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from Florida's Circuit and County Courts

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Insurance -- Small claims -- Motion to invoke Florida Rules of Civil Procedure is denied
VIEW OPINION

Insurance -- Small claims -- Motion to invoke Florida Rules of Civil Procedure is denied
VIEW OPINION

Attorney's fees -- Contracts -- Prevailing party -- Mutuality or reciprocity of obligation -- Voluntary dismissal -- Argument that foreign law clause within contract should be used in lieu of Florida law rejected where plaintiff failed to object to use of Florida law prior to entitlement hearing, and entirety of the litigation of the case occurred pursuant to Florida law
VIEW OPINION

Consumer law -- Debt collection -- Statutory damages and attorney's fees and costs awarded to plaintiff following entry of default judgment against defendant -- Civil procedure -- Default -- Defendant's motion to set aside default as to liability denied based on finding that totality of circumstances did not demonstrate excusable neglect
VIEW OPINION

Consumer law -- Debt collection -- Jury trial -- Waiver -- Plaintiff did not waive right to jury trial in Florida Consumer Collection Practices Act case by executing mortgage that includes jury trial waiver
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reasonableness of charges and reimbursement levels in community and documents to be produced at deposition of insurer's corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- When medical provider filed two notices of voluntary dismissal without prejudice, whether based on mistaken belief that case had been included in global settlement or otherwise, court was divested of jurisdiction and cannot grant motion to set aside order of dismissal
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness -- Discovery -- Documents and information relating to provider's reimbursement contracts and amounts provider has agreed to accept and has accepted for the CPT codes at issue in instant case
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- No merit to argument that insurer was required to apply deductible to 100% of medical provider's billed expenses -- Deductible is required to be applied to 100% of provider's reasonable expenses -- Insurer that did not unambiguously elect permissive statutory fee schedule in PIP policy is not entitled to limit reimbursement to fee schedule -- Insurer is nonetheless entitled to prove that it paid only reasonable, necessary and related expenses
VIEW OPINION

Insurance -- Personal injury protection -- Evidence -- Judicial notice -- 2007 Medicare Part B Participating Physician Fee Schedule
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry -- Reasonableness of charges -- Where insurer has elected to reimburse claims pursuant to statutory fee schedule, reasonableness of charges is not issue about which discovery is permitted
VIEW OPINION

Insurance -- Venue -- Venue in action commenced under small claims rules is proper under those rules in county where payment is due -- Where insurer has not established substantial inconvenience and legal issues are pending in case, motion to transfer venue is denied without prejudice to reasserting motion if factual issues remain after legal issues are resolved
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- Discovery -- Depositions -- Provider's representative -- Further inquiry into whether claim was related and medically necessary or whether charge was reasonable is irrelevant and immaterial where bill was processed and paid under statutory fee schedule -- Insurer's motion to compel denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Probable cause -- Fellow officer rule -- Officer acting outside jurisdiction who was dispatched to disabled vehicle and observed defendant in actual physical control of vehicle outside of officer's jurisdiction did not qualify as fellow officer for purposes of imputing her observations to arresting officer who was acting within his jurisdiction -- Officer within jurisdiction who did not observe all elements of DUI did not have probable cause for arrest -- Citizen's arrest -- Officer acting outside jurisdiction could not make valid citizen's arrest where officer did not see defendant driving -- Dispatch report of reckless driving before vehicle became disabled cannot be relied upon under “color of office” doctrine -- Motion to suppress is granted
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Where insurer has elected to reimburse claim pursuant to statutory fee schedule, any discovery regarding reasonableness of charges is irrelevant
VIEW OPINION

Insurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Attorney's fees and court reporter costs
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Statements of defendant -- Where defendant who was involved in single vehicle accident was never questioned as part of accident investigation or given any indication that she was required to give accident information, pre-Miranda statements made by defendant to officer conducting DUI investigation are admissible -- No merit to argument that DUI investigator must have been involved in accident investigation in order to make valid arrest under statute allowing officer who makes accident investigation to make warrantless DUI arrest despite not having witnessed all elements of offense -- Arresting officer who observed defendant in actual physical control of vehicle was not required to personally conduct any part of accident investigation to make valid arrest -- Further, personal investigation supporting warrantless arrest at accident scene can be a DUI investigation -- Refusal to submit to field sobriety exercises is admissible notwithstanding fact that officer misinformed defendant about consequences of refusal where misinformation did not induce defendant to perform exercises -- Pre-arrest refusal to submit to breath test is inadmissable
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Determination by qualified medical provider that insured had broken bone in her wrist that caused extreme pain and seriously interfered with her ability to function at work satisfied requirement for determination of emergency medical condition despite provider's failure to use phrase “emergency medical condition” -- Insured is entitled to reimbursement of medical expenses up to $10,000
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Time spent litigating entitlement to fees -- Although insurer may have intended its actions in engaging in settlement negotiations over amount of attorney's fees and costs to reflect a stipulation as to medical provider's entitlement to fees and costs, where insurer failed to clearly and unequivocally communicate that intent to provider, provider is entitled to fees and costs for all time spent litigating entitlement to fees
VIEW OPINION

Insurance -- Medical provider's continuing violation of court orders -- Sanctions
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Related treatment -- No merit to argument that relatedness of treatment is determined by benefit or necessity of treatment -- Treatment for injuries arising from accident is related treatment irrespective of whether treatment continued past point at which it was no longer beneficial
VIEW OPINION

Insurance -- Discovery -- Documents -- Work product privilege -- Examination under oath
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Amount -- Hours -- Time spent preparing pleadings that were simultaneously filed in multiple PIP cases is prorated across cases -- Expert witness fees and costs awarded
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Where PIP policy clearly elects to pay pursuant to permissive statutory fee schedule, insurer properly applied fee schedule to bills before applying deductible
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Trade secrets -- HMO and PPO contracts are confidential, trade secret, proprietary documents that are not discoverable and cannot reasonably lead to discoverable information -- Evidence of payments made regarding other patients pursuant to non-automobile related coverages such as HMO, PPO and Medicare agreements are not discoverable and, further, cannot reasonably lead to discoverable information and, thus, are not relevant in a PIP case.
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawful charges -- Provider which was not licensed as a clinic under Health Care Clinic Act was not eligible to receive reimbursement under PIP statute where provider did not qualify for one of exceptions delineated in statute -- Provider in instant case, which is wholly owned by licensed massage therapist, does not qualify for any of the statutory exceptions from licensure -- Insurer is not legally obligated to pay pending claim
VIEW OPINION

Insurance -- Affirmative defenses -- Accord and satisfaction -- Summary judgment -- Factual issues
VIEW OPINION

Insurance -- Property -- Standing -- Assignment -- Although insurance policy contains anti-assignment provision, post-loss assignment of benefits to water mitigation company is valid -- Date of breach was date insurer refused to make payments due under policy, not date when consequential damages resulted or become ascertained
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Medical provider complied with requirements of section 627.736(10) y attaching itemized statement to demand letter -- PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer -- Insurer waived issue of defective demand letter by failing to raise issue before suit was filed
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reimbursement levels in community and documents to be produced at deposition of insurer's corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that insurer will pay lowest of its definition of “reasonable medical expenses,” insurer is entitled to reimburse medical provider's charges under permissive statutory fee schedule
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Field sobriety exercises -- Consent -- Where officer misinformed defendant that implied consent law required submission to field sobriety exercises and stated that defendant would be arrested if he refused to perform exercises, defendant did not freely and voluntarily consent to perform exercises -- Motion to suppress is granted
VIEW OPINION

Insurance -- Discovery -- Depositions -- Failure to attend -- Sanctions -- Dismissal
VIEW OPINION

