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New Releases
from Florida's Circuit and County Courts

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Insurance -- Personal injury protection -- Complaint -- Amendment -- Medical providers may not amend complaint to add additional dates of service where providers previously amended complaint and moved for summary judgment without asserting claim for additional service dates, and providers did not send pre-suit demand letter for additional service dates
VIEW OPINION

Insurance -- Personal injury protection -- Declaratory action -- Attorney's fees -- Plaintiff who prevailed in declaratory action challenging rental car company's denial of PIP coverage for injuries sustained while driving rental car is entitled to award of attorney's fees and costs -- It is immaterial that plaintiff did not actually recover insurance proceeds in case where rental car company has been ordered to make PIP benefits available to her
VIEW OPINION

Criminal law -- Post conviction relief -- Waiver of counsel -- Where trial court failed to personally advise defendant who waived right to counsel of disadvantages of self-representation and to conduct adequate Faretta inquiry, motion for post conviction relief is granted
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Twenty-minute observation period -- Where officer only observed defendant for 17 minutes prior to commencement of breath test, test results are inadmissible -- No merit to argument that, because first breath sample was invalid, court should deem that test did not commence until second sample was taken -- Motion to suppress is granted
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Officers did not have probable cause to stop defendant for squealing his tires in vacant parking lot -- Motion to suppress is granted
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter that provided all information needed by insurer to adjust claim was not deficient -- No merit to insurer's objection that it should be able to determine exact amount due from demand letter -- Insurer waived defense of defective demand letter by failing to raise any valid objection to letter prior to litigation
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Statute requires that demand letter state exact amount of each charge, not exact amount owed by insurer
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Medical provider that attached itemized statement to demand letter satisfied condition precedent to filing suit -- No merit to argument that provider was required to account for all prior payments made and calculate exact amount owed -- Insurer that failed to take issue with demand letter with any specificity prior to litigation waived defense of defective demand letter
VIEW OPINION

Small claims -- Attorney's fees -- Motion for sanctions for filing motion for attorney's fees is denied where motion for fees was neither frivolous nor lacking in merit -- Motion to strike motion for attorney's fees is denied where defendant filed timely motion seeking fees and costs for all attorneys representing her, plaintiff was aware that attorney would be seeking fees, and plaintiff waived any objection to attorney appearing without filing written notice of appearance
VIEW OPINION

Civil procedure -- Discovery -- Depositions -- Failure of expert witness to attend deposition without advance payment -- Sanctions
VIEW OPINION

Insurance -- Attorney's fees -- Discovery -- Admissions and documents
VIEW OPINION

Landlord-tenant -- Improper retention of security deposit
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Nominal proposal -- Good faith -- Where there is nothing in record to indicate that policy limits had been exhausted at time insurer served nominal proposal for settlement or that insurer otherwise had little or no exposure in case at that time, proposal was not made in good faith -- Insurer's motion for attorney's fees and costs is denied
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Where there is no reasonable explanation for insurer's failure to inform medical provider of exhaustion of benefits until six months after exhaustion and four months after filing of suit, trial court exercises its inherent authority to impose sanctions for bad faith conduct
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Where it is undisputed that insurer did not adopt permissive statutory fee schedule in PIP policy, it is precluded from relying on Medicare Part B fee schedule in reimbursement of claim -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affiant's opinions are not based on sufficient facts or data and are not product of reliable principles and methods
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Landlord-tenant -- Eviction -- Independent living community -- Jurisdiction -- Independent living residency agreement which provides for monthly payment for use of apartment and contains clauses related to pets, smoking, and property damage is lease governed by Landlord and Tenant Act -- Amount in controversy, which includes $97 increase in monthly rent and interest on community entrance fee that tenant claims is security deposit, does not exceed county court's jurisdictional limit -- Neither undisputed monthly rent paid into court registry during pendency of litigation nor entrance fee are amount in controversy for purpose of determining court's subject matter jurisdiction -- Motion to dismiss denied
VIEW OPINION

