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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
August 24 - August 28, 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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Dissolution of marriage -- Child custody -- Trial court erred in determining that it was in children's best interests to deny father any contact with children for the time being without prescribing any schedule or benchmarks for reestablishing father's parenting of the children -- Equitable distribution -- Trial court erred by classifying as a nonmarital asset wife's music studio business, which was established during marriage -- Remand with instructions to characterize business as marital and to value it for purposes of equitable distribution, excluding any personal goodwill attributable to wife -- Depleted assets -- Error to assign to husband his share of sum which was withdrawn by husband from retirement accounts during pendency of dissolution proceedings and spent primarily on attorney's fees where there was no evidence or finding of misconduct by husband -- Alimony -- Error to fail to award at least nominal alimony to husband who had been unemployed for over a decade and whose mental health issues made him unable to work -- Denial of husband's application for social security benefits not basis for finding husband was voluntarily unemployed or underemployed where there was no evidence regarding reason for denial -- Remand for award of alimony in form and amount commensurate with husband's need and wife's ability to pay -- Child support -- Error to impute income to husband for purposes of calculating child support based on finding that husband was voluntarily unemployed -- Attorney's fees -- Denial of husband's motion for attorney's fees to be reconsidered on remand
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Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Trial court abused its discretion by making unequal distribution of marital assets based on husband's superior ability to earn wages without considering remaining factors listed in statute -- Disparate earning capacity, without more, cannot form sole basis for unequal distribution -- Valuation of assets -- Given lack of findings in support of content and valuation of marital assets and suggestion that trial court may have based its valuation, at least in part, on a determination that former husband improperly dissipated marital assets, on remand trial court should reconsider and make all necessary findings in support of the inclusion and valuation of subject assets before recalculating equitable distribution amounts -- Court notes that without evidence and specific finding of misconduct, it is abuse of discretion to include dissipated asset in equitable distribution scheme
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Dissolution of marriage -- Prenuptial agreement -- Equitable distribution -- Marital/non-marital assets -- Gifts -- Where husband purchased two properties with funds that could be traced to his pre-marital assets, which were kept separate by the parties' prenuptial agreement, and prenuptial agreement provided that any appreciation of those assets would remain separate, the only way wife could claim interest in either property was by interspousal gift -- With respect to property that constituted parties' primary marital residence through vast majority of marriage and was site of business in which wife was extremely and directly involved, none of the facts found by trial court evidenced a clear and unmistakable intention on part of husband to make a gift, as required to establish donative intent -- Trial court erred in finding that wife had interest in this property by virtue of interspousal gift -- With respect to second home, facts evidenced sufficient donative intent to uphold trial court's determination that wife had interest in this property -- Husband bought this property in a location where wife desired to live, told wife home was for both of them, and sent wife a card for their tenth wedding anniversary with picture of the property, and wife purchased some furnishings and incidentals for the home from her separate funds -- Evidence was sufficient to establish two remaining elements of gift, delivery or possession and surrender of dominion and control -- Trial court did not abuse its discretion in finding that delivery was made at time wife obtained keys to property and began to possess property as her summer home according to intention of husband -- Evidence was uncontroverted that wife had unfettered access to home and made decisions on care and maintenance of property with ability to incur expenses on behalf of husband -- Disproportionate distribution -- Trial court made appropriate findings regarding statutory factors to support unequal award to wife of only 25% interest in this property -- Equitable distribution schedule to be reconsidered on remand after awarding 100% of first property to husband as his own non-marital property
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Joint ventures -- Plaintiff who sought to obtain 49% of profits defendant-electrical contractor made on certain electrical contracts between defendant and municipality pursuant to joint venture agreement failed to prove through competent, substantial evidence the existence of every element required for finding joint venture agreement between plaintiff and corporate defendant -- One-line letter from plaintiff to majority shareholder and president of corporate defendant did not create joint venture agreement between plaintiff individually and corporate plaintiff where letter was written on plaintiff's personal letterhead and addressed to shareholder/officer individually, contained no reference to defendant's title or to corporate defendant in body of letter, was sent to shareholder/officer's home address, and was signed under the word “Accepted” without any indication that signor signed the letter in his capacity as officer, director, or owner of corporate defendant -- Plaintiff's testimony on issue of shareholder/officer's actual intent in signing letter is not legally competent evidence of intent sufficient to create question of fact -- Further, plaintiff presented no evidence that he had authority to bind corporate defendant in any of its work on the projects at issue or that defendant had any authority to bind him or his corporation, and failed to prove that he had any duty to share in any losses sustained by alleged joint venture
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Mortgage foreclosure -- Limitation of actions -- Trial court erred in finding foreclosure action was time-barred because it was not filed within five years of prior acceleration of note and foreclosure action, which was dismissed without prejudice, where instant foreclosure action was based on breaches that occurred after the breach that triggered the earlier complaint -- Supreme court has held that subsequent and separate alleged default creates new and independent right in mortgagee to accelerate payment on the note in subsequent foreclosure action -- Lender's acceptance of payments in installments does not eliminate borrower's ongoing liability for entire amount of indebtedness -- Right to accelerate was not irrevocably “exercised” within meaning of cases defining accrual for foreclosure actions when the right was merely asserted and then dismissed without prejudice -- Conflict recognized
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Rules of Appellate Procedure -- Amendment -- Briefs
