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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
November 28 - December 2, 2016

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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Attorney's fees -- Costs -- Prevailing party -- Where homeowners association brought action against a homeowner seeking injunctive relief and declaratory judgment regarding homeowner's alleged violation of restrictive covenants and also alleging a common law action for private nuisance, homeowner prevailed on counts alleging violation of restrictive covenants, and association prevailed on count alleging private nuisance, it was error for trial court to deny attorney's fees award to homeowner as the prevailing party pursuant to attorney's fee provision in restrictive covenants -- Trial court erred in finding that there was no prevailing party because each party prevailed on significant issues in case where defendant homeowner prevailed on only claims for which attorney's fees were awardable -- Trial court also erred in failing to award costs to defendant homeowner as the prevailing party
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Dissolution of marriage -- Alimony -- Overpayment -- Trial court erred by granting former husband's overpayment motion, terminating former husband's alimony obligation, and finding former wife received alimony overpayments, where former wife was not properly served with process -- Because former husband sought to change status quo by terminating his alimony obligation, former husband's motion was effectively a modification proceeding that could not be initiated by motion -- Proceeding had to be initiated by supplemental petition with proper service of process -- Further, even if proceeding could have been initiated by motion, trial court abused its discretion in denying former wife's motion for continuance of hearing on the motion where former wife did not have adequate time to prepare for hearing since she did not receive notice of the proceeding until the week before the hearing
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Dissolution of marriage -- Alimony -- Trial court erred by considering former wife's voluntary support of her grandson and daughter from another relationship as part of former wife's need for alimony -- Equitable distribution -- Trial court erred by considering one half of the marital portion of the appreciation in value of former wife's house as an asset of former husband where former wife was awarded sole ownership of the house
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Insurance -- Commercial automobile policy -- Pretrial stipulation -- Where insured brought declaratory judgment action seeking declaration that there was a theft of insured's truck under terms of policy, and parties' joint pretrial stipulation established that the only issue for determination by jury was whether insured's truck had been lost due to theft, trial court erred in exceeding the scope of the pretrial stipulation by making separate finding that insured failed to establish damages after declaratory judgment had been entered in favor of insured -- Insurer's motion for summary judgment alleging that policy was cancelled prior to theft of insured's truck was properly denied where documents in support of motion for summary judgment were neither verified nor authenticated -- Although documents offered to prove cancellation were also attached to sworn deposition of insurer's representative, the documents could not be used as proper summary judgment evidence where the documents were not sufficiently authenticated under the business records exception to the hearsay rule
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Insurance -- Homeowners -- All risk policy -- Coverage -- Loss caused by multiple perils -- Where loss is caused by multiple perils and at least one of the perils is excluded from coverage, the proper theory of recovery is the concurring cause doctrine -- Under the concurrent cause doctrine, coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause -- Insureds were entitled to coverage for loss caused by defective construction, which was an excluded peril, and rainwater and hurricane winds, which were covered perils -- Trial court may properly consider settlements received from third parties as a post-judgment offset to judgment against insurer
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Mortgage foreclosure -- Attorney's fees -- Pleading -- Trial court properly awarded attorney's fees to defendants who prevailed in mortgage foreclosure action, although defendants did not plead entitlement to attorney's fees in their pro se answers, where defendants had placed plaintiff on notice that they were requesting attorney's fees, and plaintiff failed to object to defendants' request based on their failure to plead entitlement until hearing held to determine amount of attorney's fees to be awarded -- Because plaintiff's objection to defendants' failure to plead entitlement to attorney's fees was untimely, plaintiff waived any objection to the failure to plead entitlement to fees
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Mortgage foreclosure -- FHA mortgage incorporating HUD regulations -- Conditions precedent -- It was error for trial court to find that mortgagor's claim that mortgagee failed to comply with condition precedent of having a face-to-face meeting with mortgagor, as required by HUD regulations, was an affirmative defense which mortgagor had the burden of establishing -- Mortgagee had burden of establishing compliance with condition precedent -- Because mortgagee failed to meet its burden, trial court erred in entering judgment of foreclosure -- Remand for entry of involuntary dismissal
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Torts -- Dog bite -- Strict liability -- Where plaintiff asserted statutory damages claim for strict liability against owner of guard dogs which had escaped from client's premises, trial court erred in entering final summary judgment for owner after finding as matter of law that plaintiff's actions in feeding and sheltering dogs while she attempted to identify their owners constituted an intervening, superseding proximate cause of plaintiff's injuries -- Under statute, dog owner is strictly liable for injuries caused by dog bite, and owner's liability is reduced only by percentage of injured party's comparative negligence -- Whether and to what extent plaintiff is comparatively negligent for her own injuries generally is question of fact for jury -- Remand for further proceedings