Criminal law -- Driving under influence -- Witnesses -- Interstate extradition -- Motion for certificate of materiality to summons foreign Intoxilyzer manufacturer to produce source codes for Intoxilyzer 8000 is denied where defendant has not made requisite particularized showing that observed discrepancies in operation of machine necessitate access to source codes
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Where there was no evidence that other traffic or pedestrians were affected by defendant twice crossing fog line and overcorrecting by swerving over center line, officer did not have probable cause to stop defendant for careless driving but did have reasonable suspicion to stop defendant to determine if she was ill, tired or impaired -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Solicitation of prostitution -- Constitutionality of statute -- Excessive fines -- $5,000 civil fine imposed pursuant to section 796.07(6) for offender's first commission of second degree misdemeanor solicitation of prostitution is not unconstitutionally excessive where defendant falls into class of persons to whom statute was principally directed, amount of fine is appropriate in context of other penalties, and fine is not disproportionate to harm caused by fueling industry that victimizes many people
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- To protect irrelevant proprietary information on otherwise discoverable rate sheets of private payors, medical provider is directed to prepare matrix reflecting identity of contracting parties, dates covered by agreements and rate sheets, nature and type of insurance reimbursement, and type of service being billed for CPT codes at issue in case and rates for each service
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 there was determination that insured had 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 -- Claim for benefits in excess of $2,500 was not overdue or ripe for litigation prior to determination that insured suffered emergency medical condition -- Because suit filed before insurer provided determination of emergency medical condition was premature, insurer's post-suit payment of benefits upon receipt of that determination was not confession of judgment entitling medical provider to award of attorney's fees and costs -- Question certified
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy that subjects payments to any and all limitations authorized by PIP statute, including all fee schedules, clearly and unambiguously elects to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will either pay 80% of reasonable expenses or pay based on permissive statutory fee schedule does not provide clear and unambiguous notice of intent to limit reimbursement to statutory fee schedule
VIEW OPINION

Garnishment -- Exemption -- Head of household -- Objection to claim for exemption is insufficient as matter of law where it is not based on personal knowledge and fails to factually refute defendant's sworn statement that she is head of household -- Continuing writ of garnishment is dissolved
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary judgment -- Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of MRI charge where affidavit presents inadmissible lay opinion testimony and is conclusory -- Fact that Medicare, workers' compensation and other government payors pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Dependent children -- Undocumented immigrant children -- Adjudication of dependency prerequisite to children obtaining special immigration juvenile status -- Circuit court has jurisdiction over dependency petition filed on behalf of alien minor children regardless of whether alleged abuse or neglect occurred -- Uncontested allegations of severe abuse, abandonment, and neglect and evidence that children would remain at risk if they were returned to their country of origin support adjudication of dependency notwithstanding fact that much of abuse occurred ten years ago -- Fact that filing of dependency petition was motivated by desire to secure preferential immigration status for children is irrelevant if children qualify for declaration of dependency under statute -- Adjudication of dependency may not be based solely on uncharged mother's consent to allegations of abuse by father -- Where diligent search for father was completed prior to entry of adjudicatory order, fact that diligent search affidavit had not been filed at time of adjudication does not affect validity of order -- Father's failure to appear at hearing constitutes implied consent to adjudicatory order -- Court's exercise of jurisdiction to adjudicate children dependent is appropriate even though children request no state services and court lacks authority to make placement decisions for children while they are in custody of federal immigration authorities -- To extent any federal statute may have required pre-adjudicatory consent from attorney general, lack of consent did not affect court's subject matter jurisdiction -- Further, question of whether pre-adjudicatory consent was required is moot because children are no longer in federal custody
VIEW OPINION

Mortgages -- Foreclosure -- Consumer law -- Consolidation -- Motion to consolidate foreclosure case and cases alleging that lender violated Florida Consumer Collection Practices Act by method through which it attempted to collect debt is denied where cases do not share common facts or issues of law
VIEW OPINION

Civil procedure -- Affirmative defenses that are mere conclusions of law and fail to assert ultimate facts to defeat plaintiffs' claim are stricken
VIEW OPINION

Consumer law -- Class action -- Certification -- Class certified in action against bank alleged to have violated Florida Consumer Collection Practices Act by sending form debt collection letters to its customers asserting existence of legal right bank knows does not exist -- Numerosity -- Proposed class of 1,180 debtors who received letters satisfies numerosity requirement -- No merit to argument that only residents of county in which venue lies may be members of proposed class -- Commonality -- Typicality -- Where FCCPA claim raises common questions of law and fact and class representative's claims and defenses are typical of claims and defenses of class members, commonality and typicality are satisfied -- No merit to argument that commonality requires showing that each bank employee who sent form letter personally knew that letter asserted legal remedy that did not exist -- Challenge to commonality based on possibility that bank may assert counterclaims against class members fails where those type of counterclaims are not appropriate in action involving claims under FCCPA -- Adequacy -- Class representative and his counsel satisfy adequacy requirement -- Fact that class representative's agreement with bank contains jury trial waiver does not render representative inadequate where bank has not shown that any class member signed agreement that does not contain jury trial waiver, and having jury trial waiver in his agreement does not make representative's interests antagonistic to those of class -- Fact that bank has ceased using form letters does not foreclose opportunity for review and possibility of injunctive relief where bank could otherwise return to use of letters at any time -- Superiority and predominance criteria for class action are met -- Neither possibility that there may be individual issues as to whether some class members' debts are consumer debts nor fact that class representative agreed to garnishment of earnings defeats predominance -- No merit to argument that existence of arbitration agreements signed by some class members defeats predominance where bank provided no evidence of signed agreements, and bank waived right to compel arbitration by engaging in discovery and litigation
VIEW OPINION