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Rules of Appellate Procedure -- Amendment -- Briefs -- Reorganization of rule
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Torts -- False imprisonment -- Action against store, store's investigative employee, and police detective who orchestrated arrest of plaintiff, the innocent victim of identity theft, on a warrant accusing plaintiff of passing a fraudulent check at store -- Error to enter judgment against store and its employee because their cooperation with detective's investigation amounted to neither actual detention nor active instigation of arrest -- Error to enter judgment against detective because, even after removing all false statements from his warrant affidavit, the arrest warrant nonetheless was supported by probable cause, in that redacted affidavit would have alleged that check cashed at store was counterfeit and that plaintiff's driver's license was used as identification in presenting the counterfeit check -- Plaintiff's argument that detective's investigation was too unreasonable to support probable cause does not change result
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Torts -- Medical malpractice -- Negligent failure to timely diagnose child's kidney disease, which ultimately resulted in renal failure, dialysis, and kidney transplants -- Trial court erred in denying defendant's motion for new trial where plaintiff violated pre-trial “one expert per specialty” rule by calling four pathologists to testify regarding the nature of the disease that caused plaintiff's injuries, while defendant was limited to one pathology expert to testify regarding the nature of the disease, and this error was exacerbated by misstating the evidence and bolstering the plaintiff's expert opinion testimony during closing argument
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Torts -- Workers' compensation -- Exclusive remedy -- Statutory employer -- Contractors -- Action arising out of injury to employee of firm which provided event security at an air show operated by defendant -- Circuit court erred in granting summary judgment in favor of defendant based on finding that defendant was statutory employer immune from liability under workers' compensation law because defendant was a “contractor” that sublet “contract work” to plaintiff's employer, which, in turn, provided workers' compensation benefits to plaintiff -- Trial court erred in finding that contractual relationship existed between defendant and Federal Aviation Administration based on certificates of waiver issued to the defendant by the FAA, which authorized defendant to operate air show subject to various conditions, including the condition that security be provided -- Certificates of waiver were in the nature of regulatory permits or licenses, not contracts
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Wrongful death -- Hospitals -- Medical malpractice -- Presuit requirements -- Applicability -- Action alleging ordinary negligence against hospital arising out of death of psychiatric patient who apparently took employee's unattended keys and badge, escaped hospital, made her way onto nearby interstate highway and into the path of a truck, which struck and killed her -- Because claims arose from services and care hospital was giving to patient who was confined within hospital's locked unit, which was the service that decedent's condition allegedly required, action was one for medical negligence and was subject to presuit requirements of chapter 766 -- Trial court departed from essential requirements of law by denying defendant's motion to dismiss -- Allowing noncomplying medical negligence litigation to proceed frustrates purposes of Medical Malpractice Reform Act and imposes material and irreparable harm to medical defendants
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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 -- Grand theft -- Affirmative defense of abandonment of attempt to commit theft -- Jury instructions -- Burden of proof -- Trial court properly instructed jury that defense has burden to prove abandonment by preponderance of evidence
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Criminal law -- Jury instructions -- Independent act -- First-degree murder -- Trial court erred reversibly when it refused to give the independent act instruction as a defense to first-degree murder, where there was some evidence supporting the defendant's theory of defense claiming she did not know what her co-felons were doing when they took the victim into the car -- Duress -- Felony murder -- Trial court erred in refusing to give duress instruction as defense to felony murder -- Where the trial court finds that a defendant has presented evidence to support a duress theory of defense to the underlying felony in a felony murder case, in this case an underlying kidnapping charge, the defendant is entitled to the duress instruction as a defense to felony murder
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Criminal law -- Lewd or lascivious conduct on person twelve to sixteen years old -- Evidence -- Prior crimes, wrongs, or acts -- Where defendant was charged with lewd or lascivious conduct on his step-daughter, trial court did not err in admitting testimony of defendant's two adult daughters regarding prior lewd or lascivious acts committed on them by defendant, but court abused discretion by admitting testimony of the adult daughters regarding sexual batteries and attempted sexual batteries committed on them by defendant -- Given the fact that jury had already heard testimony regarding defendant's prior lewd or lascivious acts committed on his daughters, additional testimony regarding prior sexual batteries was needlessly cumulative, and any probative value was outweighed by the danger of unfair prejudice, tending to establish defendant's bad character or propensity -- New trial required
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Criminal law -- Murder -- Death penalty -- Circumstantial evidence was sufficient to sustain conviction -- DNA evidence from hair found in victim's residence and fingerprint evidence provided sufficient evidence to negate all reasonable hypotheses of innocence -- Evidence was sufficient to establish that defendant was an active participant in murder -- Evidence was sufficient to establish premeditation -- Closing argument -- To extent prosecutor, in closing argument, vouched for credibility of state witness, commented on matters outside evidence presented at trial, or bolstered testimony of state witness, any error was not fundamental -- Aggravating circumstances -- Evidence supported finding that murder was heinous, atrocious, or cruel -- Death sentence is proportional -- Florida's capital sentencing scheme is not unconstitutional
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Criminal law -- Murder -- Evidence -- An autopsy report prepared pursuant to chapter 406, Florida Statutes, is testimonial hearsay under the Confrontation Clause of the Sixth Amendment to the United States Constitution -- Defendant's constitutional right to confront witnesses was violated when trial court allowed admission of autopsy report of murder victim into evidence without requiring testimony of medical examiner who prepared the autopsy report -- Trial court also erred in allowing a surrogate medical examiner, who did not perform or participate during the autopsy, to testify as to the cause of death listed within the report -- Errors were harmless -- Conflict certified
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