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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
Febuary 13 - February 17, 2017

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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Abortion -- Mandatory Delay Law, which imposes additional twenty-four hour waiting period on women seeking to terminate their pregnancies -- Constitutionality -- Right of privacy -- In issuing temporary injunction against enforcing law, trial court properly applied strict scrutiny in reviewing law's constitutionality -- Because law infringes on a woman's right of privacy, state bore burden at temporary injunction hearing to prove that law survives strict scrutiny -- There is no threshold requirement that a petitioner must show that a law imposes a significant restriction on a woman's right of privacy before strict scrutiny applies to laws that implicate right of privacy -- Trial court properly found that there is a substantial likelihood that the Mandatory Delay Law is unconstitutional as a violation of the right of privacy and that petitioners established a substantial likelihood of success on the merits
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Arbitration -- Torts -- Action against internet seller of dietary supplements brought by plaintiff who allegedly sustained liver damage as result of use of supplements -- “Browsewrap” agreeements -- Trial court did not err in denying seller's motion to compel arbitration after concluding that terms and conditions of sale, including the arbitration agreement, were not incorporated into parties' internet sales agreement -- “Browsewrap” agreement such as that relied upon by seller occurs when a website merely provides a link to the terms and conditions and does not require the purchaser to click an acknowledgment during the checkout process -- Such agreements have generally been enforced only when purchaser has actual knowledge of terms and conditions, or when hyperlink to terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice -- Trial court did not err in finding seller's hyperlinks were not conspicuous enough to put the plaintiff on inquiry notice of the “terms and conditions of sale”
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Arbitration -- Wrongful death -- Assisted living facilities -- Arbitrable issues -- Enforceability of arbitration clause -- Argument that trial court lacked authority to determine whether arbitration agreement was valid because delegation clause vested that power in the arbitrator was not timely raised in defendant's initial motion to compel arbitration or at hearing on that motion, and trial court was not required to entertain defendant's second motion to compel -- However, trial court erred in finding that arbitration agreement was void as against public policy because the parties agreed to follow American Health Lawyers Association rules and to limit discovery to production of written documents and depositions of opposing parties, treating physicians and expert witnesses
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Elections -- Campaign financing -- Matching funds -- Where a candidate for a statewide office submitted documentation in support of claim for matching funds before the primary election, some of the documentation contained legibility defects which made verification impossible, candidate was advised of defects after he was eliminated in the primary election, and candidate thereafter submitted clearer photocopies of some of the checks which had been disallowed, Division of Elections' decision not to review corrected documentation to determine whether candidate had met the qualifying threshold and the Florida Election Commission's affirmance of that decision were erroneous -- Relevant statutes and administrative rules do not impose a deadline on curing defective paperwork submitted prior to a primary election in support of a request for matching funds
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Evidence Code -- Amendments -- Court declines to adopt, to the extent they are procedural, legislative changes to sections 90.702 and 90.704 of the Evidence Code made by the “Daubert Amendment,” which changed the standard of admissibility for scientific expert evidence from Frye standard to Daubert standard and the standard found in Federal Rule of Evidence 702 -- Constitutional concerns are raised which must be left for a proper case or controversy -- Court further declines to adopt, to the extent they are procedural, changes to section 766.102, made by “Same Specialty Amendment,” which require a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty, rather than the same or similar specialty, as the health care provider against whom or on whose behalf the testimony is offered -- Court declines to adopt changes made to hearsay exception in section 90.803(24) relating to reports of abuse by elderly persons or disabled adults, which changes removed the alternative requirement that an elderly person or disabled adult testify, only requiring that such individuals be unavailable to do so