Mortgage foreclosure -- Attorney's fees -- Mutuality or reciprocity of obligation -- Prevailing mortgagor is entitled to recover attorney's fees under section 57.105(7)
VIEW OPINION

Consumer law -- Florida Motor Vehicle Repair Act -- Action to stop sale of truck by auto repair shop, which claimed lien for repairs, and to recover possession of truck -- Where repair shop violated FMVRA by failing to give plaintiff any written estimate for repairs, shop is not owed any monies for repairs and has no lien
VIEW OPINION

Landlord-tenant -- Eviction -- Service of process -- Where landlord did not effect personal service on tenants and obtained service only by publication, court did not have jurisdiction to enter money judgment against tenants -- Motion to vacate is granted
VIEW OPINION

Mortgage foreclosure -- Attorney's fees -- Mutuality or reciprocity of obligation -- Prevailing mortgagor is entitled to recover attorney's fees under section 57.105(7)
VIEW OPINION

Criminal law -- Trafficking in and possession of drugs -- Discovery -- Confidential informant -- Defense motion seeking disclosure of personal information of confidential informant used by law enforcement to arrange alleged purchase of narcotics is denied -- Under informant witness rules, state is not required to disclose name and address of confidential informant who will not be testifying at trial or hearing -- Disclosure of information regarding confidential informants who state does not intend to call as witnesses is governed by rule 3.220(g)(2), not informant witness rules
VIEW OPINION

Real property -- Easements -- Termination -- Where plaintiff violated easement agreement by failing to maintain sign on easement property in first class condition, and defendants provided plaintiff with notice 30 days prior to removal of sign as required by agreement, defendants did not violate agreement by removing sign at plaintiff's expense -- Agreement expressly provided for self-help, and court finds no compelling reason to ignore this provision under circumstances of instant case -- Destruction of sign incident to removal did not violate agreement -- Term of first easement modification agreement providing for termination of easement based on failure to maintain sign survived second easement modification agreement providing that easement shall be perpetual where there was no indication that its language of second agreement was intended to alter the initial agreement's entirely independent provision for termination
VIEW OPINION

Contracts -- Employment -- Defendants who claimed to act on behalf of corporation developing condominium community when they knew there was no incorporation or to act on behalf of partnership that did not include words “limited liability company” or LLC are personally liable under contract between purported partnership and its advertising and public relations agent -- Fact that one of three partners did not sign contract does not preclude contract enforcement where two partners and plaintiff signed and performed under contract -- Where contract provided for three years of monthly $1,000 payments to plaintiff for acting as advertising and public relations agent and did not actually require that plaintiff procure advertisements, defendants breached contract by ceasing payments after 28 months when development had not reached fruition and no advertisements had been purchased -- Plaintiff is also entitled to three years of minimum commissions guaranteed by contract even though, through no fault of his own, plaintiff purchased no advertisements
VIEW OPINION

Dependent children -- Reunification -- Mother who has complied with case plan is entitled to reunification with children absent endangerment, and court is not at liberty to consider placing children in permanent guardianship no matter how persuaded it is that child would be better off in guardian's care -- Neither state's belief that mother would be overwhelmed by addition of two more children to five children currently under her care nor opinion that children would be psychologically harmed if separated from aunt with whom they have resided for past 18 months establishes that children would be endangered by reunification -- No merit to claim that reunification would endanger child who suffers from sickle cell anemia because mother previously neglected his medical needs and is still unable to meet them where state has never charged mother with medical neglect, state never offered mother services to overcome that alleged shortcoming, and child's doctor testified that mother has never committed medical neglect -- Motion for reunification is granted, and motion for permanent guardianship is denied
VIEW OPINION

Civil procedure -- Frivolous pleadings -- Sanctions -- Pleadings filed by non-party who has no legal authority to file documents in cause are stricken, and attorney representing non-party is sanctioned
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Rehearing -- Request to reopen evidentiary record to admit evidence regarding events in Intoxilyzer room is denied where evidence was available at time of suppression hearing -- Breath test results are not admissible where defendant's consent to test was result of acquiescence to lawful authority and not freely and voluntarily given
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Lawfully rendered services -- Where medical provider was not licensed by state and did not fall within licensing exemption for clinics that are wholly owned by licensed health care practitioners, neither insurers nor insureds are liable to provider for charges for services
VIEW OPINION