Insurance -- Discovery -- Insurer is entitled to discover documents reflecting amounts accepted by medical provider as reimbursement from HMOs, PPOs, private health insurers, private pay or any other payor -- Provideris not required to disclose whether amounts reimbursed were pursuant to negotiated contract or entity from which reimbursement was received
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reasonableness of charges and reimbursement levels in community and documents to be produced at deposition
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Despite fact that insurer's proposal for settlement was submitted before insurer amended its answer and affirmative defenses to assert demand letter issue on which it ultimately prevailed, where medical provider has made no showing that settlement offer was not made in good faith, insurer is entitled to award of attorney's fees and costs
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 -- Personal injury protection -- Discovery -- Depositions -- Corporate representative of insurer -- Scope of inquiry
VIEW OPINION

Insurance -- Discovery -- Documents -- Insurer is directed to produce every claim from medical providers in geozip for CPT codes at issue for six months surrounding dates of service or produce explanations of benefits generated for geozip in those months for CPT codes at issue
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Declaratory action -- Insurer's payment of additional benefits in response to receipt of determination of emergency medical condition from non-party after filing of declaratory action seeking declaration that PIP coverage extends to $10,000 when there is no determination of absence of emergency medical condition did not constitute confession of judgment entitling provider to attorney's fees award where insurer did not wrongfully withhold benefits or pay benefits as result of suit -- Claim is dismissed as moot
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Declaratory action -- 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, benefits are limited to $2,500 in absence of determination by qualified provider that emergency medical condition exists -- Proposal for settlement and motion for attorney's fees are stricken where provider does not seek monetary damages and will not recover any wrongfully withheld benefits
VIEW OPINION

Insurance -- Attorney's fees -- Sanction for failure to notify medical provider of pre-suit exhaustion of benefits and assert exhaustion as affirmative defense
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable charges but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer is stricken where insurer failed to respond to permissible discovery requests regarding expert witness who is affiant, and failure has prejudiced medical provider's ability to prepare for trial -- Even if not stricken, opposing affidavit does not preclude summary judgment in favor of provider on issue of reasonableness of MRI charge -- Opinion that nothing greater than 200% of Medicare fee schedule would ever be reasonable, despite fact that fee schedule was not elected in policy, was not based on sufficient facts or data and was not product of reliable principles and methods
VIEW OPINION

Insurance -- Small claims -- Insurer is not required to file response to complaint in small claims case where rules of civil procedure have not been invoked -- Motion for default is denied
VIEW OPINION

Insurance -- Personal injury protection -- Venue -- Forum non conveniens -- Where all aspects of PIP case occurred in, and all witnesses except medical provider's director of billing are located in Pinellas County, and only link to Broward County is location of provider's attorney, motion to transfer venue from Broward County to Pinellas County is granted
VIEW OPINION

Insurance -- Personal injury protection -- Proposal for settlement -- Declaratory actions -- Monetary proposal for settlement directed to action that seeks declaration as to available PIP coverage and does not seek money damages is invalid -- Motion to strike is granted
VIEW OPINION

Insurance -- Personal injury protection -- Declaratory actions -- Motion to dismiss declaratory action on ground that PIP policy was not attached to complaint is denied where action was filed by medical provider not typically in possession of policy, and insurer denied provider's pre-suit request for policy -- Motion to dismiss on ground that insured is minor who lacks capacity to assign benefits is denied -- Provider's motion to amend complaint to more specifically allege equitable assignment is granted
VIEW OPINION

Traffic infractions -- Red light violations -- Red light cameras -- City's procedure for issuance of citations for red light camera violations violates section 316.0083 where city has given private vendor unfettered discretion in determining who receives citations and city's representatives do not actually create or issue citations -- Case is dismissed
VIEW OPINION

Criminal law -- Search and seizure -- Stop -- Officers who responded to call from store manager who had instructed his employees to take care keys from defendant/store patron, who was visibly impaired, had necessary suspicion to ask defendant to perform field sobriety exercises based on information given by store employees and added information officers gathered while talking to defendant during initial citizen-police encounter -- Officers lacked probable cause to arrest defendant for driving under influence where officers did not actually see defendant driving or in actual physical control of vehicle -- Store employees did not effect a valid citizen's arrest when they took keys from defendant where there was no evidence that any employee intended to arrest defendant and no one communicated to defendant that she was being detained until police arrived -- Evidence obtained by state prior to actual arrest of defendant is admissible -- Evidence obtained during and after arrest, including physical observations of police, statements made by defendant during and after arrest, and breath test results obtained after arrest, are inadmissible
VIEW OPINION

