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New Releases
from Florida's Circuit and County Courts

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Consumer law -- Debt collection -- Contempt -- Willful and wanton failure to comply with court orders -- Defendant who failed to pay judgment in favor of debtor, comply with order to complete fact information sheet, or appear at show cause hearing engaged held in contempt is held in contempt -- Incarceration pending compliance with court order or production of cash bond in specified amount
VIEW OPINION

Landlord-tenant -- Eviction -- Dismissal -- Defective service of process
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 was required to extend benefits to $10,000 where qualified provider determined that insured suffered emergency medical condition -- There is no statutory basis for insurer to challenge qualified provider's determination that emergency medical condition exists with opinion from defense expert who performed peer review or compulsory medical examination; statute limits class of medical professionals who may determine that emergency medical conditions does not exist to those who provided initial treatment or follow-up care to insured
VIEW OPINION

Criminal law -- Driving under influence -- Expert witnesses -- Proffered defense expert's estimate that blood alcohol level of defendant, who was charged with DUI with normal faculties impaired and to whom no breath or blood test was administered, would have been .062 at time of driving would not give rise to presumption of impairment or of non-impairment -- Accordingly, opinion would not assist trier of fact and is not admissible -- Motion to strike expert's testimony is granted
VIEW OPINION

Condominiums -- Injunctions -- Violation of declaration of condominium -- Where unit owners violated declaration by aggressively threatening and disturbing other unit owners and condominium association employees, association has no adequate remedy at law, and there is likelihood of irreparable injury if no relief is granted, defendants are enjoined from engaging in threatening and disturbing conduct and from approaching or speaking to any unit owner while on common elements unless there is true emergency -- Request to enjoin defendants from occupying their unit is denied -- If defendants disregard injunction, association can petition for order to show cause, which could result in defendants being incarcerated for contempt of court
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related, and necessary treatment -- With two exceptions, factual issues exist as to whether certain treatments were related to accident and medically necessary -- Insured failed to demonstrate by competent evidence that disputed issue of material fact existed as to reasonableness of price -- Provider's motion for summary judgment granted in part and denied in part
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Failure to include in demand letter amounts allegedly paid by insurer, but which medical provider denies having received, does not render demand letter deficient -- PIP statute does not require provider to calculate exact amount previously paid by insurer and amount due, and lack of accounting for prior payments did not prejudice insurer that made those payments by depriving it of opportunity to adjust claim for second time and avoid litigation
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Document assigning benefits, but not specifically assigning right to sue, is nonetheless sufficient to confer standing on medical provider
VIEW OPINION

Insurance -- Automobile -- Windshield repair -- Coverage -- Where term “prevailing competitive price,” which policy defines as price insurer can secure from competent and conveniently located repair facility, can be interpreted both as allowing insurer to limit reimbursement to amount it has previously authorized to pay for same type of repair and as price quoted by plaintiff repair shop so long as insurer is able to obtain same price and plaintiff's shop is competent and conveniently located, term is ambiguous and must be interpreted in manner most favorable to plaintiff -- Insurer failed to produce admissible evidence that it can secure price it reimbursed for repair where affidavit submitted as evidence had attachments that were hearsay and not properly authenticated
VIEW OPINION

Insurance -- Personal injury protection -- Application -- Material misrepresentations -- Evidence -- Examination under oath of insured is admissible evidence in support of motion for summary judgment -- Hearsay -- Exceptions -- EUO is admissible as admission of party opponent -- Where evidence establishes that insured misrepresented on application for PIP policy the existence of other residents of her household age 15 and older and that this misrepresentation was material to risk assessed, policy was void ab initio and no coverage is afforded
VIEW OPINION

Insurance -- Personal injury protection -- Deductible -- PIP insurer properly applied statutory fee schedule to reduce bills before applying those bills to deductible
VIEW OPINION

