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New Releases
from Florida's Circuit and County Courts

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Criminal law -- Driving under influence -- Evidence -- Breath test refusal -- Inspection and maintenance of breath testing machine -- Florida Department of Law Enforcement's procedure of conducting centralized inspections of breath testing instruments in Tallahassee is permissible and reasonable construction of administrative rule requiring annual inspection of instruments without specifying where inspections are to be conducted or mode of transportation -- Rule requiring that instrument returned from repair facility be inspected by FDLE prior to being placed in evidentiary use does not require FDLE to re-inspect instruments upon return to agency after inspection in Tallahassee -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Search and seizure -- Stop -- Officer's initial interaction with defendant, who was observed by officer asleep in driver's seat of legally parked vehicle with engine off and no lights on, was consensual encounter to check on defendant's medical well-being -- Officer unlawfully seized defendant when, after verifying that defendant was not in distress, officer took defendant's driver's license and car keys and positioned patrol vehicle so that it was parked directly behind defendant, preventing him from backing out of parking spot -- Seizure was not supported by concerns for defendant's medical condition, officer's safety, or reasonable suspicion that defendant was engaging in criminal activity
VIEW OPINION

Consumer law -- Debt collection -- Assignment -- Notice -- Where assignee of consumer debt failed to notify debtor of assignment of debt by original creditor, assignee has failed to satisfy condition precedent to debt collection action
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician who is owner of plaintiff medical provider is entitled to expert witness fee for deposition testimony where plaintiff brought action against insurer pursuant to assignment of benefits
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Expert witness fee -- Treating physician who is owner of plaintiff medical provider is entitled to witness fee for deposition testimony where plaintiff brought action against insurer pursuant to assignment of benefits
VIEW OPINION

Consumer law -- Debt collection -- Counterclaim for breach of contract is severed from Florida Consumer Collection Practices Act case where simultaneous prosecution of counterclaim would unnecessarily complicate FCCPA action
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Jury trial waiver in mortgage does not waive right to jury trial in FCCPA action
VIEW OPINION

Consumer law -- Debt collection -- Motion to dismiss complaint alleging violation of Florida Consumer Collection Practices Act by direct communication with person represented by counsel is denied -- Contractual conditions precedent to suit contained in mortgage do not apply to FCCPA action, and complaint contains sufficient facts to state cause of action -- Motion to strike any damage allegation in excess of $1,000 statutory damages is denied where plaintiff has made good faith allegations that, if proven, would constitute actual damages for emotional distress -- Jury trial -- Waiver -- Plaintiff did not waive right to jury trial in FCCPA case by executing mortgage that includes jury trial waiver -- Notice of punitive damages is stricken where plaintiff has not complied with section 768.72
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Where violations alleged in circuit court FCCPA action involving same parties occurred three years prior to alleged violations in county court case, cases are separate and distinct causes of action -- Failure to attach alleged correspondence sent to plaintiff in violation of FCCPA does not require dismissal of complaint where cause of action does not arise from document -- Motion to dismiss is denied -- Jury trial -- Waiver -- Plaintiff did not waive right to jury trial in FCCPA case by executing mortgage that includes jury trial waiver
VIEW OPINION

Consumer law -- Debt collection -- Motion to dismiss amended complaint alleging violation of Florida Consumer Collection Practices Act by direct communication with person represented by counsel is denied where complaint contains sufficient facts to state cause of action, and argument that communications could constitute loss mitigation rather than debt collection is more appropriately addressed in motion for summary judgment -- Motion to strike any damage allegation in excess of $1,000 statutory damages is denied where plaintiff has made good faith allegations that, if proven, would constitute actual damages for emotional distress
VIEW OPINION

Consumer law -- Debt collection -- Discovery
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Affirmative defenses asserting that actions to enforce security interest fall outside scope of FCCPA and that communications made in connection with foreclosure action cannot form basis of FCCPA claim are stricken
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Federal preemption -- FCCPA provision prohibiting direct communication with debtor represented by counsel is not preempted by federal regulation requiring that monthly mortgage statements be sent to debtor where it is possible to comply with both federal regulation and FCCPA by sending periodic mortgage statements to debtor's attorney -- Motion to dismiss is denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Officer's testimony that defendant was “fishtailing” within single lane does not establish probable cause for stop for reckless driving and failure to maintain single lane in absence of any clear evidence as to defendant's speed, affect of driving on any other traffic and pedestrians or distance and duration of driving pattern -- State failed to pursue questioning of officer that might have justified stop for speeding even without radar equipment or pace clocking -- Facts would not support stop for racing on highways where there was no evidence that defendant was racing another vehicle or putting on display as part of contest -- Detention -- Thirty-minute detention while officer researched racing violations and waited for arrival of back-up officer constituted unreasonable delay -- Motions to suppress and dismiss are granted
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Tag lights -- Officer had probable cause to stop defendant's vehicle for tag light violation where tag was not clearly legible from 50 feet -- Where video of stop does not corroborate officer's testimony that defendant had indicia of impairment, officer did not have sufficient basis to detain defendant for DUI investigation -- Motion to suppress is granted as to detention following stop, arrest and breath test
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Wide turn followed by brief excursion into oncoming lane is not sufficient basis for traffic stop -- Motion to suppress is granted
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer who observed defendant driving on median for few seconds during turn did not have reasonable suspicion to stop defendant to determine if he was ill, tired or impaired -- Few seconds of driving on median, faint odor of alcohol emanating from vehicle and defendant's admission to having one drink did not provide reasonable suspicion for DUI investigation -- Motion to suppress is granted
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Medical provider is entitled to depose insurer's corporate representative regarding insurer's contention that provider's charges are not reasonable and how insurer calculated reimbursement rate -- Provider is not required to depose litigation adjuster and PIP adjuster before deposing corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reasonableness of medical provider's charge in deposition of insurer's corporate representative
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Twenty-minute observation period -- Where each of three deputies present in three-room holding cell area observed defendant for parts of twenty-minute observation period, but deputies were performing other tasks and it is not clear who was with defendant at any particular time, state has not established substantial compliance with twenty-minute observation period -- Motion to suppress is granted
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reasonableness of charges at deposition of insurer's corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible
VIEW OPINION

