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LOG IN CONTACT Toll-free: 800-351-0917 E-mail us Submit Opinions PLACE AN ORDER Print Editions Online Editions Bound Volumes 2/24-Hour Online Access OUR PUBLICATIONS Florida Law Weekly FLW Supplement FLW Federal Collected Cases Sample FLW Online RESEARCH Cross Citations Week In Review Rule Revisions Review Granted Current Issue Index Civil Section Criminal Section 2013 Cumulative Index Civil Section Criminal Section 2012 Cumulative Index Civil Section Criminal Section Florida Statutes Helpful Links |
May 13 - May 17, 2013
Civil Law Headnotes (Jump to Criminal Law Headnotes)
THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
Administrative law -- Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Plan -- Damages -- Parental compensation -- Section 766.31(1)(b)1, Florida Statutes (2010), unambiguously provides for a single award of $100,000 to parents in the aggregate -- Statute does not violate equal protection, is not void for vagueness, and does not violate parents' right of access to courts
Arbitration -- Limitation of actions -- Florida's statute of limitations that is applicable to a “civil action or proceeding” applies to arbitration proceedings -- An arbitration proceeding is an “action”
Attorney's fees -- Charging lien -- Where initial retainer agreement provided for hourly fees, but after client fell behind in paying the hourly fees, attorney and client entered into an amended retainer agreement providing for a contingency fee for fees incurred after the execution of the amended agreement but for all fees billed but unpaid prior to the amended agreement to be payable upon conclusion of the matter, client remained responsible for payment of the hourly fees incurred prior to the amended agreement after the withdrawal of the attorney -- Trial court erred in striking attorney's charging lien where lien was seeking payment for the unpaid hourly fees
Contracts -- Automobile sale -- Violation of Florida Motor Vehicle Retail Sales Finance Act -- Where Buyer's Order and Bailment Agreement signed by plaintiff were unambiguous that the sale transaction was contingent upon her securing financing at the rates provided in the Retail Installment Sales Contract, but the Retail Installment Sales Contract did not contain any language of contingency and did not reference the other two documents, the sale was consummated for purposes of the Truth in Lending Act when plaintiff signed the Retail Installment Sales Contract -- The language of contingency set forth in the Buyer's Order and the Bailment Agreement, not mirrored in the Retail Installment Sales Contract, negated the Truth in Lending Act requirement of finality which resulted in a TILA violation, and a per se violation of the Florida Motor Vehicle Retail Sales Finance Act -- Although trial court properly found that defendant violated FMVRSFA, it was error to award damages to plaintiff where she did not suffer any actual damages as result of defendant's conduct
Contracts -- Venue -- Attorney's fees -- In action by contractor against subcontractor, trial court properly denied defendant subcontractor's motion to transfer venue on the basis that a contractual venue selection provision in the subcontract constituted a waiver of any challenge to venue based on inconvenience or location of the property -- Where subcontractor filed third-party claim against contractor's surety, the venue provisions in the surety bonds did not nullify the venue provision in the subcontract -- Because contractor was the prevailing party in the appeal, it is entitled to a conditional award of appellate attorney's fees subject to ultimately prevailing on the significant issues in the action
Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Trial court abused its discretion in allowing Fannie Mae representative's oral testimony about the amount of debt owed -- Based on representative's review of business records that were not admitted into evidence, the testimony was hearsay and was legally insufficient to establish the amount of the debt -- Remand for proper establishment of amounts owed
Mortgage foreclosure -- Where court entered summary judgment for plaintiff after defendant's counsel failed to appear at hearing, defendant's counsel waived issue of excusable neglect for failure to appear by failing to assert that issue in initial appellate brief, instead asserting that defendant was not given notice of the hearing, an assertion that is conclusively refuted by record -- Attorneys for defendant ordered to show cause why sanctions should not be imposed for violating appellate rules of procedure regarding the provision of record support for facts, for misrepresenting the facts in the initial brief, and for filing legally untenable and frivolous reply brief
Municipal corporations -- Code enforcement liens -- Priority -- District court correctly concluded that provision of city ordinance granting its code enforcement liens superpriority over a prior recorded mortgage is invalid because it conflicts with state law and that, accordingly, city's lien did not have priority over previously recorded mortgage lien -- Although municipalities generally have power to enact legislation concerning any subject matter upon which legislature may act, in exercising their power within that scope municipalities are precluded from taking any action that conflicts with state statute
Paternity -- Sperm donors -- Trial court erred in granting parental rights to biological father with respect to child who was conceived through artificial insemination in “do-it-yourself,” non-clinical, conditions, where the sperm donor was the brother of one of the same-sex partners who were to parent the child according to unwritten agreement, but whose relationship had later soured resulting in the biological mother's denying the former partner access to the child -- Statute denying parental rights to sperm donors still applies where donor's identity is known to the biological mother and where insemination is artificial but occurs outside the laboratory
Torts -- Automobile accident -- Discovery -- Privilege -- Medical records of defendant -- Portion of petition for certiorari review of order directing defendant to execute release of pre-accident pharmacy records to counsel dismissed -- Allegations of irreparable harm with regard to these records were premature and speculative where, upon receipt of records, defendant's counsel could move for protective order with respect to particular records defendant asserted were privileged -- Trial court departed from essential requirements of law by directing petitioner to release post-accident medical records which were irrelevant to subject matter of instant litigation -- Defendant's response in interrogatories that she was not injured in accident was not inconsistent with her deposition testimony that her osteoarthritis had gotten worse since the accident where there was nothing in the testimony to suggest that defendant's condition worsened as a result of the accident rather than the mere passage of time between accident and deposition -- Moreover, defendant's injury was irrelevant to whether defendant was negligent and whether plaintiffs were injured and suffered damages as result of this negligence
