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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
May 18 - May 22, 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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Civil procedure -- Discovery -- Depositions -- Failure to comply with court order -- Sanctions -- Non-parties -- Circuit court erred by imposing sanctions pursuant to rule 1.380(b)(1) against non-parties and their attorney after records custodian appeared for deposition but did not bring any of the documents requested in subpoenas duces tecum -- Rule permits sanctions against non-party deponents only if deponent fails to be sworn or to answer a question after being directed to do so by court, a circumstance which was not present in instant case
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Contracts -- Commercial leases -- Trial court properly determined that landlord first breached lease by failing to provide code-compliant means of fire egress, and that tenant was therefore excused from any further obligation to perform under the lease -- Damages -- Lost business value -- Trial court properly determined that tenant's proof on lost business value claim was speculative and therefore insufficient where tenant's expert failed to evaluate any comparable facility's profitability as a “yardstick” and acknowledged that his report was based on consultant's report and forecast and was only as good or bad as the forecast -- Out-of-pocket expenses -- Trial court erred in failing to address claim for out-of-pocket expenses where lease specified that tenant was to prepare premises for a specified use, and tenant presented competent, substantial evidence that it incurred actual and necessary expenses which parties contemplated for the establishment of such use
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Counties -- Employees -- Labor relations -- Dismissal of employee who had been charged with criminal offense -- County's refusal to re-schedule employee's appeal hearing from disciplinary action after criminal charges against employee had been dismissed on ground that charges had been dismissed as part of plea agreement in which employee agreed not to seek further employment with county -- County's refusal to re-schedule employee's appeal hearing was an arbitrable determination under collective bargaining agreement, and employee was required to grieve and arbitrate his employment dispute with county as a prerequisite to filing suit in circuit court -- Trial court did not err in entering summary judgment in favor of county on basis that employee failed to exhaust administrative remedies
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Dissolution of marriage -- Attorney's fees -- Charging lien -- Priority -- Under facts of instant case, trial court did not abuse its discretion in ruling that charging lien filed by law firm representing wife did not take priority over indemnification agreement which predated law firm's retainer agreement and gave former husband right to indemnification for attorney's fees against former wife
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Dissolution of marriage -- Child custody -- Modification -- Trial court departed from essential requirements of law in entering emergency order temporarily modifying parenting plan by providing for child to remain in Colorado with husband until such time as court could hold evidentiary hearing where husband's motion did not seek modification of timesharing arrangement so that wife was not on notice that such relief was within scope of motion, husband's motion was unverified, motion did not seek emergency relief, and court did not take any testimony or rely upon any sworn evidence
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Injunctions -- Violation of restrictive covenant -- Trial court did not err in entering temporary injunction prohibiting defendant from performing abortions in violation of medical park restrictive covenant which prohibits property from being used as an “Out Patient Surgical Center” or a “Diagnostic Imaging Center” unless ancillary and incidental to a physician's practice of medicine -- It is not necessary to prove irreparable harm in order to obtain an injunction to enforce restrictive covenants on real property -- Error to enjoin defendant from performing sonograms where that relief was not sought in pleadings or tried by consent -- Trial court to strike vague language prohibiting defendant from performing other unspecified procedures -- Neither party is entitled to attorney's fees under attorney's fee provision in covenants
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Insurance -- Homeowners -- Assignment -- Trial court erred in dismissing assignee's complaint against insurer based on anti-assignment and loss payment provisions of insurance policy -- Insured may assign a post-loss claim even when insurance policy contains provision barring assignment of policy -- Standard loss payment provision in insurance policy does not preclude an assignment of a post-loss claim, even when payment is not yet due -- Assignable right to benefits accrues on date of loss, even though payment is not yet due under loss payment clause -- Assignment cannot be invalidated based on insurer's theory that it attempts to assign a contractual “duty to adjust” from insured to a third party -- So long as insured complies with all policy conditions, third-party assignee may recover benefits on a covered loss -- Civil procedure -- Trial court did not err in considering contents of insurance policy filed in connection with insurer's motion to dismiss where complaint referred to policy and plaintiff's standing to bring suit was premised on an assignment on that policy