Torts -- Automobile accident -- Evidence -- Expert opinion -- Scientific evidence -- Section 90.702 requires trial court not only to evaluate conclusions of expert, but to examine process by which expert reaches conclusions to determine whether process yields sufficiently reliable results -- Where plaintiff's expert failed to articulate any identifiable methodology or decisional process for arriving at opinion that plaintiff's neck injuries were caused by low-speed rear-end collision, motion to exclude expert's testimony is granted
VIEW OPINION

Insurance -- Property -- Standing -- Assignment -- Motion to dismiss denied
VIEW OPINION

Criminal law -- Sentencing -- Guidelines -- Downward departure from guidelines sentence of ten years in prison for 65-year-old defendant convicted of eight counts of trading sexually explicit messages with undercover officer posing as minor is warranted where state could have terminated undercover operation sooner and charged defendant with fewer instances of repeated conduct without compromising any legitimate purpose of prosecution, and defendant has multiple characteristics that indicate he is not likely to reoffend
VIEW OPINION

Estates -- Personal representative's fee request for ordinary services is reduced where estate could have been administered less expensively -- Personal representative's claim for fees for extraordinary services is reduced by work subsumed in representative's ordinary service work -- Attorney's fees -- Fees for ordinary services claimed by attorneys for personal representative are reduced
VIEW OPINION

Insurance -- Attorney's fees -- Insured is entitled to award of attorney's fees incurred in enforcing settlement agreement against insurer
VIEW OPINION

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Testimony of employee of current plaintiff was not sufficient to lay foundation for admission of acceleration letter and collection log purporting to show that plaintiff's predecessor in interest sent letter -- Condition precedent -- Plaintiff that has failed to prove that acceleration letter was sent or that contents of letter covered elements of required notice and has failed to prove that it provided notice of assignment of debt required by section 559.715 has failed to satisfy conditions precedent to foreclosure action -- Due to incompleteness of records and failure to lay proper foundation for admission of records of predecessor in interest, plaintiff has failed to prove alleged default in 2009 or amounts due and owing under note and mortgage -- Where original plaintiff had lost right to enforce loan at time of filing suit due to FDIC seizure and sale of its assets, neither bank that bought assets nor current plaintiff, who is assignee of bank that bought assets, had standing as successor plaintiffs
VIEW OPINION

Criminal law -- Search and seizure -- Stop -- Where defendant, who was wearing backpack, was walking slowly on sidewalk in closed shopping center at night when he was confronted with marked patrol vehicle with emergency lights activated, encounter constituted investigatory stop -- Fact that defendant was walking in parking lot of closed business at night did not create reasonable suspicion justifying stop -- Even if defendant was not detained when officer activated her emergency lights and stopped patrol vehicle in front of him, he was detained without basis when officer took his identification -- Motion to suppress is granted
VIEW OPINION

Mortgages -- Foreclosure -- Standing -- Where plaintiff's alleged standing as real party in interest in foreclosure action is contradicted by endorsements on note attached to amended complaint, plaintiff has failed to demonstrate standing to foreclose -- Condition precedent -- Notice of intent to accelerate that did not comply with mortgage did not satisfy condition precedent to foreclosure action
VIEW OPINION

Torts -- Medical malpractice -- Settlement -- Allocation -- Medicaid lien -- Agency for Health Care Administration may only assert lien against that portion of settlement representing compensation for past medical expenses -- AHCA is ordered to accept $5,384.65 in satisfaction of $112,337.05 Medicaid lien
VIEW OPINION

Mortgage foreclosure -- Failure to attend case management conference -- Dismissal -- Where, after plaintiff sent local coverage attorney to first case management conference, court ordered trial counsel to attend rescheduled CMC, but plaintiff again sent coverage attorney to rescheduled CMC, plaintiff's willful and contumacious disregard of court's orders warrants dismissal of foreclosure complaint -- Motion for rehearing attributing failure of trial counsel to attend CMC to misunderstanding between trial counsel and coverage attorney is denied
VIEW OPINION

Mortgages -- Foreclosure -- Standing -- Where plaintiff seeking to foreclose mortgage has not demonstrated that it held possession of note at time of filing suit, and special indorsement on note to non-party suggests otherwise, plaintiff has not established standing -- Evidence fails to establish that conditions precedent of sending acceleration letter and notice of assignment of debt to new creditor were met or that servicer of loan authorized indorsee named in note to proceed with foreclosure on its behalf -- Further, complaint does not state cause of action for foreclosure where note was not attached to complaint -- Complaint dismissed
VIEW OPINION