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Foreign judgments -- Full faith and credit -- Child custody -- Visitation by grandparents -- Colorado order providing for grandparent visitation is enforceable in Florida under Full Faith and Credit Clause of United States Constitution and the Federal Parental Kidnaping Prevention Act (PKPA) of 1980, even though a similar order would be prohibited from being entered by a Florida court as offending the parent's right of privacy under the Florida Constitution -- Final judgments entered by sister states relating to child custody and visitation are entitled to full faith and credit, rather than being subject to principles of comity -- No merit to claim that the PKPA applies only to parents and not to other persons who claim a right to custody of a child -- To the extent the PKPA conflicts with Florida law, the PKPA controls under the Supremacy Clause of the United States Constitution -- No public policy exception to the Full Faith and Credit Clause exists that would prevent enforcement of Colorado custody order based on its offending the right of privacy as articulated in the Florida Constitution, because the state right to raise children free from unwarranted governmental interference is subordinate to the directives of the Federal Constitution under the Supremacy Clause, and the United States Supreme Court has made it clear that there is no public policy exception to the full faith and credit due final judgments of a sister state
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Insurance -- Homeowners -- Insolvent insurers -- Florida Insurance Guaranty Association -- Insured who has already instituted an action against his or her homeowner's insurance carrier prior to carrier being declared insolvent is not statutorily required to file a new action against FIGA or separately serve FIGA in the pending action -- Trial court erred in granting FIGA's motion to dismiss based on its interpretation of section 631.68 as requiring that when FIGA assumes the defense of a covered claim, an insured who has already filed a timely lawsuit against its homeowner's insurance carrier must file a new lawsuit against FIGA within section 631.68's one-year filing period or be forever barred
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Insurance -- Personal injury protection -- Constitutionality of statute -- County court erred in finding that statute which limits PIP benefits to $2,500 if a provider determines that the injured person did not have an emergency medical condition, and excludes chiropractors from the list of professionals that are authorized to diagnose a patient with an emergency medical condition, is unconstitutional as applied to chiropractors on equal protection and due process grounds -- Rational basis -- Statute bears a rational relationship to objective of reducing fraud -- Chiropractors are not similarly situated to other medical providers to make an emergency medical condition diagnosis -- Where there has been no emergency medical condition diagnosis or no-emergency medical condition diagnosis, available PIP medical benefits are limited to $2,500
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Insurance -- Personal injury protection -- Medical expenses -- Reasonable and necessary treatment -- Discovery -- Facts about injured person -- Scope of permissible discovery under section 627.736(6)(c) is limited to the production of documents described in subsection (6)(b) -- Accordingly, discovery is limited to production of “a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why items identified by insurer were reasonable in amount and medically necessary, together with a sworn statement,” as well as production, inspection and copying of “records regarding such history, condition, treatment, dates, and costs of treatment” -- Subsection (6) provides limited pre-litigation discovery into specified information about treatment and charges for treatment provided to injured party, and discovery tools found in rules of civil procedure are not triggered until litigation over reasonableness of those charges has ensued -- Nothing in subsections (6)(b) or (c) contemplates requiring PIP provider to submit any of its representatives to deposition -- Trial court erred by ordering provider to make a designated corporate representative available for deposition
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Limitation actions -- Enforcement of domesticated foreign judgments -- Twenty-year statute of limitations found in section 95.11(1), Florida Statutes (2012), is applicable to enforcement of foreign judgment after it is recorded under the Florida Enforcement of Foreign Judgments Act -- Once judgment is recorded and domesticated under FEFJA, it is treated as a judgment of this state and thus subject to twenty-year limitations period contained in section 95.11(1)
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Mortgage foreclosure -- Dismissal -- Lack of verification -- Trial court abused its discretion in dismissing complaint without prejudice for failure to contain verification and in denying bank's motion for leave to amend complaint where motion to dismiss was not properly noticed -- Where trial court had earlier denied defendant's motion to dismiss for failure to comply with verification requirement, it was improper for trial court to hear and grant defendant's oral motion for reconsideration on morning of trial when bank was not properly noticed -- Further, trial court should have allowed bank an opportunity to amend complaint, as lack of verification is not the kind of error that cannot be corrected by amendment
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Mortgage foreclosure -- Jurisdiction -- Service of process -- Substitute service -- Limited liability company -- Trial court erred in denying defendant LLC's motion to quash service of process where plaintiff served Secretary of State with substitute service under section 605.0117(3) but did not mail process through certified or registered mail, file return receipt, and submit affidavit of compliance, as required by section 48.161(a) -- Although section 605.0117 authorizes service on the Secretary of State, a plaintiff must still comply with notice requirements in section 48.161(1), and by failing to do so, plaintiff did not effect valid service of process
