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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
May 22 - May 26, 2017

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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Attorney's fees -- Trusts -- Fees incurred in seeking disqualification of trustee of deceased ward's trust -- Appeals -- Order denying attorney's fees or costs for an interested person remains an appealable order following passage of rule 9.170, which generally describes appealable probate and guardanship orders as those “that finally determine a right or obligation of an interested person” under the probate code -- Order denying attorney's fees incurred in removing trustee of trust ended judicial labor needed to adjudicate that issue, and fee applicant, who was both former personal representative at time fees were incurred and current beneficiary of estate, was an interested person -- Circuit court correctly rejected applicant's assertion that he was entitled to fees associated with disqualifying trustee of decedent's trust on basis of district court's award of appellate attorney's fees in connection with trustee's prior unsuccessful certiorari petition challenging propriety of substituting personal representative as a petitioner in deceased ward's guardianship proceeding -- Appellate court's mandate extended no further than fees that were incurred in litigating issues presented in that proceeding -- Common fund rule -- Whether or to what extent applicant's successful efforts in removing trustee actually conferred benefit of any appreciable value to trust was within circuit court's discretion, and circuit court did not abuse that discretion by denying attorney's fees under common fund theory -- Circuit court erred in finding that there was no contractual or statutory basis for award of attorney's fees -- Section 736.1005 provides that any attorney who rendered services to trust may be awarded reasonable compensation from the trust -- Remand for consideration of entitlement to fees under this statute -- Notice of fee application -- Applicant for attorney's fees under section 736.1005 must serve application for attorney's fees to parties identified in the statute contemporaneously with the filing of the application with the court
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Creditors' rights -- Proceedings supplementary -- Attachment of debtor's interests in multi-member limited liability companies -- Charging order -- Trial court did not abuse its discretion when, after granting charging order, it appointed receiver to enforce charging order, but exceeded permissible scope of statute when it authorized receiver to have managerial control over the LLCs -- Charging order should have only divested debtor of her economic opportunity to obtain profits and distributions from LLC, charging only debtor's membership interest, not her managerial rights -- Accordingly, portions of order permitting receiver to be financial officer of LLCs and exercise managerial control is reversed
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Creditors' rights -- Proceedings supplementary -- Impleader of third parties -- Homestead exemption -- Exceptions -- Alimony creditors -- Trial court erred in denying former wife's motion to implead former husband's new wife in proceedings supplementary based on its conclusion that former husband's transfer of real property and insurance policy to his new wife could not be fraudulent as a matter of law due to constitutional and statutory exemptions -- Exception to constitutional and statutory homestead protections for alimony creditors has long been recognized in Florida where former spouse claiming homestead protection acted egregiously, reprehensibly, or fraudulently -- Similarly, statutory protection for cash surrender values of life insurance policies is removed if exemption results from a fraudulent transfer or conveyance -- Remand for appropriate proceedings to determine if former husband acted either egregiously, reprehensibly, or fraudulently so as to justify forced sale of protected property
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Dissolution of marriage -- Attorney's fees -- Trial court erred in ordering former husband to pay 70% of former wife's attorney's fees and costs based solely on the disparity of the parties' incomes
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Mortgage foreclosure -- Conditions precedent -- Trial court erred in granting summary judgment for defendants in mortgage foreclosure action and dismissing complaint without prejudice on basis that notice of default failed to comply with requirements of mortgage where notice of default was in substantial compliance with mortgage requirements -- Civil procedure -- Distinction between motion to dismiss and motion for summary judgment
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Mortgage foreclosure -- Lost note -- Trial court erred in entering judgment of foreclosure where plaintiff failed to prove ownership of lost note that it attempted to reestablish and enforce -- Assignment which assigned only mortgage and not note was insufficient to transfer any interest in note to plaintiff -- Assignment which assigned all beneficial interest in mortgage did not constitute assignment of note -- Remand for entry of involuntary dismissal of foreclosure complaint
