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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
April 20 - April 24, 2015

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 -- Licensing -- Firesafety inspector -- Department of Financial Services properly denied application for certification as a firesafety inspector of applicant who had entered a no contest plea to a felony charge and had adjudication of guilt withheld, although applicant had previously been certified as a firefighter under an earlier statutory scheme
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Arbitration -- Cross-claim in mortgage foreclosure action for indemnification, alleging a breach of duty to defend in the foreclosure action -- Arbitrator lacked jurisdiction to enter award on cross-claim where cross-claim had been voluntarily dismissed -- Stay of litigation pending arbitration did not render notice of voluntary dismissal ineffective -- Trial court erred in confirming arbitration award that was entered in excess of arbitrator's jurisdiction
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Contracts -- Municipal corporations -- Taxation -- A PILOT agreement which requires that a nonprofit organization which provides affordable housing for low to moderate income families, and is exempt from ad valorem taxes on the property, make payments in lieu of taxes to a local government violates Florida public policy and article VII, section 9(a) of the Florida Constitution, which permits municipalities to impose taxes only as authorized by law -- Question certified: Do PILOT agreements that require payments equaling ad valorem taxes that would otherwise be due but for a statutory tax exemption violate section 196.1978, Florida Statutes (2000), and article VII, section 9(a) of the Florida Constitution?
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Dissolution of marriage -- Jurisdiction -- Trial court lacked jurisdiction to enter second amended final judgment on its own initiative more than ten days after rendition of first amended final judgment -- Appellate court has jurisdiction to review first amended final judgment, as husband filed notice of appeal within 30 days of rendition of first amended final judgment -- Equitable distribution -- Trial court erred in not considering debt consolidation loan as a marital liability and failing to award husband a credit for payments made on the debt -- Trial court erred in awarding wife a distribution from husband's portion of thrift savings plan -- Trial court erred in failing to place a value on personal property distributed to parties pursuant to their partial mediation settlement agreement -- If, on remand, trial court makes an inequitable distribution of marital assets and liabilities, including federal tax liability, court should make specific findings as to statutory factors -- Alimony -- Trial court erred in basing permanent periodic alimony award on husband's gross income rather than his net income -- Trial court erred in considering husband's future retirement benefits as source of present income -- In awarding alimony, court erred by failing to make specific written findings regarding standard of living established during marriage, contributions of each party to marriage, and tax treatment and consequences of alimony award -- On remand, court to consider imputing full-time minimum wage income to wife if she is not working full time -- Trial court to reconsider, on remand, amount of life insurance necessary to secure alimony award -- Trial court erred finding that if husband fails to timely pay alimony, he becomes responsible to pay mortgage and other liabilities of marital home in addition to unpaid alimony, as this constitutes a prematurely imposed sanction without affording an opportunity to be heard -- Attorney's fees -- Award of attorney's fees to be reconsidered by trial court after court determines alimony and equitable distribution on remand
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Dissolution of marriage -- Same-sex couple -- Jurisdiction -- Under Full Faith and Credit Clause of United States Constitution, Florida court has jurisdiction to dissolve marriage of same-sex couple which was legally entered into in another state -- Although a state may, under certain circumstances, not give full faith and credit to out-of-state laws and judgments based on public policy considerations, a state may not do so in a manner that runs afoul of Equal Protection Clause of United States Constitution -- Under rational basis test, there has been no showing of a legitimate government interest that would be served by precluding a Florida court from exercising jurisdiction over dissolution of marriage proceeding involving same-sex couple
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Family Law Forms -- Amendments -- Petition for Injunction for Protection Against Dating Violence
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Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Florida Insurance Guaranty Association -- Although insureds did not waive appraisal by their litigation activities regarding cosmetic damages to home, trial court erred in requiring FIGA to participate in appraisal process -- Questions certified: 1. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the effective date of the new definition? 2. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
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Insurance -- Homeowners -- Sinkhole claim -- Florida Insurance Guaranty Association -- It was error to determine that insureds were entitled to appraisal of sinkhole claim against FIGA -- Insureds' litigation activities waived appraisal -- Determination of method of repair is appropriate for resolution under policy's appraisal process -- Questions certified: 1. Does the definition of “covered claim” in section 631.54(3), Florida Statutes, effective May 17, 2011, apply to a sinkhole loss under a homeowners' policy that was issued by an insurer before the effective date of the new definition when the insurer was adjudicated to be insolvent after the date of the new definition? 2. Does the statutory provision limiting FIGA's monetary obligation to the amount of actual repairs for a sinkhole loss preclude an insured from obtaining an appraisal award determining the “amount of loss” in accordance with the terms of the homeowners' policy of insurance?
