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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
April 25 - April 29, 2016

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 -- Proposal for settlement -- Error to award attorney's fees pursuant to proposals for settlement where proposals, although they included attorney's fees, did not include a statement that attorney's fees are part of the legal claim -- Award of fees to prevailing party in action alleging misleading advertising -- Award of fees under section 817.41(6), Florida Statutes, which provides for award of fees to prevailing party in misleading advertising action, should be limited to the misleading advertising claim unless trial court determines that other claims were intertwined with misleading advertising claim
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Attorney's fees -- Proposal for settlement -- Trial court erred by denying award of attorney's fees to defendant pursuant to proposal for settlement on the ground that the proposal was made by the defendant as a corporation, but the defendant had been converted to a limited liability company and the complaint amended to name the limited liability company as party defendant -- Conversion of defendant from corporation to limited liability company had no effect on defendant's potential liability
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Child support -- Administrative order setting forth noncustodial parent's child support obligation, entered after father failed to appear before administrative law judge for evidentiary hearing, must be reversed where financial affidavits submitted by the parties presented disputed facts which affected the calculation of the father's support obligation
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Child support -- Paternity -- Disestablishment -- Genetic testing -- Good cause -- Trial court departed from essential requirements of law when it summarily granted genetic testing in response to motion filed by legal and presumptive father in response to petition to establish child support and other relief filed by Department of Revenue without giving father an opportunity to prove, and the Department an opportunity to rebut, that there was newly discovered evidence placing his paternity in doubt -- Motion to terminate child support and for genetic testing substantially complied with requirements of paternity disestablishment statute where motion and amended motion were each signed, sworn, and notarized and expressly alleged discovery of new evidence, from both the mother and her mother, that movant was not child's biological father -- Further, certificate of service appended to amended motion indicated that copy of motion was mailed to mother at three different addresses, including one at which she received correspondence from Department and trial court -- Order erroneously requiring paternity testing constitutes irreparable harm -- Remand for further proceedings
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Civil rights -- Prisoners -- Section 1983 claims for deliberate indifference to serious medical needs asserted against physicians and nurse practitioners who were responsible for providing healthcare to inmates were sufficient to withstand motion to dismiss where prisoner alleged that he had diagnosis of celiac disease which was documented in his medical file and which required that he receive gluten-free meals; that he did not receive gluten-free meals the majority of the time and was effectively forced to eat non-gluten-free meals in order to maintain adequate sugar levels required because he was insulin-dependent diabetic, which resulted in symptoms which, considering his diabetes, constituted serious medical needs; and that defendants were aware of prisoner's condition, but failed to respond to prisoner's medical needs despite his ongoing symptoms -- Trial court erred in dismissing section 1983 claims against these three defendants individually -- No error in dismissing state law claims for negligence and gross negligence or in dismissing all claims against assistant warden and private corporation that contracted to provide healthcare to inmates
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Creditors' rights -- Homestead exemption -- In placing proceeds from sale of a prior marital homestead in a brokerage account, and authorizing the funds' investment in a variety of non-high-risk mutual funds and stocks, debtor did not destroy the protected status of the funds as proceeds from the sale of a homestead
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Dissolution of marriage -- Alimony -- Although findings in final judgment established that former husband had need for alimony and former wife had ability to pay, findings were insufficient to allow for meaningful review of amount of alimony awarded, and basis for amount awarded was not apparent on face of judgment -- Remand for additional findings and, if necessary based on those findings, reconsideration of amount of alimony award -- Life insurance -- Although husband could be required to maintain life insurance policy as security for his obligation to pay a marital debt, amount of life insurance required by final judgment far exceeded amount of debt, and judgment did not explain this discrepancy -- Remand for further proceedings
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Dissolution of marriage -- Equitable distribution -- Marital/non-marital debt -- Trial court erred in failing to classify $100,000 of an over $200,000 investment loss as husband's non-marital liability where the $100,000 was obtained through home equity loan of which wife had no knowledge and for which husband forged wife's signature and which was ultimately paid off with funds from husband's marital retirement accounts
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Dissolution of marriage -- Relief from judgment -- Default judgment -- Wife's second motion for relief from judgment was not successive where first motion was denied as facially insufficient and not adjudicated on the merits -- Trial court erred in granting former husband's motion to dismiss -- Moreover, Florida courts have permitted successive motions to vacate when to do otherwise “would work an injustice,” and wife's second motion, which included supporting affidavits and materials, alleged colorable entitlement to relief on ground that parties were never residents of Florida, that former husband fraudulently misrepresented assets in his financial affidavit, and that wife's failure to respond to Florida petition was result of excusable neglect