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Torts -- Negligent supervision -- Trial court erred in entering judgment for plaintiff in action alleging that defendant independent living or continuing care facility was liable for negligent supervision of employees who accepted gifts from resident in violation of defendant's internal policy and were terminated after defendant learned of the violations -- There was insufficient evidence that defendant knew or should have known that employee was likely to commit a fraud upon plaintiff -- Defendant could not properly be found liable for acts of employee after the employee was terminated -- Defendant could not properly be found liable for negligent supervision of employees who were not terminated, but who drove plaintiff to visit terminated employee, because those employees were not committing any tort and were acting within the scope of their employment
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Wrongful death -- Product liability -- Negligence -- Tobacco -- Engle progeny case -- Damages -- Remittitur -- Award of $6 million in compensatory damages to adult child for loss of her mother was excessive where, although evidence established that plaintiff and mother had close and unique relationship, plaintiff was not living with mother or financially or otherwise dependent on mother at time of mother's death -- Trial court abused its discretion when it denied defendant's motion for remittitur or new trial -- Punitive damages award also vacated in light of court's ruling on compensatory damages -- Argument -- Comments by plaintiff's counsel focusing on defendant's failure to accept responsibility were not basis for new trial where comments were made after jury determined issue of compensatory damages and during phase wherein jury was charged with sole task of determining proper amount of punitive damages
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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 -- Murder -- Death penalty -- Intellectual disability -- Based on the standard established by the United States Supreme Court in Hall v. Florida, in which a determination of intellectual disability requires a court to “take into account the standard error of measurement” of IQ tests and refrain from using a bright-line rule characterizing intellectual disability as an IQ of 70 or below, the defendant is entitled to a new evidentiary hearing to establish whether he has an intellectual disability
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Criminal law -- Murder -- Sentencing -- Death penalty -- New penalty phase proceeding required where jury that recommended death sentences did not find the facts necessary to sentence defendant to death -- Contemporaneous convictions for other violent felonies do not insulate defendant's death sentences from U.S. Supreme Court's holdings in Ring v. Arizona and Hurst v. Florida -- Court cannot conclude that error did not contribute to sentence given nonunanimous jury recommendation and extensive and compelling mitigating evidence -- Court not required to remand case to trial court for imposition of life sentence
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Criminal law -- Post conviction relief -- Trial court erred in summarily denying claim that counsel was ineffective for failing to object to flawed jury instruction on justifiable use of deadly force on basis that defendant could not establish prejudice because claim could have been raised as fundamental error on direct appeal -- Florida Supreme Court decision in Hughes v. State did not hold that a defendant cannot establish prejudice in a post conviction proceeding if the alleged error rose to the level of fundamental error -- Trial court erred in summarily denying claim that counsel was ineffective for failing to seek to admit testimony submitted by defendant in his pre-trial Stand Your Ground hearing -- Trial court erred in failing to rule on claim that justifiable use of deadly force instruction was not supported by evidence
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Criminal law -- Sentencing -- Mandatory minimum -- 10/20/Life statute -- Consecutive sentences -- Consecutive mandatory minimum sentences for multiple firearm offenses arising from same criminal episode are impermissible if firearm was merely possessed but not discharged -- Attempted murder of law enforcement officer -- Jury instructions -- Lesser included offenses -- Trial court erred in failing to give instruction on lesser included offense of attempted manslaughter by act when instructing jury on attempted second-degree murder -- Failure to instruct on necessarily lesser included offense constitutes fundamental error -- New trial required -- Identification -- Photographic line-up -- Suggestiveness -- Detective employed impermissibly suggestive photo array process by repeatedly calling witness's attention to defendant's photograph -- Suggestive identification procedure gave rise to substantial likelihood of irreparable misidentification under totality of circumstances -- Discussion of five factors for evaluating likelihood of misidentification set out by Supreme Court in Neil v. Biggers
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Criminal law -- Trafficking in methamphetamine -- Defendant entitled to new trial where trial court denied defendant's motion to compel disclosure of confidential informant after an in camera hearing at which actual informant did not testify and after applying too narrow an analysis of the circumstances under which disclosure of a confidential informant should be compelled -- Defendant met his initial burden of asserting legally cognizable defense to charge of trafficking in crystal meth, which he supported with sworn proof, and established that CI might be material witness to his defense -- On remand, trial court to conduct proper in camera hearing, to include taking of confidential informant's testimony, and to determine whether disclosure of confidential informant is relevant and helpful to defense or essential to fair determination of cause
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