadmissible where computation of expected N-values is based on equation applicable to pure sand material that cannot be applied to mixed soils and limestone present on property, and calculation has error rate greater than 50% -- Expert's opinion that circular depression on property is sinkhole, based on two borings made 50 feet away from depression, is inadmissible because opinion is based on insufficient facts and data
VIEW OPINION

Real property -- Covenants -- Short-term rental -- Action seeking declaration that short-term rental of properties violates covenants requiring that properties be used for residential purposes and prohibiting use for business purposes -- Where there is no allegation that properties are being rented for any purpose other than residential use by residential tenants, rental does not violate covenants -- Neither duration of tenancies nor fact that owners receive rental income or fact that properties may be subject to regulatory scheme or tax remittances due to rentals transforms nature of rentals from residential to commercial
VIEW OPINION

Criminal law -- Driving under influence -- Limitation of actions -- Commencement of prosecution -- Two-year delay in service of capias -- Where information was filed and capias issued two years after commission of crime, dismissal is appropriate -- Evidence does not support claim that defendant was absent from state and unavailable for service of process where counsel for defendant informed state attorney shortly after commission of crime that he represented defendant and had knowledge of his whereabouts in state, but state attorney failed to seek defense counsel's assistance in locating defendant or search other sources to locate defendant -- Motion to dismiss granted
VIEW OPINION

Criminal law -- Arson -- Double jeopardy -- Prosecution of charges of setting fire to normally occupied building or structure and arson causing severe injury to person would violate defendant's right to protection against double jeopardy -- Count charging arson resulting in severe injury is dismissed
VIEW OPINION

Licensing -- Driver's license -- Timeliness -- Although suspension of license as habitual traffic offender did not occur until three years after licensee entered plea to charge of driving while license suspended, which counted triggered license suspension, and delay was caused by court clerk's late submission of information regarding licensee's citation, suspension was lawful -- Motion to require department to apply suspension retroactively is denied
VIEW OPINION

Eminent domain -- Attorney's fees -- Amount -- Award of attorney's fees in eminent domain action is calculated based on benefits achieved for client
VIEW OPINION

Licensing -- Driver's license -- Revocation -- Fourth DUI conviction -- Predicate convictions -- Where licensee presented unrebutted evidence that he had never been in or convicted of DUI in Taylor County where uncertified copy of his driving record indicated one of predicate DUI offenses was committed, and Department of Highway Safety and Motor Vehicles failed to produce certified copy of driving record or copy of Taylor County DUI citation, there is no competent substantial evidence of that conviction -- Where there is no competent substantial evidence of Taylor County conviction, and another citation is unreadable and failed to confirm that licensee was person charged, there are insufficient number of predicate convictions to support license revocation -- Department is ordered to reinstate licensee's license and remove unsupported DUI convictions from his driving record
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Trial court did not err in finding that substantial compliance with demand letter requirement satisfied PIP statute -- Coverage -- Medical expenses -- Error to enter summary judgment in favor of medical provider where there are genuine issues of material fact regarding reasonableness of charges -- Trial court erred in concluding that insurer waived right to contest relatedness and medical necessity of services by failing to plead lack of relatedness and necessity as affirmative defense or contest those issues in handling of claim -- Small claims rules do not require filing of answer or affirmative defenses, and section 627.736(4)(b) allows insurer to contest reasonableness, relatedness or necessity at any time
VIEW OPINION

Small claims -- Default -- Vacation -- Trial court abused its discretion when it denied, without hearing, a motion to vacate default entered when defendant failed to appear at pretrial conference where motion was timely filed, alleged excusable neglect in form of illness, and asserted meritorious defense
VIEW OPINION

Criminal law -- Possession of drug paraphernalia -- Dismissal -- Defendant's use of straws to ingest crushed up hyrdocodone pills for which she had a valid prescription was not unlawful -- Trial court erred in denying motion to dismiss
VIEW OPINION

Insurance -- Automobile -- Windshield replacement or repair -- Prevailing competitive price -- Language of policy limiting insurer's liability for cost of windshield repair to prevailing competitive price is not ambiguous and supports insurer's assertion that term means an amount that would be accepted by at least one competent glass facility conveniently located to the insured at the time of the repairs -- However, genuine issues of material fact exist as to whether costs quoted by insurer to determine prevailing competitive price were from “competent glass repair facilities” as required by policy language -- Affidavit in support of insurer's motion for summary judgment was faulty in that it attempted to establish the existence of competent glass repair facilities, but not on the date that the repairs were done
VIEW OPINION

