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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
June 22 - June 26, 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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Administrative law -- Agency for Health Care Administration -- Medicaid lien -- Wrongful death settlement -- Where parties who received settlement filed petition with Department of Administrative Hearings acknowledging obligation to reimburse AHCA out of settlement funds designated for medical expenses but contesting amount designated as recovered medical expense damages payable to AHCA, administrative law judge's responsibility under controlling statute was to resolve amount of medical expenses reimbursable to AHCA -- ALJ erred in accepting petitioners' argument, asserted for first time at final hearing, that AHCA could recover nothing because its lien had expired and it had not sought to enforce its subrogation and assignment rights
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Attorneys -- Disqualification of appellate counsel -- Law firm is disqualified from representing appellant where attorney who is now associated with that firm represented appellee in trial court proceedings and obtained information that could be used against appellee on appeal
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Civil procedure -- Discovery -- Financial information of non-parties -- Trial court departed from essential requirements of law in requiring production of financial information and documents for accounts that are jointly held by party and party's wife and children to the extent documents from joint accounts might disclose financial transactions or assets involving only party's wife and children to the exclusion of party
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Condominiums -- Action by condominium association for one of condominium towers in condominium development against developer to require developer to turn over control of master association to unit owners and to convey “beach property” which was initially included in common properties that developer was required to convey to master association at time of turnover -- Claim that developer improperly amended restrictive covenants to effectively remove beach property from common properties that were required to be conveyed to master association is barred by statute of limitations -- Limitations period began to run when association was turned over to unit owners, and action was not commenced within five years of that date -- Where restrictive covenants required developer to turn over control of master association to unit owners ninety days after the conveyance by developer of ninety percent of all units owned by developer and to be located within property, it was error to require developer to turn over control of master association after ninety percent of units in five completed towers had been conveyed, but sixth tower had not been completed -- Turnover requirement is not triggered until 90 percent of units in all towers that are to be located within resort property have been conveyed
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Contracts -- Oral -- Statute of frauds -- Homeowner's action against window manufacturer seeking to enforce oral agreement to replace defective windows and re-warrant windows -- Trial court erred in voiding jury's verdict in favor of homeowner -- Trial court erred in concluding that plaintiff's refraining from hiring attorney and from suing manufacturer under existing warranty was inadequate consideration for oral agreement for window replacement and re-warranty -- Fact that neither plaintiff nor defendant agreed upon specific amount of time that plaintiff would refrain from exercising rights not basis for concluding that there was inadequate consideration where plaintiff had only finite amount of time remaining in which to exercise his legal rights before cutoff of existing warranty -- Trial court also erred in concluding that parties' agreement contravened statute of frauds because it required issuance of ten-year warranty on replaced windows -- Proper focus was not on ten-year warranty, but on parol contract itself, which simply required issuance of replacement warranty, an act which could be readily accomplished within one year, and evidence supported conclusion that both plaintiff and defendant intended oral agreement to be effectuated immediately -- Even if contract were required to be performed beyond a year, statute of frauds is inapplicable because jury concluded that plaintiff fully performed his responsibilities -- Finally, fact that plaintiff relied to his detriment on defendant's representations is basis to preclude application of statute of frauds under principle of equitable estoppel
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Contracts -- Real property sale -- Trial court erred in entering summary judgment determining that purchaser's termination of contract was valid because seller had not obtained rezoning of property by date specified in agreement -- Where seller had obtained rezoning by specified date, it was improper to find that seller had not timely obtained rezoning because the appeal period had not expired by the specified date -- Time was not of the essence for obtaining rezoning of property where contract did not contain a time is of the essence provision
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Counties -- Code enforcement -- County did not violate due process rights of property owners by issuing citations for making non-residential use of their property in violation of land development code by renting their property multiple times a year for weddings and other events -- “Non-residential uses” prohibition is not unconstitutionally ambiguous, and conveys a sufficiently definite warning as applied to owners' use of property by renting it for weddings and other events -- County's enforcement of non-residential use prohibition is not unlawfully arbitrary
