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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
October 13 - October 17, 2014

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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Civil rights -- Florida Civil Rights Act -- Handicap discrimination -- Complaint against private hospital -- A private hospital does not constitute a public accommodation under the Florida Civil Rights Act by virtue of having a cafeteria within its premises -- Florida Commission on Human Relations properly found that it did not have jurisdiction to adjudicate a handicap discrimination complaint against a private hospital
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Elections -- Write-in candidate for election to Florida House of Representatives -- Eligibility -- Candidate is required to reside in district at time of election, but not at time of filing -- Statutory provision that provides that all write-in candidates must reside in the district represented by the office sought at the time of qualification is unconstitutional
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Garnishment -- Jurisdiction -- Service of process -- Lack of proper service on garnishee -- Judgment debtor in a garnishment action has no vested right under Florida law to compel strict compliance with service of process requirements on a garnishee in cases where the garnishee opts to voluntarily submit itself to the jurisdiction of the court -- Waiver of any service of process requirements by the garnishee does not in any way waive the judgment debtor's rights relating to the res or its right to otherwise contest the entry of a judgment against the garnishee
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Insurance -- Commercial property -- Sinkhole claim -- Appraisal -- Trial court erred in determining that appraisal clause in policy was unenforceable because policy provided that insurer retained right to deny claim following appraisal -- Dispute over method of repair required to return property to its original state is subject to appraisal
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Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- Insureds waived right to appraisal by filing breach of contract action against insurer after insurer acknowledged that a covered loss had occurred, and engaging in litigation activities for three years before demanding appraisal -- Insureds acted inconsistently with their right to appraisal
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Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court should not have ordered appraisal because the only dispute between parties was about the method of repair rather than the amount of loss -- Insureds did not waive appraisal by engaging in litigation where coverage had initially been denied, and insureds demanded appraisal less than a month after insurer acknowledged that insureds had suffered a covered sinkhole loss -- Trial court did not err in compelling appraisal without an evidentiary hearing where underlying facts were undisputed
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Insurance -- Homeowners -- Sinkhole claim -- Appraisal -- There is no merit to insurer's contention that trial court erred in ordering appraisal because the only dispute between parties was about method of repair rather than amount of loss -- Where coverage had initially been denied, and insureds demanded appraisal three months after insurer acknowledged that insureds had suffered a covered loss, insureds did not waive right to appraisal by filing a single discovery request in the interim which did not go to the amount of loss or method of repair
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Mortgage foreclosure -- Error to enter judgment of foreclosure where the only evidence offered to support the amount of indebtedness was inadmissible hearsay -- Computer printout purportedly showing fees, expenses, and balance due on note and mortgage was not admissible under business records exception to hearsay rule where printout was not authenticated by a records custodian or person with knowledge of elements required for the business records exception -- Admission of witness's testimony about the loan balance and the admission of computer printouts witness was called to authenticate constituted reversible error where witness's only knowledge about the amount due came from her review of the printouts, and she had no information about how and when those records had been prepared or where the data came from -- Issue of sufficiency of evidence to support judgment was properly preserved for appellate review -- Further, challenge to sufficiency of evidence to support judgment is cognizable on appeal regardless of specificity of objections where trial was a bench trial -- Trial court also erred in denying motion to dismiss for lack of prosecution -- Remand for entry of order of dismissal
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Mortgage foreclosure -- Lost note -- Trial court erred in entering judgment of foreclosure where mortgagee proceeded on theory of lost note, but failed to provide any evidence of adequate protection for mortgagor against a claim by another person to enforce the note
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Mortgage foreclosure -- Standing -- Error to enter judgment of foreclosure where plaintiff failed to establish that original plaintiff had standing at time original foreclosure complaint was filed -- Where original plaintiff was not the initial payee of note, evidence was insufficient to establish that original plaintiff had standing where there was no evidence that note had been endorsed by initial payee at time complaint was filed -- Plaintiff's subsequent acquisition of note endorsed in blank cannot cure original plaintiff's lack of standing at inception of case
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Municipal corporations -- Ordinances -- Ordinance amending city's comprehensive plan to change zoning map designations of property is void because city failed to comply with notice provisions of section 166.041, Florida Statutes -- Government in the Sunshine -- City's attorneys and Commissioners violated Sunshine Law when they conducted a series of shade meetings at which they discussed a plan to readopt comprehensive plan amendment that been invalidated by court -- Exemption to Sunshine Law was not applicable where discussions were not limited to the settlement of pending litigation
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Traffic infractions -- Red light violations -- Red light cameras -- A city is not authorized to delegate police power by entering into a contract that allows a private vendor to screen data and decide whether a violation has occurred before sending that data to a traffic infraction enforcement officer to use as a basis for authorizing a citation -- Only city's law enforcement officers and traffic infraction enforcement officers have the authority to issue citations -- City lacks authority to outsource to a third-party vendor the ability to make the initial review of computer images of purported violations and then use its unfettered discretion to decide which images are sent to traffic infraction enforcement officer -- Dismissal of citation is appropriate remedy where private third party effectively decides whether a traffic violation has occurred and a citation should be issued