Insurance -- Discovery -- Medical provider is not required to produce agreements reflecting amounts charged to and accepted from other payors or documents reflecting payment of amount less than the amount billed to insurer for CPT codes at issue -- Provider is required to produce Medicare Cost Report and documents supporting proposition that its charges are reasonable and do not exceed its usual and customary charges
VIEW OPINION

Traffic infractions -- Speeding -- Evidence -- Radar and laser logs -- Where officer's radar and laser logs do not reflect tests performed or test results, logs are not admissible -- Where state failed to establish predicate for conviction based on officer's visual estimation of speed alone, and evidence of laser or radar speed readings is inadmissible without logs, defendants are found not guilty
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Insurer's representative -- Amounts hospitals within county charged for same procedures at issue in instant case for thirty-day periods prior to and after date of service
VIEW OPINION

Traffic infractions -- Red light violations -- Red light cameras -- Section 316.0083, which provides that notice of red light camera violation and traffic citation may not be issued for failure to stop at red light if driver is making right-hand turn in careful and prudent manner at intersection where right-hand turns are permissible, does not create exception to statute requiring that driver come to complete stop before turning right on red light or prohibit enforcement of violation via red light camera
VIEW OPINION

Limitation of actions -- Prisoners -- Costs of incarceration -- Counterclaim by against plaintiff by Department of Corrections for costs of incarceration is not time-barred, although defendant was convicted and sentenced before amendment to limitations period became effective -- Amended statute which changed time period for recovering costs of incarceration from four years from date of conviction to five years from date of offender's release applies to individuals who were incarcerated at time amendment became effective -- Motion to dismiss counterclaim is denied
VIEW OPINION

Torts -- Settlement -- Liens -- Medicaid lien on settlement recovered in personal injury action is limited to portion of settlement representing compensation for past medical expenses -- Death of Medicaid recipient does not give agency a greater right of recovery -- Plaintiff in instant case presented sufficient evidence to rebut statutory requirement of full payment of lien and established amount of settlement attributable to compensation for past medical expenses
VIEW OPINION

Florida Consumer Practices Act -- Debt collection -- Action against finance company that loaned plaintiff money to purchase vehicle from dealership alleging that defendant continued to contact plaintiffs seeking payments for car after plaintiffs filed for bankruptcy and in violation of FCCPA -- Waiver of right to jury trial contained in arbitration provision of car buyer's offer and purchase option contract did not apply to plaintiff/wife who was not signatory to agreement between plaintiff/husband and dealership -- Moreover, defendant cannot rely on this agreement as basis for its contention that plaintiff/husband waived right to jury trial because defendant was not signatory and there was nothing to indicate that this agreement was assigned to defendant -- Defendant waived any right it might have to arbitration by engaging in discovery that attacked merits of claim before seeking to compel arbitration
VIEW OPINION

Real property -- Quiet title -- Defendant, a senior mortgage holder which acquired title to property after mortgage was foreclosed, is entitled to summary judgment in action for quiet title brought by plaintiff who acquired title to property from homeowners association after association foreclosed its assessment lien where plaintiff failed to establish title with clearness, accuracy, and certainty and failed to establish the invalidity of defendant's claim -- Court that rendered judgment in assessment lien proceedings lacked jurisdiction given pending mortgage foreclosure suit in another court in which a lis pendens had been filed -- Notice of lis pendens, of which association had actual or constructive knowledge, should have acted as bar to assertion of any subsequent action to enforce association's inferior lien -- Failure of mortgagee to file a second notice of lis pendens in re-foreclosure proceedings, which mortgagee initiated in order to correct title defect, was not an impediment to mortgagee's claim
VIEW OPINION

Mortgages -- Foreclosure -- Action for deficiency judgment -- Jurisdiction -- Where court in foreclosure action specifically reserved jurisdiction to enter deficiency judgment, different court lacks jurisdiction to hear new action for deficiency judgment -- Plaintiff's recourse is to file motion seeking deficiency judgment in underlying foreclosure action
VIEW OPINION