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Insurance -- Policy insuring personal property from hurricane or other weather condition -- Notice of claim -- Timeliness -- Trial court erred in entering summary judgment finding that insured's notice of claim for damage to furniture in her condominium unit due to mold growth caused by flooding of neighboring unit during hurricane was not “prompt” as a matter of law where notice was given three years after hurricane -- Because damage did not become apparent until years after hurricane, issue of whether insured gave “prompt” notice was a jury question, given policy language
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Insurance -- Uninsured motorist -- Collateral estoppel -- Where wife who was a named insured under policy obtained a favorable judgment in her declaratory action against insurer which claimed that insurer waived its right to cancel policy for non-payment of premium and that it was estopped to deny coverage, and husband who was also a named insured under policy then filed a declaratory action against insurer and obtained judgment on the basis of collateral estoppel, judgment for husband must be reversed because judgment for wife has been reversed on appeal -- There is no longer a final decision regarding any issue in wife's case because her final judgment has been reversed and case remanded for new trial, so that the foundation for husband's judgment has been eliminated
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Mortgage foreclosure -- Conditions precedent -- Notice of default -- Although notice specifying a date to cure default that was less than 30 days from the date of the notice did not comply with requirements of mortgage, breach was not material, as evidenced by fact that defendants never attempted to cure default before, during or after suit was filed -- Absent prejudice, breach of condition precedent does not constitute defense to enforcement of otherwise valid contract
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Mortgage foreclosure -- Sale -- Where defendant filed a bankruptcy petition after final judgment of foreclosure was entered, and parties reached a mediated settlement agreement in bankruptcy case before bankruptcy petition was dismissed, trial court erred by rescheduling foreclosure sale without an evidentiary hearing when defendant claimed that motion to have foreclosure sale rescheduled violated settlement agreement -- Trial court had jurisdiction under rule 1.540(b)(5) to determine whether defendant should be relieved from final foreclosure judgment because the judgment was satisfied, released, or discharged by virtue of the settlement agreement
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Torts -- Automobile accident -- Venue -- Action in Miami-Dade County against foreign corporation authorized to do business in Florida which owned vehicle involved in collision with plaintiff's motorcycle in Broward County and corporation's employee who was driving vehicle and who allegedly resided in Broward County -- Because complaint alleged that individual defendant resided in Broward County, and cause of action accrued in Broward County, venue is proper in Miami-Dade County only if corporation resides in Miami-Dade County -- Because foreign corporation resides in any county where it has an agent or other representative, and corporate defendant has controverted allegation in unverified complaint that it has an agent or other representatives in Miami-Dade County by a sworn statement that it has no agents or other representative in Miami-Dade County, trial court erred in denying motions of defendants to change venue -- Remand for evidentiary hearing to determine whether corporate defendant has agents or representatives in Miami-Dade County, to determine county in which individual defendant resides, and to decide, based on these determinations, where venue properly lies
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Torts -- Medical malpractice -- Damages -- Statutory cap on noneconomic damages -- Statutory amendment that limits noneconomic damages in medical malpractice actions does not apply retroactively to a medical malpractice incident that occurred prior to the effective date of the amendment -- Plaintiff had a vested right at time malpractice incident occurred, and that vested right could not be infringed upon by retroactive application of substantive statute
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Torts -- Negligence -- Action arising out of incident in which plaintiff, a veteran who had sustained injuries while in the military, was struck by a truck belonging to corporate defendant and driven by individual defendant at corporation's distribution center -- Discovery -- Privacy -- Trial court departed from essential requirements of law in requiring disclosure of plaintiff's military records without conducting in camera examination to segregate relevant documents from private, irrelevant documents
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Workers' compensation -- Medical benefits -- Judge of compensation claims did not err in awarding psychiatric care on ground that employer/carrier waived its right to challenge compensability of claimant's post-traumatic stress disorder based on failure to show material facts that could not have been discovered through a reasonable investigation within the applicable 120-day time period -- Temporary total disability -- JCC erred in denying TTD benefits where claimant met initial burden by submitting medical evidence from authorized physician indicating an inability to work due to compensable PTSD, and E/C submitted no medical evidence that claimant's work status had changed from temporary total disability -- Remand for further clarification of denial of recommended inpatient psychiatric care and for consideration of alternate recommendation for an evaluation to determine the value of inpatient care to treat claimant's compensable PTSD