Child custody -- Relocation of child -- Father's petition to relocate children is granted where relocation will bring children closer to father's relatives and allow father to double his salary and to provide larger home for boys and improved education for deaf son -- Mother who is unemployed and has mental health issues is given long-distance timesharing for which father will pay transportation costs
VIEW OPINION

Insurance -- Homeowners -- Marring -- Wine bottle dropped on tile floor causing tiles to chip or crack constitutes superficial marring damage excluded from coverage under marring exclusion of homeowners' all-risk policy
VIEW OPINION

Public records -- Documents in possession of private entity -- Where county has delegated a statutorily authorized function to economic development commission, a private entity, records generated by EDC's performance of that duty are public records and must be produced -- Request for attorney's fees pursuant to section 119.12 denied, as status of EDC as an agency under Chapter 119 was unclear when records requests were made, and EDC acted reasonably and in good faith when it denied public records request
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Hearing -- Failure of witness to comply with subpoena duces tecum -- Where officer appeared at hearing without audio and video tapes required by subpoena duces tecum and testified that tapes did not exist, but police chief subsequently testified during deposition in criminal case that tapes did exist, officer's failure to comply with subpoena duces tecum and his testimony violated licensee's due process right to fair hearing -- Remand for new hearing
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop -- Where officer observed licensee driving erratically and speeding as she followed another vehicle that was speeding and driving without its headlights lit, licensee voluntarily pulled over and stopped when officer stopped companion vehicle, and officer talked with driver of companion vehicle for one to one and one-half minutes without having licensee under constant observation, possibility that someone else could have been driving licensee's vehicle and left scene during that brief period does not void officer's reasonable suspicion to direct licensee to move her vehicle to nearby parking lot -- Hearing -- Subpoenas duces tecum -- Hearing officer's limitation of subpoenas duces tecum to request only initial certifications and last renewal courses for agency inspector and breath test operator did not violate due process where subpoenas fully allowed licensee to contest whether officers were properly certified -- Propriety of subpoenas is questionable where information sought is available by public records request
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of stop -- Where officer observed licensee traveling considerably slower than normal traffic on interstate highway and weaving in and out of traffic lane late on Friday night, unusual manner of operation of vehicle provided reasonable suspicion for stop even though licensee's driving did not endanger other drivers
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Licensee was not under de facto arrest when he was transported unhandcuffed in rear seat of patrol vehicle to nearby parking lot for safe performance of field sobriety exercises -- Eight-minute wait in patrol vehicle for arrival of DUI investigator did not elevate detention into de facto arrest -- Hearings -- Prehearing forms -- Licensee is not entitled to relief on claim that hearing officer's use of unpromulgated prehearing forms denied him due process where, even assuming use of forms was improper, licensee has not established that he suffered material injury as result of use of forms -- Hearing officer -- Departure from neutrality -- Licensee is not entitled to relief on claim that hearing officer departed from neutrality by unilaterally admitting uncertified and unauthenticated driving record into evidence where transcript does not indicate that hearing officer unilaterally admitted record into evidence and licensee has failed to allege that he suffered injury as result of admission of driving record
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Accident report privilege is not applicable in administrative license suspension review hearings -- Lawfulness of arrest -- Trooper had probable cause to believe licensee was driving or in actual physical control of vehicle prior to crash where licensee admitted twice that she was driving at time of accident, there were no other persons present at accident scene, and vehicle keys were in licensee's possession -- Lawfulness of DUI investigation -- Trooper who smelled odor of alcohol on licensee and noted that she had slurred speech, watery bloodshot eyes and flushed face had reasonable suspicion to detain licensee for DUI investigation
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Driving need not endanger any person other than driver of vehicle to constitute careless driving -- Stop for careless driving was lawful despite absence of other traffic where licensee's driving, including swerving in center lane and striking right and left lane dividers six times and slowing to 35 mph on approach to intersection then accelerating quickly through intersection, endangered licensee's own life, limb and property
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of arrest -- Officer acting outside jurisdiction -- Off-duty officer outside jurisdiction was justified in conducting brief investigatory stop to determine if licensee, who was asleep at wheel of vehicle parked on side of road, was ill, tired or impaired -- When officer observed signs of impairment on licensee, smelled odor of alcohol, and noted that licensee was sole occupant of vehicle with keys in ignition, officer had reasonable suspicion to make citizen's arrest -- Hearing officer did not err in finding that arrest was lawful where officer who was acting outside jurisdiction could have made lawful arrest, and actual arrest was made by officer acting within his jurisdiction -- Hearings -- Subpoena duces tecum -- No merit to claim that hearing officer erred by limiting scope of subpoena duces tecum issued to breath test operator to reduce requirement that operator produce copy of all permits to requirement that he produce only his current certification -- Prehearing forms -- Licensee is not entitled to relief on claim that hearing officer's use of unpromulgated prehearing forms denied him due process where, even assuming use of forms was improper, licensee has not established that he suffered material injury as result of use of forms -- Hearing officer -- Departure from neutrality -- Licensee is not entitled to relief on claim that hearing officer departed from neutrality by unilaterally admitting uncertified and unauthenticated driving record into evidence where transcript does not indicate that hearing officer unilaterally admitted record into evidence and licensee has failed to allege that he suffered injury as result of admission of driving record
VIEW OPINION