Taxation -- Ad valorem -- Challenges to ad valorem tax assessments on ten drug store properties for three years are denied -- Just value -- Where property appraiser gave only passing nod toward considering income-capitalization approach and sales comparison approach to property valuation and made assessments based on cost approach, appraiser failed to “consider” all criteria required by section 194.311, and presumption of correctness of assessments accorded by section 194.301 is lost -- In absence of presumption of correctness, taxpayer has burden to prove assessments are in excess of just value by preponderance of evidence, rather than by clear and convincing evidence -- Taxpayer did not meet burden to prove that assessments were excessive where taxpayer's expert excluded other drug stores from pool of hypothetical potential buyers of properties when formulating highest and best use for properties and, consequently, based valuations on use as businesses that generate considerably less income than drug stores
VIEW OPINION

Criminal law -- Aggravated battery -- Immunity -- Stand Your Ground Law -- Defendant met burden of establishing that, given totality of circumstances leading up to attack, appearance of danger was so real that reasonably cautious and prudent person under the same circumstances would have believed danger could be avoided only through use of deadly force where he established that he was lawfully present in residence trying to retrieve his brother's belongings when he was attacked by multiple assailants, including victim -- Information charging defendant with aggravated battery is dismissed
VIEW OPINION

Counties -- Zoning -- Variances -- Decision of county board of adjustment to grant of variance to allow operation of restaurant above zoned seating capacity was supported by competent, substantial evidence, and there was no due process violation -- Board properly considered elements set forth in county ordinance, including undue hardship, and competent, substantial evidence supported grant of variance to allow applicant to operate its existing restaurant when seating capacity was increased after it was recalculated to meet state licensing requirements -- Objections not raised before board may not be raised for first time in petition for writ of certiorari -- Certiorari denied
VIEW OPINION

Criminal law -- Prostitution -- Prior convictions -- Error to allow state to impeach defendant with evidence of prior convictions where state did not have certified copies of judgments and sentences, but relied instead on defendant's rap sheet -- Good faith exception to certified copy requirement was not met where prosecutor did not have affidavit attesting to accuracy of rap sheet and made only single effort to secure certified copies -- Argument -- Prosecutor impermissibly sought to bolster credibility of police officers' testimony by arguing that they had no interest in case -- Prosecutor impermissibly made inflammatory remarks about corrupt officers and ridiculed theory of defense in closing argument -- Cumulative effect of errors requires reversal
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Probable cause -- Trial court's finding that deputy lacked probable cause for arrest is not supported by competent substantial evidence where deputy observed defendant driving at excessive speed and braking hard, deputy noted that defendant had strong odor of alcohol and glassy bloodshot eyes, and defendant swayed on his feet and performed poorly on field sobriety exercises -- Error to grant motion to suppress
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Evidence -- Although there were inconsistencies in times indicated in documents admitted into evidence and defect in notarization of one affidavit, remaining documents contain competent substantial evidence to support hearing officer's findings that licensee refused breath test after being given implied consent warnings and undergoing twenty-minute observation period -- Lawfulness of arrest -- Where arresting officer relied on fellow officers' reports that eyewitnesses had observed licensee in driver's seat of crashed vehicle, and arresting officer did not personally conduct investigation of crash, arrest was not lawful -- Fellow officer rule did not apply where no officer observed licensee behind wheel of vehiclew -- Order upholding license suspension is quashed
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Officer responding to dispatch regarding “domestic disturbance” did not have reasonable suspicion of criminal activity justifying stop of licensee driving vehicle that resembled vehicle described in dispatch -- Order sustaining license suspension is quashed
VIEW OPINION

Landlord-tenant -- Public housing -- Eviction -- Noncompliance with lease -- Dismissal -- Trial court erred in considering matters outside four corners of complaint in ruling on motion to dismiss -- Error was fundamental and is reviewable on appeal despite housing authority's failure to object
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- Work-product privilege -- Claims file -- Trial court departed from essential requirements of law by requiring insurer to produce documents from claims file where coverage and damages were at issue
VIEW OPINION

