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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
September 19 - September 23, 2016

Civil Law Headnotes (Jump to Criminal 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.

Dependent children -- Undocumented immigrants -- Jurisdiction -- Mootness -- Petition for adjudication of dependency must be dismissed as moot, because petitioner, who is now over 18 years old, is no longer a child as defined in chapter 39 and cannot be adjudicated a dependent child of state pursuant to section 39.01(15) -- An individual over age 18 fails to satisfy Florida's statutory definition of a “child” who can be adjudicated a dependent child under any of grounds listed in Section 39.01(15)
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Dissolution of marriage -- Contempt -- Trial court departed from essential requirements of law in finding former husband in indirect civil contempt for failure to pay child support arrearage and attorney's fees of former wife where notice of hearing on motion for contempt did not contain language warning former husband that if he did not appear at hearing he could be arrested and held for up to forty-eight hours pending a hearing, as required by Florida Family Law Rule of Procedure 12.615 -- Result of faulty initial hearing, at which former husband did not appear, was not only issuance of writ of bodily attachment without warning, but also a premature and insufficiently supported finding of contempt after an incomplete process -- Further, premature finding of contempt lacked required finding that former husband's failure to pay previously ordered amount was willful
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Insurance -- Life insurance -- STOLI schemes -- Incontestability -- A policy that has the statutorily required insurable interest at its inception, even where that interest is created as the result of a stranger-originated life insurance (STOLI) scheme, set up for the insured to work with an investor to create the insurable interest necessary, hold the policy until the two-year contestability period expires, and then transfer the policy to an investor who would not have had the insurable interest to procure the policy in the first place, is nonetheless incontestable after two years, under the plain language of the incontestability statute -- A party cannot challenge the validity of a life insurance policy after the two-year contestability period based on its creation through a STOLI scheme
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Mandamus -- Elections -- Initiative petition -- Counties -- Trial court's conclusion that county officials had ministerial duty under provisions of county charter either to adopt as an ordinance an initiative petition relating to campaign financing for county office or to place proposal on general election ballot without further action was based upon erroneous finding that board of county commissioners had previously “approved” the initiative petition, a finding that was unsupported by record evidence -- Charter provisions make clear that board's duty either to adopt petition as an ordinance or place proposal on ballot arises only if “a sufficient petition is presented,” and the first time the board considered the petition's sufficiency it found the petition was deficient and had failed -- Civil procedure -- Reversal also required by trial court's failure to follow mandatory requirements of rule 1.630 when it proceeded to decision on merits of mandamus petition without making preliminary determination as to petitioners' prima facie case for relief and issuing an alternative writ in mandamus requiring county to show cause why writ should not be issued -- Due process -- Trial court violated county's due process rights by granting relief on the merits of petition at a hearing which was noticed for sole purpose of addressing motion to expedite -- Writ of mandamus compelling county to add initiative petition to ballot vacated
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Mortgage foreclosure -- No error in determining that alluvium adjacent to mortgagor's original oceanfront parcel was added to, and became a part of, the original property and was subject to mortgage describing only the original property -- Mortgagor's contention that he only intended to mortgage the original property, not the alluvium, is not dispositive -- Without express carving out of alluvium, it was presumed to pass with the original property
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Torts -- Automobile accident -- Attorney's fees -- Appellate fees -- Proposal for settlement -- Trial court erred in finding that joint proposal for settlement made by plaintiff to driver of vehicle and owner of vehicle was unenforceable where plaintiff sought appellate fees only against driver of vehicle -- Joint proposal served on owner of vehicle whose liability was solely vicarious was not required to be apportioned -- With regard to driver of vehicle, against whom attorney's fees were sought, proposal was not so ambiguous, because of statutory cap on owner's liability, as to make it impossible to make an informed decision as to whether to accept the proposal
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Torts -- Nursing homes -- Arbitration -- Nursing home resident is not bound by an arbitration clause in a nursing home contract signed by the resident's son where the resident neither signed nor otherwise agreed to the contract -- Nursing home resident may not be bound to a contract to which the resident never agreed under third-party beneficiary doctrine -- Third-party beneficiary doctrine does not permit two parties to bind a third party without the third party's agreement merely by conferring a benefit on the third party
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Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Argument -- Trial court abused discretion in denying motions for mistrial and new trial based on cumulative effect of plaintiff's counsel's numerous improper comments and arguments, including comments chastising defendants for their failure to apologize, statements evoking sympathy from jury, inappropriate religious references, comments about defendants not taking responsibility, and attacks for electing to defend the case -- Because plaintiff invited the errors, plaintiff had the burden to show that the errors did not contribute to the verdict -- Jury instructions -- Trial court's failure to properly instruct jury on detrimental reliance element of claims of fraudulent concealment and conspiracy to commit fraudulent concealment warrants new trial -- Comparative negligence -- Whether conduct in the context of a tobacco action is considered negligent or intentional, comparative negligence applies -- Trial court erred in failing to reduce compensatory damage award based on decedent's comparative negligence
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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 -- Aggravated assault with deadly weapon -- Inconsistent verdicts -- An inconsistent verdict resulted when jury found that defendant committed aggravated assault with a deadly weapon, but also found that defendant did not actually possess a firearm, where only weapon alleged to have been used in the offense was a firearm -- Error was fundamental -- Remand for trial court to enter judgment on lesser included offense of assault on person over sixty-five
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Criminal law -- Possession of firearm by convicted felon -- Exceptions -- Replica of antique firearm -- Felon-in-possession statute is subject to competing reasonable constructions with respect to definition of “replica” of “antique firearm,” one of which may lead to interpretation that “replica” means exact copy in every respect and the other of which emphasizes the ignition system as the distinctive feature of an “antique firearm” and therefore requires that the firearm possess a certain type of ignition system explicitly mentioned in section 790.001(1) -- Rule of lenity must be applied where statutory term generates differing reasonable constructions -- Section 790.23 is not unconstitutionally vague when statutory definition of “antique firearm” set forth in section 790.001(1) is reasonably construed as emphasizing the type of firing system of the replica antique firearm as its distinctive feature -- State's contention that definition of “antique firearm” cannot apply to a “replica” firearm if a scope has been attached cannot be sustained under rule of lenity
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