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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
June 20 - June 24, 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.

Attorney's fees -- Proposal for settlement -- Identical proposals for settlement made to owner of vehicle involved in automobile accident and driver of vehicle were ambiguous and invalid where paragraphs of each proposal made clear that payment of $20,000 by defendant named in the proposal would settle plaintiff's claims against that specific defendant, but another paragraph stated that the proposal was inclusive of “all damages” claimed by plaintiff -- Proposal was ambiguous because it is unclear whether acceptance and payment of proposal by one of defendants would resolve case against both defendants or only against the individual defendant accepting the proposal
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Class actions -- Bilateral class action -- Certification of plaintiff and defendant classes in action challenging fees charged for copies of health care records is appealable non-final order -- Standing to seek certification of defendant class -- Juridical link -- Although generally, a defendant class will not be certified unless each named plaintiff has colorable claim against each defendant class member, exception exists where defendant members are related by “juridical link,” meaning some legal relationship which relates all defendants in way such that single resolution of the dispute is preferred to multiple similar actions -- A class of defendants alleged to be violating a law do not display juridical links merely because members are subject to a common regulatory scheme -- Juridical link was improperly applied in instant case to establish standing as to defendant class -- Because trial court erred in determining the plaintiff class had standing to bring class action against defendant class, case remanded for further proceedings to decertify defendant class, as well as defendant subclass, which consisted of entities which were defendants in pending litigation raising similar issues -- Blanket stay pending resolution of related cases -- Principle of priority -- Trial court abused its discretion in denying stay of entire action pending resolution of previously-filed litigation raising similar issues, and the abuse of discretion constituted a departure from essential requirements of law, causing irreparable harm, in form of exposure to potential inconsistent ruling on the same issue by another court, that cannot be remedied on appeal -- Extensive discussion of heightened due process concerns associated with motion to certify a defendant class and the more pronounced due process concerns that arise in bilateral class actions, which raise unique and overlapping issues of standing, commonality, typicality, and adequacy of representation
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Dissolution of marriage -- Child custody -- Modification -- Primary residential parent -- Due process -- Trial court erred in changing primary residential custody from former wife to former husband where husband's petition for modification was not set for hearing and former wife was not given notice that modification would be at issue in the hearing -- Change could not be justified as make-up timesharing where trial court found that former wife was not in contempt and had not willfully violated terms of timesharing -- Issue was not waived by former wife or tried by consent
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Dissolution of marriage -- Child custody -- Parenting plan -- Enforcement/contempt -- Failure of former wife to place paternal grandmother on any pickup list where wife had registered children for babysitting, after school care, or child care services -- Amended final judgment, which incorporated time-sharing provisions of temporary parenting plan, did not encompass portion of temporary parenting plan allowing father to make decisions concerning children's contact with paternal grandmother, a provision which addressed shared parental responsibility, not time-sharing -- Under circumstances, trial court erred in ruling that parties were to cooperate with each other to add names of adults whom each parent granted authority to transport children, including biological grandmother, to pick-up lists for children's school and other childcare providers during that parent's time-sharing
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Elections -- Municipal corporations -- City council -- Trial court erred in declaring candidate eligible for re-election to city council for term commencing in March 2016 -- Amendment to city charter limiting term for city council member to two consecutive full terms clearly and unambiguously credited all four of candidate's prior consecutive terms, which had commenced prior to the effective date of the amendment, against term limit set forth in amendment
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Insurance -- Homeowners -- Sinkhole loss -- Subsurface repair -- Insureds were not required to provide acceptable repair contract as condition precedent to filing suit against insurer -- Insurer had no obligation to pay damages awarded by jury for subsurface repairs until insureds contracted to make those repairs -- Damages -- Verdict awarding $100,000 for subsurface repairs was not against manifest weight of evidence -- Prejudgment interest -- Error to award prejudgment interest where insurer had no obligation to pay absent contract for subsurface repairs
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Mortgage foreclosure -- Error to enter summary judgment of foreclosure where there were material facts related to plaintiff's standing to foreclose and the admissibility of the evidence relied on by plaintiff in its motion for summary judgment -- Where plaintiff was not the initial lender, an unindorsed copy of the note was attached to the initial complaint, and the original indorsed note was entered during the summary judgment proceeding, a material issue remains as to when the note was indorsed and how plaintiff obtained standing to bring suit -- There was an insufficient foundation to admit affidavit of plaintiff's officer under business records exception to hearsay rule where officer lacked particular knowledge of plaintiff's record-keeping procedures and was not sufficiently acquainted with plaintiff's business practices to substantiate the data on the affidavit
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Mortgage foreclosure -- Reestablishment of lost note -- Plaintiff failed to reestablish lost note where plaintiff's witness's testimony relied on the prior servicer's lost note affidavit which was not entered into evidence, and witness did not establish that he had any personal knowledge as to whether the original lender was entitled to enforce the note when it was lost or whether the note was lost during a transfer or lawful seizure