Landlord-tenant -- Eviction -- Attorney's fees -- Prevailing party -- Voluntary dismissal -- Where landlord voluntarily dismissed eviction action after tenants vacated leased property and delivered keys to landlord's agents, tenants are not prevailing party entitled to attorney's fees under lease or statute
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy does not clearly and unambiguously elect permissive statutory fee schedule -- Exhaustion of policy limits -- Where insurer did not plead exhaustion of benefits as affirmative defense and raised issue for first time in motion for summary judgment, insurer cannot prevail on that basis -- Additionally, affidavit in support of insurer's motion for summary judgment is legally insufficient where affidavit does not lay foundation to authenticate attached business records and, therefore, does not establish exhaustion of benefits
VIEW OPINION

Insurance -- Arbitration -- Where parties assert that case has already been arbitrated but neither parties, arbitrator, nor clerk are able to locate copy of arbitrator's decision, court refers case again for arbitration with different arbitrator
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Deductible -- Clear and unambiguous language of PIP statute and PIP policy do not allow insurer to make any reductions to bills applied to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Insurer's payment of bill submitted more than 35 days after date of service was gratuitous payment that does not count toward limit of benefits payable under policy -- Medical provider's motion for summary judgment regarding exhaustion of benefits is granted
VIEW OPINION

Traffic infractions -- Driving while license suspended -- Motion to convert adjudication of guilt to withhold of adjudication -- Timeliness of motion -- Defendant who was adjudicated guilty of civil DWLS citation by entering payment plan, was adjudicated guilty of subsequent criminal DWLS and thereafter paid another previously issued civil DWLS citations, resulting in third DWLS adjudication within five years and revocation of driver's license, moves court to convert adjudication of guilt on first civil citation to withhold of adjudication -- Although defendant did not move for reduction of penalty within 60 days as allowed by traffic court rules, uncounseled failure to act to prevent unknown legal consequences constitutes excusable neglect, allowing court to now consider request to reduce penalty -- Where withhold of adjudication would have been appropriate and likely outcome if defendant had elected to appear before court on first civil citation, motion to convert is granted
VIEW OPINION

Insurance -- Discovery -- Documents -- Application
VIEW OPINION

Landlord-tenant -- Eviction -- Three-day notice was defective in that it declared the tenancy terminated and demanded that tenant vacate premises without affording opportunity to cure default of nonpayment, included demand for late fees without written agreement authorizing assessment of late fees and stating that late fees could be deemed to be rent, and omitted name of county where premises were located -- Motion to dismiss granted -- Funds deposited into court registry, which tenant concedes represent rent due, are to be disbursed to landlord -- Attorney's fees and costs awarded to prevailing tenant
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Multiple Procedure Payment Reduction is payment methodology whose use is allowed by Section 627.736(5)(a)3, not utilization limit prohibited by that statute -- Policy that provides that insurer will apply MPPR when determining amount payable under Medicare fee schedule clearly and unambiguously provided notice of insurer's intent to rely upon MPPR in calculating reimbursement
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that provides that insurer will pay 80% of all reasonable medical expenses, considering any and all limitations authorized by section 627.736, and further states that applicable fee schedule or payment limitation shall be under the permissive payment methodology clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that provides that insurer will pay 80% of all reasonable medical expenses, considering any and all limitations authorized by section 627.736, and further states that applicable fee schedule or payment limitation shall be under the permissive payment methodology clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that provides that insurer will pay 80% of all reasonable medical expenses, considering any and all limitations authorized by section 627.736, and further states that applicable fee schedule or payment limitation shall be under the permissive payment methodology clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Discrepancies in statement of amounts billed by medical provider and amounts paid by insurer do not render demand letter invalid
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- Amount to be applied to PIP policy deductible is 100% of reasonable expenses, not 100% of amount billed by medical provider
VIEW OPINION

Consumer law -- Debt collection -- Counterclaims for breach of contract and unjust enrichment are stricken in Florida Consumer Collection Practices Act case in reliance on decisions holding that such counterclaims are not compulsory counterclaims in consumer protection actions
VIEW OPINION

