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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
April 16 - April 20, 2018

Civil Law Headnotes (Jump to Criminal Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Administrative law -- Department of Financial Services -- Unclaimed property -- Assets of estate of individual who died intestate with no known beneficiaries -- Where claimant presented a complete claim form as required by statute that included order from probate court directing Department to disburse estate funds, Department overstepped its authority by administratively invalidating the probate court's order and making its own de novo determination regarding entitlement to estate funds
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Appeals -- Sovereign immunity -- Denial -- Order which merely denied agency's motion for sovereign immunity without explicitly determining, on its face, that agency was not entitled to immunity as a matter of law is not appealable -- Question certified: Does Rule 9.130 permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?
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Attorneys -- Disqualification -- Conflict of interest -- Prior representation -- Formerly associated lawyer -- Torts -- Product liability -- Tobacco -- Engle progeny case -- Trial court departed from essential requirements of law by finding recent decision in Philip Morris USA, Inc. v. Caro dispositive of defendant's motion to disqualify law firm representing plaintiff based on fact that attorney formerly employed by firm had previously represented the defendant in similar litigation, failing to hold evidentiary hearing to make required findings of fact, and failing to rule on codefendant's standing to join in motion to disqualify -- Caro alone was not dispositive because that case involved request to disqualify firm while conflicted attorney was still employed at the firm -- Remand for further proceedings
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Civil procedure -- Discovery -- Appeals -- Certiorari -- Partnership failed to demonstrate that order relating to release of confidential partnership records sought by plaintiff in declaratory action brought in part to determine plaintiff's status and rights with respect to partnership -- Because by its express language, trial court's order provides that no confidential information shall be produced until further order establishing terms of disclosure, injury to partnership is too remote to invoke certiorari jurisdiction
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Child support -- Paternity -- Administrative proceeding establishing paternity and child support following request by foreign state -- Retroactive support -- Department of Revenue erred in ordering retroactive support based on date father received notice of DNA test results establishing paternity rather than on date Department served father with Notice of Administrative Proceeding to Establish Paternity
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Government in the Sunshine -- Municipal corporations -- Trial court erred in granting summary judgment in favor of city, its council members, and city attorney in action alleging council members violated Sunshine Law regarding dismissal of city manager and negotiation of his severance agreement based on finding that, although court could not definitively find that no Sunshine Law violation occurred, any violation was cured by a noticed special meeting of the council -- Factual issue existed as to reasonableness of notice of special meeting
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Insurance -- Appeals -- Appellate court has no jurisdiction to review trial court's denial, without elaboration, of Citizens Property Insurance Corporation's motions to dismiss claims on basis of sovereign immunity -- Trial court's orders did not state as a basis for denial of motions that Citizens was not entitled to sovereign immunity
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Mortgage foreclosure -- Reverse mortgage -- Reading together documents signed by parties as part of reverse mortgage, trial court properly found that surviving spouse was not a borrower -- Trial court erred in entering judgment for defendant surviving spouse on basis that plaintiff could not foreclose because federal reverse mortgage statute prohibited foreclosure against a surviving spouse living in the mortgaged residence where that statute was not raised as a defense to foreclosure action
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Public records -- Exemptions -- Information held by Department of Financial Services under Florida Insurance Code -- Trial court erred in holding unconstitutional statute exempting from disclosure personal financial and health information held by the department or office relating to consumer's complaint or inquiry regarding matter or activity regulated under Florida Insurance Code -- Personal identifying information -- Public necessity statement was sufficiently specific to justify exemption -- Exemption was not overbroad -- Accordingly, exemption satisfied two-pronged test for constitutionality under Article I, section 24(c) and Halifax Hospital Medical Center v. News-Journal Corp.