Evidence -- Hearsay -- Exceptions -- Business records -- Affidavit is insufficient to support admission of business records into evidence
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Notice of loss -- Where medical provider was originally informed that pedestrian struck by motor vehicle had no insurance, and provider filed claim within 35 days of learning of existence and identity of insurer of driver who struck pedestrian, provider's submission of bills complied with PIP statute
VIEW OPINION

Criminal law -- Sunshine Law -- Prosecution of private citizen under principal statute for aiding and abetting violation of Sunshine Law by relaying information among members of county expressway authority to enable members to meet without complying with requirements of Sunshine Law -- Constitutionality -- Overbreadth -- Use of principal statute to prosecute private citizen is unconstitutionally overbroad application of Sunshine Law that infringes on citizen's First Amendment right to communicate with public officials -- If violation of Sunshine Law occurred, appropriate target for prosecution is members of authority, not private citizen
VIEW OPINION

Insurance -- Property -- Standing -- Assignment -- Company that is assignee of property owner through post-loss assignment has standing to sue insurer for restoration services rendered
VIEW OPINION

Consumer law -- Debt collection -- Jury trial waiver contained in mortgage does not apply to plaintiff's claim under Florida Consumer Collection Practices Act
VIEW OPINION

Criminal law -- Resisting officer without violence -- Defendant who falsely stated to deputy investigating death of defendant's companion that he did not place body in park where it was found did not resist officer where defendant was not under arrest or otherwise lawfully detained at time he gave false statement, and there is no evidence that false statement impeded investigation -- Failure to report death and circumstances -- State failed to meet burden to prove defendant is guilty of having knowingly failed or refused to report death or circumstances but did prove that defendant is guilty of refusing to make available information pertinent to death investigation and disturbing body with intent to alter evidence or circumstances surrounding death
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Physician who did not provide any services or care to claimant is not qualified medical provider for purposes of determining whether claimant had emergency medical condition -- Non-treating physician's determination that claimant did not have emergency medical condition does not limit reimbursement to $2,500 when treating physician has determined that claimant had emergency medical condition -- PIP statute does not permit insurer to challenge determination of qualified provider that claimant had emergency medical condition
VIEW OPINION

Insurance -- Personal injury protection -- Doctrine of de minimis non curat lex cannot deprive PIP claimant of access to courts -- Insurer's motion for summary judgment based on this doctrine in case in which amount in controversy is $5.58 is denied
VIEW OPINION

Criminal law -- Refusal to submit to breath test -- Constitutionality -- Because defendant did not have constitutional right to withhold previously advanced implied consent to breath alcohol testing that all Florida drivers give when they apply for Florida driver's license, but had merely the statutory option to refuse test with consequences, there is no constitutional impediment to criminalization of second and subsequent refusals -- Motion to dismiss is denied
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Refusal to submit to breath test -- Because defendant did not have constitutional right to withhold previously advanced implied consent to breath alcohol testing, but merely statutory option to refuse test with consequences, and defendant's refusal after advisement of consequences is relevant and not unduly prejudicial, motion to prevent state from making consciousness of guilt argument based on breath test refusal is denied
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavits filed by insurer do not preclude summary judgment in favor of medical provider on issue of reasonableness of medical charge where affidavits are conclusory and self-serving -- Fact that Medicare, workers' compensation, and health insurance pay less than amount billed by provider is insufficient to create triable issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- In absence of bad faith, post-suit exhaustion of benefits absolves insurer from responsibility to pay otherwise valid claim
VIEW OPINION

Insurance -- Appellate costs -- Insurer that prevailed on appeal is entitled to recover bond premiums it was required to incur to prosecute appeal -- Where insurer appealed only pretrial issue, insurer is not entitled to reimbursement for cost of preparing entire trial transcript
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Constitutionality of Implied Consent Law -- Implied Consent Law does not violate unconstitutional conditions doctrine -- Searches pursuant to Implied Consent Law are reasonable because they fall within consent exception to Fourth Amendment search warrant requirement -- Even if Implied Consent Law does not fall squarely within consent exception, it is reasonable because government's interest in safeguarding highways outweighs minimal privacy intrusion at issue -- Motion to suppress is denied -- Question certified
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- In absence of any evidence of bad faith, where benefits were exhausted in payment of other medical providers before assignee of medical provider filed suit for balance of reduced claim, insurer is entitled to summary judgment -- Insurer was not required to reserve funds for claim reduced through erroneous application of statutory fee schedule and is not liable for balance of reduced claim after exhaustion of benefits
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 properly limited benefits to $2,500 until qualified provider determined that insured suffered emergency medical condition -- No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition -- Insurer's payment of additional benefits after post-suit receipt of determination of emergency medical condition did not constitute confession of judgment entitling provider to attorney's fees award
VIEW OPINION