Consumer law -- Debt collection -- Affirmative defenses -- Parties agree that affirmative defenses to Florida Consumer Collection Practices Act complaint alleging bona fide error and that any violation was due to acts or omissions of plaintiff shall be stricken with leave to file amended defenses -- Defense alleging that complaint does not establish that communications qualify as communications related to debt collection is stricken, as allegations indicate that communications concerned amount due, terms of payment, demand for payment, and consequences of nonpayment -- Defenses alleging that plaintiff is limited to statutory damages and suffered no actual damages is stricken -- Defense contending that any amounts recovered by plaintiff should be set off by debt owed to defendant is stricken as contrary to legislative intent of FCCPA
VIEW OPINION

Consumer law -- Debt collection -- Discovery -- Documents -- Defendant is ordered to produce servicing transfer letters and policies and procedures supporting bona fide error defense and related training materials -- Interrogatories -- Defendant is ordered to identify person who left message reflected in account notes and to respond to interrogatory regarding prior Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act complaints brought against it
VIEW OPINION

Small claims -- Dismissal -- Failure to prosecute -- Action dismissed without prejudice where no record activity was taken by plaintiff in small claims case for six months and there was no stipulation staying action or stay order or timely showing of good cause -- Plaintiff's showing of good cause filed in response to notice and motion to dismiss for failure to prosecute was untimely where filed less than five days before hearing on motion to dismiss
VIEW OPINION

Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Offers of judgment/proposals for settlement are not applicable to, and are invalid in, cases alleging violations of FCCPA
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Timeliness of claim -- Where insured submitted bills to workers' compensation carrier but did not submit bills to PIP insurer, bills were not overdue, and demand letter to PIP insurer was premature -- Because bills were not submitted to PIP insurer within 35 days, summary judgment is granted in favor of insurer
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Deputy had legitimate reason to pull alongside defendant's vehicle, which was stopped on roadside at night in isolated location, to conduct wellness check -- Fact that deputy shone flashlight into vehicle and told defendant to roll down window did not convert encounter into investigatory stop -- Where deputy saw that defendant was alert and conscious and defendant responded to inquiry about his well-being, deputy's subsequent actions of parking patrol vehicle behind defendant's vehicle with lights activated and directing defendant to turn off vehicle and provide identification was unlawful investigatory stop -- Motion to suppress is granted
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Evidence was insufficient to establish that officer had reasonable cause for stopping defendant's vehicle where officer's testimony regarding defendant's deviation from lane of travel contained significant errors and omissions when compared with arrest report and officer's description of driving pattern given on day of stop and with recorded on video
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Exhaustion of policy limits -- Insurer waived right to argue that medical provider sued wrong entity by arguing at same time that it has properly exhausted all benefits under policy -- Where insurer had no knowledge of basis/data to support reduction of provider's bill, but instead relied on third-party vendor to process bill through utilization of undisclosed database supplied by another third-party vendor, insurer reduced payment without having reasonable basis for doing so and acted in bad faith when it subsequently exhausted benefits in payments to other providers -- Once insurer reduced bill without reasonable proof, bill became overdue, provider obtained priority rights to benefits, and insurer's payment of benefits to other providers violated plaintiff provider's right to priority payment -- Insurer also acted in bad faith by failing to reserve disputed portion of emergency service provider's bill under section 627.736(4)(c) until statute of limitations period expired or suit was filed and concluded
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Deductible -- PIP statute requires that deductible be applied to 100% of expenses and losses incurred before application of fee schedule reductions -- Insurer was free to challenge that loss was not compensable or that charges were not reasonable, related and medically necessary at time charges were submitted, but it cannot raise those challenges after it has applied bill to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Answer -- Amendment -- Denial -- Motion to amend answer to assert affirmative defense relating to PIP statute's 35-day billing requirement is denied -- Amendment would be futile because requirement is not applicable to plaintiff hospital
VIEW OPINION

Insurance -- Bad faith -- Count alleging violation of Florida Unfair Insurance Trade Practices Act is abated pending resolution of other count in complaint
VIEW OPINION

Insurance -- Untimely answer is stricken -- Insurer must file motion for leave to file late answer -- Sanctions awarded in favor of medical provider
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Motion for rehearing denied
VIEW OPINION

