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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
June 7, 2021 - June 11, 2021

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 -- Reduction of rate and hours -- Prejudgment interest -- Appeals -- Absence of transcript -- Discussion of Florida Patient's Compensation Fund v. Rowe -- Trial court erred by significantly reducing plaintiffs' attorney's hourly rate and amount of hours reasonably expended without making specific findings to support its determination -- Requirement for specific findings is not limited to situations where trial courts reduce or enhance the lodestar figure -- Absence of transcript does not require affirmance of trial court's order because order is fundamentally erroneous on its face for failure to make required findings -- Trial court erred in failing to award prejudgment interest on fee award
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Contracts -- Anticipatory breach -- Damages -- Air conditioning service company anticipatorily breached contract with Church to repair Church AC unit and smoke detector when it stopped work for safety reasons and refused to return to complete agreed repairs until Church provided safety assurances of ceiling repairs -- Request that Church provide safety assurances constituted an additional demand that was not agreed to by the parties -- Court applied improper measure of damages by awarding Church the cost for installation of a new AC unit, rather than the cost of repairing the existing unit as contemplated by parties
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Dissolution of marriage -- Child custody -- Domestication of foreign state order on child custody -- Ex parte emergency order to domesticate foreign judgment -- Because circuit court did not comply with section 61.528, Florida Statutes, before it domesticated foreign judgment, court erred in denying former husband's motion to vacate order -- Because court did not comply with statute by giving former husband notice, ex parte order domesticating foreign state order is void
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Dissolution of marriage -- Modification of final judgment -- Where final judgment determined that personal property, a dog, was husband's non-marital property, trial court was without jurisdiction to modify judgment by awarding husband the fair market value of the dog instead of the dog itself -- Remand for entry of order enforcing final judgment of dissolution
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Injunctions -- Counties -- COVID-19 emergency measures -- Mask mandates -- Constitutionality -- Right of privacy -- Strict scrutiny -- Error to deny plaintiff's motion for emergency temporary injunction in action alleging that county's mask mandate violated plaintiff's fundamental right to privacy without applying the strict scrutiny required -- The right of privacy is a fundamental one, expressly protected by the Florida Constitution, and any law that implicates it “is presumptively unconstitutional,” such that it must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling governmental interest -- This means that, at a temporary injunction hearing, a plaintiff does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right, and have it subjected to strict scrutiny, if it is evident on the face of the law that it implicates this right -- Constitutional right of privacy is necessarily implicated by the nature of county's mask mandate, which means that trial court had to apply single-prong strict scrutiny mode of analysis set out in Gainesville Woman Care, LLC v. State -- Discussion of the right of privacy -- Conflict certified
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Family Law Rules of Procedure -- Forms -- Petition for temporary custody by extended family -- Petition for concurrent custody by extended family -- Waiver of service of process -- Orders granting petitions -- Revision of forms relating to temporary and concurrent custody is necessary so forms will accord with provisions of chapter 751
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Mortgage foreclosure -- Sale -- Trial court did not err in overruling mortgagor's objections to judicial sale of property -- Objection grounded upon a failure to serve unspecified court notices was legally insufficient -- Objection reciting that property was worth more than sale price was legally insufficient -- Court did not divest mortgagor of due process by failing to afford him an evidentiary hearing
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Torts -- Automobile accident -- Damages -- Setoff -- Collateral sources -- Settlement agreements -- Uninsured motorist insurance -- No error in denying defendant's request to setoff settlement proceeds plaintiff received from plaintiff's uninsured motorist insurer against jury verdict -- Defendant preserved claim that she was entitled to set off of settlement proceeds under section 768.041(2) where, although defendant never specifically cited the statute below, the issue was thoroughly litigated in the trial court, and both parties and trial court relied on case law analyzing setoff of UM settlements under both sections 768.041(2) and 768.76(1) -- Defendant is not entitled to a set off in amount of settlement under section 768.041(2) where claims plaintiff asserted against his UM insurer were not asserted against defendant, and defendant was indisputably not a joint tortfeasor with UM insurer -- Although settlement does not differentiate categories of damage to which the settlement funds are attributable, defendant is not entitled to recover the entire amount of the undifferentiated recovery as a setoff where plaintiff's claims against UM insurer could not be brought against defendant -- Court rejects argument that denial of setoff results in a windfall to plaintiff -- Setoff under section 768.76(1) is unavailable because the UM insurer settlement proceeds do not fall within the statutory definition of “collateral sources” set forth in section 768.76(2)(a) -- Extracontractual damages paid to a first-party claimant on a UM bad faith claim do not meet definition of “collateral source” because it is not a payment of “benefits” -- Fact that some portion of the proceeds fell within the definitional ambit of section 409.910(6) has no bearing on whether the proceeds meet the definitional criteria of section 768.76(2)(a), which provides a narrower, more specific definition of “benefits” and sources thereof than section 409.910(6) -- Question certified: Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to setoff under section 768.041(2) or a collateral source within the meaning of section 768.76?
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Torts -- Defamation -- Libel per se -- Social media post -- Venue -- Accrual of action -- Action arising from allegedly libelous public Facebook post -- No error in denying defendant's motion to transfer venue from county where post was received and read by a third party to the county where the post originated -- A Facebook post cannot be libelous until it is published and accessed; a posting placed on a public Facebook page is instantaneously accessible throughout Florida, and plaintiff's complaint sufficiently avers that the post at issue was accessed in her chosen venue
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Underground Facility Damage Prevention and Safety Act -- Act creates a standalone cause of action -- Cause of action sounds in negligence -- Liability under Act is subject to proof of proximate causation and to the defense of comparative fault -- Losses recoverable under Act can include purely economic damages, independent of personal injury or property damage -- Act does not create cause of action for statutory indemnity
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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.

No entries for this week.