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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
September 8 - September 12, 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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Attorneys -- Disqualification -- It was a departure from essential requirements of law to disqualify plaintiff's attorney on ground that attorney had represented defendant in an earlier lawsuit in which both plaintiff and defendant had been sued by a third party, where defendant failed to demonstrate that matter involved in current suit is the same or substantially related to matter in the prior suit in which attorney represented defendant
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Attorney's fees -- Proposal for settlement -- Where trial court had granted defendant's motion for entitlement to trial court attorney's fees and costs pursuant to proposal for settlement, appellate court granted defendant's motion for appellate attorney's fees and costs and remanded to trial court to fix amount, it was error for trial court, on remand, to vacate its earlier fee entitlement order on basis that proposal for settlement was not made in good faith -- Once appellate court had awarded appellate attorney's fees, issue of good faith could not be raised for first time at hearing to fix amount of fees
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Child support -- Circuit court had jurisdiction to consider motion to establish ongoing and retroactive child support obligations filed against noncustodial mother by Department of Revenue, on behalf of custodial father -- Circuit court erred in finding that prior administrative order on child support necessitated filing of supplemental petition for modification in that administrative case -- Although circuit court lacks jurisdiction to vacate or retroactively affect administrative support order entered pursuant to section 409.2563 administrative proceedings, circuit court does have power to issue superseding order changing support obligations prospectively
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Constitutional law -- Excessive fines -- Florida Contraband Forfeiture Act -- Civil forfeiture of home used in marijuana cultivation was excessive in instant case in which value of home was in excess of six times the maximum fine which could have been imposed -- Forfeiture provision is subject to excessive fines limitation where provision has clear focus on culpability of owner and serves to deter and to punish
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Contracts -- Condominium construction -- Construction defects -- Third-party complaint by subcontractor against sub-subcontractor -- Venue -- Forum selection clause -- Facts of case established compelling reason not to enforce forum selection clause contained in subcontract relating to window installation in complex litigation involving multiple claims against projects' developers and general contractor and numerous third and fourth-party complaints
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Elections -- Write-in candidate for office of county commissioner -- Statute which requires that write-in candidate for office of county commissioner be a resident of district represented at time of qualification is unconstitutional, as it conflicts with provision of Florida Constitution which requires residency at time of election -- Trial court erred in entering order declaring that write-in candidate was not qualified because he was not resident of district at time of qualifying -- Trial court also erred by entering injunction opening Democratic primary to all registered district voters
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Estates -- Estate property -- Bank accounts -- Certificates of deposit -- Joint accounts -- Pay-on-Death accounts -- No abuse of discretion in adopting report and recommendation in which magistrate found that section 655.79 created presumption that title to joint deposit accounts vested in surviving owner, but also found that statutory presumption had been overcome by clear and convincing evidence that decedent's intent was for her cash accounts to first be used to pay expenses associated with her death, with the balance to be divided equally among her six children -- Magistrate judge erred in applying section 655.79 to pay-on-death accounts, and trial court abused its discretion in adopting portions of magistrate's report and recommendations relating to those accounts -- Sums on deposit in POD accounts belonged to surviving beneficiaries at time of owner's death
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Foreign judgments -- Collateral attack -- Full faith and credit -- Son's declaratory judgment action seeking to void Nevada divorce decree of his father and his prior wife -- Under Full Faith and Credit Clause, collateral attack to foreign state's judgment could be entertained only if the attack would be permissible in the foreign state -- Because Nevada law prohibits third-party attacks on divorce decrees binding upon the parties, son is barred from attacking his father's divorce decree in Florida -- Trial court properly dismissed declaratory action
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Insurance -- Automobile liability -- Trial court properly found that insurer was responsible for a sanctions judgment entered against insured for misrepresentations during discovery -- Sanctions judgment constituted a cost charged to insured in a covered lawsuit -- Insured's misrepresentations during deposition were not the type of misrepresentations contemplated by policy's “fraud and misrepresentation” provision which would authorize insurer to void coverage under policy -- Duty to cooperate -- Insured's conditioning its acceptance of replacement legal counsel upon insurer's withdrawal of insurer's reservation of rights did not constitute a violation of insured's duty to cooperate -- Once insurer issued its reservation of rights, insured no longer owed insurer a duty of cooperation
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Mandamus -- Criminal law -- Prisoners -- Inmate trust account -- Liens -- Department of Corrections did not violate statute by removing $10 balance in prisoner's inmate trust account after he received another $10 deposit -- DOC may prevent inmate from requesting a weekly draw for personal use on canteen and vending machine items when all debts against inmate's account are not satisfied by placing a hold on the balance of the inmate's account, withdrawing and forwarding to applicable clerk of court the full balance of inmate trust account when it exceeds $10
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Mortgage foreclosure -- Civil procedure -- Error to enter final order dismissing foreclosure action without prejudice based on plaintiff's failure to appear on trial date fixed by court where notice fixing trial date did not comply with 30-day requirement set forth in Rule 1.440(c) -- Further, trial court failed to determine whether failure to appear was willful
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Mortgage foreclosure -- Jurisdiction -- Trial court erred in granting plaintiff's motion for summary judgment of foreclosure after trial court previously dismissed case for lack of prosecution -- Where there was no motion for rehearing or motion to vacate filed or ruled upon regarding order of dismissal, trial court did not have jurisdiction to enter order granting plaintiff's subsequently-filed motion for summary judgment -- Although final order of dismissal stated that order was entered “without prejudice to refile,” plaintiff never refiled complaint prior to filing motion for summary judgment