Insurance -- Affirmative defenses -- Amendment -- Motion to amend affirmative defenses filed when case had been pending for 14 months and after issuance of pre-trial order and completion of mediation and arbitration is denied as untimely -- Further, amendment to assert defense of improper record-keeping would be futile since this is not valid defense
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- HMO and PPO contracts between medical provider and other insurers are confidential, trade secret and proprietary documents that are not discoverable and cannot reasonably lead to discoverable evidence -- Medicare fee rates are not relevant to determination of reasonableness of charges in PIP case -- Requests to produce other documents inquire into issues not raised in pleadings and are, therefore, not relevant to litigation
VIEW OPINION

Landlord-tenant -- Eviction -- Purchase agreement -- Eviction action is dismissed where contract attached to complaint is purchase agreement, and plaintiffs are unable to produce evidence of claimed lease agreement
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits are self-serving, conclusory and lack foundation and affiants are not qualified to render opinion on reasonableness of MRI charges -- Fact that Medicare, workers' compensation, and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Validity
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Initial treatment within 14 days after accident -- Where PIP policy contains amendatory endorsement adopting 2013 PIP statute requirement that party seeking PIP benefits must receive initial treatment within 14 days after accident, insurer has no obligation to pay claim submitted by assignee of insured who did not receive initial treatment within 14 days after accident
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charges where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of charge -- Fact that Medicare, workers' compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Criminal law -- Driving with unlawful breath alcohol level -- Double jeopardy -- Retrial after mistrial -- Manifest necessity for mistrial -- Insufficient number of jurors -- Court will not look behind obvious existence of manifest necessity for mistrial due to insufficient number of jurors to evaluate validity of rulings excusing jurors -- Even if prior ruling was erroneous, where mistrial was warranted by virtue of having only five jurors, double jeopardy does not bar prosecution -- No abuse of discretion in removing juror who willfully violated court's instruction not to discuss case and evinced profound prejudice regarding reliability of breath-testing machines, which is key issue in case -- Motion to dismiss is denied
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Urine test -- Officer who observed that defendant was impaired by either alcohol or controlled or chemical substance but did not have odor of alcohol consumption had reasonable cause to request that defendant submit to urine test -- Motion to suppress is denied
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- There is no legal basis for court to order sequence of depositions
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Breath test -- Implied consent warning -- Misinformation -- Hearing officer did not err in upholding license suspension despite licensee's claim that breath test was coerced when trooper provided inaccurate information regarding availability of hardship license where hearing officer's finding that trooper read legally accurate implied consent warning to licensee is supported by competent substantial evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath/blood alcohol level -- Appeals -- Certiorari -- Assuming that hearing officer's use of revised notice of hearing and prehearing forms requiring licensee to provide additional information was improper, certiorari relief is not warranted where licensee has not established that use of forms resulted in material injury -- Hearing officer -- Departure from neutrality -- Denial of motion to recuse hearing officer due to bureau chief's memorandum instructing all Department of Highway Safety and Motor Vehicles hearing officers not to consider legality of arrest in DUBAL cases did not violate licensee's due process rights where there is nothing to suggest that memorandum had any effect on hearing officer's ability to act as impartial fact finder -- Lawfulness of arrest -- Hearing officer erred in initially excluding lawfulness of arrest from scope of hearing, but error did not adversely impact licensee, who was allowed to elicit relevant testimony on issue -- Refusal to issue subpoenas duces tecum -- Hearing officer violated licensee's due process rights by refusing to issue subpoenas duces tecum for breath test operator's permits, certificates, and renewal course dates -- Final order of license suspension is quashed
VIEW OPINION

Criminal law -- Traffic infractions -- Driving with expired license -- Trial court erred in sua sponte dismissing charge
VIEW OPINION

Municipal corporations -- Code enforcement -- Hearings -- Due process -- No abuse of discretion in denying request to continue hearing before code enforcement board due to unavailability of property owner's new counsel where violations had been noticed over 4 months prior to hearing, previous continuance had been granted, and an attorney was present to represent owners -- Board did not violate due process by not allowing owners to cross-examine citizen who was making public comment and not presenting sworn testimony -- Commercial vehicles on residential property -- Pictures of dump truck and cherry picker on property were sufficient to support finding that there were commercial vehicles on property without necessity of presenting actual dimensions of vehicles -- If owners contended that vehicles did not meet dimensions prohibited by code, they were free to present dimensions of vehicles -- Outdoor storage of inoperative vehicles -- In absence of evidence of registration from owners, picture of trailer without tag was sufficient to support determination that vehicle did not have valid registration and was, therefore, inoperative
VIEW OPINION

Landlord-tenant -- Eviction -- Failure to deposit rent into court registry -- Where tenant alleged that landlord had cash belonging to tenant in her possession but did not dispute amount of rent alleged to be owed or deposit rent into court registry, trial court did not err in entering judgment in favor of landlord
VIEW OPINION