Consumer law -- Debt collection -- Error to enter summary judgment in favor of plaintiff in action to collect balance due on credit card account where there were genuine issues of material fact as to plaintiff's ownership of account
VIEW OPINION

Contracts -- Torts -- Action against loan servicer for misapplication of loan payment that occurred before servicer took responsibility for account -- Where lender retained ownership of loan when it contracted with servicer to provide servicing for plaintiff's account, plaintiff is not in contractual privity with servicer and cannot assert claim against servicer for breach of contract -- There is no basis to hold servicer liable in negligence for misapplied payment that occurred years before it began servicing account -- Further, record reveals no contractual or statutory basis for attorney's fees award
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Field sobriety exercises -- Trial court erred in suppressing field sobriety exercises on ground that officer did not have probable cause to compel exercises and defendant did not consent to exercises -- Officer who had reasonable suspicion that defendant was driving under influence, based on defendant's admission to drinking and observation that defendant had odor of alcohol and watery bloodshot eyes, could compel performance of exercises
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Probable cause affidavit -- Probable cause affidavit relied upon by hearing officer meets statutory affidavit requirement despite fact that no oath was administered to affiant where form contains language stating that it is declaration under penalties of perjury and that affiant swears that he has just and reasonable grounds to believe and does believe that defendant committed violation charged -- Lawfulness of arrest -- Actual physical control of vehicle -- Sworn narrative of fire department stating that they discovered licensee seated behind wheel of vehicle with engine running and detected odor of alcohol on licensee, combined with arresting deputy's affidavit stating that he detected indicia of impairment and licensee admitted to drinking alcohol, constitute competent substantial evidence supporting finding that deputy had probable cause for arrest
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- Failure of subpoenaed witness to appear -- Hearing officer did not err or deny licensee due process by refusing to invalidate suspension due to absence of subpoenaed arresting officer from hearing where officer was excused due to conflicting court date, and licensee's attorney refused offered continuance -- Lawfulness of stop and arrest -- Officer who observed that licensee's tag light was not lit had reasonable suspicion for stop -- Licensee's admission that he had been drinking, coupled with odor of alcohol and watery bloodshot eyes, provided reasonable suspicion to detain licensee for DUI investigation -- Licensee's performance on field sobriety exercises, in addition to factors that provided reasonable suspicion for detention, provided probable cause for arrest
VIEW OPINION

Criminal law -- Petit theft -- Trial court erred in granting motion for judgment of acquittal after jury returned guilty verdict where, viewed in light most favorable to state, jury reasonably weighed evidence and properly reached verdict
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Trade secret privilege -- Although trial court made implicit findings as to whether trade secret privilege was applicable when crafting confidentiality limitations in order requiring disclosure of reimbursements amounts paid to medical provider by other insurers, clear findings are required
VIEW OPINION

Attorney's fees -- Error to award attorney's fees to party that failed to plead entitlement to fees prior to final judgment
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Exhaustion of policy limits -- Although at time insurer exhausted benefits and medical provider filed suit over claims paid pursuant to permissive statutory fee schedule Florida Supreme Court had not yet ruled on issue of whether insurer could calculate reimbursement utilizing fee schedule without electing to do so in policy, binding precedent from district courts of appeal already required that insurer elect statutory fee schedule before reducing payment -- Accordingly, post-suit exhaustion of benefits may not shield insurer from liability -- Remand to trial court to determine whether $6.00 payment that exhausted benefits was gratuitous payment, and if so, to enter judgment for provider
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- No abuse of discretion in awarding expert witness fee for deposition testimony of treating physician -- Trial court erred in disregarding peer review and affidavit of physician who conducted independent medical examination because they were obtained after PIP suit was filed and, consequently, erred in entering summary judgment in favor of medical provider -- Insurer may assert that treatment was not reasonable, related or necessary at any time
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Licensee under age 21 -- Inclusion in final order of findings of fact regarding indicia of impairment that are not supported by any evidence is substantive error tantamount to violation of due process and failure to observe essential requirements of law -- Final order of license suspension is quashed
VIEW OPINION