Insurance -- Personal injury protection -- Affirmative defenses -- Accord and satisfaction -- Insurer's check for reduced payment of bill with notation that it was for full and final PIP benefits did not effect common law accord and satisfaction where there was no communication between medical provider and insurer indicating existence of dispute or that payment was made as offer to settle -- Insurer cannot create accord and satisfaction by tendering amount it contends will fully satisfy its obligation -- Statutory accord and satisfaction was not effected where evidence does not establish that check was good faith offer; there is no evidence that dispute existed prior to payment; and markings on check in same size as surrounding text and not distinguished by contrasting type, font or color did not amount to a conspicuous statement
VIEW OPINION

Insurance -- Personal injury protection -- Med Pay -- Declaratory actions -- Motion to dismiss action seeking declaration as to whether insurer paid claims pursuant to hybrid method rather than reasonable amount method or statutory fee schedule, whether insurer was entitled to do so or was required to use either fee schedule or reasonable amount method, and whether insurer was entitled to rely on Multiple Procedure Payment Reduction is denied -- Complaint properly sets out matter for determination within contemplation of declaratory judgment statutes -- Declaratory judgment is not precluded merely because another adequate remedy is available -- Motion to strike medical provider's claim for attorney's fees and costs is denied as premature where court has not yet entered judgment or decree that might entitle provider to fee award -- No merit to argument that recovery of attorney's fees and costs under section 627.428 is limited to cases in which plaintiff recovers benefits
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Condition precedent -- Examination under oath -- Where both PIP statute and policy provide that EUO is condition precedent to receipt of benefits, neither insured who failed to appear at two scheduled EUOs nor medical provider/assignee is entitled to benefits -- Insurer that scheduled EUOs to occur more than thirty days after receipt of provider's bills did not thereby waive right to notice EUO -- Further, where PIP policy contains “no action clause” that states that lawsuit against insurer is precluded until insured complies with all portions of policy, policy bars suit until EUO requirement is met
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Failure to cooperate with claim investigation -- Under pre-2013 PIP statute, insured's failure to attend examination under oath is not bar to coverage -- Provision of PIP policy that allows insurer to deny claim because insured failed to fill out and return proof of loss package not specifically required by statute is an impermissible coverage limitation that is contrary to purpose of PIP statute to provide for swift and virtually automatic payment of insurance proceeds
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Insurer waived right to assert any deficiencies in demand letter as affirmative defense to suit where insurer failed to note any deficiencies in two pre-suit demand letters sent by provider -- Where insurer failed to avail itself of opportunity to make payment without liability for fees and costs during additional thirty-day period afforded by provider's service of third demand letter after suit was filed; thereafter, insurer secured additional abatement of action to allow provider to serve fourth demand letter with “agreed order” that provided for dismissal in event insurer made complete payment; and insurer made payment of sums demanded in third demand letter during abatement period, despite fact that provider did not serve another demand letter, but paid penalty and postage to incorrect attorney, insurer is not entitled to dismissal of action -- Complete payment was not made due to error in payment of penalty and postage -- No merit to argument that dismissal is warranted under maxim of de minimis non curat lex
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Trade secret privilege -- Contract between PIP insurer and billing review company is protected by trade secret privilege -- However, where necessity of production of two sections of contract that clarify role of billing review company in processing medical bills and directives from insurer to company outweighs interest in confidentiality, court orders production of those sections subject to protections to prevent disclosure of privileged information
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of x-ray charges where basis of affiant's opinion is deficiencies in medical record-keeping, and affiant offers only conclusory opinion that charges were not reasonable -- No merit to argument that summary judgment is precluded by provider's failure to produce actual x-ray films where x-ray reports are in medical record, and production of actual x-ray films is not condition of coverage under PIP statute
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Neither approval of PIP policy by Office of Insurance Regulation nor incorporation of OIR sample form in policy is dispositive as to whether policy makes proper election for payment under permissive statutory fee schedule
VIEW OPINION

