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New Releases
from Florida's Circuit and County Courts

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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 where qualified provider has not 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 -- Where insurer's explanation of reimbursement requested additional information regarding existence of emergency medical condition to warrant payment of any additional benefits, request for information tolled time for payment of claim, and claim was not overdue when demand letter was sent -- Question certified
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Where qualified medical provider did not diagnose claimant with an emergency medical condition, the available benefits under policy and statute were properly limited to $2500
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition -- Amended complaint seeking declaratory relief regarding emergency medical condition provision in PIP statute denied, as complaint fails to make any allegations about plaintiff's doubts concerning its rights or privileges and fails to allege plaintiff's entitlement to have such doubts removed
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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 where qualified provider has not 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
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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 where qualified provider has not determined that insured suffered emergency medical condition -- Where insurer timely paid charges after post-suit receipt of emergency medical condition determination, payment did not constitute confession of judgment
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Insurance -- Personal injury protection -- Discovery -- Non-parties -- Non-party hospitals' rates of reimbursement from health insurance are confidential and protected as trade secrets, and insurer has not shown necessity for information so as to overcome those protections -- Discovery is allowed as to non-party hospitals' customary charges billed for CPT codes and prescription drugs at issue and reimbursement amounts accepted from Medicare, Medicaid, uninsured and self-pay patients, and other PIP insurers for those CPT codes and drugs
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Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Provider complied with requirements of section 627.736(10) by attaching itemized statement to demand letter -- Insurer waived any deficiencies in demand letter by failing to object to letter prior to filing of suit
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Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- Demand letter that included all information needed to evaluate claim was not rendered insufficient by failure to attach reverse side of assignment that contained signatures -- Substantial compliance, not strict compliance, is proper standard for evaluating sufficiency of demand letter
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Insurance -- Personal injury protection -- Discovery -- Insurer is not entitled to discover documents reflecting amounts accepted by medical provider as reimbursement for Medicare and Medicaid from third-party payers with which provider has negotiated rate contracts -- Insurer is entitled to discover reimbursement amounts accepted by provider from other PIP carriers and third-party payers with which provider does not have contracts
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Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter account for prior payments made by insurer or attempt to state exact amount owed by insurer -- By attaching itemized statement to demand letter, medical provider satisfied legislative intent of section 627.736(10)
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Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document that authorizes medical provider to prosecute action is valid assignment of benefits -- Failure to include names of provider and insurer on assignment creates issue of fact precluding summary judgment
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Insurance -- Discovery -- Depositions
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Insurance -- Discovery -- Depositions
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Criminal law -- Driving under influence -- Evidence -- Blood test -- Consent -- Voluntariness -- Where there is ambiguity as to conversation between officer and defendant who provided blood sample at hospital after transport from accident scene, state failed to show that defendant voluntarily consented to blood draw -- Statements of defendant -- Accident report privilege does not apply to statements made by defendant to paramedics -- Where officer told defendant that he was conducting criminal investigation, but did not read Miranda warnings, statements of defendant to officer are inadmissible under accident report privilege -- Motion to suppress is granted in part
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Contracts -- Attorney's fees -- Reciprocity or mutuality of obligation
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Landlord-tenant -- Eviction -- Occupancy under contract for sale -- Under 2013 amendments to Florida Residential Landlord and Tenant Act, tenant occupying property under option contract who has made down payment on sale price and twelve monthly payments cannot be evicted under Act -- Because action involves title to real property, exclusive original jurisdiction lies in circuit court
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Debt collection -- Credit card account -- Final judgment is entered in favor of defendant in action to collect credit card debt under theory of account stated where any obligation to repay debt was based on cardholder agreement -- Request for judicial notice and notice of intent to admit business records are stricken for being untimely per pretrial compliance order
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Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- 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 -- Mathematical errors or inconsistencies do not void otherwise compliant demand letter
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Insurance -- Personal injury protection -- Demand letter -- Where insurer sought summary judgment concerning defective demand letter that requested payment for services not rendered, and medical provider did not seek abatement of proceedings to correct demand letter until five months later on date of summary judgment hearing, granting motion for abatement would violate due process -- Motion for summary judgment is granted
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Insurance -- Personal injury protection -- Discovery -- Where reasonableness of charges is contested, reimbursement rates accepted by medical provider from other carriers for CPT codes at issue are relevant and discoverable -- Discovery of negotiated reimbursement rates without disclosure of identity of contracting carrier will not violate privileges of trade secret or confidentiality
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Insurance -- Discovery -- Depositions -- Failure to appear -- Sanctions -- Where corporate representative for medical provider failed to appear for two prior depositions, provider sought protective order from latest scheduled deposition on grounds that representative was out of town, but failed to comply with order to fax travel documents to court to verify that representative was on pre-planned trip, and representative failed to appear for deposition, provider's pleadings are stricken and case is dismissed
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Consumer law -- Fair Debt Collection Practices Act -- Statement of claim, in which plaintiffs alleged violations of FDCPA by defendant which sought to foreclose on mortgage -- Motion to dismiss on ground that plaintiffs failed to attach mortgage and note to statement of claim is denied, as plaintiffs subsequently filed documents and were granted permission to amend statement of claim to attach documents -- Standing -- Plaintiff who is legal title holder of property but not obligor of note or mortgage has standing to bring FDCPA action where plaintiff is defendant in foreclosure action and is alleged to owe claimed in action -- Plaintiffs cannot state cause of action for violation of FDCPA provisions regarding “initial communication” based on notice attached to foreclosure complaint -- FDCPA explicitly states that legal pleadings are not initial communications
VIEW OPINION