Colleges and universities -- Student discipline -- Hearing -- Due process -- Student was not denied due process by appearance of witness at hearing telephonically where student received notice that witness would appear telephonically, and student handbook does not prohibit telephonic testimony -- University's failure to disclose police officer as witness was harmless error where student, who received police reports prepared by officer and witness statements he gathered, suffered no inability to cross-examine officer -- Provision of police reports redacted to remove names of persons providing statements as well as all names of persons mentioned in statements did not deprive student of due process where student knew witnesses' names prior to hearing -- Where hearing officer acted only in quasi-judicial role, not in quasi-prosecutorial role, she was not prohibited from commenting on student's invocation of right to remain silent at police station -- Hearing officer's refusal to ask complainant questions about her alcohol consumption was harmless error where hearing officer had already received evidence that complainant had consumed alcohol, and witnesses contradicted student's claim that she struck complainant in self-defense when complainant lunged at her -- Student's claim that university imposed more severe sanctions on her than it imposed on students who were involved in more serious altercations was not supported by news reports that described incidents involving other students but did not specify sanctions imposed on those students
VIEW OPINION

Counties -- Code enforcement -- Hearing officer erred in interpreting county code section providing penalties for “any person” convicted of failure to display required commercial markings on commercial vehicle as not providing for citation to be issued to non-owner operator of commercial vehicle
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Trade secrets -- Medical provider's managed care contracts and information contained therein are proprietary in nature and can be defined as trade secrets -- Trial court departed from essential requirements of law in ordering provider to disclose reimbursement amounts paid pursuant to managed care contracts, identifying insurance carriers only by number and type, without conducting in camera inspection to explicitly determine whether contracts and information contained therein should be classified as trade secrets, whether reimbursement amounts paid pursuant to contracts and amounts paid by uninsured persons should be classified as trade secrets, whether identities of carriers and uninsured persons should be classified as trade secrets, and whether trade secret privilege should apply to protect provider from having to disclose requested information
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Trade secrets -- Although trial court order requiring medical provider to reveal payment amounts it received from insurance companies and uninsured patients for CPT codes at issue allowed provider to maintain anonymity of insurance companies, court erred in failing to include clear legal conclusion that amounts and identities of payors constituted trade secrets
VIEW OPINION

Municipal corporations -- Code enforcement -- Appeals -- Timeliness -- Circuit court acting in its appellate capacity lacks subject matter jurisdiction to review code enforcement violations and order of code enforcement board denying property owners' first request for mitigation of fines where petition for writ of certiorari was not filed within 30 days of execution of those decisions -- Unauthorized motion for rehearing did not toll time for appealing decision denying mitigation -- Where board denied second request for mitigation of fines without making findings regarding existence of unusual and exceptional circumstances required under village code, second decision denying mitigation is vacated and remanded for findings
VIEW OPINION

Landlord-tenant -- Attorney's fees -- Trial court erred in failing to award attorney's fees under both section 83.48 and lease agreement to tenant who prevailed on counterclaim filed against her by landlord in her action against landlord for damage to tenant's property -- Fee agreement between tenant and her attorney providing that attorney would “provide legal services, including possibly bringing one or more actions” did not limit scope of representation of tenant to action against landlord for damage to tenant's property, but also included representation in defending against counterclaim for back rent -- Fees were recoverable despite fact that tenant had not paid any fees where fee agreement contained alternative fee recovery clause
VIEW OPINION