Landlord-tenant -- Eviction -- Premature complaint -- Eviction complaint filed two days before expiration of lease was prematurely filed prior to accrual of cause of action and is dismissed without leave to amend
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where definition of “reasonable charge” in PIP policy is hybrid of factors found in reasonable amount method of reimbursement and provisions from fee schedule method of reimbursement, policy is ambiguous as to reimbursement method and did not specifically elect fee schedule method of reimbursement -- Neither approval of PIP policy by Office of Insurance Regulation nor incorporation of OIR sample form in policy is dispositive as to whether policy makes proper election for payment under permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Where PIP policy provides that insurer will limit reimbursement to 80% of fee schedule and also states that insurer retains right to reduce charges on any submitted bill it deems unreasonable and by any amount it chooses, policy commingles language from both payment methodologies and fails to make clear and unambiguous election of reimbursement method -- Fact that policy defines unreasonable charge as any charge that exceeds maximum charges in fee schedule does not create clear and unambiguous election
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable charges and also providing that in no event will insurer pay more than 80% of No-Fault Act schedule of maximum charges does not provide clear and unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule -- Approval of PIP policy by Office of Insurance Regulation does not satisfy requirement that policy provide unambiguous notice of intent to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Standing -- Dissolved corporation -- Medical provider dissolved as result of failure to file annual report with Florida Department of State is ordered to file report to reinstate active status within 30 days -- If provider fails to reinstate, case will be dismissed
VIEW OPINION

Insurance -- Personal injury protection -- Declaratory actions -- Action for declaratory judgment is improper in first-party PIP case where judgment on breach of contract count of complaint will provide full, adequate, and complete relief
VIEW OPINION

Insurance -- Summary judgment -- Affidavit in opposition to motion for summary judgment creates genuine issue of material fact as to whether medical provider knowingly submitted false or misleading statement related to claim or charges -- Insurer's motion for summary judgment denied
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Where medical provider recovered only penalties and postage as result of insurer's confession of judgment, and all PIP benefits were paid pre-suit, provider is not entitled to award of attorney's fees under section 627.428
VIEW OPINION

Garnishment -- Exemptions -- Debtor who does not claim or receive benefits of homestead exemption is entitled to both $4,000 personal property exemption pursuant to section 222.25 (4) and $1,000 personal property exemption under section 4, article X of Florida Constitution
VIEW OPINION

Insurance -- Automobile -- Windshield repair -- Where automobile insurance policy provides that, except in emergency circumstances, insurer will only pay for damage it is able to inspect prior to repair, and neither insured nor repair shop/assignee provided insurer with notice of damage and opportunity for inspection before repairs were made, there is no coverage under policy for claim
VIEW OPINION

Insurance -- Personal injury protection -- Med Pay -- Declaratory actions -- Motion to dismiss action seeking declaration as to whether insurer paid claims pursuant to hybrid method rather than reasonable amount method or statutory fee schedule, whether insurer was entitled to do so or was required to use either fee schedule or reasonable amount method, and whether insurer was entitled to rely on Multiple Procedure Payment Reduction is denied where complaint properly sets out matter for determination within contemplation of declaratory judgment statutes -- Declaratory judgment is not precluded merely because another adequate remedy is available -- Motion to strike medical provider's claim for attorney's fees and costs is denied where motion is premature when court has not yet entered judgment or decree that might entitle provider to fee award -- No merit to argument that recovery of attorney's fees and costs under section 627.428 is limited to cases in which plaintiff recovers benefits
VIEW OPINION

Insurance -- Personal injury protection -- Summary judgment -- Insurer is entitled to summary judgment on issues of whether medical services were actually rendered to insured and whether services were related to accident and medically necessary -- Opposing affidavit of medical provider's alleged records custodian is stricken for lack of trustworthiness and lack of personal knowledge -- In absence of authentication, attached medical records cannot be considered -- Affidavit that was written in English, although affiant did not speak or understand English, violated section 117.107(6) -- Moreover, affiant denied being records custodian in her deposition testimony
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Traffic infraction -- Violating right-of-way -- Where officer observed that vehicle traveling in front of him applied its brakes but did not take any evasive action when defendant entered intersection and turned left in front of it, and officer was unable to state distance between defendant's vehicle and vehicle in front of him, evidence does not support finding that defendant created immediate hazard and violated right-of-way -- Motion to suppress is granted
VIEW OPINION

