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New Releases
from Florida's Circuit and County Courts

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Liens -- Construction -- Foreclosure -- Homeowners are entitled to final summary judgment discharging contractor's claim of lien and amended claim of lien where contractor's Final Payment Affidavit was not timely filed at least five days before instituting lien foreclosure action and contractor did not file amended complaint alleging timely compliance with statutory requirements before statute of limitations had expired -- Rule providing that amended complaint may relate back to initial complaint does not apply to construction lien law -- Further, contractor's lien privileges were lost where contractor failed to respond within 30 days to homeowners request for sworn statement of account -- Request which is sent be certified mail to last address shown in Notice of Commencement complies with service requirements of statute, even if request is unclaimed -- Contractor may still enforce any contractual claims against homeowners -- Fraudulent lien -- Homeowners not entitled to summary judgment on claim that defendant perpetuated a claim of lien despite knowledge that it no longer had lien rights where material issue of disputed fact exists with regard to whether amended claim of lien was filed in good faith --
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Criminal law -- Driving under influence -- Evidence -- Breath test -- Substantial compliance with administrative rules -- Where breath test was not conducted in compliance with administrative regulations due to diagnostic check failure, results of test are still admissible if state is able to establish reliability of results under traditional scientific predicate -- Motion to suppress is denied
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Mortgages -- Action against property appraiser seeking declaration that property appraiser's interest in property is subordinate and inferior to plaintiff's mortgage -- Property appraiser's tax lien arising out of unpaid taxes is, by statute, superior to all other liens -- Property appraiser's lien for taxes held priority over mortgage even though it was recorded after the mortgage -- Statute generally providing that priority of competing liens is determined by principle “first in time, first in right,” this broad framework does not apply when Legislature has specifically provided for priority of certain liens
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Torts -- Premises liability -- Slip and fall -- Transitory foreign substance on floor -- Evidence was insufficient to establish that defendant had constructive knowledge of alleged wet slippery condition of floor at time of incident -- Plaintiff's testimony that she was “all wet” with what “looked like dirty water” after the fall was insufficient to create jury issue regarding constructive knowledge, and there were no additional facts presented that would allow jury to reasonably conclude that rainwater had been on floor for such length of time as to permit discovery by defendant's employees -- Further, a finding of liability would require stacking of inferences -- Defendant's motion for summary judgment granted
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Criminal law -- Second degree murder -- Immunity -- Stand Your Ground statute -- Amendment to statute placing burden of proof by clear and convincing evidence on party seeking to overcome a prima facie claim of immunity from criminal prosecution not unconstitutional as violative of separation of powers doctrine -- However, amended statute does not apply to defendant's crime, which was committed prior to effective date of statute -- Accordingly, defendant's stand your ground motion will be adjudicated at pretrial hearing conducted in accordance with supreme court's decision in Bretherick v. State
VIEW OPINION