Torts -- Dental malpractice -- Contracts -- Settlement agreement -- Limitation of actions -- Although trial court is correct that any claim by plaintiff for damages for dental malpractice occurring over two years previously was barred by statute of limitations, claim based on recently-formed and partially-performed settlement agreement is not barred by statute of limitations -- Remand to consider merits of claim for breach of settlement agreement
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 -- 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 -- Motion for appellate attorney's fees denied
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Warrantless arrest of licensee for misdemeanor DUI was unlawful where officer who encountered licensee leaning on his vehicle at entrance to gated community did not observe licensee in actual physical control of vehicle, which is essential element of crime -- Record does not support finding that licensee was in actual physical control of vehicle where there is no indication of location of vehicle keys or if vehicle was running at time of encounter with officer -- Security guards' observation of licensee driving cannot be combined with arresting officer's observations to form probable cause for warrantless arrest -- Guards who were encouraging licensee to leave, rather than restraining him, did not conduct citizen's arrest -- Order affirming license suspension is quashed
VIEW OPINION

Insurance -- Discovery -- Trade secret privilege -- Trial court erred in compelling disclosure of contract with medical provider's supplier without determining whether contract constituted trade secret and, if so, whether there was reasonable necessity for production
VIEW OPINION

Criminal law -- Resisting officer without violence -- No error in denying motion for judgment of acquittal where evidence established that deputy was engaged in lawful buy/bust operation at residence when he saw defendant leaving residence and ordered him to stop, and defendant unlawfully obstructed investigation when he fled back into residence and hid -- No abuse of discretion in allowing testimony about buy/bust operation conducted immediately before defendant's arrest where operation was inextricably intertwined with resisting charge -- No abuse of discretion in denying motion for mistrial based on deputy's testimony incorrectly identifying defendant as individual who sold drugs to undercover officer where single statement was not so prejudicial as to vitiate entire trial, and court gave curative instruction
VIEW OPINION

Criminal law -- Petit theft -- Evidence -- Questions by state asking whether defendant who went into residence and passed out without paying fare to taxi driver ever paid his fare were not improper and did not constitute fundamental error -- Closing argument -- Comments made by prosecutor during closing argument about driver never receiving payment were not improper appeal for sympathy and did not constitute fundamental error
VIEW OPINION

Criminal law -- Traffic infractions -- Driving while license suspended -- Dismissal -- Error to grant ore tenus motion to dismiss without giving state opportunity to controvert motion
VIEW OPINION

Criminal law -- Traffic infractions -- No valid driver's license -- Error for trial court to grant ore tenus motion to dismiss on ground that there was not an original citation in court file without affording state opportunity to controvert motion -- Further, trial court erred in resolving issue of missing citation through motion to dismiss rather than conducting evidentiary hearing to reestablish lost or destroyed charging document
VIEW OPINION

Civil procedure -- Dismissal -- Failure to appear at hearing -- Trial court erred in dismissing case as sanction for plaintiff's failure to appear at hearing without making findings showing consideration of Kozel factors and finding that there is no sanction less severe than dismissal that appears to viable alternative
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Consensual encounter -- Where officer who observed defendant seated motionless in driver's seat of vehicle parked in lot of closed business with keys in ignition made repeated attempts to awaken defendant by tapping on glass and shining light in windows, officer's action to ascertain defendant's well-being was consensual encounter -- Officer's order to partially roused defendant to open vehicle door did not transform consensual encounter into investigatory stop or seizure where officer's concern for defendant's well-being had not yet been alleviated when order was given -- No error in denying motion to suppress
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Detention -- Where officer stopped defendant for driving wrong way on road and observed that defendant had bloodshot eyes, slurred speech, and odor of alcohol and was unsteady on her feet, officer had reasonable suspicion to detain defendant and request that she perform field sobriety exercises -- Officer was not required to inform defendant of her right to refuse to perform exercises -- Because officer had reasonable suspicion for detention, it is immaterial whether defendant's consent to perform exercises was voluntarily given -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Disorderly conduct -- No error in denying motion to dismiss disorderly conduct charge where complaining witness told officer that defendant was playing loud music in his backyard throughout day while ranting and raving profanities directed at witness and brandishing machete -- Counsel -- Waiver -- Trial court erred in denying defendant's request to represent himself without making inquiry into whether defendant was making knowing and intelligent waiver of right to counsel and instead questioning only whether defendant had adequate legal skills to represent himself -- New trial required
VIEW OPINION