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Mortgage foreclosure -- Standing -- Where original payee on note was an entity other than the plaintiff who filed initial complaint, and copy of note attached to the complaint did not have any endorsements, plaintiff did not qualify as holder of note with standing to foreclose -- Accordingly, substituted plaintiff had to prove that original plaintiff was nonholder in possession with rights of a holder in order to establish standing -- Purchase and assumption agreement between original plaintiff and FDIC, as receiver for original payee on note, did not establish original plaintiff's standing as nonholder in possession where PAA did not adequately identify which loans were acquired by plaintiff in the transaction and whether defendant's loan was included in the acquisition, and substituted plaintiff failed to prove that original plaintiff actually purchased note, instead of simply acquiring servicing rights -- Substituted plaintiff's standing at time of trial is irrelevant where evidence was insufficient to prove original plaintiff's standing to enforce note at inception of case
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Real property -- Submerged land -- Administrative law -- Board of Trustees of Internal Improvement Trust Fund -- Appeal from final order dismissing petition which sought administrative review of Board's decision to approve city's request for a partial modification of deed restrictions on what was once sovereign submerged land -- Land at issue ceased being SSL when it was conveyed or deeded to city -- No authority was cited for proposition that land continues to be SSL if a deed includes use restrictions
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School boards -- Teachers -- Performance salary schedule -- Statutory provision that teachers “on annual contract as of July 1, 2014, shall be placed on the performance salary schedule” is properly interpreted as requiring that those teachers on annual contract at the time of the effective date of the statute be put on the performance salary schedule
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Taxation -- Motor fuel -- Refund -- Taxes paid on gasoline used in lawn care equipment of landscaping business -- Neither provision of Florida Constitution authorizing a second gas tax “of two cents per gallon upon gasoline and other like products of petroleum and an equivalent tax upon other sources of energy used to propel motor vehicles,” nor section 206.41(1)(a) restrict second gas tax to fuel powering motor vehicles on public highways -- Department of Revenue's decision to deny tax refund did not violate Equal Protection Clause, despite Legislature's decision to exempt some industries from gasoline tax
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Torts -- Automobile accident -- Settlement agreement -- Because presuit settlement involved minors and totaled $50,000 or more, trial court was required to appoint a guardian ad litem to represent children's interest before approving settlement that disposed of children's claims -- Settlement was invalid as to claims of children, and trial court erred by dismissing children's complaint based upon that agreement -- No merit to argument that $25,000 earmarked to settle claim of deceased driver should be excluded from computation of gross settlement, as evidence established that insurer globally tendered $50,000 policy limit to settle all claims, including those of minors
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Torts -- Medical malpractice -- Discovery -- Attorney-client privilege -- Deposition questions to plaintiff regarding lawyers she had consulted, seeking to determine when plaintiff first comprehended a reasonable probability that her child's injury was caused by medical malpractice -- Trial court did not err in compelling plaintiff to answer questions regarding when she first sought legal counsel and the names of the attorneys whom she had consulted regarding possible legal remedies stemming from her daughter's condition, as these questions do not require plaintiff to disclose any communications she had with any attorney -- It was improper to compel plaintiff to answer all questions related to why she first sought out legal counsel and any subsequent counsel, as this would allow inquiry into confidential communications between plaintiff and attorneys
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Workers' compensation -- Compensable accidents -- Going and coming rule -- Exceptions -- Judge of compensation claims did not err in concluding that neither premises exception nor special hazards exception to going and coming rule applied to accident in which claimant fell as she stepped onto metal plate that was below ground level, located in parking garage where claimant parked using a parking pass provided by employer -- Accident occurred off premises; and although it was undisputed that metal plate was hazard to those exiting garage on foot, competent evidence supported JCC's conclusion that hazard in parking garage did not exist on an access route in close association with claimant's workplace premises
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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 -- First-degree arson of dwelling -- Jury instructions -- Lesser included offenses -- Instruction on second-degree arson of structure as a permissive lesser-included offense of first-degree arson of a dwelling is not required where, as in instant case, undisputed trial evidence demonstrates that structure that was subject of the arson charge was used exclusively as a dwelling, thereby excluding it from consideration as a second-degree arson offense under plain language of arson statute -- Conflict certified
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Criminal law -- Juveniles -- Probation revocation -- No error in finding juvenile willfully and substantially violated condition that she participate in and complete residential treatment at certain facility where juvenile undertook overt steps to remove herself from the residential treatment facility -- Fact that juvenile's plan did not come to fruition does not change result
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Criminal law -- Probation -- Conditions -- Special condition of probation prohibiting defendant from associating with anyone who is illegally using drugs is not unconstitutionally vague -- In order to prove a violation of the condition, the state must prove by a preponderance of the evidence the probationer's knowledge that the person with whom he associated was illegally using drugs at the time of the alleged violation
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