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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
December 15 - December 19, 2014

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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Counties -- School boards -- Exceptional students -- Action by parents against school board alleging board understated child's matrix of services score in order to reduce McKay Scholarship funds available to them, seeking declaration that they were entitled to recalculation of matrix of services scores, and further alleging that board violated Florida Deceptive and Unfair Trade Practices Act by deliberately underscoring matrix of services and misleading parents about the services child required -- Dismissal -- Appeals -- Appellate court has jurisdiction to consider appeal from judgment entered after complaint was dismissed, even though, at least as to one count, dismissal was solely for failure to exhaust administrative remedies and explicitly “without prejudice” -- Circuit court correctly dismissed declaratory judgment count for failure to exhaust administrative remedies where parents never filed administrative complaint objecting to individual education plan which they helped formulate and never requested due process hearing -- Circuit court correctly dismissed count alleging FDUTPA violations, as Act does not apply to an act or practice required or specifically permitted by federal or state law -- Board did not engage in “trade or commerce” within meaning of FDUTPA by completing matrix of services score form, which is essentially an administrative tool for Department of Education to use in allocating state funds for education of exceptional students
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Dissolution of marriage -- Modification of judgment -- Modification of alimony on basis of decrease in husband's income -- Court did not err in reducing alimony obligation by percentage of decrease in husband's income as reflected in husband's financial affidavits -- Court did not abuse discretion in failing to modify requirement that husband secure alimony with life insurance -- Court did not abuse discretion by denying modification of requirement that husband continue providing health insurance to wife until she obtains employment which includes this benefit -- Error to impute income to wife and reduce husband's child support obligation to zero on basis that wife's unemployment is voluntary because she quit position one month after becoming employed without findings regarding wife's diligence in seeking employment in the job market in the community -- Court also erred in removing requirement that husband secure child support with life insurance -- Error to deny wife's claim that husband is in arrears in support obligations without explanation
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Family law rules of procedure -- Amendments
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Insurance -- Automobile -- Excess coverage -- Uninsured motorist -- Trial court properly entered declaratory judgment determining that Florida Municipal Insurance Trust agreement with city-member provided excess insurance and not primary insurance for automobile accidents -- Self-retention endorsement providing that Trust member would not only cover claims within self-retained limit but would provide for its own defense of such matters was not a deductible provision, but provided primary layer of exposure, with FMIT policy providing excess coverage over self-retained limit -- Accordingly, Trust's only obligation under statute was to offer UM coverage at time trust was initially created, which it did
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Insurance -- Homeowners -- Sinkhole claims -- Policy at issue clearly and unambiguously excluded coverage for sinkhole loss -- Fact that policy contains a provision describing the neutral evaluation process in the event of a sinkhole loss cannot reasonably be read as creating coverage for a loss that is unambiguously excluded
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Mortgage foreclosure -- Condominium association lien -- Priorities -- Trial court was without authority to sanction mortgagee for delaying case by declaring that condominium association's lien was superior to mortgage lien -- Court did not have equitable power and authority to give association first lien priority without regard to statutes governing such lien priorities
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Mortgage foreclosure -- Condominiums -- Trial court lacked jurisdiction to consider post-judgment "motion to enforce final judgment of foreclosure" which asked court to determine amount of unpaid condominium assessments owed to association where motion was filed more than six months after deadline for altering or amending the foreclosure judgment, and assessments issue was neither part of foreclosure litigation, nor reserved upon by final judgment for later determination by court
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Mortgage foreclosure -- Limitation of actions -- Involuntary dismissal without prejudice of foreclosure action did not invalidate or otherwise decelerate mortgagee's acceleration of payments, thereby permitting a new cause of action to be filed based upon a new and subsequent default -- Lender's acceleration of debt triggered commencement of statute of limitations, and because the installment nature of the loan payments was never reinstated following the acceleration, there were no new payments due and thus there could be no new default following the dismissal without prejudice of the initial action -- Filing of subsequent action, after expiration of statute of limitations, was barred -- Conflict certified -- Although trial court properly found that foreclosure action was barred by statute of limitations, court erred in finding mortgage to be null and void, canceling note and mortgage, and quieting title in favor or defendant -- Under statute of repose, mortgage lien remains valid until five years from date of maturity as reflected in recorded mortgage securing the obligation
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Rules of Judicial Administration -- Amendment -- Public access to and protection of judicial branch records
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Torts -- Attorney's fees -- Offer of judgment -- Trial court properly found that language in demands for judgment that “plaintiff agrees to settle any and all claims asserted against defendant,” rendered demands vague, ambiguous, and unenforceable because it is unclear whether the intent of the demands was to resolve only claims of plaintiff or to resolve both plaintiff's claims and loss of consortium claims of plaintiff's spouse