Garnishment -- Exemption -- Head of household -- Defendant who provides more than half of support for niece qualifies for head of household exemption
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Insurance -- Personal injury protection -- Application -- Misrepresentations -- Where PIP policy provides that it is only void ab initio if there is knowing concealment or misrepresentation of material fact, disputed factual issue as to whether insured knowingly intended to conceal identity of other members of household in application precludes entry of summary judgment
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Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Medical provider that has not complied with order requiring it to respond to request to produce is held in contempt and ordered to pay attorney's fees
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Insurance -- Personal injury protection -- Discovery -- Failure to comply -- Sanctions -- Medical provider that failed to provide better discovery responses ordered by court is found to be in contempt
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Insurance -- Personal injury protection -- Discovery -- Depositions -- Where deposition testimony of insurer's corporate representative will have no bearing on whether demand letter satisfied statutory condition precedent, and all other issues in case will be moot if insurer prevails on motion for summary judgment based on defective demand letter, all depositions are postponed until after resolution of demand letter issue
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Insurance -- Personal injury protection -- Discovery -- Depositions -- In deposition of insurer's corporate representative, medical provider is entitled to inquire about general claim information, method of calculating reimbursement, and reimbursement levels in community
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Insurance -- Personal injury protection -- Discovery -- Depositions -- In deposition of insurer's corporate representative, medical provider is entitled to inquire about method of determining reasonableness of payment of charges, reimbursement levels in community, and factual bases of defenses asserted by insurer -- Insurer is required to produce claims materials and documents regarding calculation of reasonable payment and reimbursement levels in community
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Insurance -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Court has no discretion to extend time to comply with 21-day safe harbor provision of section 57.105(4)
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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
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Insurance -- Personal injury protection -- Discovery -- Depositions -- Documents to be produced at deposition of medical provider
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Attorneys -- Costs -- In absence of statute imposing liability or agreement assuming liability, attorney is not personally liable for unpaid court reporter fees
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charges where affidavit is inadmissible lay opinion testimony, and opinions are not rationally based on affiant's own perceptions -- Where PIP policy does not elect permissive statutory fee schedule, insurer may not rely exclusively on statutory fee schedule to calculate reimbursement of reasonable charge
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Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Letter sent by mortgage holder directly to debtor represented by counsel was not prohibited communication under FCCPA -- Letter which informed debtor of status of loan and availability of assistance was informational and not attempt to collect debt
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Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible
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Insurance -- Personal injury protection -- Affirmative defense asserting that insurer's liability is limited to terms of policy and endorsement is stricken -- Issue is whether amount charged by medical provider was reasonable, not whether insurer paid reasonable amount
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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
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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
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charges where PIP policy does not elect permissive statutory fee schedule, and affidavits establish that insurer based payments solely on statutory fee schedule
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Civil procedure -- Jury trial demand is stricken
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Insurance -- Attorney's fees -- Proposal for settlement -- Offer of judgment statute is not applicable to action in which plaintiffs seek both declaratory relief and damages and in which insurer has served general proposal for settlement that seeks release of all claims
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Civil procedure -- Discovery -- Depositions -- Plaintiff is directed to produce for deposition person who, by answering interrogatories directed to officer, director or managing agent of plaintiff, established that she falls within one of those categories
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Public records -- Electronic files -- Exemptions -- Information contained in county's “Dropbox” account, which is electronic file-sharing and storage system that allows users with appropriate access to log in remotely to work on or review county documents contained with in the account -- IP addresses, which would identify specific computers or mobile devices that accessed account during relevant time period, were public records, and county improperly redacted IP addresses from its response -- Statute requiring “covered entities,” such as county, to take reasonable measures to protect and secure electronic data containing personal information and to provide notice to Department of Legal Affairs of any security breach affecting 500 or more individuals in Florida does not apply in instant case to exempt IP addresses from disclosure. as there has been no legal affairs investigation related to the IP addresses being sought by plaintiffs in this case -- County failed to present competent evidence that IP addresses, by themselves, could be considered exempt as “data processing software” -- IP addresses do not fall under provision making confidential and exempt from disclosure governmental “security system plans”
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Criminal law -- False imprisonment by police officer -- Renewed judgment of acquittal on charge of false imprisonment is granted where state failed to prove that defendant police officer did not have probable cause to arrest alleged victim who had been involved in domestic disturbance before he came to police station to file complaint against defendant -- Defendant's knowledge of allegation that victim had attempted to run over another person and police chief's order to arrest victim establish reasonable hypothesis that defendant had lawful authority to arrest victim that is inconsistent with state's circumstantial evidence to contrary -- Because defendant had lawful authority to arrest victim, defendant's unlawful motive for arrest is immaterial -- Tampering with victim -- Where state introduced direct evidence that defendant threatened to retaliate against victim for filing complaint against him, and victim did not file complaint because he was afraid of going to jail, state proved beyond reasonable doubt that defendant tampered with victim -- No merit to argument that tampering with victim is incidental to false imprisonment -- It was not necessary to prove truth of victim's battery complaint against defendant and establish that he was actual victim to prove that defendant tampered with victim
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Criminal law -- Bond -- Estreature -- Vacation -- Motion to discharge bond forfeiture due to state's refusal to extradite defendant from Texas is denied -- Failure to extradite is not one of three limited grounds for discharge of forfeiture established in section 903.26(5) -- Surety that did not receive actual notice of defendant's obligation to appear in court is entitled to have estreature set aside, but is not entitled to discharge of bond in absence of showing that it was prejudiced by lack of notice -- Surety is entitled to notice it did not receive before forfeiture and, if it fails to produce defendant again, court will again forfeit bond and surety will have 60 days to produce defendant in order to discharge forfeiture and bond
VIEW OPINION