Attorney's fees -- Debt collection -- Mutuality or reciprocity of obligation -- Where plaintiff phrased claims for relief in debt collection action as actions for account stated and unjust enrichment, trial court did not err in finding that prevailing defendant was not entitled to attorney's fees under reciprocity statute despite fact that debt was incurred through credit card agreement that contains attorney's fees provision
VIEW OPINION

Municipal corporations -- Employees -- Police officers -- Disability retirement -- Decision of retirement system's board of trustees finding officer ineligible for service-connected disability retirement benefits because his application was untimely did not depart from essential requirements of law or deprive officer of due process rights -- Retirement plan required officer to submit written benefits application while he was “member in service,” and board properly interpreted this language when it found that officer was no longer “in service” three months after his resignation when he applied for benefits
VIEW OPINION

Contracts -- Oral -- Claim for unpaid invoice related to design, purchase, and installation of closet system at residence -- Difficulty in proving damages or uncertainty as to amount does not prevent recovery if there is sufficient evidence and reasonable basis for award -- Competent, substantial evidence supported trial court's finding that there was oral contract between parties and its finding as to amount plaintiff spent on materials -- Amount awarded for labor was unsupported by evidence, and trial court did not explain its deviation from amount established by evidence -- Remand for entry of amended final judgment in amount supported by evidence
VIEW OPINION

Administrative law -- Municipal corporations -- Code enforcement -- Nuisance abatement -- Recurring public nuisance -- Illegal drug activity -- Competent, substantial evidence supported order of nuisance abatement board restricting use of property, which encompassed a motel and bar, to “any lawful use other than the operation of a motel, operation of a bar, or the sale of liquor” -- Board did not depart from essential requirements of law, as remedial measures were specially tailored to objectionable conduct and restrictions did not unnecessarily infringe on conduct of other lawful enterprise on the premises -- Assertion that remedial measures are so restrictive that they constitute a compensable taking was not properly raised in certiorari petition challenging order from municipal nuisance abatement board
VIEW OPINION

Contracts -- Settlement agreement -- Small claims -- Trial court properly entered final judgment in favor of creditor without notice to debtor or opportunity for hearing when debtor defaulted on agreement by failing to tender proper payment, a material breach of the parties' contract -- Small claims rules establish that if debtor fails to perform terms of stipulation or agreement for settlement of claim before judgment, court may enter appropriate judgment without notice upon creditor's filing of an affidavit of the amount due
VIEW OPINION

Municipal corporations -- Code enforcement -- Gambling machines -- Argument that code enforcement board erred in finding that gambling devices operated by veterans service organization fell within city code's definition of “computerized sweepstakes device” prohibited in appellant's zoning district because organization's establishment is a members-only club not open to general public was unsupported by any evidence that club was private club open to members only or that devices were not operated by public generally -- No merit to argument that appellant's devices did not fall within definition of “computerized sweepstakes device” because machines did not provide user with chance to win anything of value and there was no element of chance where there was evidence before board that users do have chance to win cash and there is element of chance after first round of play -- Decision of board is affirmed
VIEW OPINION

Municipal corporations -- Development orders -- Appeals -- Certiorari -- Standing -- Petitioners who objected to size of proposed development, visual obstruction, and planned neon sign lacked standing to pursue certiorari relief from order approving development where they failed to demonstrate how negative impact of project on them differed in kind from negative impact on community as a whole
VIEW OPINION