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Torts -- Medical malpractice -- Attorney's fees -- Proposal for settlement -- Joint proposal -- All or nothing proposal made by multiple offerors to a single offeree is an acceptable proposal for settlement -- Cover letter sent to defendant notifying defendant of the enclosed proposal of settlement was not itself a proposal for settlement and did not make the two documents ambiguous -- Proposal was not ambiguous because of its use of “plaintiff” and “plaintiffs” where there was no ambiguity in the proposal as to which claims were covered, the amount of the total proposal, and the amount assigned to each claim, including plaintiff's claim as plenary guardian for patient and claims on behalf of patient's minor children -- Because proposal was “all or nothing” joint proposal, if verdict for any of the claimants was not 25% higher than amount of that claim in the settlement proposal, then none of the claimants could obtain attorney's fees under its terms -- In case at issue, awards to each claimant exceeded that threshold, and trial court did not err in awarding attorney's fees pursuant to proposal for settlement
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Torts -- Medical malpractice -- Limitation of actions -- Notice of intent to initiate litigation -- Timeliness -- 90-day tolling of statute of limitations, effective upon receipt of notice of intent to initiate litigation, tolls statute of limitations as to defendants known to claimant but who have yet to be served with notice of intent to initiate litigation, as well as defendants receiving the notice
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Workers' compensation -- Independent medical examination -- Compulsory -- Judge of compensation claims departed from essential requirements of law, resulting in irreparable harm to claimant, by granting employer/carrier's motion to compel claimant to submit to independent medical examination without limiting independent medical examiner to an opinion as to whether supervision provided by state during two periods of claimant's past incarceration constituted the type of attendant care previously ordered, which was the only issue pending before the JCC
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Workers' compensation -- Medical benefits -- Compelled medical care -- Judge of compensation claims departed from essential requirements of law, resulting in irreparable harm to claimant, by granting employer/carrier's motion to compel claimant to submit to medical treatment -- Evaluation ordered by JCC had no connection to or bearing on sole issue pending before JCC, which was whether supervision of claimant provided by state during two periods of claimant's past incarceration constituted the type of attendant care ordered for claimant
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Wrongful death -- Action against defendants who sold alcoholic beverages to underage person who was involved, while intoxicated, in automobile accident that killed decedent -- Error to enter summary judgment for defendants on basis that sale of alcoholic beverages to underage person was not willful, where there was factual issue as to whether defendant knew or should have known that person was underage, and jury can determine, based on photographs of underage person taken before and after accident, whether he looked younger than statutory age -- Court also erred in denying motion for leave to file amended complaint to add claim for punitive damages, as there was sufficient evidence of a reasonable basis for recovery of punitive damages to submit issue to jury
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Wrongful death -- Nursing homes -- Appeals -- Corporate defendant which had been administratively dissolved for failing to file an annual report is precluded from appealing judgment against it -- Non-parties who are not judgment debtors have no standing to appeal judgment -- Injunctions -- Injunction purporting to prohibit non-party receiver and receiver's agents and assignees from challenging plaintiff's entitlement to collect its judgment was erroneously entered, as court may not issue an injunction that interferes with rights of those who are not parties to action, and because injunction was entered without notice and opportunity to be heard -- Discovery -- Trial court departed from essential requirements of law by adopting magistrate's report that found that non-party had acted to perpetrate a fraud on the court and ordered an in-camera review of attorney-client privileged documents pursuant to crime/fraud exception to attorney-client privilege rule -- Magistrate's finding of fraud was not based on evidence admitted at a properly noticed evidentiary hearing
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Wrongful death -- Survivors -- Action by daughter of decedent against decedent's spouse who was convicted of murdering decedent -- Trial court erred in dismissing plaintiff's individual claim for damages on basis that defendant was a surviving spouse and that plaintiff, as an adult child, was precluded from bringing a survivor's claim -- Defendant must be treated as if he predeceased his wife, thereby permitting plaintiff's damages claim as a survivor -- Evidence -- Trial court abused discretion by refusing to allow plaintiff to voir dire defendant's son, who was called as a witness for defendant, to ascertain whether he was competent to testify where the son was disabled in a way that called into question his competency as a witness
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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 -- DUI manslaughter -- Sentencing -- Guidelines -- Departure -- Denial of downward departure -- Appeals -- Trial court's discretionary decisions to deny downward departure sentences are appealable under process enunciated by supreme court in Banks v. State -- Court recedes from prior cases in which it held otherwise -- Trial court did not abuse its discretion in denying downward departure because of level of defendant's intoxication -- Defendant's challenge to factual predicate for blood alcohol level was not preserved where no objection was made that state's statements were in error and defendant did not offer any evidence to contradict blood alcohol level
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