Criminal law -- Resisting officer without violence -- Evidence -- No abuse of discretion in allowing state to ask arresting officer why he did not charge defendant with battery on law enforcement officer rather than resisting officer without violence where defense opened door for testimony by asking officer whether defendant was charged with battery on law enforcement officer -- No abuse of discretion in allowing officer to testify that defendant's mother told him that she wanted defendant “Baker-Acted” where defense opened door for testimony by presenting mother's testimony that she said nothing to officer
VIEW OPINION

Mortgages -- Foreclosure -- Surplus funds -- Trial court correctly determined that homeowners association was entitled to payment from surplus funds for unpaid maintenance assessments that accrued from final judgment to date of certificate of title -- Trial court erred in disbursing surplus funds to association for special assessments not sought in complaint or claim of lien -- Error to disburse surplus funds to third-party purchaser of property for lien claimed by non-party -- Funds will be replaced in court registry and disbursed to mortgagors
VIEW OPINION

Criminal law -- Possession of cannabis and paraphernalia -- Evidence -- Statements of defendant -- Defendant who was detained pursuant to routine valid traffic stop was not in custody for the purpose of Miranda -- Officer did not act improperly in asking defendant whether he was in possession of any weapons or drugs without first advising defendant of his Miranda rights -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Resisting officer without violence -- Evidence -- Impeachment -- Where arresting deputy testified at trial that he saw defendant riding his bicycle next to walking companion and defendant fled on foot when deputy initiated stop for riding bicycle at night without lights, trial court did not abuse its discretion by not permitting defendant to impeach deputy with his deposition testimony that he saw defendant and his companion walking on sidewalk since deposition testimony, which also included testimony that deputy saw defendant jump off bicycle, did not directly contradict trial testimony
VIEW OPINION

Municipal corporations -- Code enforcement -- Hearings -- Due process -- Homeowner contesting code violation was denied due process where special magistrate announced her intention to rule against homeowner before homeowner was given opportunity to present his case, and magistrate repeatedly asserted during homeowner's presentation that she wanted to hear only expert testimony, despite fact that city code does not require expert testimony
VIEW OPINION

Criminal law -- Driving while license suspended -- Jury instructions -- Necessity defense -- No abuse of discretion in denying request to instruct jury on necessity defense where defendant, who claims that he drove home from bar despite knowing that his license was suspended because friend who drove him to bar was too drunk to drive home safely, did not present any evidence of imminent harm had he remained in parked car at bar rather than driving home, and defendant did not ask anyone in crowded bar for ride and made only two phone calls in effort to secure ride
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Criminal law -- Loitering and prowling -- Search and seizure -- Arrest -- No error in denying motion to suppress -- Officer who observed defendant pulling on door handle of business at night in area in which all businesses were clearly closed had reasonable suspicion to stop defendant for loitering and prowling -- Motion for judgment of acquittal was properly denied where officer's testimony relating his observations was sufficient to establish prima facie case of loitering and prowling -- Resisting officer without violence -- Jury instructions -- No abuse of discretion in failing to instruct jury that defendant had right to resist unlawful arrest without violence where there was no evidence that there was unlawful arrest, and standard instruction already required that state prove that officer was involved in lawful execution of legal duty
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Insurance -- Personal injury protection -- Small claims -- Trial court erred in considering amount of claim stated in demand letter in ruling on motion to dismiss -- Doctrine of de minimis non curat lex does not preclude small claims action seeking less than $100 in PIP benefits -- Error to base dismissal in part on affirmative defense that medical provider did not bring action in good faith because it did not attempt to mitigate damages by reaching out to insurer before initiating litigation -- PIP statute only requires that a claimant submit presuit demand letter, which provider did
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Insurance -- Personal injury protection -- Small claims -- Trial court erred in considering amount of claim stated in demand letter in ruling on motion to dismiss -- Doctrine of de minimis non curat lex does not preclude small claims action seeking less than $100 in PIP benefits -- Error to base dismissal in part on affirmative defense that medical provider did not bring action in good faith because it did not attempt to mitigate damages by reaching out to insurer before initiating litigation -- PIP statute only requires that a claimant submit presuit demand letter, which provider did
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