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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
July 27 - July 31, 2015

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.

Administrative law -- Pari-mutuel wagering -- Division of Pari-Mutuel wagering erred in denying the application by a pari-mutuel permittee that hosts quarter horse races for a summer jai alai permit to which the applicant claimed it was entitled because it had the smallest total pari-mutuel pool for the two immediate-prior fiscal years -- In interpreting the statutory language which provides that the owner or operator of a pari-mutuel permit whose mutuel play has had the smallest play or total pool within the county may apply to the division to convert its pari-mutuel permit to a permit to conduct a summer jai alai fronton in the county, the division erroneously calculated the smallest play or total pool within the county by including only live on-track wagers and intertrack wagers placed from other tracks in county, but not intertrack wagers placed from a facility outside the county
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Dependent children -- Placement -- Permanent guardianship -- Termination of parental rights -- Trial court erred in denying petition to terminate parental rights of both parents, based upon its conclusion that termination of parental rights was not the least restrictive means of protecting the children from harm, despite finding that agency had proven statutory grounds for termination by clear and convincing evidence, and finding that it was in manifest best interest of children to terminate parental rights -- Court's denial of termination incorrectly suggests that least restrictive means test cannot be met if there are any available alternatives -- Trial court erred by placing children in permanent guardianship under facts of case -- A court, generally, should not consider permanent guardianship as permanency option unless court first determines that reunification or adoption is not in best interest of children -- Trial court erred by holding that it was unable to terminate mother's parental rights because single parent termination is not permitted -- Trial court directed to enter amended final judgment terminating parental rights that establishes adoption as case plan goal
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Dissolution of marriage -- Equitable distribution -- Trial court erred in denying wife's claim that she was entitled to equitable distribution in the amount of the mortgage on husband's nonmarital property that was paid off with marital funds, even though the value of the nonmarital property had depreciated during the marriage
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Estates -- Wills -- Slayer Statute -- Undue influence -- Where decedent was murdered by his wife, the Slayer Statute did not bar the wife's child and grandchildren, the decedent's step-child and step-grandchildren, from inheriting under the decedent's will -- Trial court erred in dismissing count seeking to void the will on the basis of wife's undue influence -- Because the complaint seeking to void the will alleges that the actions of wife were taken not only to benefit herself but also her family, the complaint states a cause of action to void the will
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Insurance -- Excess liability -- Misrepresentations on application -- Error to enter judgment in declaratory judgment action finding that there was coverage under policy for an accident in which insureds' son was involved where insureds failed to disclose in application that their son was a licensed operator living in the insureds' home
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Insurance -- Third party action by homeowners insurer that had been sued by insureds after it had denied claim for water damage to home against plumber who allegedly negligently caused the damage, alleging negligence on part of plumber, common law indemnity, and equitable subrogation -- Trial court erred in dismissing claim for common law indemnity on basis that there was not a special relationship between the parties -- Trial court erred in dismissing equitable subrogation claim on basis that insurer had not yet paid the debt to insureds -- A third-party action for equitable subrogation may be filed before the underlying debt has been paid -- Trial court also erred in dismissing negligence claim -- Because defendant had not yet filed a responsive pleading to the third-party action, there was an automatic right to amend the third-party complaint, and court had no discretion to deny request for leave to amend
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Mortgage foreclosure -- Error to enter summary judgment of foreclosure where there were unresolved factual issues regarding whether plaintiff had complied with pre-suit notice provisions of the mortgage -- Trial court is within its discretion to enter summary judgment while there is discovery still pending where non-moving party has not acted diligently in completing discovery -- Trial court erred in failing to strike the affidavit of plaintiff's vice-president in support of motion for summary judgment where there was no statement in affidavit that the vice-president had personal knowledge of any fact recited in his affidavit, the affidavit contained inadmissible hearsay, and there was no affirmative showing in affidavit that vice-president was competent to testify about anything in it
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Mortgage foreclosure -- Conditions precedent -- Notice of default and mortgagors' rights in connection with default -- Trial court erred in entering summary judgment for defendant mortgagors in foreclosure action on the basis that mortgagee's default notice failed to apprise mortgagors of their rights to reinstatement and to defend foreclosure proceedings as required by provisions of mortgage -- Mortgagee's adherence to notice requirements of mortgage is properly reviewed for substantial rather than strict compliance -- Mortgagee's notice letter was not defective because it informed mortgagors that they “may” have right to reinstatement and to assert defenses -- There is no merit to claim that notice was defective for failure to specify the default, failure to accurately compute the payment required to cure the default and reinstate the mortgage, and failure to specify the address to which payment must be sent
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Mortgage foreclosure -- Standing -- Error to enter judgment of foreclosure where plaintiff failed to establish that it had standing at time of filing of complaint -- Plaintiff failed to present substantial competent evidence that it was the holder of note and allonge at time it filed complaint
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Mortgage foreclosure -- Standing -- Trial court erred in denying defendants' motion for involuntary dismissal of foreclosure complaint where plaintiff did not prove that it had possession of the mortgage note when it filed suit
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Torts -- Product liability -- Tobacco -- Engle progeny case -- Comparative fault -- Trial court erred by failing to apportion damages among parties based on comparative fault -- Where plaintiff's counsel repeatedly referenced plaintiff's acceptance of responsibility for his COPD in opening statement and closing argument, counsel could not properly then argue against apportioned damages in final judgment
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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 -- Second degree murder with firearm -- Reclassification of offense from first degree felony to life felony based on jury's finding that defendant was armed with a firearm during acts giving rise to his liability for second degree murder -- Defendant's claim that indictment failed to provide him with sufficient notice that if he was convicted of a lesser included offense of first degree murder, the lesser included offense could be reclassified based on defendant's personal possession of a firearm during commission of the murder was not preserved for appellate review -- Alleged defect in charging document does not constitute fundamental error -- Jury verdict was sufficient to subject defendant to reclassification -- Reclassification of second degree murder was based on defendant's personal possession of firearm, not on a co-defendant's use of a firearm during commission of the homicide -- Reclassification under section 775.087(1), Florida Statutes does not require use of the weapon that actually killed the victim, the defendant's physical presence during the last act that resulted in the victim's death, or that the firearm carried by the defendant be used in furtherance of the crime -- Because the reclassification of defendant's conviction for second degree murder was based on his personal possession of a firearm during the acts he committed during the commission of the murder, the reclassification was not fundamental error
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