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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 -- Lewd and lascivious battery on person under 16 years of age -- Limitation of actions -- Statute extending statute of limitations for lewd and lascivious offenses where identity of accused is established through analysis of DNA evidence, if sufficient portion of evidence collected at time of original investigation and tested for DNA is preserved and available for testing by the accused, did not apply in instant case in which DNA was not obtained during “original investigation” -- Trial court erred in concluding that there was an “original, ongoing investigation” sufficient to trigger extension of limitations period -- During period when police first learned of potential lewd and lascivious behavior until time case was initially declared “inactive,” onus was on police to collect evidence to preserve for a later match, but DNA evidence was collected only after defendant was located by investigating police department upon being arrested for a different charge, well after original investigation had first been declared “inactive”
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Criminal law -- Manslaughter with weapon -- Attempted second degree murder with weapon -- Sufficiency of evidence -- Trial court properly denied defendant's motion for judgment of acquittal because there was competent evidence from which the jury could reasonably infer guilt, and reject self-defense explanation -- Defendant's police interview and his Stand Your Ground testimony often undermined his self-defense claim; by his own admission, defendant was drunk on the night of the fight; and witness testimony, if believed, would establish that defendant was initial aggressor -- Evidence -- Stand Your Ground Law -- Trial court properly admitted defendant's testimony at his pre-trial Stand Your Ground hearing because in so testifying, defendant was not forced to make a choice between two constitutional rights, as between his right to bear arms in self-defense and his Fifth Amendment privilege against self-incrimination -- The substantive right granted to defendants to assert Stand Your Ground immunity from prosecution is not a constitutional right and is entirely a creature of statute -- Jury instructions -- Justifiable use of deadly force -- Claim that, despite failure to preserve the issue by objection, jury instruction on justifiable use of deadly force is fundamental error because it provides conflicting instructions on duty to retreat -- Standard instruction on justifiable use of deadly force is not internally inconsistent as defendant claims, and is a correct statement of the law; hence defendant has not shown error -- Conflict certified with sister District Court regarding this instruction -- Sentencing -- Habitual offender -- No merit to claim that imposition of habitual offender sentences without submitting prior convictions to jury is unconstitutional
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Criminal law -- Search and seizure -- Knock and talk -- Detectives investigating an anonymous tip that house on property was used to grow marijuana could not enter property to conduct knock and talk or to pursue consensual encounter without first obtaining defendant's permission to enter property where property, a semirural homestead where detectives found two marijuana plants, was surrounded by chain-link fence, had closed gate with “no trespassing-violators will be prosecuted” and “beware of dog” signs, and had mailbox accessible from outside the fence -- Error to deny motion to suppress
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Criminal law -- Search and seizure -- Real-time cell phone location data -- Trial court erred in denying motion to suppress evidence resulting from search and seizure of real-time cell phone location data without a warrant -- Defendant had a reasonable expectation of privacy in his real-time cell phone location data -- Good faith exception to warrant requirement is not applicable -- Under totality of circumstance, law enforcement was not relieved of duty to obtain warrant by exigent circumstances where officers could have obtained warrant but failed to attempt to obtain warrant
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Criminal law -- Sentencing -- Correction -- Trial court did not err in denying motion arguing that sentence of life imprisonment without possibility of parole for second-degree murder committed while defendant was a juvenile violated U.S. Supreme Court decision holding that a mandatory life sentence without the possibility of parole for a juvenile who commits a homicide is unconstitutional -- Question certified: Because there is no parole from a life sentence in Florida, does Miller v. Alabama, 132 S.Ct. 2455 (2012), require the application of the procedures outlined in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014), to juveniles convicted of second-degree murder and sentenced to a non-mandatory sentence of life in prison before the effective date of chapter 2014-220, Laws of Florida?
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