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Torts -- Discharge of pollutants -- Strict liability -- Plaintiff/tow truck driver who was injured when he responded to scene of accident involving tractor-trailer which had been transporting batteries and came into contact with battery acid which had spilled onto the highway could not recover for personal injuries under statutory cause of action created by section 376.313(3) -- Question certified: Does the private cause of action contained in section 376.313(3), permit recovery for personal injury? -- Discussion of supreme court's decision in Curd v. Mosaic Fertilizer, LLC, in which court applied definition of “damages” in 1970 Pollutant Discharge and Control Act to causes of action brought under Water Quality Assurance Act
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Torts -- Equitable subrogation -- Negligence -- Indemnification -- Action by plaintiff which was hired to modify underground petroleum storage tanks against defendant which was hired to test modified tanks, seeking to recover repair costs for damage to tanks -- Trial court erred in entering summary judgment for defendant on equitable subrogation claim -- Although plaintiff's contract with tank owners obligated plaintiff to repair damages to tanks, that contractual obligation did not convert plaintiff into a volunteer to pay for damages caused by a third party and did not prevent application of equitable subrogation doctrine -- Summary judgment was improper, as plaintiff's expert's affidavit established a genuine issue of material fact regarding which party was primarily liable for damage to tanks -- Trial court could properly consider supplemental affidavits opposing summary judgment motion which were not submitted before initial summary judgment hearing but before court had entered judgment -- Trial court properly entered summary judgment for defendant on negligence and indemnification claims, as defendant did not have a duty to plaintiff -- Negligence claim fails because plaintiff is seeking economic damages and there is no special relationship between parties that requires imposition of duty on defendant -- Indemnification claim fails, as there was no duty flowing from defendant to plaintiff and there was no express contract between parties
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Torts -- Medical malpractice -- Venue -- Convenience of parties and witnesses -- Trial court did not abuse discretion in denying defendants' motion to transfer venue from plaintiff's chosen forum where defendants failed to present evidence that substantial inconvenience or undue expense required a change for convenience of parties or witnesses
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Workers' compensation -- Death benefits and funeral expenses -- Judge of compensation claims' denial of death benefits and funeral expenses on ground that employee's death was primarily occasioned by his intoxication was not supported by competent, substantial evidence -- Employer/carrier were not entitled to statutory presumption that death was caused primarily by intoxication of employee which arises from evidence of certain blood alcohol level where they failed to comply with collection and chain of custody procedures set forth in administrative rules -- Absent the presumption, e/c was required to prove by preponderance of the evidence that death was occasioned primarily by intoxication, and JCC's deduction that employee was in the road at the time he was struck by a truck because he was intoxicated was based on inferences with no direct evidence
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Workers' compensation -- Judge of compensation claims erred in assessing a no-show fee for claimant's failure to appear for independent medical examination scheduled by employer/carrier where notice to claimant and his attorney of the scheduled IME was not in compliance with statutorily-imposed notice requirements -- JCC erred in awarding cost of medical records review -- Cost was not awardable as either part of IME exam or part of any deposition preparation, as those events never took place; and e/c did not establish that reviewer's testimony could be submitted into evidence at upcoming hearing such that cost could be considered "necessary to maintain the claim"
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Criminal Law Headnotes (Jump to Civil Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
To see others not presented here, log in for more comprehensive weekly listings.

Criminal law -- Argument -- Trial court did not err when it denied defense counsel's request during closing arguments to respond to state's rebuttal argument -- Where, at close of defense counsel's argument, jurors were left with impression that defendant's last word on the subject robbery was his statement to detective that he did not commit crime, state was entitled to remind them of detective's testimony concerning what defendant said to prosecution witness, as well as to argue any fair inferences from testimony -- State's rebuttal closing argument did not improperly exceed scope of defense closing argument
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Criminal law -- Battery on law enforcement officer -- Resisting officer with violence -- Lawful performance of legal duty -- Officers had probable cause to arrest defendant for domestic violence at time of their encounter with him, and exigent circumstances justified their warrantless entry into defendant's backyard and home to ensure safety of five-year-old child whom officers knew was inside fortified home with defendant, a hostile and potentially violent aggressor -- Trial court did not err by denying motion for judgment of acquittal
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Criminal law -- Driving while license canceled, suspended, or revoked -- Trial court erred in denying motion for judgment of acquittal where defendant was habitual traffic offender who had never had a Florida driver's license and did not fall within statutory exemption to licensure requirement -- Remand with instructions to vacate convictions under section 322.34(2)(b) and adjudicate defendant guilty of lesser-included offenses of driving without valid driver's license
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Criminal law -- Murder -- Attempted murder -- Self-defense -- Trial court properly denied motion for judgment of acquittal where evidence of self-defense was equivocal -- Sentencing -- Defendant who was sentenced to thirty-five years' imprisonment for murder committed when defendant was a juvenile and twenty-five years with a twenty-five mandatory minimum for nonhomicide committed when defendant was juvenile is entitled to resentencing pursuant to chapter 2014-220, Laws of Florida, and to resentencing pursuant to Florida Supreme Court decision in Williams v. State
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Criminal law -- Search and seizure -- Vehicle stop -- Dog sniff -- Trial court erred in denying motion to suppress drugs found after dog alerted to presence of narcotics in vehicle where traffic stop was delayed in order to perform dog sniff and there was no basis in record to conclude that reasonable suspicion existed to justify prolonging the stop
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Criminal law -- Sentencing -- Subsection of section 775.082, Florida Statutes, which authorizes trial judge rather than jury to make finding that defendant poses a danger to public and to impose a state prison sanction that exceeds the maximum nonstate sanction of up to one year in county jail where scoresheet points are 22 or fewer, is unconstitutional as applied to defendant who was sentenced pursuant to subsection to four years' imprisonment in state prison -- Error was not harmless -- Proper remedy is to invalidate defendant's sentence and remand for resentencing under prior version of sentencing statute -- Conflict certified -- Question certified: Whether the second sentence in subsection (10) of section 775.082, Florida Statutes, which authorizes a trial judge to make factual findings independent of a jury as to an offender's potential “danger to the public” and to impose a state prison sentence that exceeds the maximum nonstate sanction of up to one year in county jail violates the Sixth Amendment as applied to Booker? If the error is not harmless, what remedy is appropriate?
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