Municipal corporations -- Land development code -- Amendment -- Appeals -- Certiorari -- Amendment to town's land development code is legislative decision that is subject to fairly debatable standard of review and is properly challenged by original action in circuit court, not petition for writ of certiorari
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Statements of defendant -- Custodial interrogation -- Fact that defendant was informed that he was subject of DUI investigation and asked to step out of vehicle does not, standing alone, transform investigatory stop into custodial detention -- Fact that defendant was asked potentially incriminating questions does not convert traffic stop into custodial detention -- Request that defendant perform field sobriety exercises would not lead objective reasonable person to believe he was in custody -- Deputy's observations of indicia of impairment on defendant are irrelevant to question of whether objective reasonable person would believe he was in custody where observations were not expressed to defendant -- Under totality of circumstances, nothing in interaction between defendant and deputies presented serious danger of coercion so as to constitute custodial detention -- Error to grant motion to suppress
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Refusal affidavit -- No error in admitting refusal affidavit despite alleged discrepancy regarding which deputy read implied consent warning and signed affidavit -- Statute does not require filing of refusal affidavit, and other arrest documents satisfy requirement that there be affidavit stating that test was requested, implied consent warnings were given, and licensee refused to submit to test -- Implied consent warnings -- Misinformation -- Even if exchange with deputy led licensee to believe that license that suspension was irreversible once he refused to perform field sobriety exercises and that breath test refusal would carry no additional consequences, misunderstanding could not reasonably have persisted past reading of implied consent warnings
VIEW OPINION

Municipal corporations -- Code enforcement -- Overnight parking of antique fire truck used as personal vehicle in residential district -- Special magistrate did not err in finding that ordinance that prohibits overnight parking of commercial trucks in residential district applies to parking on private property as well as on public right of way -- Facts that fire truck is registered as private vehicle, truck has antique license plate, and petitioner is not required to hold commercial driver's license are not dispositive of whether truck is classified as commercial vehicle for purposes of city code -- Magistrate's conclusion that, for purpose of determining whether fire truck meets city code's gross weight standard for commercial vehicles, gross weight of truck is calculated by adding net weight of vehicle to weight of water load it is capable of carrying is not clearly erroneous -- Claim that overnight parking ordinance is unconstitutional as applied to petitioner cannot be raised for first time on appeal -- Claim that ordinance is unconstitutionally vague is waived where brief contains no argument in support of claim -- No merit to claim that bifurcation of hearing violated due process or that magistrate departed from neutrality
VIEW OPINION

Counties -- Code enforcement -- Appeals -- Timeliness -- Unauthorized motion for rehearing of special magistrate's final order did not toll time for appealing order -- Appeal of final order filed more than thirty days after execution of final order is dismissed -- Appeal of order denying motion for rehearing filed more than thirty days after execution of order is dismissed
VIEW OPINION

Criminal law -- Battery -- Evidence -- Hearsay -- Exceptions -- Excited utterance -- No abuse of discretion in admitting officer's testimony as to battery victim's statements to officer during domestic violence call
VIEW OPINION

Attorney's fees -- Contractual provision that provides for attorney's fees in event of litigation in connection with collecting amounts due under contract does not afford basis for awarding fees to homeowner who prevailed in breach of contract action against contractor
VIEW OPINION

Criminal law -- Driving under influence -- Argument -- Trial court did not err in ruling that defendant could not rebut state's argument that his refusal to participate in field sobriety exercises indicated consciousness of guilt by arguing that defendant might have refused exercises because his license was already suspended unless there was some evidence that pre-existing suspension was reason for refusal, as loss of license is not potential consequence of refusal to perform exercises -- Prosecutor's comment that jury's conscience tells them a person can still be found guilty of DUI despite refusal to participate in field sobriety exercises because refusal demonstrates consciousness of guilt was not prohibited appeal to community conscience -- Furthermore, comment was invited by defense argument suggesting state could not meet burden of proof on DUI charge if defendant refused to participate in field sobriety exercises or provide breath sample, and that defendant's refusal should not be considered as evidence of guilt
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Any defects in dates on assignment, claim form, and demand letter were waived where insurer made payments on claim without expressing any confusion until after suit was filed -- Demand letter -- Demand letter is not required to state exact amount of benefits owed
VIEW OPINION

Criminal law -- Abandoning derelict vessel upon public waters -- Sentencing -- Restitution -- No error in ordering defendant to pay restitution to state for cost of recovering and disposing of abandoned derelict vessel
VIEW OPINION

Criminal law -- Unlicenced residential contracting -- Limitation of actions -- Trial court did not err in denying motion to dismiss due to expiration of statute of limitations where trial court found that, once capias for defendant was issued, county department of justice and consumer services conducted diligent search for defendant through quarterly searches of multiple databases -- Petition for writ of prohibition is denied
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Trial court did not abuse its discretion by excluding opposing affidavit filed by insurer on issue of reasonableness of MRI charge where affiant had no personal knowledge of charges in community and could not attest to truthfulness or reliability of data used to form his opinion that medical provider's charge was not reasonable -- Evidence that medical provider routinely accepted less from other vendors than it charged insurer for same services may be relevant in determining whether charges were unreasonable, but that information alone, even if uncontested, is not sufficient to prove that charges were unreasonable
VIEW OPINION