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Mortgage foreclosure -- Standing -- Bank failed to establish standing where copy of promissory note secured by the mortgage that was attached to complaint was not in the same condition as the original filed with the court and accepted into evidence at trial, and bank did not otherwise prove that it had possession of note and was a holder at time complaint was filed -- Bank did not present sufficient evidence to admit unsigned Pooling and Servicing Agreement into evidence; and even if PSA were admissible, it would not have been sufficient to establish that mortgage note at issue was within possession of bank, as trustee
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Mortgage foreclosure -- Standing -- Plaintiff which introduced into evidence the original note, but failed to introduce the original allonge containing a blank indorsement, did not establish standing to foreclose mortgage -- Case specialist's testimony that plaintiff possessed the original allonge and that the allonge contained a blank indorsement was inadmissible under the best evidence rule -- Judgment of foreclosure reversed and remanded for entry of involuntary dismissal of complaint
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Real estate brokers -- Commissions -- Under provisions of listing agreement, deposits retained by developer were identified as a particular fund for payment of commissions to broker in the event of closings that failed to take place -- Because listing agreement provided that commissions due to the broker for units that failed to close were to be paid from a particular fund, the retained deposits, broker had an ownership interest in a portion of the retained deposits -- Trial court erred in entering summary judgment finding that broker did not have an ownership interest in the deposits retained by developer and subsequently remitted to lenders to reduce balance of construction loan
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Real property -- Bert J. Harris, Jr., Private Property Protection Act -- The Act does not apply to claims arising from government action that regulates property adjacent to claimant's property -- County's action in reducing the setback for phosphate mining company's property adjacent to claimant's property is not a property right for which claimant may state a claim under the Act
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Real property -- Homeowners association -- Trial court properly found that under provisions of homeowners association declarations purchaser of property at mortgage foreclosure sale was not liable for assessments owed by prior owners of property -- Express terms of declarations were not invalidated by section 720.3085, Florida Statutes, which provides for joint and several liability with prior owners for unpaid assessments
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Real property -- Violation of restrictive covenants -- Fines -- Homeowners association was obligated by statute to provide homeowner with fourteen days' notice of hearing on alleged violations of maintenance requirements before imposing fines -- Strict compliance with statute was necessary prerequisite for HOA to impose fines -- Because HOA provided only 13 days' notice of hearing, money damages awarded to HOA for unpaid fines reversed
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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 -- Battery on law enforcement officer -- Information -- Defects -- Name of victim -- Trial court did not err when it granted state's request to amend charging information to correct name of victim after it announced that it had rested its case where record demonstrates that defendant was not prejudiced by defect, as none of the parties were confused as to identity of victim
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Criminal law -- Bond -- Revocation -- Due process -- Defendant arrested while on probation -- Trial court erred as a matter of law in denying state's motion to revoke bond for defendant arrested while on probation, finding the relevant statute unconstitutional for failure to implicitly require the predicate arrest be lawful and for failure to provide a procedure for a probationer arrested for a new crime to seek bail -- There is no constitutional right to bail pending a violation of probation hearing -- Statute's failure to explicitly state that arrests pursuant to the statute be lawful and with probable cause does not render the statute unconstitutional because every statutory authorization of arrest implicitly requires the arrest be lawful and with probable cause
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Criminal law -- Gag order -- Trial court did not depart from essential requirements of law by entering an order prohibiting all attorneys in case from making extrajudicial statements until jury was sworn for the defendant's third trial -- Order demonstrated that extrajudicial statements posed an imminent and substantial threat to a fair trial, was narrowly tailored in both substance and duration, and was viewpoint neutral, as it applied to extrajudicial comments by both parties' counsel