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Mortgage foreclosure -- Costs -- Voluntary dismissal -- Trial court properly exercised its inherent authority when it sua sponte deemed borrower's post-dismissal motion for costs abandoned after motion languished on docket for 18 months -- Rule governing dismissal of actions for failure to prosecute does not apply to this proceeding, as borrower's motion for costs was not an “action” -- Further, trial court did not err in denying borrower's motion for rehearing on its finding that there was no excuse for not setting motion for hearing within reasonable period of time
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Mortgage foreclosure -- Dismissal of counterclaims -- Appeals -- Borrowers' counterclaims based on violations of Florida Unfair Trade Insurance Practices Act in connection with an alleged “forced-placed insurance scheme” were permissive, and order dismissing these permissive counterclaims was a final order adjudicating distinct and severable causes of action which may be reviewed on the merits by appellate court -- Trial court properly dismissed these counterclaims, as they were barred as matter of law by four-year statute of limitations -- Appeal from dismissal of compulsory counterclaims is dismissed, without prejudice, for lack of jurisdiction
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Mortgage foreclosure -- Standing -- Plaintiff loan servicer failed to prove that it was holder of promissory note at time complaint was filed where there was no competent explanation of how or when the transfers of the note to plaintiff occurred or whether they occurred prior to suit being filed and no evidence as to when endorsements on notes were made
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Taxation -- Ad valorem -- Exemptions -- Municipal or public purpose -- Marinas owned and operated by city served “municipal or public purpose” under applicable case law where marinas were open to public use, exclusively owned and operated by city, and part of larger recreational park complex providing recreation for local residents and supporting local economy by attracting non-local residents -- Trial court erred in determining that city was not entitled to exemption -- Supreme court did not change legal standard for municipal or public purpose exemption in Florida Department of Revenue v. City of Gainesville
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Workers' compensation -- Attorney's fees -- Mandatory fee schedule in section 440.34, Florida Statutes (2009), which creates an irrebutable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process -- Holding that section 440.34 is unconstitutional operates to revive statute's immediate predecessor -- Judge of compensation claims must allow a claimant to present evidence to show that application of the statutory fees schedule will result in an unreasonable fee
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Wrongful death -- Arbitration -- Assisted living facility -- Trial court erred in compelling arbitration in suit brought against assisted living facility alleging decedent sustained injuries resulting in his death due to defendants' negligence and violations of decedent's statutory rights where arbitration agreement placed cap on recovery of noneconomic damages and precluded the recovery of punitive damages, provisions which were void as against public policy -- Entire agreement was invalidated, notwithstanding presence of severability clause -- Question certified: Does the Court's holding in Gessa v. Manor Care of Florida control where, as here, the contract contains a severability clause?
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Wrongful death -- Medical malpractice -- Presuit requirements -- Trial court did not err in dismissing action on basis that plaintiff failed to provide access to information during presuit investigation regarding plaintiff's presuit expert's qualifications
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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 -- Appeals -- Sufficiency of evidence -- Fundamental error -- Court declines to expand narrow exceptions to fundamental error doctrine with respect to sufficiency of the evidence claims to encompass unpreserved sufficiency of evidence error resulting in manifest miscarriage of justice -- Ineffectiveness of counsel -- Failure of trial counsel to preserve sufficiency of evidence issue for appellate review in case at issue constituted ineffective assistance of counsel that is apparent from face of record -- Trial counsel's failure to move for judgment of acquittal on greater charges of sexual battery against child by person 18 years of age or older and lewd and lascivious molestation of child by person 18 years of age or older was patently unreasonable where state was unable to prove that defendant was 18 years of age at time event occurred and, accordingly, proved only lesser included offenses -- Prejudice was obvious where failure to seek acquittal on greater offenses caused defendant to be sentenced to mandatory life imprisonment without possibility of parole, a sentence that would be unconstitutional if defendant was not 18 when offense occurred -- Further, if error had been properly preserved and trial court had denied motion, error would have been reviewed on appeal under a de novo standard, rather than for fundamental error, and there is reasonable probability of different result on appeal had this occurred
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Criminal law -- Discovery -- Work product -- Nontestifying expert -- Trial court departed from essential requirements of law by allowing state to contact expert fingerprint consultant hired by defense to independently test latent fingerprints located inside victim's residence -- Fact that prosecution placed this consultant on its witness list for trial does not eviscerate work product and other protections from discovery set forth in rule 3.220
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Criminal law -- Manslaughter -- Jury instructions -- Self-defense -- Error to refuse to give requested instruction that defendant had no duty to retreat from victim, who defendant contended repeatedly assaulted and threatened defendant in their apartment before defendant stabbed him -- Because jury was not instructed that there was no duty to retreat and the instruction given implied that there was such a duty, jury instructions did not adequately address the applicable law -- Requested instruction was necessary to resolve self-defense theory of defendant's case, accurately stated the law, and was supported by evidence
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Criminal law -- Sentencing -- Trial court may not consider a subsequent arrest without conviction during sentencing for primary offense
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