Attorney's fees -- Contracts -- Prevailing party -- Mutuality or reciprocity of obligation -- Plaintiff that filed suit to collect credit card debt based on existence of contract between parties is estopped from arguing that prevailing defendant is not entitled to recovery of attorney's fees because he did not affirmatively establish existence of contract between parties -- No error in awarding fees to prevailing defendant -- No abuse of discretion in refusing to apply contingency risk multiplier where defendant was represented by legal aid attorney pursuant to agreement that provided that he would not be charged for any services rendered, and attorney was awarded reasonable fee for his time
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Licensee under age 21 -- Lawfulness of arrest -- Where licensee is under age 21, statutory scheme does not require hearing officer reviewing license suspension for refusal to submit to breath test to determine lawfulness of arrest, but only whether probable cause existed on elements of age, control of vehicle, and alcohol level
VIEW OPINION

Contracts -- Credit card agreement -- Attorney's fees -- Prevailing party -- Mutuality or reciprocity of obligation -- Fact that plaintiff sued on money lent and unjust enrichment instead of breach of contract does not preclude prevailing defendant from seeking entitlement to attorney's fees under section 57.105(7) where credit card agreement was produced in discovery, and portion of debt sought by plaintiff included finance charges and interest agreed to in credit card agreement -- No error in finding that plaintiff waived application of Arizona choice of law provision in credit card agreement where plaintiff failed to plead or assert provision until after it voluntarily dismissed action -- Further, even if Arizona law applied, prevailing defendant would be entitled to attorney's fees under Arizona statute
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to blood test -- Affidavits -- Narrative reports and jurats that substantially comply with statutory requirements are proper affidavits -- Blood test -- Impracticality or impossibility of breath test -- Officer had legal authority to request that licensee who was taken to hospital by ambulance for treatment submit to blood test where licensee's statement that he was on bad narcotics, presence of filled syringe in licensee's vehicle, and track marks on licensee's arms caused officers to believe licensee was under influence of controlled substance, not alcohol, and licensee's combative behavior, requiring use of restraints, made breath test impractical and impossible,
VIEW OPINION

Landlord-tenant -- Eviction -- Notice -- Defects -- Under 2013 amendments to Florida Residential Landlord and Tenant Act, landlord must be given opportunity to cure deficiencies in notice and pleadings before dismissal of case
VIEW OPINION

Insurance -- Discovery -- Documents -- Settlement documents necessary to determine if final judgment in settled case constitutes res judicata in present case -- Fact that settlement documents are public records or could be obtained from other party to agreement does not relieve insurer from producing documents in its possession, custody, or control
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Good faith offer -- Error to place burden on insurer to prove that its nominal offer for settlement was made in good faith, rather than requiring medical provider to prove that offer was not made in good faith -- Where benefits were exhausted at time insurer made nominal offer, trial court abused its discretion by finding that there was lack of evidence that insurer had reasonable basis for offer
VIEW OPINION

Administrative law -- Counties -- Wage theft -- Due process -- Hearing officer hearing wage theft claim violated respondent's procedural due process rights by allowing petitioner to introduce evidence on claim that was beyond scope of complaint, repeatedly cutting off respondent during his testimony, admitting evidence of settlement offer, and shifting burden of proof to respondent without requiring petitioner to prove her case by preponderance of evidence -- Hearing officer's findings and calculations of time worked and wages owed were not supported by competent substantial evidence -- Remand for new hearing before different hearing officer
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Adjuster notes -- Error to order that adjuster notes be produced prior to resolution of coverage issue
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Medical providers were not prevailing parties entitled to attorney's fees award pursuant to section 627.428 when they obtained judgments no better than amounts offered by insurer in response to presuit demand letters -- Neither failure to comply with proposal for settlement statute and rule 1.442 nor failure to provide explanation of benefits invalidates settlement offers -- Attorney's fees award is vacated
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Trial court erred in granting oral motion to suppress without providing state sufficient time to subpoena witnesses to demonstrate good cause for stop -- Trial court failed to comply with rule 3.190(g)(3) requirement that court determine if motion to suppress is legally sufficient where court granted oral motion to suppress despite fact that defense did not state basis for suppression until after court had granted motion
VIEW OPINION

Contracts -- Leases -- Damages -- Appeals -- Discrepancy between amount of damages orally announced in open court and amount awarded in judgment -- Where it is not clear what evidence trial court relied upon in reconsidering and increasing damage award above amount announced in open court, and documents attached to brief indicate excessiveness in award, damage award is vacated and case remanded for trial court to reconsider damages or make factual findings supporting increased award
VIEW OPINION

Licensing -- Driver's license -- Hardship license -- Denial -- Notwithstanding hearing officer's oral pronouncement that licensee was eligible for hardship license, licensee whose license was revoked for DUI manslaughter and who had two previous conviction under section 316.193 is ineligible for hardship license
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Agency inspector permit -- Validity
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Certification of arresting officer -- Validity
VIEW OPINION