Contracts -- Condominium sale -- Action for breach of contract, fraudulent inducement, and negligent misrepresentation based on seller's failure to disclose to purchaser that she had performed extensive renovations to unit without seeking or obtaining any permits or any of the required governmental inspections of the work, which included alteration to plumbing work and connections to sanitary lines shielded by new drywall and new marble flooring/walls -- Breach of contract -- Seller had affirmative duty to inform buyer of facts that materially affect value of property which are not readily observable or known to the buyer even when there is an “as-is” clause in contract -- Fact that contract was actually signed by a receiver appointed by the court to facilitate the sale of the property does not shield seller from liability for non-disclosure -- Moreover, seller was directly involved with transaction and corresponded with receiver and buyer, among others involved, until transaction was consummated, at which point receiver signed contract in seller's stead when she refused to do so -- Plaintiff entitled to summary judgment on breach of contract claim -- Negligent misrepresentation -- Evidence was sufficient to establish elements of negligent misrepresentation -- Summary judgment entered in favor of plaintiff on this claim -- Fraudulent inducement -- Plaintiff also entitled to summary judgment on fraudulent inducement claim -- Seller's failure to inform buyer of extent of renovations and that work was not permitted or properly inspected constituted false statement concerning a material fact, seller had knowledge of this false representation, representation was made with intent of inducing buyer's reliance, and buyer suffered injury regarding property because he was forced to remediate the damage resulting from unpermitted and non-code compliant work -- Affirmative defenses -- Twenty affirmative defenses asserted by seller either fail as matter of law or do not otherwise preclude summary judgment in favor of buyer -- Plaintiff's damages are liquidated, as he paid contractor specific sum to perform corrective work, as evidenced by construction contract, contractor's invoices and records, and copies of checks showing payment in full of the invoices -- Attorney's fees -- Court retains jurisdiction to award attorney's fees, costs, and expenses to plaintiff, as prevailing party
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Criminal law -- Aggravated assault with firearm -- Immunity -- Stand Your Ground law -- Amendment to statute placing burden of proof by clear and convincing evidence on party seeking to overcome a prima facie claim of immunity from criminal prosecution is unconstitutional as violative of separation of powers doctrine -- Hearing on defendant's claim of immunity will be conducted according to procedural law propounded by Florida Supreme Court -- Accordingly, burden of production and persuasion will be on defendant to establish by preponderance of evidence her entitlement to Stand Your Ground immunity
VIEW OPINION

Criminal law -- Pretrial release -- “Nebbia Hold” -- Court has authority to require an examination of the source of funds for defendant's bail prior to posting even where state does not file a written notice
VIEW OPINION

Licensing -- Driver's license -- Revocation -- Fourth DUI conviction -- Hearing -- Hearing officer did not deny licensee due process by reopening hearing when missing citation necessary to support revocation of license for four or more DUI convictions was located -- Nothing in administrative rules prohibits reopening hearing when interest of justice requires, and licensee was not unduly prejudiced by decision to reopen hearing -- Hearing officer -- Departure from neutrality -- Licensee presented no evidence to support assertion that hearing officer took it upon herself to locate missing citation; and, even if she did, licensee cannot demonstrate prejudice where different hearing officer presided over second hearing -- Licensee presented no evidence to support assertion that second hearing officer was not impartial, and record does not show that licensee requested recusal -- No merit to argument that licensee was denied due process because second hearing was not held within thirty days of request for review, as applicable statutes contain no time frame for hearing -- Uncertified citations were sufficient to support hearing officer's decision where citations were submitted directly to Department of Highway Safety and Motor Vehicles by clerk of court -- Moreover, licensee did not preserve issue for review by objecting to uncertified citations at hearing -- Further, licensee's certified driving record admitted at second hearing constituted competent substantial evidence to support decision upholding revocation
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Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of stop -- Record did not contain competent substantial evidence that licensee was lawfully stopped for failure to dim headlights within 300 feet of approaching vehicle from rear where only evidence was trooper's statement that he observed licensee flashing high beams on traffic in front of him for over one block -- Final order of license suspension is quashed
VIEW OPINION

Criminal law -- Appeals -- Appeal challenging final judgment was untimely where appeal was not filed within 30 days of judgment -- Post conviction relief -- Appeal from denial of rule 3.850 motion was timely filed within two years of deadline for filing an appeal -- Claim that conviction for retail petit theft, enhanced to first-degree misdemeanor, was improper where charging document did not allege prior thefts was waived where defendant entered plea to “retail petit theft prior offenses,” as evidence by plea agreement which was signed by defendant and stated that defendant understood nature of charges against him
VIEW OPINION