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Real estate brokers -- Commission -- Real estate broker was not entitled to commission under brokerage commission agreement with no termination date when owner sold property to buyer who was initially introduced by broker, where broker stopped marketing and communicating with seller about property three years before negotiations between seller and buyer that led to sale -- By failing to continue communicating with seller about property and ceasing to market property, broker abandoned commission agreement -- When real estate broker's contract does not provide a time for performance, law implies a reasonable time limitation, requiring broker to procure a purchaser within a reasonable time, and brokerage agreement terminates if broker abandons efforts to find a purchaser
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Standard Jury Instructions -- Criminal -- Amendment
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Torts -- Negligent misrepresentation -- Insurance -- Uninsured motorist -- Error to dismiss with prejudice complaint alleging that insurer's agent made false statement about extent of insured's stacked UM coverage, that agent knew or should have known that statement was false, that statement was made to induce insured to keep coverage and pay higher premium, and that insured was injured due to reliance on misrepresentation
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Workers' compensation -- Permanent total disability -- Res judicata -- Two-dismissal rule -- Judge of compensation claims improvidently granted employer/carrier's motion for summary judgment based upon two-dismissal rule, although claimant had filed and voluntarily dismissed two petitions for benefits seeking entitlement to PTD benefits, where current claim was based on different evidence than either of the two previously filed claims and came into existence only after both claims were dismissed
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Wrongful death -- Medical malpractice -- Presuit requirements -- Complaint which alleged that decedent, who had been admitted to hospital due to complications related to COPD, ultimately died as result of being accidentally dropped onto x-ray table while being moved from gurney to x-ray table stated a claim for medical negligence rather than a claim for simple negligence -- Trial court properly dismissed complaint for failure to comply with medical malpractice presuit requirements
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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.
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Criminal law -- Conspiracy -- Jury instructions -- Principal instruction -- No error in giving standard jury instruction on principals, when conspiracy was one of several charged crimes, where defendant did not request an instruction specifically advising jury that the principals instruction did not apply to the conspiracy charge -- Case law is construed to hold that it is reversible error not to grant such a request, not that the principals instruction is inappropriate in all cases when conspiracy is tried along with substantive offenses -- By asking trial court to strike language from substantive instructions that would have made it obvious that principals instruction applied only to substantive offenses, and failing to request the limiting instruction, defendant invited error he complains about on appeal
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Criminal law -- Conspiracy to traffic in 28 grams or more of cocaine -- Where state established necessary weight of drugs for trafficking by presenting evidence of over 30 grams of cocaine in chemically-tested, single, non-commingled bag, it was of no consequence that state furthered its conspiracy case through testimony of experienced narcotics officer describing other untested white powder as being consistent with cocaine
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Criminal law -- Lewd, lascivious, or indecent assault on child under sixteen years of age -- Evidence -- Collateral crimes -- Trial court erred in admitting evidence of similar acts committed on same victim without finding the evidence to be clear and convincing
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Criminal law -- Possession of oxycodone and alprazolam -- Search and seizure -- Officer had probable cause to seize prescription pill bottle and pills in it, which officer discovered in driver's side door pocket during consensual search of vehicle, where officer, without touching bottle, could read label indicating contents should have been “Suboxone,” and officer could see two pills inside bottle and knew that one of the two pills was Xanax or alprazolam rather than Suboxone -- Possession of Xanax in container that was not for a Xanax prescription provided prima facie evidence that possession was unlawful -- Trial court erred in granting motion to suppress -- Vehicle stop -- Erratic driving pattern -- Trial court did not err in determining that officer had reasonable suspicion to make investigatory stop to determine whether defendant was impaired after observing erratic driving pattern which included weaving within lane for approximately a mile, drifting slowly into left lane after signaling, and then continuing to drive with left turn signal blinking
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Criminal law -- Search and seizure -- Investigatory stop -- Anonymous phone calls reporting a disturbance at property did not provide a reasonable, articulable suspicion of criminal activity to justify investigatory stop of a vehicle driving away from the property -- Officer's activation of blue lights on his patrol car to stop vehicle coming toward him, and ordering of defendant to remain in vehicle when he attempted to step out, constituted an investigatory stop, and not an attempted consensual encounter
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Criminal law -- Search and seizure -- Traffic stop -- Officer's observation of defendant's vehicle swerving over solid double yellow lines on two-lane highway provided probable cause for traffic stop -- Although defendant was not attempting to pass another vehicle, actions of swerving across double yellow lines constituted a violation of traffic control device of double yellow lines
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Criminal law -- Search and seizure -- Trial court improperly suppressed defendant's statements and evidence of marijuana lab found during search, led into error by relying on case law, provided by defense, which had been disapproved by Florida Supreme Court, holding the defendant's consent to search was involuntary as a matter of law because the detective held the defendant's identification in his possession when he sought consent -- Whether a person has been seized for purposes of the Fourth Amendment is based on the totality of circumstances, not a bright line rule -- Because of the time of day, the fact that detectives did not enter defendant's property without consent, the defendant's age, the fact that guns were not drawn and the defendant interacted mainly with one officer, the casual manner of the police, the defendant's signing of the consent to search form without any threats made, and the defendant's ability to terminate the encounter and return to his property, the defendant's encounter with police was consensual
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