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January 9 - January 13, 2017
Civil Law Headnotes (Jump to Criminal Law Headnotes)
THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
Arbitration -- Torts -- Assisted living facilities -- Violation of resident's rights -- Trial court erred in granting defendant's motion to compel arbitration of claims brought by estate of resident who sustained injuries while residing in defendant's facility where there was no valid arbitration agreement between resident and defendant -- Evidence was insufficient to establish that defendant that acquired facility while mother was a resident obtained any right to arbitrate claims asserted by resident or her estate when it acquired the facility or that document purporting to amend contract between mother and original owner allowed defendant to enforce original arbitration agreement -- Moreover, evidence was insufficient to establish that son who signed arbitration agreement as attorney-in-fact for his mother had authority to do so where durable power of attorney was held by another son, and POA provided that son who signed the admission agreement would serve as successor attorney-in-fact only if the other son resigned or was unable or unwilling to serve as mother's attorney-in-fact -- Defendant offered no evidence that either of these circumstances was present
Dissolution of marriage -- Registration of foreign decree in Florida -- Venue -- Proper venue for former husband's petition to register foreign decree order in Florida and his amended supplemental petition to modify final judgment of dissolution was county where former wife resided with child -- Trial court should have dismissed petitions which were filed in county other than county where former wife resided
Insurance -- Homeowners -- Exclusions -- Marring -- Trial court properly found that coverage for cracking of floor tile in home when a vase fell was excluded by marring exclusion -- Insurer did not waive its right to rely upon marring exclusion by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim -- Even if insurer's actions amounted to a waiver, insured failed to preserve issue where insurer asserted the exclusion as an affirmative defense and insured failed to reply to, or avoid, the affirmative defense, instead raising the issue for the first time in opposition to insurer's motion for summary judgment
Mortgage foreclosure -- Trial court erred in dismissing action to foreclose purchase money mortgage on basis that deed to mortgagor failed to sufficiently identify property because the deed omitted the recording information regarding declaration of condominium -- Mortgage which properly identified the property created a valid enforceable lien that entitled plaintiff to a foreclosure judgment despite defect in deed -- Defendant waived deficiency in deed where he never pled the deficiency as an affirmative defense -- Although reformation of deed was not required to foreclose mortgage, trial court abused discretion by denying plaintiff's unopposed motion to amend complaint to add grantor as indispensable party and to reform deed
Torts -- Medical malpractice -- Presuit notice requirements -- Claims of negligent supervision and negligent security brought by plaintiff who was allegedly sexually assaulted in her room by hospital employee while plaintiff was a mental health patient at the hospital did not involve medical care or services, and trial court did not depart from essential requirements of law by denying defendant's motion for summary judgment based on plaintiff's failure to comply with medical malpractice presuit notice requirements -- Trial court departed from essential requirements of law by denying defendant's motion for summary judgment as to plaintiff's claims that hospital violated sections 766.110 and 395.0197 by failing to comply with statutory duty to institute and maintain a risk management program concerning adverse incidents associated with medical intervention -- By statute's plain language, a section 395.0197 internal risk management program pertains to “adverse incidents” in hospitals and healthcare facilities, and “adverse incident” is defined as “an event over which health care personnel could exercise control and which is associated in whole or in part with medical intervention” -- Medical malpractice presuit requirements apply to these claims -- Further, court notes that plaintiff's specific allegations of sexual assault do not meet statutory definition of “adverse incident”
Criminal Law Headnotes (Jump to Civil Law Headnotes)
THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
Criminal law -- Appeals -- Dispositiveness of trial court's ruling on motion to dismiss -- Stipulation by parties that motion to dismiss was dispositive and that defendant had reserved right to appeal denial of motion -- Question certified: Whether an appellate court must consider the merits of a motion where a stipulation exists that the motion is dispositive or may it make its own independent determination of whether the motion is dispositive and decline to review it if it disagrees with the stipulation?
Criminal law -- Double jeopardy -- Separate convictions for soliciting a child for unlawful sexual conduct using computer services or devices and traveling to meet a minor for illegal sexual conduct did not violate double jeopardy where the offenses were separate and distinct and not part of one continuous criminal act -- Where double jeopardy violation is raised for first time on appeal, burden is on defendant to demonstrate that the violation is apparent on face of record
Criminal law -- Evidence -- Statements of defendant -- Recordings of statements made to cellmate/jailhouse informant, in which defendant discussed hiring a hitman to kill sexual battery victim and primary witness in case pending against defendant, were not admissible, notwithstanding fact that informant initially gathered and reported defendant's statements on his own initiative without law enforcement intervention or assistance, where at time recorded statements were made, law enforcement had not only outfitted informant with a wire and arranged for him to receive a reduced sentence, but also had come up with plan wherein law enforcement was involved in an undercover capacity -- Although recorded statements gathered by law enforcement may have been permissibly obtained and admissible in separate murder for hire prosecution, state could not use statements in defendant's sexual battery case to bolster witness testimony and show that defendant had guilty mind at work -- Error not harmless where guilt was highly contested and jury's verdict suggested that jury did not entirely believe victim's account of events