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Dissolution of marriage -- Alimony -- Trial court misinterpreted statute when it awarded durational rather than permanent alimony based on wife's failure to present clear and convincing evidence of need for permanent alimony -- “Clear and convincing” standard of proof applies only when parties' marriage is of moderate duration, and not to 33-year marriage at issue in instant case -- Remand for reconsideration of wife's claim for permanent alimony under correct standard of proof -- Under circumstances, trial court should consider awarding wife a nominal amount of permanent periodic alimony -- Equitable distribution -- Military retirement -- Portion of judgment referencing not only percentage of husband's military retirement pay awarded to wife but also specific dollar amount to be clarified on remand, as dollar amount may vary in the future -- Marital home -- Claim that trial court erred in requiring wife to deed her interest in former marital home to husband without requiring husband to accomplish her release as an obligor on note secured by mortgage against property was not preserved for review, as there is no indication in record that this issue was presented to trial court for ruling -- Life insurance -- Claim that trial court erred by failing to address in amended final judgment wife's request that husband be required to maintain life insurance policy to secure payment of alimony award not addressed by appellate court in absence of any record evidence that wife identified this issue as one to be resolved at trial
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Dissolution of marriage -- Imputed income -- Error to impute income to wife without finding that wife was voluntarily unemployed or under employed and without addressing evidence that wife was diligently trying to find work, but could not -- Trial court may also have failed to properly consider that husband had burden of showing both employability of wife and availability of jobs -- Alimony and child support awards based which were affected by erroneous imputation of income must be reversed -- Marital home -- Under special circumstances present in instant case, trial court erred in denying wife's request to partition marital home and, instead, awarding exclusive use and possession to husband, the primary residential parent of parties' minor son
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Eminent domain -- Inverse condemnation -- “Condemnation blight” does not give rise to a de facto takings claim -- Condemnation blight is only relevant to the valuation of taken property after a plaintiff has already established that a taking has occurred -- Court declines to adopt plaintiffs' proposed formulation for a condemnation blight claim: that a constitutional taking would occur when the government makes an official, publicly-announced declaration of its intent to condemn property that goes beyond mere planning; the government engages in some post-announcement unreasonable conduct, such as protracted delay in actual condemnation proceedings or interference with property owner's rights; and property suffers impairment of value, or property owner's use and enjoyment of property is disrupted
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Insurance -- Homeowners -- Assignment of post-loss rights -- Policyholders have the right to assign post-loss rights without consent of insurer -- Office of Insurance Regulation properly denied insurance company's requests to amend its homeowners policies to restrict the ability of policyholders to assign post-loss rights without the company's consent
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Insurance -- Homeowners -- Sinkhole claims -- Appraisal -- Dispute involving method of repair is subject to appraisal -- Waiver -- Insureds acted inconsistently with their right to appraisal where they engaged in significant litigation during approximately one-year period between concession of coverage and claim for appraisal -- FIGA's admission in its answer to complaint that it had agreed to pay plaintiffs' “covered claim” for sinkhole loss as defined by statute was an admission of coverage, and appraisal became appropriate on the date of FIGA's answer -- Trial court erred in ruling that insureds had not waived appraisal right
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Insurance -- Personal injury protection -- Discovery -- Trial court abused discretion in ordering health care provider to produce confidential contracts between health care providers and health insurance entities which PIP insurer sought because they contain information regarding negotiated reimbursement rates that health care provider agreed to accept for services rendered on behalf of each entity's insureds -- Order exceeds scope of discovery provided by statute -- Trial court also abused discretion by ordering health care provider to make a designated corporate representative available for deposition -- Conflict certified
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Mortgage foreclosure -- Evidence -- Amount due and owing -- Hearsay -- Exceptions -- Business records -- Loan transaction history -- Testimony by loan analyst employed by successor loan servicer was insufficient to establish admissibility of records obtained from prior servicer and integrated into plaintiff's records where there was no testimony as to whether these prior servicer's records had been checked or verified for accuracy and no evidence that plaintiff's witness had any knowledge of prior servicer's recordkeeping system -- Because these documents were admitted in error, there was insufficient evidence of amount due and owing under loan -- Remand for further proceedings to properly establish amount due and owing
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Mortgage foreclosure -- Evidence -- Hearsay -- Business records exception to hearsay rule -- Trial court erred in excluding from evidence mortgage records that were originally prepared by a prior servicer -- Testimony of current servicer's employer was sufficient to lay predicate for introduction of records under business records exception to hearsay rule -- Current holder of note may properly introduce records of a previous note holder without the testimony of an employee of the previous note holder
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Mortgage foreclosure -- Standing -- Where original complaint included count to reestablish lost note, and copy of note attached to that complaint indicated note was payable to non-party and lacked endorsement or allonge either in blank or in favor of plaintiff, a later-filed copy of the note with blank, undated endorsement did not suffice to show standing at the time the complaint was filed -- Final foreclosure judgment reversed
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Mortgage foreclosure -- Where plaintiff originally included in complaint a count for reestablishment of lost note but dismissed this count prior to trial, plaintiff was not required to amend its complaint in order to properly place original note before the court, nor did plaintiff's act of filing original note with the court serve to improperly amend complaint -- Trial court erred in dismissing foreclosure action with prejudice
