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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
February 12 - February 16, 2018

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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Dissolution of marriage -- Marital settlement agreement -- Where settlement agreement provided for former wife to have sole possession of a piece of marital property until the parties' daughter finished four years of college, and for the former husband to be entitled to 50% of the net proceeds upon sale of the property by former wife, trial court erred in finding that agreement did not require former wife to sell the property after the daughter finished four years of college -- Former wife's claim that former husband repudiated the agreement by failing to make payments required under the agreement, is remanded for consideration by trial court because trial court made no findings on this claim
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Insurance -- Attorney's fees -- Insured prevailing in action against insurer -- Contingent fee multiplier -- Trial court's award of contingent fee multiplier without making a finding as to whether market required the multiplier was an error apparent on face of record, so that transcript of evidentiary hearing is not required for appellate court to reverse award and remand to trial court to consider issue anew
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Insurance -- Attorney's fees -- Proposal for settlement -- Where trial court had entered summary judgment for insurer in insured's action alleging breach of insurance contract on basis that claimed loss was not covered under policy, it was an abuse of discretion to deny insurer's motion for attorney's fees pursuant to offer of judgment statute on ground that insurer's nominal proposal for settlement was not made in good faith -- Insurer had a reasonable basis at the time of the proposal to conclude that its exposure was nominal
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Mortgage foreclosure -- Conditions precedent -- Trial court erred in denying defendants' motion for dismissal of foreclosure action where plaintiff failed to establish that it had complied with condition precedent of mailing notice of acceleration of note to defendants as required by mortgage -- Evidence -- Hearsay -- “Letter log” produced by loan servicer to show that default letter was mailed by a third-party vendor was not admissible under business records exception to hearsay rule where loan servicer's witness did not demonstrate that he was well enough acquainted with third-party vendor's business practices to authenticate his testimony that default letter was mailed by vendor in the regular course of its business
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Municipal corporations -- Government in the Sunshine Law -- Shade meeting between city council and its attorneys during which parties discussed specifics of a proposed amendment to trespass ordinance so as to comply with ruling of federal court violated Sunshine Law -- Limited exemption from open meeting requirement applies only to discussions involving actual settlement of presently pending litigation -- Trespass warning section of city's trespass ordinance is invalid because it was conceived at non-public shade meeting in violation of law
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Torts -- Action against day spa and aesthetician arising out of injuries plaintiff sustained when chemical peel allegedly exacerbated her pre-existing rosacea -- Evidence -- Expert -- Trial court properly excluded testimony of defendants' expert after conducting thorough Daubert analysis and finding that expert failed to apply reliable methodology and that expert's opinions were based upon unfounded assumptions arrived at after brief medical examination of plaintiff, review of plaintiff's medical records, and photographs of plaintiff taken after the chemical peel and without sufficient information as to pre-incident intensity and distribution of plaintiff's rosacea and related conditions -- Comparative negligence -- Trial court did not err in directing verdict in plaintiff's favor on issue of comparative negligence -- Defendants offered no evidence to support their contention that plaintiff's own behavior in ignoring medical advice to continue treatment contributed to her condition -- Damages -- Remittitur -- Trial court did not abuse its discretion by denying motion for remittitur -- Jury's award for future medical expenses and pain and suffering was not clearly excessive and was supported by record -- Attorney's fees -- Proposal for settlement -- Trial court erred in declining to enforce plaintiff's proposal for settlement where, taken as a whole, no ambiguity existed that would have affected defendant's ability to make a decision
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Torts -- Dismissal with prejudice -- Fraud on court -- Evidence did not support trial court's finding that plaintiff committed fraud on the court by failing to disclose that he had suffered injuries in a prior automobile accident and by giving false testimony -- Remand for trial court to reconsider whether remaining findings cumulatively support conclusion that plaintiff committed fraud on the court -- Appeals -- Order finding entitlement to attorney's fees is not appealable where amount of fees was not set -- Appellate court lacks jurisdiction of portion of appeal challenging trial court's decision to refer plaintiff to state attorney's office to investigate whether plaintiff committed perjury, and to refer plaintiff's counsel to Professional Ethics Committee of The Florida Bar