Insurance -- Coverage -- Trial court violated insurer's due process rights by granting medical provider's motion for summary judgment, without conducting hearing, one day after provider filed supplemental motion for summary judgment containing newly filed affidavits
VIEW OPINION

Criminal law -- Jurors -- Challenge -- Peremptory -- Error to prohibit defendant from exercising unexhausted peremptory challenge before jury was sworn -- New trial required
VIEW OPINION

Criminal law -- Battery -- Impeachment of witnesses -- State did not improperly impeach defendant , who was accused of spilling hot coffee on his wife, by confronting defendant on cross-examination with his direct testimony regarding how incident occurred, where state sought to clarify unclear testimony and did not intentionally mischaracterize defendant's direct testimony -- No merit to claim that state improperly impeached defendant with his counsel's opening statement where, in fact, court did not allow that impeachment -- Trial court did not err in overruling objection to state's defendant if he had heard testimony of other witnesses and implying that defendant had tailored his testimony to match that of other witnesses -- Use of demonstrative exhibit -- Any error in allowing state to use cellular phone in rebuttal closing argument to refute defense claim that picture of wife's burn taken with cellular phone would have date stamp on it was harmless where discussion of time stamp on pictures could not have contributed to conviction -- There was no dispute that defendant spilled coffee that burned his wife, and only issue before jury was whether defendant intended to spill coffee on his wife
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Off-duty officer -- Officer who was working off-duty detail within his jurisdiction had authority to stop defendant whom officer observed driving erratically -- Information relayed by off-duty officer to arresting officer was within scope of fellow officer rule -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- DUI with property damage -- Sentencing -- Restitution -- Error to award victim balance due on loan for vehicle which was totaled where there was no evidence of amount paid by victim's insurance company against loan, that amount paid by insurance company did not compensate victim for full fair market value of vehicle, or that special circumstances warranted award exceeding fair market value -- Error to award victim cost of down payment on new vehicle
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Criminal law -- Resisting officer without violence -- Alleged error in failing to declare mistrial or give curative instruction after deputy who was involved in serving arrest warrant on defendant at time of alleged resisting offense testified that unit to which deputy was assigned assisted local agencies in getting violent offenders off the street was not preserved for appeal where defendant did not request curative instruction or move for mistrial -- Any error was not fundamental -- Deputy's comment was fleeting and was not made feature of trial, trial court sustained objection and told parties not to direct further attention to word “violent,” and guilty verdict could have been obtained without assistance of alleged error
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Criminal law -- Driving under influence -- Evidence -- Breath test -- Consent -- No error in finding that defendant's consent to breath test after being asked to consent thirteen times was acquiescence to lawful authority, not voluntary consent -- Order granting motion to suppress affirmed
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Criminal law -- Driving under influence -- Search and seizure -- Field sobriety exercises -- Officer who had reasonable suspicion that defendant was driving while impaired based on her red watery eyes, odor of alcohol, and lack of balance could ask defendant to perform field sobriety exercises without warning her that she could refuse exercises and without giving Miranda warnings -- Error to grant motion to suppress
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Criminal law -- Possession of cannabis -- Driving while license suspended -- Search and seizure -- Vehicle stop -- Officer who observed defendant repeatedly swerve off and on roadway had reasonable suspicion for traffic stop -- Officer lawfully directed defendant to exit vehicle after he discovered that defendant's license was suspended -- No error in denying motion to suppress
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Criminal law -- Evidence -- Silence of defendant -- Although officer's testimony that defendant did not want to answer questions because he did not want to incriminate himself was improper comment on defendant's silence, issue was not preserved for appeal where defense counsel failed to object to testimony
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Criminal law -- Driving under influence -- Refusal to submit to breath test -- Search and seizure -- Vehicle stop -- Officer who observed defendant cross multiple lanes in erratic fashion had probable cause to stop defendant for traffic infraction -- Argument -- Prosecutor's single reference to juror by name was not error where reference was invited reply to defense's closing argument, did not ask juror to step into victim's shoes, and was not so egregious as to undermine reliability of jury verdict -- Prosecutor's rubbing of his eyes to redden them was not so prejudicial as to vitiate entire trial
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Criminal law -- Driving under influence -- Search and seizure -- Field sobriety exercises -- Trial court properly found that trooper did not have reasonable suspicion to conduct DUI investigation and ask defendant to perform field sobriety exercises where trooper's sole justification was odor of alcohol on defendant's breath, and defendant showed no signs of impairment
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Criminal law -- Battery -- Argument -- Failure to declare mistrial after closing argument that allegedly misstated burden of proof and misadvised that, if jury did not believe defendant and his witnesses, they had to find defendant guilty did not constitute fundamental error where state presented considerable credible evidence of defendant's guilt, including photographs and eyewitness testimony
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Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer who observed defendant screeching his tires while doing donuts in parking lot, exiting parking lot at high rate of speed, hitting curb, and driving in wrong direction on road had reasonable suspicion for stop -- Fact that defendant's intent in driving wrong way for short distance was to avoid having to make u-turn is of no import -- No error in denying motion to suppress