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Criminal law -- Jurors -- Peremptory challenges -- “Unstriking” of previously challenged juror -- Under particular facts of case, district court properly found that trial court did not abuse its discretion in rejecting defendant's motion to withdraw his peremptory challenge of one juror so that he could instead use that peremptory challenge on a juror who was already seated on the jury panel, after defendant had exhausted his peremptory challenges and the state had accepted the jury panel -- However, district court's decision is disapproved to extent that it can be read as endorsing blanket rule prohibiting in any instance the withdrawal of peremptory challenge after a party has exhausted its peremptory challenges but before jury is sworn -- Withdrawal of peremptory challenge after a party has exhausted its peremptory challenges could be warranted by unusual or extenuating circumstances
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Criminal law -- Juveniles -- Search and seizure -- Because juvenile's encounter with officer, who commanded him to stop and later testified that juvenile was not free to leave, was not consensual, and because officer lacked reasonable suspicion that the juvenile was committing a crime, the officer's investigatory stop was not justified and his pat-down search of the juvenile was illegal -- Judgment vacated and case remanded with instructions to grant motion to suppress the marijuana found on juvenile
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Criminal law -- Lewd and lascivious molestation -- Juror interviews -- In denying defendant's motion for juror interviews, trial court did not err in determining issue of prejudice without first conducting any interviews -- Trial court properly recognized that defendant could not question jurors about whether they were influenced by speculation regarding defendant's potential sentence or how verdict might impact defendant's son -- Jurors' comments about judicial system being unfair to defendants did not amount to discussions about facts of case and did not demonstrate any possible prejudice to defendant -- Allegation that jurors prematurely discussed who would be foreman did not go to any issue in case and did not demonstrate prejudice -- Trial court properly recognized that improper discussions about case were not so prejudicial as to vitiate entire proceedings and require new trial -- Statements of defendant -- Trial court properly considered totality of circumstance in finding that defendant's post-Miranda statements to detectives were not the product of coercive police tactics designed to extract an involuntary confession
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Criminal law -- Murder -- Death penalty -- Nonunanimous recommendation by jury -- Retroactive application of United States Supreme Court decision in Hurst v. Florida -- Defendant not entitled to Hurst relief because Hurst does not apply retroactively to his sentence, which became final in 1985 -- Intellectual disability -- No merit to defendant's claim that United States Supreme Court decision in Hurst v. Florida and Florida Supreme Court decision in Hurst v. State require that the jury, rather than the trial judge, determine intellectual disability -- Florida legislature designated the trial judge, not the jury, as the factfinder for intellectual disability determinations, and because intellectual disability is not a necessary finding to impose death, but a fact that bars death, and because the United States Supreme Court explicitly left to the states the task of developing appropriate ways to enforce the constitutional restriction against executing intellectually disabled defendants, the defendant has not demonstrated Florida's procedure for determining intellectual disability is unconstitutional
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Criminal law -- Probation revocation -- Trial court did not err in failing to renew offer of counsel prior to probation violation hearing held 18 days after trial court had conducted Faretta hearing and allowed defendant to represent himself, and after defendant had represented himself at a hearing on various motions -- Hearing on various motions, the most significant of which was requested continuance of defendant's trial on underlying charges, did not amount to critical intervening stage that rendered initial waiver of counsel inoperative -- Trial court erred in failing to renew offer of counsel before sentencing hearing on probation violation, even though the hearing occurred immediately following conclusion of VOP hearing -- Error not rendered harmless by fact that, immediately after sentencing, defendant firmly maintained his desire to proceed pro se at his trial on underlying charges -- Remand for new sentencing hearing that includes offer of counsel at the outset
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Criminal law -- Search and seizure -- Open view -- Law enforcement's taking of defendant's clothes from hospital emergency room bay after defendant had walked into emergency room with a gunshot wound was not illegal -- Under open view doctrine, seizure of bag of defendant's clothing was justified because, even though there was a meaningful interference with defendant's possessory right, there was probable cause to associate the bloody clothes with criminal activity where defendant was a self-described victim of a crime
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