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Limitation of actions -- Liens -- Construction -- Equitable lien -- Funds from construction loan contract which were not disbursed by lender -- Trial court did not err by holding that statute of limitations began to run from the last furnishing of labor, services, or material for improvement of real property and thus barred contractor's equitable lien claim against lender -- Contractor's claim that statute of limitations did not begin to run until lender initiated foreclosure proceeding against property is without merit -- Trial court properly concluded that contractor's common law claims of equitable lien and unjust enrichment were precluded by section 713.3471, which defines lender's responsibilities to contractor for construction work where lender decides to stop making advances prior to distribution of all construction loan funds -- Statute expressly evinces legislative intent to displace common law remedies and is so repugnant to common law remedies that the two cannot coexist
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Mortgage foreclosure -- Standing -- Trial court erred in entering judgment of foreclosure in favor of substituted plaintiff where substituted plaintiff failed to establish that original plaintiff had standing to foreclose at time of filing of foreclosure complaint -- Defendant is entitled to dismissal of foreclosure action
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Municipal corporations -- Mayor who had been suspended from office by Governor after he was charged with federal crimes allegedly committed in his official capacity is entitled to resume his duties as Mayor for the balance of his original term of office after he has been acquitted of the charged crimes -- Trial court properly entered declaratory judgment finding that Mayor is entitled to resume the duties of office
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Torts -- Conspiracy to misuse power of attorney in contravention of section 709.08(7)(b)5 -- Attorney's fees -- Prevailing party -- Section 709.08(11), which grants award to prevailing party in “any judicial action under this section,” contemplates complaint alleging civil conspiracy to violate an attorney-in-fact's duties under section 709.08 -- Nothing in statute dictates that party who may recover or be required to pay fees is limited to attorney-in-fact or one who sues the attorney-in-fact -- Trustee who did not hold power of attorney, but who was responsible, along with the attorney-in-fact, for the attorney-in-fact's improper exercise of the power was liable for attorney's fees
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Torts -- Nursing homes -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration on basis that second readmission agreement was invalid because it was executed by resident's son who did not have power of attorney or other legal authority to act on behalf of resident -- Because initial arbitration agreement signed by resident as part of admission agreement bound resident from time of first admission through and including all of the resident's other admissions to the facility without any need for further renewal, trial court should have determined whether that arbitration agreement was valid on its face
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Torts -- Premises liability -- Slip and fall down concrete stairway -- Failure to maintain premises in reasonably safe condition -- Error to enter summary judgment in favor of defendants on claim that defendants failed to maintain premises in reasonably safe condition where evidence raised disputed issue of material fact concerning whether defendants used non-skid paint on stairs or properly mixed non-skid additive with the paint -- Duty to warn -- No error in granting summary judgment in favor of defendants on claim that they breached duty to warn where condition was open and obvious
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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 -- Competency of defendant -- Discovery -- Trial court departed from essential requirements of law in compelling disclosure of a written competency evaluation performed by a mental health expert who was privately retained by defense counsel for purpose of determining defendant's competence to proceed -- Competency evaluation is protected by attorney-client privilege
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Criminal law -- Murder -- Death penalty -- Evidence was sufficient to support conviction for first-degree murder -- In deciding whether to override jury's death sentence recommendation, trial judge used proper standard when he engaged in detailed analysis of aggravators and mitigators and properly weighed those factors to determine sentence -- Proportionality -- In comparison to other cases, case is not one of the most aggravated or least mitigated, and death penalty is disproportionate -- Sentence reduced to life imprisonment
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Criminal law -- Probation revocation -- Felon in possession of firearm -- Search and seizure -- Search by probation officer -- No error in trial court's refusal to suppress evidence obtained as a result of a warrantless, suspicionless search of defendant's residence by his probation officer -- Such a search is expressly authorized by the Florida Supreme Court as necessary for the proper supervision of probationers -- No fundamental error in admitting evidence despite allegedly unreasonable hour of search -- Florida courts have allowed evidence obtained in non-exigent searches conducted at more egregious hours than the early morning hour at issue here, and the statute permitting such supervision by probation officers necessarily contains no time restriction, for obvious reasons
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