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Mortgage foreclosure -- Sale -- Surplus funds -- Vacation of sale -- Trial court's denial of purchasers' objection to foreclosure sale is affirmed where there is no transcript of evidentiary hearing in record -- Trial court erred in disbursing surplus funds from sale to the purchasers at sale
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Mortgage foreclosure -- Standing -- Trial court erred in dismissing foreclosure complaint on basis that plaintiff did not have standing because it did not have possession of note when case was filed -- Plaintiff established standing by asserting a claim to reestablish a lost note, attaching a copy of note bearing a blank endorsement, and later filing the original note
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Torts -- Counties -- Sovereign immunity -- Denial -- Appeals -- Because the trial court did not determine that, as a matter of law, county was not entitled to sovereign immunity or immunity under section 768.28(9), Florida Statutes, the county was not authorized to appeal trial court's order denying county's motion for summary judgment based on sovereign immunity -- Appeal dismissed as one taken from a nonfinal, nonappealable order -- Extensive discussion of court decisions construing rule 9.130 in the context of appeals from orders regarding workers' compensation immunity -- Scope of district court's limited authority under rule 9.130(a)(3)(xi) is to review whether trial court properly determined that, as matter of law, a party is not entitled to sovereign immunity
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Torts -- Spoliation -- Trial court properly entered summary judgment for defendant surgery center in third party spoliation suit alleging that if defendant had kept a medical device removed from plaintiff, plaintiff could have maintained an action against the manufacturer of the device for negligent design and/or manufacture -- Because medical device in question is a Class III medical device approved through the Premarket Approval Process of the Food and Drug Administration, any potential claims against manufacturer are preempted by Federal Medical Devices Amendment to Federal Food, Drug, and Cosmetic Act unless plaintiff can assert a parallel claim against manufacturer under Florida law, and Florida law provides no such parallel claim
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Workers' compensation -- Evidence -- Judge of compensation claims erred in excluding deposition of employer/carrier's adjuster on basis that deposition was taken within 10 days of final hearing in violation of administrative rule -- In excluding deposition, JCC did not correctly consider prejudice -- JCC should have considered prejudice to the objecting party if the evidence was admitted, not the party seeking to introduce the evidence -- Exclusion of adjuster's deposition was not harmless where it contained testimony that employer/carrier had accepted “the cervical spine” or “the neck” as the compensable injury, and such evidence arguably goes directly to claimant's assertion that employer/carrier accepted compensability of his entire cervical condition, thus precluding employer/carrier from relying on expert medical advisor's opinion that part or all of claimant's cervical condition preexisted the industrial accident -- Because JCC had rejected claimant's argument that employer/carrier were estopped from asserting a major contributing cause defense because they had failed to deny compensability within 120 days of initially providing benefits based on JCC's acceptance of expert medical advisor's opinion that compensable injury was solely a temporary exacerbation, case is remanded for reconsideration of 120-day rule issue in light of adjuster's deposition
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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 -- Evidence -- Impeachment -- Prior crimes -- Where defense counsel brought out exculpatory portions of defendant's statement to detective during cross-examination of the detective, trial court correctly permitted jury to learn of defendant's nine prior felonies and crimes of dishonesty -- Conflict certified -- Trial court properly found that state was not required to introduce entire video recording of defendant's conversation with detective under rule of completeness and did not err in ruling that if the desired portions of defendant's statements were elicited when defense cross-examined the detective, section 90.806(1) allowed state to use the defendant's prior convictions for impeachment -- Rule of completeness did not apply where state did not offer video into evidence -- Search and seizure -- Defendant was not arrested by officer acting outside jurisdiction, but instead voluntarily returned to county, where he was Mirandized, interrogated, and arrested -- Use of real time cellular site information to track defendant's cell phone was authorized by warrant
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Criminal law -- Evidence -- Other crimes, wrongs, or acts -- Trial court erred in admitting collateral act evidence where evidence showed only defendant's propensity to commit bad acts
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Criminal law -- Refusal to submit to breath alcohol test -- Search and seizure -- Second refusal to submit to breath alcohol test can properly be punished as a criminal offense -- Breath alcohol tests are permissible under the search incident to arrest exception to the Fourth Amendment's warrant requirement
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