Criminal law -- Pro se filings -- Prohibition
VIEW OPINION

Criminal law -- Appeals -- Jurisdiction
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Insurance -- Automobile -- Property damage -- Trial court erred in entering summary judgment in favor of insurer in action alleging insurer breached contract by denying coverage for damages sustained when “simulated convertible roof top” blew off vehicle based on policy's “normal wear and tear” exclusion where genuine issues of material fact existed as to cause of the loss
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Confusion doctrine -- Misstatement of law -- Although deputy made misstatement regarding consequences of second refusal to submit to breath test, deputy initially correctly read implied consent, and there was no indication in record that misstatement had any exacerbating effect on licensee or his confusion -- Deputy was entitled to interpret licensee's actions as refusal to supply breath sample
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Hearing officer's finding that there was probable cause to arrest licensee for DUI was supported by competent substantial evidence where deputies' reports and testimony that licensee failed to stop at stop sign, had odor of alcohol and bloodshot and glassy eyes and staggered when walking to patrol vehicle while out of video range were not totally contradicted, negated or refuted by video evidence
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Attorney's fees -- Prevailing party -- Contracts -- Mutuality or reciprocity of obligation -- Action by air conditioning firm for breach of contract with counterclaim by defendant alleging plaintiff's negligence resulted in water damage to subject home -- Trial court did not err in refusing to award attorney's fees under reciprocity provision of section 57.105(7) to defendant/counterclaimant who prevailed on negligence counterclaim where negligence did not arise out of contract, but occurred during a separate visit after the contract was completed
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Criminal law -- Driving under influence -- Search and seizure -- Detention -- Error to grant motion to suppress evidence obtained as result of detention at scene of accident -- Detention was not unreasonable where deputies responding to accident in unincorporated area of county waited for arrival of trooper prior to commencing accident investigation in accordance with policy, defendant was required by law to remain at scene of accident until accident investigation was conducted, and when trooper had not responded after one hour and ten minutes, deputies conducted accident investigation and DUI investigation without further delay -- Cross-appeal challenging non-final order denying motion to suppress based on alleged violation of defendant's Miranda rights raises separate legal and factual issues from appeal and is, therefore, dismissed without consideration of merits
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Insurance -- Personal injury protection -- Deductible -- Trial court correctly determined that medical bills were compensable when received and that insurer improperly processed bills by applying PIP deductible to bills out of sequence -- Trial court correctly found that plaintiff had standing to and that insurer had waived any right to contest plaintiff's alleged failure to attach a written assignment to its pre-suit demand letter
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Insurance -- Personal injury protection -- Deductible -- Trial court correctly determined that medical bills were compensable when received and that insurer improperly processed bills by applying PIP deductible to bills out of sequence -- Trial court correctly found that plaintiff had standing to and that insurer had waived any right to contest plaintiff's alleged failure to attach a written assignment to its pre-suit demand letter
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Insurance -- Personal injury protection -- Deductible -- Trial court correctly determined that medical bills were compensable when received and that insurer improperly processed bills by applying PIP deductible to bills out of sequence -- Trial court correctly found that plaintiff had standing to and that insurer had waived any right to contest plaintiff's alleged failure to attach a written assignment to its pre-suit demand letter
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency medical condition
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Standing -- Assignment -- Insured not entitled to summary judgment on issue of standing where there was factual issue as to whether reassignment of benefits from provider to insured took place before the demand letter or, at very least, before date complaint was filed against insurer -- Wage loss/loss of earning capacity -- Trial court erred in granting summary judgment in favor of insured on claim related to wage loss/loss of earning capacity given conflicting evidence in record as to how much insured actually lost and insured's precise loss of future earning capacity -- Transportation expenses -- Insured entitled to summary judgment on claim for transportation expenses where claim was substantiated and the amounts were not in dispute
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Insurance -- Personal injury protection -- Discovery -- Trade secret -- Documents relied upon by insurer in rendering opinion on issue of reasonableness -- Trial court departed from essential requirements of law when it ordered insurer to produce documents that were claimed to be privileged without first conducting examination of documents or in camera inspection and without setting forth findings regarding trade secret status of information requested -- Court notes that insurer's request for confidentiality order as form of relief to guard against widespread dissemination of trade secret material is supported by caselaw
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Insurance -- Personal injury protection -- Attorney's fees -- Proposal for settlement -- Insurer prevailing on ground that presuit demand letter was defective -- Trial court erred in denying insurer's motion for attorney's fees based on provider's rejection of proposed settlement without finding that proposal for settlement was not made in good faith
