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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
August 11 - August 15, 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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Consumer law -- Florida Consumer Collection Practices Act -- Trial court erred in dismissing, for failure to state cause of action, complaint alleging that defendant violated FCCPA by seeking to enforce a debt that was not legitimate by threatening to foreclose a mortgage -- Court erred in determining that by threatening to foreclose mortgage defendant was only trying to enforce a security interest and not trying to collect a consumer debt -- Defendant bank was subject to FCCPA because Act applies not only to debt collectors but also to any “person”
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Contracts -- Arbitration -- Enforcement of arbitration clause by non-signatory -- Action by healthcare providers who purchased licenses for defective software marketed by defendant -- Trial court did not err in denying defendant's motion to compel arbitration pursuant to arbitration clause in master agreements governing purchase of licenses where master agreements were between plaintiffs and a subsidiary of defendant, and defendant was not a party to the master agreements -- Exception to general rule that a non-signatory to a contract containing an arbitration agreement cannot compel a signatory to submit to arbitration is not applicable where plaintiffs' claims do not require reference to or construction of master agreements
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Dependent children -- Placement of children with out-of-state parent -- Interstate Compact on Placement of Children was applicable where children who were under jurisdiction of court were placed with father in foreign state -- Trial court violated ICPC by sending children to foreign state without complying with ICPC Conditions of Placement
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Insurance -- Uninsured motorist -- Jurisdiction -- Once insurer confessed judgment for its policy limits, trial court lacked jurisdiction to take any action other than to enter judgment in amount of UM policy limits in favor of insured -- Trial court departed from essential requirements of law by allowing insured to amend complaint to add count for declaratory judgment to determine apportionment of liability and total amount of damages suffered by insured -- Insured not precluded from litigating damages issue on bad-faith claim, which is separate and distinct from the judgment entered in this case based on insurer's contractual obligations under policy
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Mortgages -- Foreclosure -- Judicial sale -- Garnishment -- Trial court improperly denied motion to dissolve writ of garnishment and granted garnishee's motion to deposit funds into registry of court where plaintiff had not first obtained a deficiency judgment -- Plaintiff has the right to pursue simultaneously both a claim for foreclosure of mortgage and a claim for damages on the promissory note, but having obtained a foreclosure sale and a judgment for damages on the note, plaintiff cannot then collect purely on the money judgment without first obtaining a deficiency judgment
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Real property -- Dispute over ownership of waterfront strip -- Declaratory judgments -- Limitation of actions -- Trial court erred in finding that plaintiffs' claim was barred by four-year statute of limitations in section 95.11(3) where complaint was filed shortly after present controversy arose -- Twenty-year limitation in section 95.231 does not bar count for declaratory relief where it was not demonstrated that 1971 deed in chain of title indisputably conveyed waterfront strip at issue
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Torts -- Negligence -- Stormwater management -- Immunity -- Action by property owners against district board of trustees for state college alleging negligent design and operation of stormwater management system, which partially failed during an extraordinary rain event due to breach in pond retaining wall, resulting in overflow which ultimately ran onto and through plaintiffs' property -- No error in ruling that district was entitled to immunity under section 373.443 for plaintiffs' allegations of operational negligence -- Statute facially provides immunity to state or district, or its agents, for partial/total failures of defined systems/works “by virtue of” certain statutorily-defined activities, including control or regulation of stormwater management systems -- Statute's broad scope of immunity encompasses allegations related to district's operational-level activities -- Alternate claim that district established a stormwater management system that was designed so deficiently as to create a known dangerous condition, which imposed on district a duty to warn or protect the public, was unsupported by any evidence that district knew prior to extraordinary rain water event that its stormwater management system was other than one that was designed to handle all but the most extreme rainfalls -- Discussion of interplay between section 768.28 and section 373.443
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Wrongful death -- Product liability -- Tobacco -- Trial court erred in dismissing wrongful death complaint upon finding that complaint against tobacco companies could not be amended to add wrongful death claim after initial plaintiff died during pendency of action -- Wrongful death claim is not required to be brought as a new and separate cause of action when plaintiff dies during pendency of personal injury action -- Statute of limitations did not bar ability to amend complaint to add wrongful death claim because amendment related back to filing of initial complaint
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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 -- First degree murder with firearm -- Attempted first degree murder with firearm -- Jury instructions -- Duty to retreat -- Stand Your Ground Law -- Trial court committed fundamental error by giving pre-2005 instruction on duty to retreat -- Defendant was entitled to protection of Stand Your Ground law, even if he was engaged in unlawful activity at time of shootings -- Error in giving instruction was fundamental where jury heard testimony and saw video of an opportunity defendant had to retreat minutes before being confronted by victims, jury was instructed that defendant's sole affirmative defense would not be viable if he could have retreated without danger to himself, and state, during closing arguments, mentioned defendant's opportunity to leave the scene with his friends
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Criminal law -- Jurors -- Challenge -- Cause -- In trial for lewd and lascivious molestation of child, trial court did not manifestly err in denying motion to strike for cause a juror who stated that she had been molested as a child where juror maintained throughout questioning that she could be fair and impartial -- There is no bright line rule that a juror who has had personal experience relating to case must necessarily be stricken for cause -- Appeals -- Claim that trial court abused discretion in denying motion to strike juror based on her responses to questions was not preserved for appeal where defendant's objection to juror in trial court was based on argument that mere fact that juror had been a victim of similar offense meant that she must be stricken for cause
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Criminal law -- Racketeering -- Conspiracy -- Trafficking in drugs -- Trafficking in heroin -- Evidence -- Intercepted communications -- Recordings of Spanish-language telephone calls -- Transcripts -- Disputed translations -- Procedures involved in use of Spanish-to-English transcripts, in which trial court allowed courtroom use of written translations of intercepted Spanish language telephone calls created by a team of police officers during criminal investigation, was not an abuse of discretion or error of law -- Trial judge had discretion, with proper predicate, to make translations like the ones in this case an issue of disputed translation for resolution by the jury -- Subject to safeguards discussed in opinion, state is not compelled to obtain translations by an independent translator if its own agents can present the predicate evidence necessary to satisfy the judge that the accuracy of the translations is a matter for the jury to decide -- Failure of court reporter to record and transcribe Spanish telephone calls that were played during trial was not error in this case -- Case law requiring court reporter to make good faith effort to record and transcribe recorded testimony is not applicable to foreign language recordings -- Double jeopardy -- Three of four defendants' rights against double jeopardy were violated when they were convicted of multiple conspiracy offenses stemming from single conspiracy with multiple objectives -- For these defendants, resentencing required after preparation of new Criminal Punishment Code scoresheets omitting charges that are barred by double jeopardy
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