Homeowners' associations -- Assessments -- Where at time annual budget was approved homeowners' association had decided to replace existing security company with less costly company and knew that it would not have security monitoring costs for second half of year, homeowner's assessments should have been based on new lower security cost -- Because association did not adjust assessment to reflect lower projected cost, association cannot treat excess assessment as surplus assessment that it is not required to refund under declaration of restrictions and covenants
VIEW OPINION

Licensing -- Driver's license -- Revocation -- Drug trafficking -- Department of Highway Safety and Motor Vehicles erred in finding that statute that authorizes department to revoke license of person convicted of trafficking in controlled substance authorized revocation of license of doctor convicted of unlawful prescription of controlled substance -- Fact that doctor was originally charged under trafficking statute or that his actions essentially qualify as trafficking does not make revocation statute applicable -- Order of license revocation is quashed
VIEW OPINION

Attorney's fees -- Contracts -- Prevailing party -- Mutuality or reciprocity of obligation -- Defendant is not entitled to prevailing party attorney's fees pursuant to contract for voluntarily dismissed complaint where plaintiff brought claim for open account and account stated without relying on customer agreement, and defendant explicitly stated that there was no agreement -- Because claim was never heard in court, it cannot be determined whether account statement would qualify as contract under which defendant could claim fees -- Because prevailing party under account stated claim necessarily establishes that there is no agreement between parties, account statement could not be considered contract that is being enforced so as to support award of fees under section 57.105(7) -- Claim or defense not supported by material facts or applicable law -- Trial court was not required to make specific findings supporting denial of attorney's fees under section 57.105(1) -- In absence of transcript of attorney's fees hearing, trial court's denial of fees under section 57.105(1) is affirmed -- Remand for trial court to address request for costs not addressed in final order
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Breathalyzer technician permit -- No merit to argument that appellate panel of circuit court should not have remanded case for formal hearing after reversing precedent regarding licensee's burden of proof on issue of validity of breathalyzer technician's permit where review of record under new burden of proof supports finding of suspension, and further proceedings were required to allow licensee to present additional evidence to meet new burden of proof -- Fact that period of suspension of licensee's license has expired does not make remand inappropriate where suspension will remain on licensee's record and have potentially serious implications in event of future violations -- Motion for rehearing is denied
VIEW OPINION

Municipal corporations -- Police officers -- Pensions -- Disability retirement benefits -- Denial -- Where pension board's interpretation of city code article regarding police retirement trust fund to provide that only current members of fund can apply for disability retirement benefits does not contradict unambiguous language of article and is consistent with article when read as whole, interpretation of article to preclude officer who was terminated after suffering disabling on-the-job injury from applying for disability retirement benefits was neither unreasonable nor clearly erroneous
VIEW OPINION

Municipal corporations -- Zoning -- Waiver -- Where zoning code section establishing minimum area for residential planning development districts provides that smaller area may only be approved upon findings by planning board and city commission that certain conditions exist, city commission departed from essential requirements of law by approving waiver of area requirement without planning board findings and approval
VIEW OPINION

Insurance -- Attorney's fees -- Attorney who withdrew as counsel prior to resolution of case was not entitled to award of attorney's fees notwithstanding fee agreement stating that attorney is entitled to fee upon judgment or settlement after withdrawal
VIEW OPINION

Insurance -- Personal injury protection
VIEW OPINION

Insurance -- Default -- Trial court's denial of motion to vacate default is affirmed, but case is remanded for hearing on damages
VIEW OPINION

Attorney's fees -- Error to award attorney's fees without making express findings regarding hourly rate, number of hours reasonably expended, and appropriateness of reduction or enhancement factors -- Appeals -- Lack of transcript does not preclude appellate review where absence of written findings renders order fundamentally erroneous on its face
VIEW OPINION

Landlord-tenant -- Removal of tenant property by landlord -- Trial court erred in concluding that landlord who removed tenant's vehicles from outside of dwelling unit violated section 83.67, which prohibits removal of tenant's property from dwelling unit -- Where lease does not contain attorney's fees provision, and landlord did not violate statute, tenant is not entitled to award of attorney's fees
VIEW OPINION