Mortgages -- Foreclosure -- Conditions precedent -- Notice of default that did not comply with pre-acceleration notice requirements of mortgage did not satisfy condition precedent to foreclosure action
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Mortgages -- Foreclosure -- Conditions precedent -- Notice of default that did not comply with pre-acceleration notice requirements of mortgage did not satisfy condition precedent to foreclosure action
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Mortgages -- Foreclosure -- Standing -- Where note and mortgage name lender who was not incorporated, was not licensed as mortgage lender in Florida, and did not have authority to do business in Florida, note and mortgage are invalid and void -- Because note and mortgage are void, plaintiff and its predecessors in interest had no right to collect mortgage payments and plaintiff has no standing to foreclose on mortgage -- Defendant is entitled to recover principal and interest paid on mortgage from plaintiff
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Insurance -- Personal injury protection -- Standing -- Assignment -- Waiver -- Where, despite scrivener's errors in dates on assignment, insurer made payments on claim and never expressed any confusion about assignment until after suit was filed, insurer waived any defects in assignment -- Demand letter -- Sufficiency -- Insurer waived issue of defective demand letter by failing to raise issue before suit was filed and by making additional payment after receipt of letter -- PIP statute does not require that demand letter state exact amount owed by insurer
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Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop -- Where licensee awoke in parked vehicle to find his vehicle blocked by patrol vehicle of officer who confiscated his keys, opened his door, banged on his window, and shouted for him to wake up while officer was standing in tight space between licensee's vehicle and another vehicle, encounter with officer began as investigatory stop, not consensual encounter -- Where officer was acting on anonymous tip that did not report any criminal activity, and officer did not observe any criminal activity before blocking vehicle and seizing keys, officer did not have reasonable suspicion to seize licensee -- Officer's actions were not justified by specific concern for officer safety -- Seizure was not justified by community caretaker doctrine where officer did not know any pre-seizure fact that would suggest that licensee was disoriented and might drive forward and strike something -- Final order of license suspension is quashed
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Traffic infractions -- Speeding -- Evidence -- Radar tests -- Noncompliance with administrative rule requiring that testing of radar unit after each citation and that written log be kept of such test
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Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Trade secret privilege -- Error to overrule trade secret privilege objection to interrogatory requiring disclosure of reimbursement rates medical provider accepts from other insurers without conducting in camera inspection -- Moreover, where insurance contract provides that insurer will pay “80% of all medically necessary expenses” without imposing reasonableness requirement, inquiry into reasonableness of charges does not seem necessary
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Criminal law -- Driving with suspended license -- Venue -- Evidence was sufficient for trial court to infer, based on testimony, that venue was proven as contained in information, in that offense occurred in officer's jurisdiction -- No error in denying motion and renewed motion for judgment of acquittal
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Insurance -- Personal injury protection -- Discovery -- Claim file -- Adjuster notes -- Privilege -- Insurer failed to preserve for review its claim that documents it had been ordered to produce were privileged where insurer raised privilege in motion for rehearing of trial court's order finding that insurer waived right to object to request for production by failing to comply with original deadlines, but insurer abandoned the motion for rehearing by filing petition for writ of certiorari before trial court ruled on it -- Petition for writ of certiorari denied without prejudice to insurer's right to object to disclosure of entire claim file and to have file submitted to trial court for in camera inspection
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Insurance -- Personal injury protection -- Discovery -- Adjuster notes -- Trial court departed from essential requirements of law by compelling production of adjuster notes in PIP action that did not involve allegations of bad faith and in which amount of damages was at issue
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Criminal law -- Leaving scene of accident -- Evidence -- Hearsay -- No error in finding that ambiguous partial answer that was cut off by hearsay objection sustained by trial judge was insufficiently prejudicial to justify mistrial
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Municipal corporations -- Zoning -- Special permit -- No merit to argument that director of planning and zoning had no authority to approve application for special permit for construction of big-box store that was rejected by Urban Development Review Board and Neighborhood Enhancement Team where municipal ordinance states that director shall be solely responsible for review for compliance and consideration of applications for special permits and only requires that director consider UDRB and NET recommendations, which director did -- Under city code, city commission was required to set forth written findings addressing criteria for special permit -- Written findings that address regulations with which development project needed to comply and project's compliance are sufficient -- Error to find that project providing for five loading berths complies with code requirement of “three (3) berths total” -- Code requirement of total berths cannot be read as minimum amount of berths permitted -- City commission decision quashed
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Municipal corporations -- Development orders -- Ex parte communication -- Disclosure -- City council members who only disclosed general subject matter of ex parte communications regarding pending quasi-judicial action did not disclose “subject matter of any ex parte communications” as required by city's own procedural safeguards regarding ex parte communications and did not afford petitioners reasonable opportunity to refute or respond to communications -- Petition for writ of certiorari is granted
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Medical provider -- Trade secrets -- Trial court departed from essential requirements of law by requiring provider to produce reimbursement rates from other insurers and payors for particular billing code without making findings as to whether requested production constituted trade secrets and, if so, whether party seeking production had shown reasonable necessity for requested materials
VIEW OPINION