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Insurance -- Personal injury protection -- Attorney's fees -- Orders denying provider's motions for trial-level attorney's fees did not violate mandates from circuit court or Florida Supreme Court finding provider entitled to appellate attorney's fees and a new trial where provider accepted a settlement which included trial-level attorney's fees -- Provider not entitled to trial fees under inequitable conduct doctrine based on insurer's post-settlement actions, as county court correctly concluded that post-settlement behavior arose from mutual mistake rather than bad faith
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Leaving scene of accident with injuries -- Hearings -- No merit to argument that licensee was denied due process when his criminal defense attorney was not allowed to testify at informal review hearing -- Informal proceeding does not contemplate receipt of testimony -- Where licensee was charged with offense for which mandatory revocation of license is required upon conviction, suspension of his license without preliminary hearing was authorized under section 322.27(1)(a) -- Failure of law enforcement to comply with statutory requirement to provide certain information to Department of Highway Safety and Motor Vehicles within 24 hours of traffic fatality does not preclude suspension of licensee's license where requirement to provide information is distinct from statutory provision authorizing license suspension
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Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Appeals -- Issue not raised below -- Provider failed to preserve for appeal issue of whether its records substantially comply with rule where, in opposition to motion for summary judgment arguing that services were not lawfully rendered due to noncompliance with administrative rule regarding record keeping, medical provider argued only that insurer did not have standing to raise noncompliance as defense to liability, that trial court did not have jurisdiction to decide matter, and that insurer waived issue by failing to raise it as affirmative defense -- Where insurer's answer stated that it would demonstrate that provider is in violation of or has failed to comply with section 627.736(5), including but not limited to improper billing, and its motion for summary judgment asserted that provider violated administrative rule, insurer provided adequate notice of its statutory defense -- Where insurer conclusively proved provider's noncompliance with record keeping rule through deposition testimony of provider's president and sole practitioner, trial court correctly entered summary judgment in favor of provider -- Insurer's motion for appellate attorney's fees pursuant to proposal for settlement is granted, conditioned on trial court finding that proposal is valid, enforceable and made in good faith
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Licensing -- Driver's license -- Suspension -- Obtaining license by fraud -- Limitation of actions -- Department of Highway Safety and Motor Vehicles' suspension of driver's license for fraudulently obtaining a license in friend's name ten years earlier is barred by four-year statute of limitations for actions predicated on fraud -- Order suspending license is quashed
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle -- Stop -- Failure to maintain lane -- Trial court erred in denying motion to suppress where evidence regarding the safety concern required to stop someone for failing to maintain lane was absent -- Erratic driving pattern not basis for finding officers had probable cause to stop defendant's vehicle where officers only followed defendant for approximately 30 seconds, or two blocks, before initiating stop after observing vehicle run over left-hand median and swerve into right lane once without affecting other traffic before returning to left-hand lane -- Evidence did not support finding that there was reasonable suspicion to stop vehicle based on belief that defendant was ill, tired, or impaired
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Criminal law -- Trial court did not abuse its discretion in denying motion for post-trial release pending appeal based on finding that defendant's criminal history demonstrated propensity for violence and posed risk of harm to the community
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Insurance -- Attorney's fees -- Offer of judgment -- Award of attorney's fees under offer of judgment statute requires either adjudication on merits or dismissal with prejudice -- Voluntary dismissal without prejudice does not trigger entitlement to attorney's fees under statute, even when statute of limitations had expired prior to entry of voluntary dismissal
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Criminal law -- Leaving scene of accident -- Jurisdiction -- Trial court erred in granting defendant's motion to dismiss alleging trial court lacked jurisdiction because defendant was never served with traffic citations or arrested -- Trial court's jurisdiction was invoked and prosecution commenced where state filed information, summons to appear was sent to defendant, defendant was represented by counsel at arraignment, pretrial status hearings were scheduled, and defense counsel's knowledge of all this was imputed to defendant -- Appeals -- Although state did not object in trial court, trial court's erroneous ruling on jurisdiction is considered fundamental error
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Summary disposition -- Trial court erred in sua sponte entering summary disposition on issue of medical necessity of MRIs -- Insurer had right to challenge necessity despite having made partial payment on claim, affidavit of insurer's expert created genuine issue of material fact as to necessity, trial court failed to address affirmative defense of insufficient demand letter, and trial court acted under small claims rules despite prior ruling invoking rules of civil procedure -- Trial court erred in granting medical provider's motion for summary judgment as to reasonableness of charges where reasonableness is fact-dependent inquiry -- Attorney's fees -- Appellate fees -- Insurer is conditionally awarded appellate attorney's fees under offer of judgment statute if it prevails on remand
VIEW OPINION