Condominiums -- Liens -- Foreclosure -- Default -- Vacation -- Error to enter clerk's default in action to foreclose lien for unpaid condominium assessments where defendant unit owner sent emails and letters to plaintiff condominium association in response to complaint -- Clerk's default entered when circumstances required that notice be sent to defendant is void and must be vacated irrespective of whether defendant can establish meritorious defense or can demonstrate inadvertence or excusable neglect -- Where rights of third parties not before court are at issue as result of foreclosure sale of property, court makes no finding as to effect of void default and resulting final judgment on judicial sale and rights of third-parties
VIEW OPINION

Small claims -- Dismissal -- Failure to prosecute -- Action is dismissed without prejudice where no record activity was taken by plaintiff in small claims case for six months and there is no stipulation staying action or stay order -- Plaintiff's showing of good cause based on outstanding discovery and a pending motion to compel arbitration is deficient
VIEW OPINION

Small claims -- Dismissal -- Failure to prosecute -- Action dismissed without prejudice where no record activity was taken by plaintiff in small claims case for six months and there is no stipulation staying action or stay order -- Plaintiff's showing of good cause filed in response to notice and motion to dismiss for failure to prosecute was untimely filed less than five days before hearing on motion
VIEW OPINION

Contempt -- Indirect civil -- Defendant's president is found in indirect civil contempt for failure to complete fact information sheet
VIEW OPINION

Municipal corporations -- Code enforcement -- Code enforcement board's finding that property owner violated city code provision prohibiting public nuisances was supported by competent substantial evidence in form of inspection report and photographs indicating that shed on property was dilapidated, nuisance, and safety hazard -- Board's finding that owner was in violation of code provision requiring maintenance of trees was supported by competent substantial evidence -- Board was entitled to weigh conflicting evidence in reaching its determination regarding condition of tree -- Owner not entitled to relief on claim that he was denied due process when prehearing motion for continuance was denied -- Owner failed to preserve issue by raising it to board at hearing, and there was no fundamental error on face of order
VIEW OPINION

Consumer law -- Real Estate Settlement Procedures Act -- Venue -- In action against mortgage servicer for violation of RESPA by failing to timely send acknowledgment of receipt of request for information, venue would be proper either where property is located or where alleged violation occurred -- Violation occurred where servicer was located when it failed to send acknowledgment -- Trial court erred in denying motion to dismiss for lack of jurisdiction
VIEW OPINION

Municipal corporations -- Employees -- Dismissal -- Police officer's due process rights were violated when city manager who approved officer's dismissal also presided over internal appeal
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to blood test -- Impossibility or impracticality of breath or urine test -- Competent, substantial evidence supported hearing officer's determination by preponderance of evidence that licensee, who had been transported to hospital following crash, refused lawful request for blood test prior to his arrest -- Trooper's statements in arrest report and alcohol and drug influence report indicated existence of exigent circumstances, including time delay from crash and uncertainty whether licensee was going to be admitted to hospital, which made administration of breath or urine test impractical or impossible -- No merit to licensee's contention that conflicts in documents relied upon made it impossible to determine whether request for blood test was lawful
VIEW OPINION

Landlord-tenant -- Public housing -- Eviction -- Trial court erred in finding that housing authority that previously accepted late payments of rent was estopped from evicting tenant for nonpayment of rent without first giving notice that late payments would no longer be accepted where competent substantial evidence did not support finding that authority consistently accepted late payments -- Tenant's promise to pay rent did not estop authority from instituting eviction proceedings for failure to timely pay rent
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- In absence of transcript of pertinent proceedings below, appellate court cannot conclude that trial court abused its discretion in denying motion for attorney's fees based on finding that insurer's proposal for settlement, which totaled $500 for medical benefits and attorney's fees and which was rejected by plaintiff, was not made in good faith, notwithstanding fact that jury ultimately returned verdict for insurer, finding that injuries were not related to accident
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- In granting motion for summary judgment in favor of medical provider, trial court erred in considering affidavits that contained conclusions relying on hearsay without conducting Daubert hearing to determine if affiants were expert witnesses who could properly render opinions -- Further, reasonableness of charges is factual issue for jury, and trial court should act with caution in granting motion for summary judgment on issue
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer -- Departure from neutrality -- Hearing officer's prior adverse rulings are not proper basis for disqualification -- Fact that hearing officer pronounced licensee “very rude” during telephonic conference and then hung up on him does not in itself give rise to reasonable belief that hearing officer is biased, but fact that hearing officer commented on truthfulness of allegation creates independent ground for disqualification -- Decision upholding suspension is quashed, and case is remanded with instructions for hearing officer to recuse herself
VIEW OPINION