Municipal corporations -- Code enforcement -- Fines -- Mitigation -- City's procedure for fine mitigation hearings is constitutionally infirm where there are no guidelines for special magistrate to follow in determining mitigation of fine
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Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency service providers, trial court erred in finding that insurer was correct in applying emergency service provider's claim to deductible
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Licensing -- Driver's license -- Suspension -- Driving with unlawful breath/blood alcohol level -- Lawfulness of arrest -- Where officers responding to report that licensee fell in store parking lot did not witness licensee driving vehicle or in possession of vehicle keys, which were removed from vehicle and given to police by store personnel, breath test was not incident to lawful arrest -- Order upholding license suspension is quashed
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Torts -- Settlement -- Allocation -- Medicaid lien -- Where plaintiff's settlement represented 10% recovery of all her damages, Agency for Health Care Administration is entitled to recover from settlement only 10% of compensation for past medical expenses
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Municipal corporations -- Taxation -- Inclusion of police fees on water bills -- Class action -- Settlement -- Class settlement is approved where settlement is not product of fraud or collusion and will eliminate expensive and protracted litigation, parties have sufficient information to evaluate merits of case, and settlement requiring city to disgorge all money collected in disputed police fees not barred by statute of limitations is excellent result for class and is fair, reasonable and adequate -- Class representative fee and attorney's fees are awarded
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Real property -- Restrictive covenants -- Enforcement -- Injunctions -- Defendant who has been utilizing residential lots in PUD as sales center, parking lot, commercial signage, and model homes, in violation of declaration of covenants, is enjoined from further commercial usage of lots and ordered to remove parking lot and signage
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Attorney's fees -- Proposal for settlement -- Striking -- Action for declaratory relief and breach of insurance contract
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Mortgage foreclosure -- Standing -- Where note contains special endorsement by plaintiff's predecessor in interest to non-party, plaintiff has not established standing to foreclose
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Criminal law -- Second degree murder -- Self-defense -- Stand Your Ground Law -- Although drugged victim threatened to kill defendant and waved his hands around, defendant failed to establish that she reasonably believed that it was necessary to kill victim by stabbing victim in eye with icepick and then strangling him to prevent him from killing her or inflicting great bodily harm or to prevent victim from committing imminent forcible felony -- Motion to dismiss denied
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Mortgage foreclosure -- Attorney's fees -- Timeliness of motion -- Motion for prevailing party attorney's fees filed more than thirty days after final judgment is denied as untimely
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Real property -- Homeowners association -- Action seeking declaration that homeowners have acquired right to control homeowners association -- Homeowners are entitled to control association where association's bylaws require that control be turned over to non-developer owners seven years after recordation of declaration of covenants in 2001 -- Developer may not reassume control of association after turnover has been triggered -- No merit to argument that owners are not entitled to control due to developer's after-the-fact unilateral amendment of bylaws to delete turnover provision -- Association ordered to hold election within 45 days
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Criminal law -- Competency to stand trial -- Evidence -- Competency evaluation -- Court will not use competency evaluation report prepared by expert retained by prosecution to determine whether defendant may be involuntarily committed for competency restoration treatment -- However, court will use that report as well as reports by defendant's expert and expert appointed by court in deciding whether defendant is mentally competent to proceed
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Mortgages -- Foreclosure -- Consumer law -- Affirmative defenses -- Usury -- Where defendant became liable for $230,000 plus interest for property that was being sold for $150,000 with majority of difference between two amounts being retained by mortgagee and her co-conspirators, amount retained was in nature of interest and rendered interest excessive under usury statute -- Loan was criminally usurious where mortgagee engaged in series of misrepresentations with purposeful and corrupt intent to cause defendant to pay excessive interest -- Fact that loan was subsequently modified to annual percentage rate below rate allowed by statute does not defeat usury defense where continued corrupt intent of mortgagee and fact that entire transaction was based on lies regarding sale price of property caused taint of criminal usury to become part of modified loan agreement -- Defendant is entitled to cancellation of note and mortgage -- Torts -- Defendant prevails on counterclaims alleging fraud, conspiracy to defraud, violation of statute governing mortgage broker practices, and violation of Florida Deceptive and Unfair Trade Practices Act with damages limited to amount paid to mortgagee, for which co-conspirators and mortgagee are jointly and severally liable
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Child custody -- Adoption -- Competing adoption petitions by child's current non-relative caregiver and relative who adopted child's older siblings -- Where child's current caregiver is only family he has known since birth, child has formed significant attachment to caregiver, and caregiver is more capable of providing for child's needs than indigent relative with multiple special needs children, removal of child from caregiver to allow adoption by relative who is stranger to child is not in best interest of child -- Although biological relationship of child to petitioning relative and presence of child's siblings in relative's home is factor to be considered, that factor alone cannot support finding that adoption by relative is in child's best interest -- Department of Children and Families had no right to select or consent to adoptive placement of child not in its legal custody -- If department did have right to select and consent to child's adoptive placement, its selection is merely recommendation that is subject to judicial review -- Department's selection of relative and refusal of current caregiver is not entitled to any judicial deference where applicants were not afforded due process by department's adoption review committee, and committee's finding that relocation of child would not be detrimental to his welfare is not supported by any evidence -- Department's selection of relative is inappropriate, and its rejection of current caregiver is unreasonable -- Current caregiver's adoption petition is granted
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Criminal law -- Drug trafficking -- Motion for judgment notwithstanding verdict arguing that state failed to prove that marijuana plants seized from alleged grow house met weight element of trafficking charge since only one sprig from one of 122 plants seized was tested is denied where all plants were seized contemporaneously and were similar in appearance, officers testified that they recognized plants as marijuana, and there is no evidence to suggest that decision to test only one sprig was product of police malfeasance rather than nonfeasance