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Torts -- Attorneys -- Legal malpractice -- Attorney for temporary guardian -- Third-party beneficiary -- Ward -- Professional negligence action against attorney for court-appointed emergency temporary guardian brought by temporary ward alleging attorney agreed that plaintiff would execute trust in return for dismissal of incapacity proceedings, that defendant led plaintiff to believe he would remain in control of the trust and its contents and would be able to make decisions regarding the trust, although trust was in fact irrevocable and granted all control to plaintiff's adult children, and that defendant failed to advise plaintiff of significant negative tax consequences of establishing trust -- Even though there is no lawyer-client relationship between alleged incapacitated person who is temporary ward and lawyer for emergency temporary guardian, counsel for emergency temporary guardian owes duty of care to temporary ward, as ward was both primary and intended beneficiary of his guardianship estate -- Trial court erred in entering summary judgment in favor of defendant based on finding that, as matter of law, an attorney representing plaintiff's court-appointed guardian owed plaintiff no duty under third-party beneficiary theory -- Remand for further proceedings
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Torts -- Automobile accident -- Discovery -- Redacted paragraphs in medical opinion report prepared by defendant's expert witness -- Portion of report summarizing expert's opinions regarding causation between accident and surgery undergone by plaintiff is related to accident, is not privileged, and is discoverable -- Portion of report summarizing expert's opinions regarding standard of care rendered by surgeon who performed surgery on plaintiff, and against whom independent medical malpractice action has been filed, is not relevant, and is not discoverable -- Expert was asked to render standard of care opinion in order to ascertain defendant's legal posture and potential recourse against surgeon only if jury returned verdict in favor of plaintiff -- Trial court departed from essential requirements of law in ordering disclosure to redacted paragraphs of expert's report related to surgeon's standard of care
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Torts -- Medical malpractice -- Evidence -- Expert witnesses -- Trial court may properly limit presentation of expert testimony to one expert for standard of care and one for causation -- Court did not abuse discretion by disallowing expert testimony on the basis that it was cumulative to other evidence
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Torts -- Workers' compensation immunity -- Constitutionality of statute -- Trial court erred in entering summary judgment finding that exclusiveness of liability provision of Florida Workers' Compensation Law is facially unconstitutional -- Declaratory judgment count seeking to have statute declared unconstitutional became moot when original defendant in tort case dismissed its affirmative defense of workers' compensation immunity, and there was no longer a case or controversy -- Intervenors in action had no standing to pursue declaratory judgment count after original plaintiff's claim was dismissed
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Workers' compensation -- Temporary total disability -- Psychiatric injury -- Judge of compensation claims erred in awarding temporary total disability for period more than six months after claimant's maximum medical improvement for physical injuries
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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 -- Carjacking -- Jury instructions -- Failure to give jury instruction that taking of victim's vehicle would not be carjacking if taking was an afterthought, unrelated to the force used in perpetrating attempted manslaughter, was not fundamental error where defense counsel argued only that the taking of the vehicle keys by force did not constitute the taking of the vehicle by force
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Criminal law -- Double jeopardy -- Use of computer services to solicit parent or legal guardian of child to consent to participation of child in sexual conduct -- Traveling to meet minor after using computer services to solicit consent of parent or legal guardian -- Separate convictions under different subsections of Computer Pornography and Child Exploitation Prevention Act, prohibiting solicitation and traveling after solicitation, violate double jeopardy principles prohibiting separate convictions based upon the same conduct -- Based upon plain language of statute, legislature did not explicitly state its intent to authorize separate convictions and punishments for conduct that violates both subsections -- Because statutory elements of solicitation are subsumed by elements of traveling after solicitation, the offenses are the same for the purposes of Blockburger same-elements test -- The fact that the legislature created two nominally different crimes as different degrees of felonies is insufficient to establish an explicit statement of legislative intent to allow separate convictions -- District court properly vacated solicitation conviction
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Criminal law -- First degree murder -- Homicide committed while defendant was juvenile -- Sentencing -- Life imprisonment without possibility of parole -- Sentence to nonmandatory minimum term of life without parole pursuant to section 775.087(2)(a)(3) based on discharge of firearm causing death does not violate Miller v. Alabama -- Resentencing under Chapter 2014-220, Laws of Florida, is not available remedy where sentence is not unconstitutional under Miller -- Question certified: Do Miller v. Alabama and Horsley v. State require the application of chapter 2014-220, Laws of Florida, to juveniles sentenced to a nonmandatory sentence of life in prison without parole before the effective date of chapter 2014-220? -- Court notes that trial court apparently misunderstood Miller as requiring defendant to affirmatively establish his youthful immaturity or impetuosity and also apparently failed to properly apply Miller when it found that any current contention that defendant was capable of being rehabilitated was hypothetical
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Criminal law -- Sexual battery -- Jury instructions -- Error in giving special jury instruction informing jury that a sexual battery victim's testimony need not be corroborated was not harmless -- District court improperly found that giving such instruction is left to the discretion of court depending on facts of a specific case
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