Torts -- Legal malpractice -- Attorneys -- Disqualification -- Where Indian Tribe filed legal malpractice action against its former attorney, and the attorney representing defendant represents other parties in litigation against Tribe in other, unrelated matters, trial court properly denied Tribe's motion to disqualify defendant's attorney on basis that attorney would gain an unfair informational advantage against Tribe in the other, unrelated cases -- Unfair informational advantage standard does not apply where the same attorney represents adverse clients against the same party in cases that are not reasonably related -- Any claim that attorney received confidential information is purely speculative
Torts -- Medical malpractice -- Attorney's fees -- Where arbitrator in court-ordered nonbinding arbitration found no negligence on part of defendant, plaintiff requested jury trial de novo, and jury returned verdict in favor of defendant, trial court was not required by section 44.103(6), Florida Statutes (2002), to award attorney's fees in favor of defendant -- Statute, which provides that the party having filed for trial de novo may be assessed attorney's fees incurred after the arbitration hearing if the judgment upon trial de novo is not more favorable than the arbitration decision, vests trial court with discretion to award or deny attorney's fees
Torts -- Medical malpractice -- Proximate cause -- Action alleging negligent treatment of plaintiff's bedsore -- Error to deny defendants' motion for directed verdict on proximate cause grounds where there was no evidence that defendants' negligence more likely than not caused injury to plaintiff
Torts -- Workers' compensation immunity -- Action alleging gross negligence brought by fencing subcontractor's employee, who was injured when palm tree fell on him, against landscaping subcontractor which had previously righted and replanted the tree after it had been toppled by persistent gusty winds -- Error to grant summary judgment in favor of defendant where issues of material fact remain, including whether defendant took proper precautions when it replanted and restaked the tree after it had been forewarned of possibility that tree would fall
Workers' compensation -- Attorney's fees -- Where employer/carrier failed to respond to claimant's petition seeking additional treatment, thereby denying benefits sought in petition, E/C agreed to authorize additional compensable dental treatment during mediation conference held more than 30 days after filing of claimant's petition, and E/C paid for the dental treatment after claimant's counsel filed motion to compel compliance with mediation agreement, claimant's attorney successfully prosecuted claim and claimant was entitled to award of attorney's fees Criminal Law Headnotes (Jump to Civil Law Headnotes)
THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
Criminal law -- Aggravated assault with deadly weapon -- Self-defense -- Trial court erred in failing to give requested jury instruction on justifiable use of non-deadly force
Criminal law -- Attempted sexual battery with deadly weapon -- Sentencing -- Thirty-year sentence for attempted sexual battery with deadly weapon, a second-degree felony, exceeded statutory maximum -- Defendant cannot, as state urges, be resentenced under enhanced mandatory sentencing guidelines set forth in Dangerous Sexual Felony Offender Act -- Although Act lists sexual battery with deadly weapon as qualifying crime, Act contains no language referencing “attempts”
Criminal law -- Felony retail theft -- Jury instructions -- Abandonment -- Trial court abused its discretion by refusing to give defendant's requested instruction on voluntary abandonment defense where evidence that defendant and her companion left store without goods supported the instruction
Criminal law -- Juveniles -- Search and seizure -- Investigatory stop -- Trial court improperly suppressed gun found in search of juvenile's person during investigatory stop -- Informant, who approached officer and initiated face-to-face interaction but whose name and address were not recorded, was not an anonymous tipster but a citizen informant; hence reasonable suspicion existed to conduct investigatory stop and subsequent search was legal
Criminal law -- Robbery with weapon -- Jury instructions -- Trial court did not fundamentally err by failing to give afterthought instruction, which was not requested by defendant, where the instruction was inconsistent with defense of misidentification relied upon by defendant at trial -- Sentencing -- Prison Releasee Reoffender Act -- Defendant qualified as PRR where he committed present offense within three years after release from a federal correctional facility -- Defendant was in federal custody, even though housed in a county jail in order to perform substantial assistance, and his release from federal custody while housed in jail constituted constructive release from a federal correctional facility for purposes of statute
Criminal law -- Search and seizure -- Trial court erred in denying motion to suppress pills found in defendant's pocket after illegal detention and search -- Instruction to defendant sleeping in van in his ex-wife's driveway to “stand by,” and instruction to “step out of the vehicle” after the man returned to the van, constituted illegal detention, tainting any “consent” defendant may have given to search
Criminal law -- Sentencing -- Vindictiveness -- Disparity between sentence offered in exchange for guilty plea and that imposed following trial -- Defendant who rejected offer of sentence of 17 years' imprisonment in exchange for guilty plea failed to demonstrate that trial court imposed vindictive sentence following trial by sentencing defendant to two 25-year concurrent sentences -- Trial court's participation in plea discussions was minimal and could be reasonably described as neutral effort to facilitate plea discussions between state and defendant, disparity between offered sentence and sentence imposed following trial was not significant, and record was replete with facts supporting decision to impose greater sentence
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