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New Releases
from Florida's Circuit and County Courts

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Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of arrest -- Where arresting trooper's affidavit contains conclusory statement that licensee was driver of one of vehicles involved in crash, and crash report identifies licensee as driver of vehicle #1, but there is no explanation as to how conclusion that licensee was driver was reached, hearing officer's conclusion that licensee was in actual physical control of vehicle and, by extension, that his DUI arrest was lawful is not supported by competent substantial evidence -- Final order of license suspension is quashed
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Insurance -- Attorney's fees -- Appellate fees
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Criminal law -- Failure to yield right-of-way -- Sentencing -- License revocation -- Trial court had authority to revoke defendant's driver's license for 120 months when imposing sentence for failure to yield right-of-way, but was required to make factual findings to support revocation in excess of one year -- Remand with directions to make findings
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Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Use of horn -- Stop for improper use of horn based on licensee's having blown truck's air horn multiple times while in parking lot and while stopped at traffic light with no cars in front of him was not lawful -- Statute governing use of horns has been amended to remove prohibition on use of horn other than when reasonably necessary to ensure safe operation -- Because stop was not lawful, arrest was not lawful and licensee had no duty to submit to breath test -- Petition for writ of certiorari is granted
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Incident to lawful arrest -- Although there was conflict among documents relative to timing of arrest and request to submit to breath test, officers' testimony as to order of events was sufficient to support hearing officer's finding that licensee was arrested before he was asked to submit to breath test -- Lawfulness of detention -- Appellate court will not reweigh evidence relating to impairment and licensee's claims that indicia of impairment were attributable to bright spotlights on officer's vehicle, medical conditions, and lack of familiarity with rental vehicle -- Lawfulness of arrest -- Finding that there was probable cause for arrest was supported by competent, substantial evidence, including officer's observations that licensee had strong odor of alcohol, watery bloodshot eyes, blank dazed expression, and slow slurred speech -- No merit to argument that officer was required to offer alternative field sobriety exercises to licensee due to his back problems where licensee explicitly refused all exercises
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Insurance -- Homeowners -- Post-loss assignment -- Trial court erred in finding that insured was precluded from assigning benefits of homeowners policy to emergency water mitigation company without consent of insurer -- Trial court erred in finding that assignment was invalid because it was executed before loss was reported to insurer -- Insured has vested insurable interest at time of loss -- No merit to argument that partial assignment that transfers less than all rights under policy to assignee and is made in name of only one of several insureds is invalid -- Assignment does not violate statute prohibiting licensed contractor from adjusting claim
VIEW OPINION

Liens -- Foreclosure -- Security bond -- Circuit court has certiorari jurisdiction to review order requiring additional security for construction lien to provide for attorney's fees incurred in prosecuting claim against lien -- Under construction lien statute, which states that court must increase security bond if it is insufficient to pay attorney's fees and costs “incurred” in action to enforce lien, lienor is considered to have incurred attorney's fees under contingency fee agreement where agreement provides that attorney is entitled to amount equal to fees awarded by court -- In setting amount of increase in security, trial court was not bound by expert witness's testimony as to amount of attorney's fees incurred and could find based on own familiarity with the litigation and amount of lien that lesser amount of fees would be sufficient to provide security for future award of attorney's fees -- Trial court was not required to make findings in order increasing security
VIEW OPINION

Contracts -- Credit card agreement -- Attorney's fees -- Prevailing party -- Mutuality or reciprocity of obligation -- Prevailing defendant in action to collect credit card debt may recover attorney's fees under section 57.105(7) based on attorney's fees provision in credit card agreement even though plaintiff brought action for account stated, not breach of contract
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Insurance -- Predecessor judge erred in granting summary judgment on affirmative defense of exhaustion of benefits when discovery was pending -- Successor judge erred in entering final summary judgment and final judgment and denying motion for rehearing without hearing all evidence where parties did not stipulate to basis of record of prior proceedings and predecessor judge did not render summary judgment order
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Criminal law -- Driving under influence of controlled substance -- Argument -- Defense failed to preserve for appellate review claim that prosecutor's argument was based on facts not in evidence where defense objected to comment, trial court implicitly sustained objection by giving curative instruction, and defense failed to move for mistrial -- Prosecutor's argument that defense counsel did not want jury to hear truth was fundamental error necessitating review irrespective of lack of motion for mistrial -- Jury instructions -- Trial court erred by instructing jury to consider all arguments from lawwyer's as lies, and erroneous instruction was not cured by additional comment that we hope that attorneys make reference to truth and help jury find truth -- Cumulative errors require new trial
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that any amounts payable “shall be subject to any and all limitations” authorized by PIP statute including “all fee schedules” does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule -- Mandate is withheld pending Florida Supreme Court's decision resolving conflict in district court of appeal opinions
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Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Trial court's finding that benefits were not exhausted is affirmed -- Case remanded for recalculation of amount of remaining benefits after deduction of gratuitous payments
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Licensing -- Driver's license -- Suspension -- Obtaining license by fraud -- Hearing -- Timeliness -- Suspension must be invalidated where Department of Highway Safety and Motor Vehicles failed to schedule hearing within thirty days of licensee's request for formal review of one-year suspension imposed for obtaining license by fraud
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Criminal law -- Driving under influence -- Argument -- Even if state's comment that defendant's refusal to submit to breath test denied jury evidence of his breath alcohol level improperly shifted burden of proof to defendant, comment was harmless where entirety of evidence reveals that comment could not possibly have contributed to verdict, jury was instructed three times that state has burden of proof, and question posed by jury during deliberations did not indicate any confusion about burden of proof or focus on defendant's refusal
VIEW OPINION

