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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
June 18 - June 22, 2018

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 -- Licensing -- Nursing homes -- Immediate Suspension Final Order suspending facility's participation in Medicaid program and emergency suspension order suspending facility's license to operate nursing home after 8 residents died during aftermath of hurricane when facility lost power to its air conditioner contained sufficient factual allegations to support their imposition -- Fact that facility was evacuated did not preclude finding of ongoing emergency -- Agency's action did not amount to discipline for past behavior properly addressed through chapter 120 hearing after notice, rather than through immediate final order -- Facility's assertion that AHCA failed to provide administrative hearing following ISFO is not properly before the court on appeal where record does not demonstrate that hearing was requested, and facility failed to raise an issue concerning order's failure to apprise facility of a point of entry into administrative proceeding until reply brief -- Emergency license suspension order contained sufficiently detailed allegations of immediate serious danger that was likely to continue without suspension and could not have been more narrowly tailored -- Challenge to order imposing immediate moratorium on admissions was rendered moot by subsequent emergency suspension order which suspended facility's license to operate a nursing home
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Administrative law -- Licensing -- Board of Medicine -- Revocation of license to practice medicine -- Medical malpractice -- Licensee's Fifth Amendment rights were not violated by Board's incorporating an adverse inference against him based on his decision to remain silent in response to evidence of medical malpractice -- Administrative complaint gave licensee proper notice of charges against him, and charges were proven by competent substantial evidence
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Administrative law -- Mining -- Florida Construction Materials Mining Activities Administrative Recovery Act -- Damages due to use of explosives in connection with construction materials mining activities -- Administrative law judge did not err by awarding compensatory damages to condominium association on ground that blasting activities at entity's quarry caused damage to shore of condominium's man-made lake -- Limitation of actions -- Failure to file petition within 180 days of damage -- Petition was not time-barred where petitioner alleged a continuing tort, such that each blast performed by respondent gave rise to a new cause of action for which successive actions for damages might be brought, and petitioner presented testimony regarding damage caused by respondent's blasting which fell within 180-day limitations period -- To extent that a portion of damage award might be time-barred, respondent failed to meet its burden of showing what portion of award was barred by statute of limitations -- Evidence was sufficient to prove that respondent's blasting activities damaged lake -- ALJ did not abuse its discretion when it found witness with bachelor's degree in mechanical engineering and extensive job experience qualified to testify as an expert on causation -- Witness's consultation with colleague not basis for excluding witness's testimony in its entirety, and witness's unequivocal testimony that respondent's “blasting and the vibrations created from the blasting caused this problem” was competent, substantial evidence that was properly considered by ALJ on issue of causation -- ALJ did not abuse its discretion by rejecting portion of testimony of respondent's expert
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Contracts -- Arbitration -- Enforcement of arbitration agreement by non-party to agreement -- Action by car dealership against its former employee and a competing dealership alleging that defendants conspired to steal business from plaintiff -- Trial court properly found that defendant competing dealership, which was not a signatory to arbitration agreement between plaintiff and former employee, was not entitled to arbitration of claims against it -- Because arbitration agreement limited its applicability to disputes between the parties to arbitration agreement, it did not reach disputes involving non-party dealership
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Condominiums -- Common elements -- Alteration -- Trial court did not misinterpret declaration of condominium by holding that provision of declaration giving association the power to make “such alterations or improvements” to common property with merely the approval of the board enabled association's board of directors to unilaterally make any alterations, including material alterations, to common areas of property -- Because declaration provided a manner for approval by board vote of all alterations, material or otherwise, statute requiring approval of material alterations by 75 percent vote of the association in cases where declaration does not specify procedure for such approval was not applicable
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Dissolution of marriage -- Child custody -- Time-sharing -- Where husband had been granted supervised time-sharing with children, it was error to fail to set forth specific steps that husband must take in order to obtain unsupervised time-sharing
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Family Law Forms -- Amendment -- Order setting hearing on petition for injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking without issuance of an interim temporary injunction
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Family Law Forms -- Amendment -- Petition to disestablish paternity and/or terminate child support obligation -- Order disestablishing paternity and/or terminating child support obligation
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Family Law Forms -- Amendments to existing forms -- New form -- Notice of Action for Termination of Parental Rights and Stepparent Adoption
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Liens -- Equitable lien arising out of bank's pay off of balance of defendant's mortgage -- Although bank was entitled to an equitable lien, it was not entitled to foreclose on the lien where there was no showing that defendant was in default on the mortgage loan from which the lien arose
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Paternity -- Child custody -- Time-sharing -- Prospective modification -- Trial court erred in finding that it could not prospectively modify time-sharing as of time child starts kindergarten -- Court can properly determine time-sharing based upon an objectively and reasonably certain future event
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Workers' compensation -- Denial of benefits -- Judge of compensation claims properly denied award of benefits to claimant who failed drug tests after her fall and injury on job where claimant failed to rebut statutory presumption attributing injury primarily to influence of drugs
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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 -- Perjury -- Second degree -- Perjury in official proceeding related to prosecution of capital felony -- Statutory term “capital felony” unambiguously refers to offense that the legislature has by statute classified as a capital felony without regard to whether the death penalty may constitutionally be imposed for an offense so classified -- Trial court erred in dismissing second-degree perjury charges based on perjury allegedly committed in a prosecution for capital sexual battery on ground that capital sexual battery could not be a capital felony
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Criminal law -- Post conviction relief -- Ineffective assistance of counsel -- Evidence -- Lay opinion testimony -- Counsel was not ineffective for failure to object to testimony of law enforcement officer, who specialized in training and utilizing dogs to track suspects, that dog used to track suspects was able to detect odors from someone in an anxious mental or physical state, running from police or otherwise in a state of distress -- Officer's testimony did not contain any special knowledge, skill, experience, or training, and did not constitute technical or specialized information
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Criminal law -- Search and seizure -- Fourth Amendment rights were not violated when law enforcement officers investigating individuals who were downloading child pornography used a Yagi antenna to locate and identify signals emanating from defendant's computer, which was located inside his motorhome -- Defendant cannot assert a subjective expectation of privacy that society would consider reasonable or legitimate where he did not confine his activities to the interior of his motorhome, but instead used an antenna similar to that used by law enforcement to enable his computer to illegally access his neighbor's Wi-Fi network -- Trial court did not err in denying motion to suppress
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