Attorney's fees -- No abuse of discretion in awarding attorney's fees to homeowner's association that prevailed in action brought against it by homeowner -- Trial court abused its discretion by awarding fees without making specific findings as to hourly rate and number of hours expended -- Association is entitled to appellate fees
VIEW OPINION

Criminal law -- Battery -- Jury instructions -- Flight -- Error to give jury instruction on flight and its relevance to consciousness of guilt -- New trial is required
VIEW OPINION

Criminal law -- Driving under influence -- Jurors -- Challenge -- Cause -- Trial court erred in denying cause challenge to juror who indicated that he would give more credibility to police officer and whose response indicated that he might presume defendant guilty because defendant did not submit to breath test -- New trial required
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Traffic infractions -- Appeals -- Absence of transcript -- Affirmance of lower court ruling
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Torts -- Premises liability -- Slip and fall -- Discovery -- Social media -- Information contained within social networking profile -- Defendant not entitled to discovery of plaintiff's social networking profiles where defendant has not come forth with any information from public portions of any of plaintiff's profiles that would indicate that there is relevant information on her profiles that would contradict claims raised by plaintiff in this case -- Further, while defendant's second request for discovery from “all other social networking sites” is limited from date of incident until present, defendant's initial request for plaintiff's Facebook profile was not limited and time and is overly broad -- Plaintiff's objections to discovery are sustained, without prejudice
VIEW OPINION

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