Traffic infractions -- Non-criminal -- Failure to surrender driver's license to law enforcement -- Hearing officer who dismissed citation for non-criminal violation of section 322.15(1) against defendant who displayed driver's license at DUI checkpoint but refused to surrender license to officer erred in subsequently granting city prosecutors' motion for new hearing and transferring case to county court, which convicted defendant of charge -- Hearing officer should have stricken motion since city prosecutors had no authority to prosecute violations of chapter 322 -- Motion for new hearing filed by city was not authorized under traffic court rules -- Conviction is vacated
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Obtaining license by fraud -- Documentary evidence relied upon by agency was insufficient to prove that licensee knowingly obtained a license by fraud
VIEW OPINION

Torts -- Negligence -- Trespass -- Error to enter summary judgment in favor of condominium association on owner's claims of trespass and negligence arising out of incident in which association employee forcibly entered condominium unit when owners were not present for purported purpose of removing unsafe items being stored on the balcony, changed lock on unit, and refused owners a key despite repeated requests -- Conflicting factual accounts contained in affidavits provided by the parties precluded entry of summary judgment
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Violation of right-of-way -- Where officer observed that vehicle traveling in front of him applied its brakes but did not take any evasive action when licensee entered intersection and turned left in front of it, competent substantial evidence does not support finding that licensee forced other vehicle to brake so as to justify traffic stop for violation of right-of-way -- Decision upholding suspension is quashed -- On rehearing, court notes that hearing officer's restatement of officer's report that licensee “caused” other vehicle to brake to finding that licensee “forced” other vehicle to brake suggests potential departure from neutrality and that finding that other vehicle applied brakes to avoid crash is not supported by any competent substantial evidence
VIEW OPINION

Dissolution of marriage -- Equitable distribution -- Husband's request for unequal equitable distribution is issue was not raised in pleading -- Wife's credit card debts that are asserted by husband as basis for request are marital liability irrespective of husband's knowledge of debts -- Fact that wife has higher income than husband does not justify unequal distribution where husband is voluntarily unemployed -- Trailer purchased by husband prior to marriage was transformed into martial asset by wife's payment for refurbishing of trailer -- Husband awarded greater share of marital assets based on his need for some assets to earn income imputed to him -- Because of husband's current unemployment, wife is responsible for all debt, and husband is required to make equalization payments to wife -- Child custody and support -- Timesharing plan that grants wife majority timesharing is approved upon consideration of various factors, including husband's unstable living situation -- Income imputed to husband based on finding that husband hid income from work and recurring gifts and that husband's unemployment is voluntary and not result of alleged disability
VIEW OPINION

Attorney's fees -- Debt collection -- Mutuality or reciprocity of obligation -- Prevailing party -- Where bank had no obligation or duty to dismiss action for collection of credit card debt upon receiving notice of filing of defendant's bankruptcy, bank's voluntary dismissal makes defendant prevailing party for purposes of award of attorney's fees and costs under section 57.105(7) and rule 1.420(d)
VIEW OPINION

Contracts -- Employment -- Non-competition covenant -- Enforcement -- Motion for temporary injunction to enforce non-compete agreements is granted in part where former employees violated agreements by servicing or working with former customers of plaintiff while employed by plaintiff's competitor; competitor materially assisted former employees in violating agreements; agreements are valid and enforceable; plaintiff has demonstrated substantial likelihood of success on merits, irreparable harm and unavailability of adequate remedy at law; threatened injury to plaintiff outweighs any potential harm to former employees or competitor; and granting injunction will not disserve public interest -- One former employee who substantially complied with agreement despite going to work for competitor is not required to serve out remaining month of agreement -- Court does not find it necessary to enter injunction against some former employees at this time but expects them to comply with restrictions of agreements
VIEW OPINION

