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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
October 18, 2021 - October 22, 2021

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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Arbitration -- Torts -- Legal malpractice -- Enforceability of arbitration clause -- Language in arbitration provision of retainer agreement signed by plaintiff was in compliance with requirements of Florida Bar Rule 4-1.5(i) and is valid and enforceable -- Arbitrable issues -- Given plain and unambiguous language of arbitration provision, parties manifestly agreed to arbitrate plaintiffs' malpractice claim against former counsel
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Attorneys -- Reinstatement of suspended attorney to practice of law -- Referee erred in referring Bar and attorney to civil mediation, as referee was required to hold final hearing and to make determination on attorney's fitness to return to practice of law -- Because attorney has engaged in disqualifying conduct and has not demonstrated that he has been rehabilitated, petition for reinstatement denied
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Contracts -- Commission agreement -- Restrictive covenants -- Restraints on trade or commerce -- Use of referral sources -- Trial court erroneously concluded that commission-sharing agreement under which agent would be paid a percentage of insurance commissions when company sold insurance products through a network of referral sources cultivated by agent and 100 percent of commissions for sales of any products that were originated and sold by agent constituted a restraint of trade -- Restraint prohibited by section 542.18 is on trade or commerce in general, not on competitiveness or incentives of individual actors -- Agreement merely required company to split commissions, but did not operate as barrier to agent's ability to sell its own insurance products to potential buyers or negatively affect consumers' ability to procure insurance products
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Declaratory judgments -- Trusts -- Invalidation -- Standing -- Intestate heir -- Paternity -- Limitation of actions -- Trial court did not abuse its discretion by dismissing with prejudice plaintiffs' second amended complaint seeking invalidation of trust documents devising decedent's fortune to charitable foundation and certain named individuals on ground that plaintiff and/or plaintiff's three biological daughters are lineal descendants and sole intestate heirs of decedent's intestate estate -- Plaintiff, who was born out of wedlock, failed to establish decedent's paternity within time period allowed by statute of limitations -- Delayed discovery doctrine does not serve to bar application of statute of limitations where plaintiffs failed to specifically plead a claim for fraud on part of decedent -- Equitable estoppel does not apply to a claim that decedent fraudulently induced plaintiff to forego his right to establish paternity by fraudulently concealing fact that he was plaintiff's biological father, as doctrine of equitable estoppel presupposes that plaintiff knows of facts underlying cause of action but delayed filing suit because of a defendant's conduct -- Because plaintiff was alive at time of decedent's death, plaintiff's children do not qualify as intestate heirs -- Because they were not included as beneficiaries in any of the trust instruments attached to second amended complaint, they lack standing to challenge trust -- Interested persons -- Plaintiffs do not qualify as “interested persons” under section 731.201(23) because they are not contingent beneficiaries under the trust; and even if trust instruments were deemed void, plaintiffs could not inherit estate through intestacy given plaintiff's failure to establish paternity within applicable statute of limitations
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Insurance -- Personal injury protection -- Benefits -- Overdue payment -- Interest -- Calculation -- Trial court erred by concluding that a fixed interest rate applied to an overdue insurance benefit payment -- Plain language of relevant statutes requires that the interest rate begin at the rate present for the quarter in which the payment became overdue, followed by an annual adjustment on January 1 of each year until payment is made -- Trial court correctly determined that amount in controversy was de minimis -- Reversal not required
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Florida Bar -- Rules -- Amendment -- Disposition of inquiries or complaints referred to Bar by members of judiciary -- New rule
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Liens -- Construction -- Improvements to land in which contracting party has no interest -- Discharge of lien against leasehold interest in property owned by city -- Appeals -- Certiorari -- Irreparable harm -- Trial court departed from essential requirements of law, resulting in irreparable harm not remediable on direct appeal, when it discharged contractor's claim of lien against leasehold interest of sublessee who contracted for construction of certain improvements on leased property based on conclusion that contractor's claim of lien encumbered the property itself and city's fee simple ownership of property, rather than leasehold interest -- Under statutory provisions and contracts between city, lessee, and sub-lessee, real property owned by city could not have been subjected to claim of lien -- Losing benefit of recovery under a bond on a claim to enforce a lien constitutes type of irreparable harm necessary to entitle party to certiorari relief
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Mortgage foreclosure -- Attorney's fees -- Interest -- Appeals -- Proper remedy -- Trial court erred in awarding damages for attorney's fees -- Amount was unsupported by any evidence because affidavits in support of claim for fees were never moved into evidence -- Award of fees reversed without remand for additional proceedings -- Trial court's award of interest was inconsistent with evidence presented as it neither reflects loan analyst's testimony nor the amount identified in composite transaction history -- Remand for trial court to adjust interest award as needed based upon review of existing evidence
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Mortgage foreclosure -- Dismissal -- Collateral estoppel -- Judicial notice -- Trial court erred by considering judicially noticed records from a prior foreclosure action in granting borrower's motion to dismiss on collateral estoppel grounds -- For a trial court to take judicial notice, it must necessarily consider information outside the four corners of the complaint, which it is not permitted to do when ruling on a motion to dismiss -- While judicial notice may be appropriate in ruling on a motion to dismiss after a defendant properly requests judicial notice and the parties stipulate to trial court taking judicial notice, that did not occur in this case
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Public employees -- Whistle-blowers -- Retaliation -- Trial court did not err in dismissing with prejudice former city employee's operative complaint alleging that city terminated his employment in retaliation for emails and a text message sent to city manager and deputy city manager relating to city's budget and financial projections -- Trial court properly concluded that employee's alleged disclosures did not constitute protected disclosures under Whistle-blower's Act -- Alleged emails and the text message, which do not identify any violation of law or any act of suspected gross mismanagement or misfeasance, do not constitute protected activity under Whistle-blower's Act -- Under Whistle-blower's Act, because protected disclosure(s) must be in the form of a signed writing, alleged non-written disclosures cannot be considered when determining whether plaintiff engaged in protected activity
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Real property -- Construction defects -- Limitation of actions -- Statute of repose -- Commencement date -- Construction defect action brought against stucco subcontractor by developer of multi-unit townhome project -- Trial court erred in granting summary judgment in favor of subcontractor based on determination that claims were barred by ten-year statute of repose because the triggering date for statute of repose for each unit was the date of the issuance of the certificate of occupancy -- In the absence of competent evidence as to the date of occurrence for each of the four triggering events set forth in section 95.11(3)(c), or evidence that one or more statutory events is inapplicable, there is no way to determine which event occurred last -- Therefore, without sufficient evidence to determine the contract completion date, a genuine issue of material fact remains as to commencement date of repose period
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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.