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Dependent children -- Termination of parental rights -- Adoption -- Upon termination of parental rights, court is not obligated to place children not already in legal custody of Department of Children and Families in department's custody so that department alone may select and consent to adoptive placement of children -- Court is not required to receive department's consent before finalizing adoption of children not in department's legal custody
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Mortgage foreclosure -- Mediation -- Failure to attend -- Sanctions -- No merit to argument that plaintiff's failure to attend mediation is excused by defendant's failure to file a certification of authority which created rebuttable presumption of failure to appear on part of defendant where defendant that intended to appear at mediation was not required to file certification of authority -- Alleged calendaring error by paralegal does not constitute excusable neglect excusing plaintiff's failure to appear at hearing on defendant's exceptions to special magistrate's recommended order denying defendant's motion to dismiss where plaintiff's counsel was personally e-served with notice of hearing and notice was served on four other e-service sites within law firm -- No merit to argument that plaintiff was entitled to rely on order adopting magistrate's recommended order where order was entered in error and vacated prior to hearing on exceptions
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Insurance -- Attorney's fees -- Amount
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Declaratory judgments -- Class action -- Medical records -- Copying fees -- When medical provider receives patient's request for copies of patient's medical records, provider is not legally authorized to charge more than rate applicable when patient requests copies, irrespective of whether patient's request for copies was delivered or initiated by patient's legal representative and irrespective of whether request directed copies to be delivered to patient's legal representative -- Permanent injunction granted but stayed to allow provider to alter its business practices to comply with order
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Criminal law -- DUI manslaughter -- Evidence -- Statements of defendant -- Accident report privilege immunizes only such statements and communications as a defendant is compelled to make either by statutory accident report duty under section 316.066 or by officer's investigative inquiry -- Defendant's admission that he was driver of vehicle is properly immunized under accident report privilege and is suppressed -- Defendant's spontaneous voluntary statement that he was under influence of marijuana was not compelled by statute or by police interrogation, constructive or otherwise, and is admissible -- Defendant's third statement affirming that he had previously admitted that he was under influence of marijuana was made in response to officer's query prior to Miranda warning and is suppressed
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Attorney's fees -- Sanctions -- Bad faith conduct -- Motion by former attorneys for defendant seeking sanctions against plaintiff for filing unsuccessful motion for sanctions against them is granted -- Plaintiff acted in bad faith in filing motion for sanctions where motion was filed one year after order granting summary judgment and attorneys' withdrawal, and only alleged act of bad faith was fact that attorneys represented defendant
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Torts -- Automobile accident -- Action against street sweeping company for accident caused by debris in roadway -- Street sweeper is “contractor who maintains” roadway that is afforded protection under section 337.195 from liability for injury, damage or death arising from performance of maintenance when in compliance with contract documents -- Street sweeper whose work had been found satisfactory and given final acceptance by Department of Transportation inspector was in compliance with contract and is not subject to liability -- Summary judgment entered in favor of street sweeper
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Mortgage foreclosure -- Condominium unit -- Assessments -- Limitation of liability -- Safe harbor provision -- Federal National Mortgage Association, Inc. was not entitled to safe harbor provision, which limits liability of first mortgagee or successor or assignees for unpaid assessments that become due before mortgagee's acquisition of title through foreclosure where Fannie Mae did not take title to condominium unit through a foreclosure as the first mortgagee, but was assigned right to bid at foreclosure sale by the entity which had the rights and obligations under the mortgage at time of foreclosure
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Condominiums -- Assessments -- Liens -- Enforcement -- Jurisdiction -- Court presiding over action which created lis pendens has exclusive jurisdiction to adjudicate encumbrance or interest in the subject property from date lis pendens was recorded to date of final judgment -- Where association's initial claim of lien which was recorded prior to bank's recording of lis pendens against property was allowed to expire, and second claim of lien was not recorded until after bank's recording of lis pendens, court did not have subject matter jurisdiction to enforce the claim of lien -- Defendant's amended motion to vacate final judgment, certificate of sale, and certificate of title and to set aside writ of possession in favor of association is granted -- Final judgment in favor of association is vacated as nullity, and writ of possession is dissolved
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Real property -- Action to quiet title on property quit-claimed to plaintiff by grantors who acquired title by virtue of sheriff's deed based on final judgment against original owner of property that was recorded and became choate lien on property before any other defendants claiming interest in property acquired their interests -- Notice of tax lien filed by United States is inferior to interest of plaintiff where tax lien was recorded after grantors recorded their choate lien, and United States was notified of sheriff's sale -- Interest of plaintiff is superior to that of all other defendants who claim interests in property by virtue of instruments recorded after choate lien was recorded -- Where mortgagee whose foreclosure action was dismissed for failure to prosecute five years ago has filed counterclaim in action to quiet title seeking declaratory relief, not foreclosure, and failure to assert mortgage foreclosure as compulsory counterclaim will bar mortgagee from filing any subsequent foreclosure action, plaintiff's claim is declared to be superior to that of mortgagee -- Statute of repose bars enforcement of mortgage encumbering property -- Motion for summary judgment quieting title is granted
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Civil procedure -- Discovery -- Depositions -- Cancellation -- Sanctions -- Third-party plaintiffs that unilaterally cancelled deposition with few days' notice are required to reimburse third-party defendant for cost of plane ticket purchased to attend deposition -- Sanctions are imposed on counsel for third-party plaintiffs for excluding opposing counsel from deposition
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Torts -- Premises liability -- Slip and fall -- Discovery -- Social media -- Information contained within social networking profile -- Defendant not entitled to discovery of plaintiff's social networking profiles where defendant has not come forth with any information from public portions of any of plaintiff's profiles that would indicate that there is relevant information on her profiles that would contradict claims raised by plaintiff in this case -- Further, while defendant's second request for discovery from “all other social networking sites” is limited from date of incident until present, defendant's initial request for plaintiff's Facebook profile was not limited and time and is overly broad -- Plaintiff's objections to discovery are sustained, without prejudice
VIEW OPINION

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