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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
October 14 - October 18, 2019

Civil Law Headnotes (Jump to Criminal 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.

Civil procedure -- Defenses -- Defense of lack of personal jurisdiction was waived where defense was not asserted at the time and in the manner required by rule 1.140, and defendant was precluded in asserting it in a subsequent rule 1.140(b) motion -- Neither the defendant's response to plaintiff's jurisdictional allegation in its answer nor its filing of an amended motion asserting the defense excused or cured the omission -- A party may not file an amended motion before a hearing on the original motion and assert a rule 1.140(b) defense it could have but did not assert in its original motion without triggering the waiver and consolidation provisions of rule 1.140(g) and (h) -- Conflict certified -- Extensive discussion of rule 1.140
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Consumer law -- Debt collection -- Florida Consumer Collection Practices Act -- Jurisdiction -- Workers' Compensation Law does not preclude plaintiff's claims against her medical providers under section 559.77(1) alleging providers illegally attempted to collect money from her for service connected to workplace injury -- Trial courts erred in dismissing plaintiff's actions on ground that WCL grants exclusive jurisdiction over any matter concerning reimbursement to Florida Department of Financial Services -- Question certified: Does section 440.13(11)(c) of the Workers' Compensation Law preclude circuit court jurisdiction over claims under section 559.77(1) of the Florida Consumer Collection Practices Act?
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Dissolution of marriage -- Marital settlement agreement -- Offer and acceptance -- Trial court erred in incorporating purported marital settlement agreement into final judgement where former wife's alterations prior to signing former husband's proposed agreement changed essential terms of the proposal -- Former wife's response to proposed agreement was a counteroffer, not an acceptance
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Insurance -- Homeowners -- Coverage -- Intentional torts -- Estoppel -- Complaint for declaratory judgment, filed by insurer more than a year after it began providing insureds with a defense in civil action, seeking determination that insurer had no duty to defend and indemnify insureds against intentional tort litigation because policy only covered bodily injury and property damage -- Error to grant summary judgment in favor of insurer where insurer's motion failed to address any of insureds' affirmative defenses -- Where a movant merely denies an affirmative defense and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defense, the burden of disproving the affirmative defense has not been met -- Insureds' equitable estoppel defense was legally sufficient -- An insurer may be estopped from denying coverage, even where the policy does not cover the claim, where the insured has been prejudiced by insurer's assumption of the insured's defense
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Mortgage foreclosure -- Counterclaims -- Amendment -- Order which granted motion to amend to assert compulsory counterclaims but which denied motion to assert those claims as a class action is an appealable non-final order -- Order failed to include findings upon which ruling was based, contrary to Rule 1.220(d)(1) -- Counterclaim asserting that bank and loan servicer improperly added to debt secured by the mortgage the attorney's fees and costs incurred in dismissed or unsuccessful foreclosure actions was compulsory because it involved same aggregate operative facts as main claim and defense -- Appellate court lacks jurisdiction to review order denying leave to amend permissive counterclaim
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Torts -- Municipal corporations -- Evidence -- In action against city arising out of plaintiff's trip and fall on city sidewalk that had an asphalt patch which was one-and-a-quarter inches lower than adjoining concrete slab, it was error for trial court to admit a Google Maps photograph of the sidewalk at an earlier time to show that city had constructive knowledge of the defective condition -- Google Maps photograph was improperly admitted into evidence without proper authentication -- Photograph was not authenticated by either pictorial testimony method or silent witness method
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Torts -- Premises liability -- Slip and fall -- Argument -- Defense counsel's comments in opening and closing statements were not so inflammatory or prejudicial as to compromise fairness of trial, and were not grounds for mistrial or new trial -- Evidence -- Trial court did not abuse discretion by admitting certain documents containing medical records after any references to workers' compensation were redacted -- There was no error in allowing defendant to ask plaintiff's treating physician on cross-examination about the percentage of his practice and income derived from referrals from plaintiff's law firm, and, even if this inquiry was improper, plaintiff failed to show any prejudice or violation of attorney-client privilege -- Jury instructions -- Spoliation of evidence -- Trial court did not err in denying plaintiff's request for burden-shifting instruction because of defendant's failure to preserve video footage for an hour prior and an hour after the incident where video footage was preserved for period that started twenty minutes prior to incident and ended twenty minutes after the incident -- Claim of improper statements in closing argument was not preserved for appeal by contemporaneous objection, and statements did not constitute fundamental error -- Attorney's fees -- Trial court did not err in denying plaintiff's request for attorney's fees based on defendant's denial of requests for admissions where requests related to hotly contested issues
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Wrongful death -- Medical malpractice -- Noneconomic damages -- Statute excluding medical malpractice cases from those in which adult surviving children have a statutory right to recover noneconomic damages for the wrongful death of a parent does not violate equal protection guarantees of Florida and United States constitutions -- Trial court did not err in granting motion to dismiss on ground that action was barred by section 768.21(8) -- Question certified: In light of the supreme court's decisions in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017), does Section 768.21(8), Florida Statutes, violate the equal protection guarantees of the United States and Florida constitutions, notwithstanding the court's prior decision on the issue in Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000)? -- Limitation of actions -- Statute of repose not proper basis for dismissal where face of complaint did not conclusively show that action was time-barred
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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 -- Juveniles -- Disruption of school function -- Statute prohibiting disruption of a school function is applicable to off-campus conduct directed at disrupting school events -- Statute is not unconstitutionally vague or overbroad -- Juvenile who posted online threat to shoot at his school was properly found guilty of disruption of school function -- Discovery -- State's improper failure to disclose witness does not require reversal where violation was inadvertent and was not prejudicial to preparation of defense
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