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Counsel -- Ineffectiveness -- Newly discovered evidence -- Habeas corpus -- No error in denying claim that counsel was ineffective for introducing into evidence an additional portion of defendant's taped interrogation in which detectives repeatedly accused defendant of lacking remorse for murders -- Competent, substantial evidence supported trial court's finding that decision to introduce video was a sound strategic decision intended to provide example of detective's aggressive interrogation tactics -- Defendant not entitled to relief on claims that counsel was ineffective for stipulating to admission of defendant's booking photographs on which witnesses had written that they saw defendant shoot the victims and that defendant had admitted to shooting the victims -- Defendant was not prejudiced because by time the photos with writing were admitted, the complained of hearsay had already been properly testified to by the witnesses -- Writing on one of the complained of photographs was properly admitted as a prior consistent statement after counsel attacked that particular witness's credibility by suggesting witness's testimony was motivated by desire to comply with witness's plea agreement -- Because counsel knew statement would ultimately be admitted, it was a reasonable strategic decision not to object to its admission -- Counsel was not ineffective for failing to object to witness's father's testimony regarding what witness had said happened when defendant and witness had driven to victim's home to purchase narcotics -- Witness's statements to his father were admissible as prior consistent statements to rebut inference that witness's testimony was product of improper and coercive influence of the detectives -- Counsel was not ineffective for failing to challenge state's theory that defendant shot all victims with one particular firearm by hiring a forensic expert where counsel testified that defendant had admitted to counsel that he had killed the victims with that particular firearm -- Record conclusively refutes claim that counsel was ineffective for failing to effectively develop witness's self-interest in supporting state's theory of case and to impeach witness with inconsistent statements -- No error in concluding that counsel's failure to impeach witness's father with prior felony conviction was a reasonable strategic decision -- Counsel did not perform deficiently by declining to impeach witness with prior felony conviction where witness gave no incriminating information against defendant -- No merit to claim that counsel was ineffective for failing to call a witness to impeach a co-defendant where record conclusively refutes defendant's desire to call that particular witness -- Counsel was not ineffective for failing to object to state's elicitation of evidence of defendant's character from its witnesses where sole relevancy of the evidence was not the character or propensity of defendant -- Because state's closing argument was not evidence or testimony, relevance objection that defendant argues should have been raised would have been overruled -- Counsel was not ineffective for failing to raise a Confrontation Clause challenge to medical examiner's testimony regarding the findings and conclusions of two other medical examiners -- A testifying medical expert may offer an opinion based on an autopsy performed by a non-testifying expert without violating Confrontation Clause -- No error in denying claim that counsel was ineffective for ignoring defendant's account of what happened when fashioning and presenting a defense -- Conclusion that defendant's testimony was incredible and wholly inconsistent with the evidence was supported by competent, substantial evidence -- No error in denying relief based on newly discovered evidence in the form of a witness's recantation of defendant's confession to him where recantation was incredible -- Even if recantation were credible, defendant would not be entitled to relief where absence of witness's testimony at retrial would not probably produce an acquittal -- Appellate counsel was not ineffective for failing to raise a claim that trial court erred in overruling certain hearsay objections where some statements were properly admitted statements as prior consistent statements and others, while not properly admitted, were harmless -- Appellate counsel was not ineffective for failing to raise claim that trial court erred in sustaining state's relevancy objection and prohibiting defense from inquiring why witness did not trust police -- Defendant not entitled to relief on claim that appellate counsel was ineffective for failing to argue that trial court erred in overruling speculation objection to witness's testimony where issue was not preserved for appeal -- Appellate counsel was not ineffective for failing to raise claim that trial court had erred in denying motion for mistrial regarding witness's testimony that he had seen defendant in possession of the type of firearm used in the murder -- Each of defendant's remaining claims of ineffective assistance of appellate counsel is a permutation of a subclaim raised in his post conviction appeal and each is therefore procedurally barred from being raised in his habeas petition
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