Attorney's fees -- Corporations -- Officers and directors -- Breach of fiduciary duty -- Corporation officer and director whom court previously found was entitled to advancement of expenses incurred in defending breach of fiduciary duty claims brought against him is entitled to recover attorney's fees incurred in proving entitlement to the advancement, but is not entitled to attorney's fees incurred in litigating amount reasonably expended
VIEW OPINION

Corporations -- Accounting -- Attorney's fees -- In action for accounting brought by minority shareholder against corporation and majority shareholder, plaintiff waived claim for attorney's fees against corporation where complaint only asserts that attorney's fees should be assessed against majority shareholder -- Claim for attorney's fees against majority shareholder under section 607.1604(3) fails where statute only authorizes award of fees if court orders inspection and copying of records, not accounting, and only authorizes award against corporation, not individual shareholder
VIEW OPINION

Dissolution of marriage -- Real property -- Quit claim -- Failure to execute quit-claim as required by modified final judgment of dissolution and court orders -- Conveyance of property pursuant to court's inherent power
VIEW OPINION

Trusts -- Breach of fiduciary duty -- Limitation of actions -- Trust beneficiary's claims for breach of trustee's fiduciary duty based on accountings that did not contain notification of six-month statute of limitations within which to file breach of fiduciary duty claims, as required by section 736.1008, are subject to four-year statute of limitations and are timely -- Claims based on accountings that contained notification of six-month statute of limitations are, nonetheless, not time-barred where accountings did not provide sufficient information such that beneficiary knew of or reasonably should have inquired into existence of claims -- Trustee breached duty by failing to provide requesting qualified beneficiary with HUD statement upon sale of real estate in trust, by using trust assets to make improvements on trust property that were not necessary for maintenance and upkeep of property and by refusing to make partial distribution to beneficiary so that beneficiary could obtain counsel to advise him of his rights regarding release of trustee -- Trustee did not waste trust property by failing to rent real property owned by trust where failure to rent was not unreasonable under circumstances presented -- Trustee did not breach duty by failing to pursue claims for damage to trust property where damage occurred during grantor's lifetime, grantor decided not to file insurance claim, and trustee's subsequent claim was denied as untimely -- Trustee is required to refund fiduciary compensation to trust and compensate beneficiary for his share of unnecessary expenditures on trust property
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Criminal law -- Evidence -- Scientific evidence -- DNA -- Defense motion to exclude DNA evidence is denied without need for Daubert hearing where motion fails to provide record support for serious, specified and substantial question as to continued reliability of the science, theory or methodology of DNA evidence
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Insurance -- Uninsured motorist -- Scientific evidence -- Expert witnesses -- Testimony of insurer's biomechanical expert, opining that forces applied in rear end collision to vehicle in which plaintiff was passenger were not sufficient to create injury mechanism for claimed cervical spine injuries, is excluded under both Daubert standard and Frye analysis -- All three steps in expert's injury causation analysis were based on insufficient facts where expert did not personally examine plaintiff, vehicles or accident scene -- Further, expert's methodology lacks general acceptance in relevant scientific community, and expert lacks expertise to render medical opinions -- Insurer's medical expert, who performed compulsory medical exam on plaintiff, is stricken where insurer violated court order requiring it to produce information on its relationship with expert in response to plaintiff's interrogatories and actively engaged in artifice to shield itself from disclosing information and to prevent plaintiff from cross-examining its expert
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Insurance -- Uninsured motorist -- Claims for injuries sustained when vehicle in which she was passenger was struck from behind by a vehicle operated by an uninsured motorist -- Striking of insurer's expert witnesses as sanction for failure to comply with court order requiring insurer to provide responsive answers to plaintiff's expert interrogatories
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Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer -- Departure from neutrality -- Although licensee's allegations in motion to recuse hearing officer were insufficient to establish reasonable fear of bias, hearing officer took adversarial role by attempting to refute allegations and denied licensee due process by denying his subsequent amended motion to recuse -- Petition for writ of certiorari is granted
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