Criminal law -- Misdemeanor battery -- Jury instructions -- Justifiable use of non-deadly force -- Trial court erred in refusing to instruct jury that defendant had not duty to retreat from hotel room before defending himself from battery victim on ground that defendant had not filed a motion to dismiss pursuant to Stand Your Ground law -- Trial court did not err in denying motion for judgment of acquittal based on self-defense where there was conflicting evidence as to whether defendant acted in self-defense -- Evidence -- Lay opinion -- Claim that responding officer testified to improper opinion testimony when he answered “yes” when asked if hotel manager confirmed that defendant was the aggressor was not preserved for review by objection and did not rise to level of fundamental error -- Argument -- Bolstering of credibility of witnesses -- Improper comments by prosecutor during closing arguments that witnesses and victim had “no interest” were not preserved for appeal by objection and did not rise to level of fundamental error -- However, new trial is warranted due to cumulative effect of errors
VIEW OPINION

Criminal law -- Driving under influence -- Medical records -- Trial court improperly quashed state's investigative subpoena related to medical blood draw taken at hospital following single-car accident -- Investigation of DUI charge was compelling state interest, and blood test results were relevant to that investigation
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Officer did not have reasonable suspicion to initiate traffic stop based on failure to dim headlights where licensee was driving with high beans on six-lane highway divided by median -- Final order suspending driver's license quashed
VIEW OPINION

Municipal corporations -- Code enforcement -- Due process -- Due process rights were violated where property owners were not afforded opportunity to present objections to amended citation or given reasonable time to make appearance as it related to amended citation -- Further, city council's order upholding planning and zoning director's interpretation of code provisions related to original code enforcement citation, which was based on provisions of code that were inapplicable
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Landlord-tenant -- Eviction -- Trial court erred when it entered eviction order, without hearing, less than five days after tenant filed counterclaim alleging landlord had communicated to tenant that lease would be renewed, which called into question the applicability of provision of lease which created month-to-month tenancy if tenant remained in possession of premises with consent of landlord after expiration of lease -- Further, tenant timely paid rent into court registry -- Remand for further proceedings -- Tenant awarded appellate attorney's fees conditioned upon his prevailing on remand
VIEW OPINION

Civil procedure -- Default -- Vacation -- Trial court abused its discretion by failing to grant motion for continuance filed by party who was representing himself and whose unforeseeable medical condition prevented him from being available at trial
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Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Record was devoid of evidence that officer had reasonable suspicion to believe licensee had commited, was committing, or was about to commit a crime when he activated patrol car's emergency lights and followed vehicle from parking lot of closed business -- Use of emergency lights evidenced investigatory stop, not a consensual encounter -- License suspension quashed
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Criminal law -- Trial court improperly excluded defendant's expert witness, apparently based on parties' erroneous argument that Daubert hearing must be held prior to commencement of trial -- Remand for new trial
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Civil procedure -- Dismissal with prejudice without affording plaintiff opportunity to amend was error under circumstances
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Municipal corporations -- Code enforcement -- Procedural due process violation occurred where finding of violation was based on violations which were not included in written notice of violation and were not clear from reading section of building code attached to notice of violation -- Further, findings in magistrate's order regarding violation were not supported by competent, substantial error
VIEW OPINION

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