Criminal law -- Possession of cannabis -- Search and seizure -- Consent -- Voluntariness -- Trial court's finding that defendant did not dispute officer's claim that he asked for permission to search defendant is contradicted by defendant's testimony that officer did not ask if he could search him, but instead forced him, and that he did not say “yes or no” -- Limited remand to afford trial court opportunity to consider all testimony is appropriate -- On remand, if court finds that defendant did not consent to search, defendant should be able to withdraw plea
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Criminal law -- Jurors -- Challenge -- Cause -- Trial court erred in failing to exclude for cause a juror who persistently indicated that she would have bias against person accused of using force against woman, despite rehabilitation attempts, and second juror who indicated that she felt same as first juror -- New trial required where defendant exercised peremptory challenges to excuse these jurors, exhausted peremptory challenges, and was denied additional peremptory challenge to use on third juror who was placed on jury over defendant's objection
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Criminal law -- Driving under influence -- Argument -- Prosecutor's comments instructing jury to remember defendant “chose to refuse to blow when he could have blown our case away” was improper attempt to shift burden of proof -- New trial required
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Insurance -- Personal injury protection -- Discovery -- Error to require production of claim file documents in first party non-bad faith PIP suit
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Where at time of payment insured had not been diagnosed with emergency medical condition, insurer did not wrongfully withhold payments by limiting benefits to $2500 and explaining to provider that benefits were exhausted -- Post-suit payment of remaining balance after provider obtained a positive EMC diagnosis did not amount to confession of judgment -- Insurer was not required to propound discovery request under §627.736(6)(b) to toll 30-day time-to-pay period and protect itself from liability for fees
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Counties -- Development orders -- Modification -- County departed from essential requirements of law when it summarily denied application for minor modification which amounted to straightening an already-approved access to development through a neighboring development without setting forth substantive reasons for its decision -- When county denies application for development permit, county is required by statute to give written notice to applicant, and notice must include citation to applicable portions of ordinance, rule, statute, or legal authority for the denial -- Requested modification falls within definition of “development permit”
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Arbitration -- Landlord-tenant -- Eviction -- Allegations of complaint that tenants remained on property after its sale as tenants-at-will clearly referenced provision of land contract stating that sellers would remain on the property as at-will tenants and, accordingly, eviction claim fell within scope of arbitration clause requiring that all claims arising out of or relating to the contract would be resolved through neutral binding arbitration if mediation was unsuccessful -- Tenants did not waive right to arbitration under land contract by filing an answer that contained a counterclaim that did not include a demand for arbitration where the tenants did include demand for mediation which stated that the underlying contracts required disputes to be submitted to mediation prior to any litigation -- Remand for trial court to dismiss or abate action pending arbitration
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Civil procedure -- Dismissal -- Matters outside four corners of complaint -- Trial court erred in dismissing with prejudice a provider's complaint against an insurer seeking to recover benefits stemming from the same automobile accident as that which was at issue in a prior suit based on defense of res judicata where defense was not apparent on face of complaint -- Rule permitting movant to assert affirmative defenses appearing on face of a “prior pleading” as grounds for a motion or defense does not permit a trial court to consider a prior complaint filed in a different case -- Trial court could not properly take judicial notice of earlier case in considering insurer's motion to dismiss where nothing in record indicates that party requested judicial notice -- Remand for further proceedings -- Appellate attorney's fees awarded, conditioned upon provider ultimately prevailing at trial level
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Civil procedure -- Continuance -- Americans with Disabilities Act -- Reasonable accommodation -- Appeal from order denying continuance based on court's alleged failure to respond to ADA accommodation request -- Absence of transcript -- Affirmance of lower court order
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Zoning -- Municipal corporations -- Zoning board departed from essential requirements of law when it denied application to open medical detoxification center on property zoned as Planned Commerce Center -- Applicant met initial burden of showing by competent substantial evidence that detox center qualified as special exception, and there was no evidence to the contrary -- Community member's generalized statement that center was a threat to public safety was not competent, substantial evidence which would support denial of application -- Moreover, board made no findings of fact to support its denial of the application -- Decision to deny application quashed -- Application remanded to zoning board
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Traffic infractions -- Red light cameras -- Trial court erred in finding that city's use of third-party vendor to manage red light cameras required dismissal of traffic citation where city's contract with vendor specifically established that vendor does not and cannot make any decisions regarding whether a violation occurred, discretion of vendor was further limited by “Business Rules Questionnaire,” which set forth easily observable standards that dictate whether vendor should forward or otherwise discard images of potential infractions, and vendor does not itself issue traffic citation
VIEW OPINION

Municipal corporations -- Code enforcement -- Maintenance and appearance standards -- Special magistrate erred in assessing fine against property owner where owner did not receive notice of code violation for which he was ultimately fined
VIEW OPINION

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