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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
July 14 - July 18, 2014

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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Civil procedure -- Default -- Jurisdiction -- Substitute service of process -- Error to deny defendant's motion to vacate default judgment where substitute service was effectuated on defendant's sister at Miami condo, but defendant provided evidence that the Miami condo was not his usual place of abode and that his sister did not reside at the condo -- Trial court erroneously found that defendant was judicially estopped from asserting that the condo was not his usual place of abode because he had filed a petition for injunction six months earlier in which he stated that he resided in the condo -- Remand for evidentiary hearing to resolve disputed issues of fact as to whether defendant's usual place of abode was the condo and whether his sister resided in the condo -- Error to deny motion to set aside sheriff's sale of defendant's condo without a hearing where there was factual issue as to whether defendant or his attorney properly received notice of the sale
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Contempt -- Direct criminal -- Dissolution of marriage -- Failure to appear in court is punishable by direct criminal contempt under rule 3.830 and may be adjudged concurrently in a civil proceeding -- Question certified whether a party who is ordered by a trial court to appear at a scheduled hearing, but fails to do so, may be found in direct criminal contempt under Florida Rules of Criminal Procedure 3.830; or whether such conduct should be addressed as indirect criminal contempt under Florida Rules of Criminal Procedure 3.840? -- Trial court erred in holding former husband in direct criminal contempt for failure to appear at contempt hearing without finding that husband had been notified that he was required to attend but failed to do so without excuse -- Double jeopardy -- Reinstitution of direct criminal contempt proceedings on remand is prohibited where original criminal contempt conviction was based on insufficient evidence
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Insurance -- Liability -- Duty to defend and indemnify -- Declaratory judgment -- Error to enter summary judgment finding that insurer which issued commercial general liability policy and umbrella policy to residential community association had duty to defend and indemnify individual association member in wrongful death action alleging member negligently supervised child while using community swimming pool and, as a result, child drowned -- Policies included endorsement that extended coverage to each individual member of association, “but only with respect to liability arising out of the ownership, maintenance or repair” of common elements, and factual issue existed as to whether member had an ownership interest in the community pool
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Mortgage foreclosure -- Post-judgment motion for determination of assessments due to community association, homeowners association, and condominium association -- Trial court did not have jurisdiction to determine statutory assessments where the time to alter, modify, or vacate final judgment had elapsed and the judgment provided for only a general reservation of jurisdiction -- Trial court properly denied post-judgment motion for determination of assessments due to associations for lack of jurisdiction
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Mortgage foreclosure -- Where trial court ordered mortgagor to make payments during pendency of foreclosure proceedings, and mortgagor failed to comply with that order, trial court did not err in entering foreclosure judgment instead of ordering that plaintiff be entitled to possession of the premises -- Section 702.10(2)(f)'s reference to “some other method of enforcement” of the circuit court's payment order includes entry of a foreclosure judgment -- Court notes that the remedies at issue do not apply to owner-occupied residential real estate
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Real property -- Riparian rights -- Action for declaratory relief, ejectment, trespass, and trespass damages brought by plaintiff against adjacent landowners, who held title to riparian land to high water mark and who constructed pier extending from their property onto submerged land owned by plaintiff -- Collateral estoppel -- Trial court erred in finding plaintiff's claims were barred by application of collateral estoppel doctrine based upon two circuit court cases involving plaintiff's predecessor in title where defendants were not parties to either of the prior actions and were not in privity with any party that was -- However, trial court properly found that defendants had common law right to erect pier or wharf -- There is common law qualified riparian right or privilege to construct piers or wharves from riparian owner's land onto submerged land to the point of navigability but not beyond the lower water line, subject to the superior and concurrent rights of the public and to applicable regulations -- This is true regardless of whether submerged lands are held in trust by state or privately held
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Workers' compensation -- Compensable accidents -- Heart disease -- Law enforcement officer -- New period of disability arising out of treatment of non-compensable cardiac condition -- Res judicata -- Collateral estoppel -- Both law and competent substantial evidence support judge of compensation claims' conclusion that claimant's cardiac condition on new date of disability related directly back to 2007 date of injury, which was previously adjudicated as non-compensable -- Because underlying condition was adjudicated to be non-compensable, it follows that subsequent disability arising out of treatment for that condition was likewise non-compensable
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Wrongful death -- Product liability -- Tobacco -- Limitation of actions -- Trial court erred in entering summary judgment for defendant on basis that decedent, whose smoking-related illness manifested itself before he moved to Florida, was not a member of Engle class, and that wrongful death action was barred by statute of limitations -- Fact that decedent's disease may have manifested itself before he moved to Florida did not necessarily exclude him from class -- As long as an individual was a citizen or resident of Florida as of the cut-off date of November 21, 1996, and his or her smoking-related illness manifested on or before that date, then he or she is a member of Engle class, and is entitled to take advantage of one-year filing window -- Conflict certified
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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 battery with firearm -- Immunity -- Stand Your Ground Law -- Defendant engaged in an unlawful activity is not necessarily disqualified from seeking self-defense immunity under certain provisions of Stand Your Ground law -- Court recedes from any language in prior opinion suggesting the contrary -- Court's holding in prior appeal from initial order denying motion to dismiss, that defendant, as a felon in possession of firearm, was engaged in unlawful activity at time of crime and, accordingly, was prohibited from claiming self-defense immunity under Stand Your Ground law, applied only to statute at issue, section 776.013(3), which permits person “not engaged in an unlawful activity” to stand his or her ground where there is reasonable belief that defensive force is necessary to prevent death or great bodily harm -- Defendant is not precluded from claiming justifiable use of force under section 776.012(1) or from seeking immunity from prosecution pursuant to section 776.032(1), which expressly extends immunity from prosecution to those who use defensive force as permitted by section 776.012 -- Order denying second motion to dismiss quashed -- Remand with instructions to determine whether defendant was justified in using deadly force under section 776.012(1) and therefore entitled to immunity from prosecution pursuant to section 776.032
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Criminal law -- Juveniles -- Secure detention -- Offense of robbery by sudden snatching was erroneously designated as a violent third degree felony rather than a non-violent third degree felony on juvenile's risk assessment instrument -- Juvenile was improperly held in secure detention where designation of robbery by sudden snatching as a violent third degree felony resulted in risk assessment score of twelve points or more, whereas designation of offense as non-violent third degree felony would not have qualified him for secure detention
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