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Criminal law -- Jurors -- Challenge -- Peremptory -- Race-neutral reason -- No error in allowing strike where state stated that peremptory challenge was based on race-neutral reason that juror was having difficulty answering question about where he lived within county, reason is supported by record, and trial court's determination that reason was genuine was not clearly erroneous
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Traffic infractions -- Improper use of horn -- Where statute governing use of horns, as amended, no longer prohibits sounding horn under any particular circumstances and now only mandates that horn be used when reasonably necessary to ensure safe operation, defendant could not be found in violation of statute by sounding horn when there was no need to do so to ensure safe operation
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Criminal law -- Search and seizure -- Confession of error
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Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Trial court order suppressing “arrest” is affirmed to extent it suppresses fruit of unlawful arrest, not arrest itself -- Defendant's identity as person arrested is not subject to suppression as fruit of poisonous tree where officer learned defendant's identity through accident investigation, not as result of unlawful arrest
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Criminal law -- Post conviction relief -- Timeliness of motion -- Rule 3.850 motion filed more than two years after judgment and sentence became final was untimely filed -- There is no “manifest injustice” exception to two-year time limit -- Error to grant motion to vacate plea
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Criminal law -- Reckless driving -- Dismissal -- Error to dismiss reckless driving charge sua sponte without affording state an opportunity to controvert the motion
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Criminal law -- Driving under influence -- Amended information -- Trial court did not err by quashing signed and sworn amended information that was filed outside statute of limitations -- Further, quashing of amended information was justified by state's failure to seek leave of court to file amended information, which attempted to correct formal defect and allow state to proceed on alternate theory of guilt
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Criminal law -- Possession of cannabis -- Jurors -- Trial court did not abuse its discretion in overruling defense objection and denying motion to strike venire panel after state asked prospective jurors hypothetical question to ensure that they could correctly apply law that even possession of small amount of contraband substance is unlawful
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Criminal law -- Carrying firearm into courthouse -- Dismissal -- Where defendant asserted in motion to dismiss that he did not knowingly and willfully carry firearm into courthouse, and state did not traverse that material fact in its response to motion, trial court properly granted motion to dismiss
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Criminal law -- Sentencing -- Costs -- Error to waive mandatory court costs when sentencing defendant who entered no contest plea to charge of offering for prostitution
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Criminal law -- Possession of cannabis -- Evidence -- Statements of defendant -- Defendant was in custody for purposes of Miranda at time of questioning where three uniformed officers and patrol vehicle with lights and siren activated were present and defendant was ordered out of vehicle, handcuffed and forced to stand to side while vehicle was searched -- Deputy stating post-search that he knew there was marijuana in vehicle and asking where it is constituted interrogation of defendant irrespective of fact that question was directed to all three vehicle occupants collectively -- Error in admitting defendant's statement that marijuana belonging to him was in center console of vehicle was not harmless where state could not have proven actual or constructive possession without defendant's statement -- Error to deny motion to suppress
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Criminal law -- Petit theft -- Dismissal -- Trial court erred in sua sponte dismissing charge without motion from defense and without providing state opportunity to controvert a motion to dismiss
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Criminal law -- Dismissal -- Competency to stand trial -- Trial court erred in sua sponte dismissing charges against defendant who had been found incompetent to stand trial one year previouslywithout holding evidentiary hearing and finding that defendant remained incompetent to proceed, there was no substantial probability that defendant would become competent to proceed in foreseeable future, and that defendant does not meet criteria for commitment
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Criminal law -- Soliciting for prosecution -- Dismissal -- Error to grant motion to dismiss asserting that defendant did not violate statute prohibiting solicitation for prostitution because undercover detective solicited defendant where state filed traverse specifically denying defendant's material allegations
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Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by medical provider within that classification to deductible
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Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by medical provider within that classification to deductible
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Criminal law -- Driving under influence -- Evidence -- Breath test -- No error in ordering state to establish traditional scientific predicate in order to introduce breath test results from Intoxilyzer 8000 at trial where trial court could not determine whether modified Intoxilyzer 8000 used in state was same instrument approved by NHTSA for use in Florida
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Insurance -- Personal injury protection -- Notice of loss -- Claim form marked to indicate that MRI service was not related to automobile accident did not provide notice of covered loss -- Insurer's motion for summary judgment is granted
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