Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
December 2 - December 6, 2019

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 -- Child custody -- Time-sharing -- Clarification -- Modification -- Trial court erred in entering order on former wife's motion for clarification which amended the final judgment to require former husband to arrange air travel for the parties' children at least sixty days before former husband's time-sharing and made a failure to do so a waiver of former husband's time-sharing rights -- Order constituted an impermissible modification of the final judgment because it conferred a new benefit on former wife while imposing a new and material obligation on former husband without proper pleading or proof of a substantial change in circumstances -- Sixty-day notice provision and its associated obligations constituted more than a mere specification of a time frame and a method or procedure for compliance where original transportation plan did not require parties to do anything but confer regarding airplane tickets and mutually agree prior to booking said tickets
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Dissolution of marriage -- Child custody -- Time-sharing -- Modification -- Time-sharing modified due to former husband's issue with drug addiction -- Trial court abused its discretion by ordering that visitation shall revert back to 50/50 timesharing as outlined in original final judgment automatically after former husband completed Veteran's court, obtained his own residence, and had no vehicle violations for a year -- By enumerating conditions precedent to an automatic future modification of time-sharing, trial court effectively made a prospective determination of what course of action would be in the best interests of the children, which trial court is prohibited from doing
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Family Law Rules of Procedure -- Forms -- Amendment -- Custodial responsibility during deployment -- Adoption of new forms
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Family Law Rules of Procedure -- Forms -- Amendments -- Income deduction order
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Negotiable instruments -- Due-on-demand promissory notes -- Error to enter amended final summary judgment finding individual defendant and limited liability company liable on two promissory notes which had been executed by the individual defendant in his capacity as manager of a separate limited liability company where issues of fact existed regarding parties' intent to hold these two defendants responsible for repayment -- No error in entering summary judgment against third defendant where there was no dispute that individual executed promissory notes in his capacity as manager of this defendant and no dispute that payment demand was made but amounts alleged to be due had not been paid -- Plaintiff provided no authority supporting its proposition that non-signatory LLC could be held liable because it benefitted from loan proceeds and was related to the signing entity -- Fact that signature blocks of notes identified the borrowing entity by its former name not basis for holding individual who signed notes in his representative capacity personally liable -- Mere name change of borrowing LLC had no effect on borrowing entity's identity, and affidavit in which individual attested that it was his intent to sign notes only in a representative capacity was sufficient to preclude summary judgment holding individual personally liable on the notes
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Rules of Civil Procedure -- Amendments
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Standard jury instructions -- Civil -- Amendment -- Issues on Plaintiff's Claim -- Premises liability
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Torts -- Negligence -- Independent contractor -- Safe operation of vehicle -- Nondelegable duty -- Action arising from incident where a tire from one of defendant's trailers, which independent contractor was responsible for inspecting and installing after a fire, detached and collided with a vehicle transporting plaintiff -- Trial court did not err in finding that defendant did not have a nondelegable duty to ensure that its trailer was properly maintained and operated in a safe condition -- Nothing in 49 C.F.R section 396.17 supports contention that a defendant or any other motor carrier who seeks prompt repair work should be held liable for any negligence on the part of an outside repair facility -- “Properly lubricated” requirement of 49 C.F.R. section 396.5 does not impose a nondelegable duty on defendant -- Simply because a motor carrier must ensure that a vehicle is properly lubricated does not equate to that carrier having a nondelegable duty when repairs done to a vehicle by an outside entity are negligently performed -- Likewise, 49 C.F.R. sections 396.25, 396.3, and 396.7 do not impose a nondelegable duty upon motor carriers -- To read federal code provisions as plaintiff does would create a blanket liability for motor carriers whenever an accident occurs because of a faulty repair -- No authority exists which stands for the proposition that the necessity of having repair work done on equipment translates into a nondelegable duty on motor carrier's part with respect to the repair work
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Workers' compensation -- Compensable accidents -- Exposure to toxic substance -- Fungus -- Causation -- Burden of proof -- Order finding that employee's injuries resulted from workplace exposure to toxic fungus is reversed -- Judge of compensation claims erred in applying alternative theory of prolonged exposure to determine that claimant provided sufficient proof of workplace causation rather than the heightened standard of proof for toxic exposure claims under sections 440.02(1) and 440.09(1) -- JCC erred in determining that quantifiable measurement of claimant's exposure was immaterial because both parties' experts were unequivocal that inhalation at any level, even one spore, was sufficient to cause claimant's injury -- The requirements of section 440.02(1) cannot be satisfied with evidence that only minimal exposure to a toxic substance can cause harm and that it is possible the toxic substance was present at the work site -- Expert testimony that claimant “most likely” acquired fungus in the course and scope of employment, without more, was not sufficient to satisfy heightened evidentiary standard of section 440.09(1)