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Torts -- Product liability -- Tobacco -- Death of plaintiff -- Trial court erred in dismissing complaint on basis of plaintiff's counsel's failure to file a motion for substitution of proper party within ninety days after plaintiff's death was suggested upon the record -- Motion for substitution, which was served on defendants and filed with clerk of court, qualified as a suggestion of death upon the record, thereby triggering the ninety-day period -- Motion for substitution which sought to substitute deceased plaintiff's wife who had not been appointed as personal representative of estate satisfied requirement that motion for substitution be made within ninety days -- Rule does not require that motion for substitution be made by the proper party to be substituted in order to satisfy the requirement that a motion for substitution be made within ninety days after death is suggested upon the record -- Because motion for substitution was made within ninety days after death of plaintiff was suggested upon the record, the ninety-day expiration period was extinguished, and dismissal of the action was no longer appropriate
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Wrongful death -- Medical malpractice -- Hospitals -- Action against hospital in which surgeon performed paraesophageal hernia repair surgery on decedent using a surgical robot during which part of the surgical robot detached and became embedded in decedent's esophagus -- Trial court erred in dismissing counts alleging defendant hospital's vicarious liability for negligence of surgeon and surgical staff where complaint sufficiently alleged that surgeon and surgical staff were acting as hospital's agents or employees or had apparent authority to act on behalf of hospital -- Trial court erred in dismissing count alleging that hospital assumed a nondelegable duty to properly maintain the surgical robot and to ensure that it was used with reasonable care -- Trial court erred in dismissing negligence claim against hospital arising out its failure to properly maintain and operate the surgical robot and to properly train its staff on the proper use of the robot -- Because trial court did not determine whether negligence claim constituted medical negligence subject to presuit notice requirements or whether plaintiff failed to comply with those requirements, trial court may consider these issues on remand
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Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Evidence -- Expert -- Defendants failed to preserve for appeal any Daubert challenge to testimony of plaintiff's expert historian concerning defendants' use of ammonia in an effort to increase addictiveness of cigarettes where Daubert issue was raised in pre-trial motion in limine, trial court deferred ruling on motion until trial, and at trial, defendants did not make contemporaneous objection raising specific argument that testimony violated Daubert or section 90.702 -- Damages -- On remand, plaintiff entitled to seek leave from trial court to add claims for punitive damages on non-intentional tort claims -- Comparative fault -- Trial court should not have applied comparative fault to reduce compensatory damages award where jury found for plaintiff on intentional tort claims and plaintiff did not waive intentional tort exception to comparative fault statute
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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 -- Habeas corpus -- Pretrial detention -- Nebbia hold -- Florida courts lack authority to detain accused for the purpose of inquiring into source of funds used to post bail -- Any such inquiry is for purpose of ascertaining whether bail set is sufficient to secure defendant's appearance, not to deny pretrial release
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Criminal law -- Jurors -- Challenges -- Peremptory -- Racial discrimination -- Race-neutral explanation -- Trial court erred in finding that juror's religious affiliation alone was genuine and race-neutral basis for challenge where state did not question juror regarding her religion before exercising the strike and, even after questioning, nothing in the record showed juror's religion would prevent her from being fair and impartial juror -- Even if strike were genuinely based on juror's religion, member of a religion that is a cognizable class is protected from being struck from jury based solely on her faith where there is no evidence that faith would prevent her from being fair and impartial juror -- Striking potential juror based entirely on particular religious affiliation, without any evidence that religion would prevent her from being fair and impartial, is impermissible “religious test” in violation of state and federal constitutions
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Trial court properly denied motion to vacate death sentence -- Although jury was not properly instructed under Hurst v. Florida, any Hurst error was harmless where penalty phase jury unanimously recommended sentence of death and found existence of each aggravator unanimously -- There is no merit to claim that death sentence violates Eighth Amendment under Hurst because standard jury instructions improperly diminished jury's role
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Criminal law -- Post conviction relief -- Murder -- Death penalty -- Circuit court properly denied second successive motion for post conviction relief -- Public records -- Circuit court did not abuse its discretion when it denied requests for records relating to expiration dates of drugs to be used during execution and records relating to autopsy of the last inmate to be executed under current lethal injection protocol -- Defendant who was not under age 18 at time of murder is eligible for execution -- Court has previously rejected argument that length of time defendant has spent on death row amounts to cruel and unusual punishment -- Habeas corpus -- Challenges to validity of prior violent felony aggravating factor based upon Indiana conviction for crime of sexual battery should have been or were raised on direct appeal and are procedurally barred -- Moreover, even if Indiana conviction did not qualify as prior violent felony, any error was harmless given other significant aggravators and marginal mitigating evidence
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