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Workers' compensation -- Attorney's fees -- Judge of compensation claims erred in denying claimant's attorney entitlement to attorney's fee on ground that claimant did not attach to petition for benefits seeking second opinion with shoulder surgeon a written recommendation from claimant's authorized orthopedic surgeon where employer/carrier did not file motion to dismiss petition for benefits based on lack of specificity or answer petition within 30 days, and eventually authorized the benefit -- Employer/carrier's failure to object to the absence of the attachment was deemed to be a waiver of specificity and ripeness defenses
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Workers' compensation -- Judge of compensation claims erred in denying claim for reimbursement of medical expenses, mileage, and co-payments incurred by claimant for follow-up treatment received after accident on ground that claimant failed to request this medical care where claimant's supervisor was aware of claimant's injury, but employer failed to provide initial treatment or care and did not notify carrier of accident in timely manner
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Wrongful death -- Automobile accident -- Discovery -- Cell phone -- Trial court did not depart from essential requirements of law in entering order permitting defendants' expert to inspect decedent's cell phone data from day of accident where defendants' motion to inspect the cell phone was supported by specific evidence that decedent was using the cell phone at the time of the accident, and order adequately safeguarded privacy interests
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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 -- Mandamus -- Prisoners -- Disciplinary confinement -- Dismissal of prisoner's mandamus petition challenging disciplinary confinement and forfeiture of gain time was proper because prisoner did not demonstrate that a constitutionally protected liberty interest was implicated -- Segregated confinement for forty-three days does not present an atypical, significant deprivation constituting a liberty interest protected by the Due Process Clause -- Revocation of gain time does not implicate liberty interest because prisoner is serving a life sentence -- Lower court's reason for dismissing the mandamus petition, that prisoner failed to pay filing fee and was not indigent pursuant to statute, was the incorrect reason and problematic for being grounded in the wrong statute, but lower court nonetheless reached the correct result
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Criminal law -- Reopening of case -- Trial court improperly denied defendant's motion to reopen case because jury was deprived of evidence which might have had a significant impact on issues to be resolved -- State argued to jury that exhibit was a photograph of the defendant from the night of his arrest, but the record shows the photograph turned out to have been taken later, the defendant's hair length was different in the actual arrest-night photograph, the victim had testified to the intruder's hair length, and on the night of the arrest the victim indicated she was “pretty sure” the defendant was the intruder, and in closing argument state emphasized comparison of exhibit photo from “the night of the incident” with photograph of person the defense theorized was the intruder -- Although trial court denied the request to reopen evidence because defendant had the actual arrest-night photograph in his possession throughout the trial and had demanded a speedy trial, the request to reopen the case was timely -- Error was not harmless -- Grand theft -- Sufficiency of evidence -- Motion for judgment of acquittal should have been granted because the state failed to elicit sufficient testimony regarding the value of the items taken -- On retrial, state may not proceed on a theory that the value of the stolen property was more than $300 because jeopardy had attached with regard to the grand theft charge -- Home invasion robbery -- Burglary of a dwelling with assault -- Separate convictions -- Double jeopardy -- Upon remand for new trial, if defendant is found guilty of both charges, he should be sentenced on the home invasion robbery charge and the burglary charge should be dismissed -- Although the potential sentence for burglary of a dwelling with assault is greater, burglary with an assault is the “lesser” offense for double jeopardy purposes
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Criminal law -- Search and seizure -- Vehicle stop -- Incident to arrest -- Trial court erred as a matter of law by concluding that officers did not have authority to make warrantless arrest of defendants based only on information provided by store employees who had witnessed theft -- Trial court's conclusion that section 901.15(1) supplants or modifies section 812.015(4) by permitting such an arrest only when a suspect has committed a felony or misdemeanor “in the presence of the officer” or when the arresting officer has been provided information by a fellow officer, and not merely a loss-prevention retail employee, is erroneous -- Statutes do not conflict, and under section 812.015(4), officer may arrest any person the officer has probable cause to believe has committed retail theft -- Error to conclude officers were precluded from looking inside cooler, where a portable methamphetamine lab was found, in bed of pickup truck, as part of their search incident to arrest -- Store employees had not told officers that no items other than spark plugs, which were found in cab, had been taken, and cooler was a reasonable place for defendants to have secured stolen items
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Criminal law -- Second degree murder -- Aggravated child abuse -- Sexual battery -- Sentencing -- Sentence of life with no possibility of parole for murder committed when defendant was sixteen years old affirmed -- Although mandatory life without parole sentences for juvenile offenders are prohibited, the United States Supreme Court has recognized that a sentencing court may still impose a life without parole sentence after conducting an individualized mitigation inquiry -- Consecutive sentences aggregating eighty years' imprisonment imposed for non-homicide offenses also committed when defendant was sixteen years old are reversed because such a sentence should be deemed a life sentence for the purposes of Graham v. Florida -- Life imprisonment without possibility of parole for murder does not render Graham inapplicable to sentences imposed for non-homicide offenses
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