Insurance -- Personal injury protection -- Summary judgment -- Error to enter summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of treatment where, even assuming provider's conclusory affidavit is sufficient to prove non-existence of factual dispute, affidavit of insurer's expert that court erroneously declined to consider demonstrates factual dispute -- Error to refuse to consider expert's affidavit pursuant to Ellison rule where affidavit stating that treatment was not reasonable, related and necessary as of one date did not baldly repudiate affidavit of insurer's other expert stating that treatment was not reasonable, related and necessary as of later date
VIEW OPINION

Judges -- Disqualification -- Judge did not err in treating motion to disqualify as successive motion brought under rule 2.330(d)(1) and consequently addressing truth of allegations in motion where plaintiff filed motion to disqualify judge's predecessor that, although it did not state it was brought under rule 2.330(d)(1), sought disqualification on grounds of bias -- Further, judge was entitled to consider truth of allegations where, although motion stated it was brought under rule 2.330(d)(1), it is actually rule 3.220(d)(2) motion seeking disqualification on ground of judge's relationship to party in another lawsuit involving plaintiff, and rules do not prohibit judge from addressing truth of allegations made under rule 2.330(d)(2) -- Petition for writ of prohibition is denied
VIEW OPINION

Insurance -- Property -- Sinkhole claim -- Neutral evaluation process -- Petition for writ of mandamus seeking to compel Department of Financial Services to facilitate neutral evaluation process for sinkhole damage to petitioners' property is denied -- Mandamus may not be used to resolve dispute as to whether statute requires that neutral evaluation process be made available in absence of sinkhole report or to enforce right to evaluation process under contract
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Implied consent warning -- Where licensee was read implied consent law and allowed to read law herself before she refused to submit to breath test, and conversation in which officer made alleged misstatement regarding procedure for obtaining hardship license only occurred after licensee had refused test, alleged misstatement does not require invalidation of suspension -- Although hearing officer erred in considering evidence of Horizontal Gaze Nystagmus test in upholding suspension, error is harmless where there is competent substantial evidence to support hearing officer's conclusion
VIEW OPINION

Traffic infractions -- Speeding -- Sentencing -- Illegal penalty -- Driver's license suspension -- Where defendant was required to attend mandatory hearing before judge on citation for speeding in excess of 30 mph over speed limit, and speeding did not result in accident, trial court was not authorized to impose driver's license suspension
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Trial court did not err in entering summary judgment in favor of medical provider on issue of reasonableness of MRI charge where opposing affidavit failed to include amounts other providers charge and accept as full payment for MRI services and failed to provide facts establishing that affiant is qualified to render opinion on reasonableness of MRI charges
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Criminal law -- Derelict vessel -- Discovery -- Loss or destruction of evidence by state -- Trial court erred in dismissing derelict vessel charge due to state's destruction of sailboat that is subject of charge where it is not clear from record that sailboat could be considered materially exculpatory evidence such that continued prosecution in face of non-available sailboat is violation of right to fair trial
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Insurance -- Personal injury protection -- Standing -- Assignment -- Document assigning to medical provider all medical and/or surgical benefits to which insured is entitled is valid assignment conferring standing
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Criminal law -- Sentencing -- Restitution -- Jurisdiction -- Trial court did not have jurisdiction to enter order dismissing defendant's defenses to restitution and releasing funds previously deposited into court registry where order was entered more than five years after court ordered restitution for misdemeanor offense and after defendant's probationary period had expired -- Where funds have already been released to party over which appellate court does not have jurisdiction, appellate court cannot fashion remedy, but defendant is not precluded from seeking recovery from state in separate action
VIEW OPINION

Insurance -- Automobile -- Windshield repair -- Venue -- Where insurer's claim that venue was not proper in Lee County because plaintiff repair shop does not have corporate office in that county was never substantiated with evidence, only by photocopies of documents attached to unsworn motion, trial court did not err in denying motion to transfer venue on that basis -- Forum non conveniens -- However, trial court abused it discretion in denying motion to transfer venue to Palm Beach County where it is undisputed that all critical witnesses reside and do business in that county
VIEW OPINION

Consumer law -- Florida Deceptive and Unfair Trade Practices Act -- Venue -- Where trial court in original venue ordered that case be transferred upon payment of transfer fee and that failure to pay fee within 30 days would cause matter to stand dismissed, trial court in receiving venue had discretion to overlook untimely transfer in absence of any suggestion of prejudice to non-transferring party -- Where receiving court denied motion to dismiss based on untimely transfer, court erred in entering summary judgment four years later determining it was without jurisdiction due to untimely transfer
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Document assigning to medical provider all medical and/or surgical benefits to which insured is entitled is valid assignment conferring standing on provider
VIEW OPINION

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