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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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Civil procedure -- Default -- Relief from judgment -- Service of process -- Limited liability companies -- Unregistered foreign LLC -- Section 605.0904(6) is an original service provision -- Accordingly, substitute service statute was inapplicable where defendant, a foreign LLC, failed to have a certificate of authority to transact business in Florida and was sued for business transacted in state -- Trial court erred in granting LLC's motion to vacate default and default final judgment for failure to comply with substitute service provisions of Chapter 48 -- Further, rule 1.540(b) motion to vacate based on procedural defect with service of process was not filed within rule's one-year time period, and defendant's failure to move to vacate default for over a year after it had actual notice of default judgment showed lack of due diligence in seeking relief
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Contracts -- Real property -- Escrow agent -- Fiduciary duty -- Action against defendant escrow agent alleging that defendant breached fiduciary duty owed to plaintiff by distributing escrow funds to third-party developer for purposes not authorized in purchase agreement between developer and plaintiff, but which were authorized in escrow agreement between developer and defendant -- No error in granting summary judgment in favor of defendant -- There was no genuine issue of material fact about whether plaintiff's counsel negotiated, or had authority to negotiate, the escrow agreement -- Counsel's authority to negotiate terms of escrow agreement was immaterial to plaintiff's claims because defendant owed no duty to plaintiff who was not a party to the escrow agreement -- No genuine issue of material fact existed as to whether defendant had authority to disburse the escrow funds -- Fact that escrow agreement had not been fully executed when funds were transferred did not alter defendant's obligations as escrow agent because defendant's execution of the escrow agreement was not a condition precedent to implementing the terms of the agreement
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Dependent children -- Termination of parental rights -- Agency failed to present clear and convincing evidence to support termination of mother's parental rights based on abandonment; conduct demonstrating that the continuing involvement of the mother in the parent-child relationship threatened the life, safety, well-being, or physical, mental, or emotional health of child irrespective of provision of services; failure to substantially comply with case plan for period of twelve months, evidencing continuing abuse, neglect, or abandonment of child; or failure to substantially comply with case plan so as to permit reunifications
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Dissolution of marriage -- Contempt -- Trial court erred by holding former husband in contempt for failure to pay alimony and child support pursuant to a marital settlement agreement entered into by parties in a dissolution action five years earlier which had been dismissed without the court having approved or adopted the agreement -- Trial court's conclusion that doctrine of laches has been abolished in Florida is legally incorrect -- Terms of settlement agreement may not be enforced nunc pro tunc five years later via contempt, as opposed to enforcement in an ordinary civil money judgment for the months of non-compliance prior to filing of current dissolution action
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Dissolution of marriage -- Equitable distribution -- Marital liabilities -- Loans -- Trial court erred in ruling that former wife had no obligations as to a loan given to the parties by former husband's mother during the marriage -- Trial court must treat the debt as a marital liability and order distribution of it accordingly where trial court made no finding of misconduct, failed to consider the factors listed in section 61.075(1), and failed to articulate a sufficient justification to allocate the loan solely to former husband -- On remand, trial court need not make any determinations as to the true value of the promissory note securing the loan where issue was not previously put before the trial court
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Dissolution of marriage -- Judgment -- Trial court, under facts of case, did not abuse discretion in adopting wife's proposed final judgment where both parties were represented by counsel, husband was given a copy of wife's proposed final judgment, trial court signed wife's proposed final judgment two-and-a-half months after receiving competing orders, husband raised no objections to proposed judgment, and trial court's hand-written notations on judgment before signing it implicate court's independent evaluation of submitted findings -- Record supports conclusion that trial court exercised independent decision-making where court actively participated in final hearing -- Moreover, husband, who failed to raise an objection to wife's proposed final judgment on rehearing, cannot for first time on appeal raise an objection to proposed final judgment based upon court's “virtually verbatim” adoption of proposed judgment -- Child custody -- Trial court abused discretion in awarding sole parental responsibility to wife where wife did not request sole parental responsibility and there is no “logical or reasonable justification” for award that would support conclusion that shared parental responsibility was detrimental to minor children -- On remand, trial court is instructed to amend final judgment to award shared parental responsibility, and to remove all findings and inflammatory remarks related to issue of parental responsibility -- Domestic violence injunction -- To extent final judgment grants wife what amounts to a de facto domestic violence injunction against husband, trial court acted without proper statutory authority where record is devoid of any facts showing wife had standing to file petition for domestic violence or showing husband was provided notice and hearing before entry of injunction -- Life insurance -- Trial court erred in requiring husband, who is receiving child support, to name wife as beneficiary to his existing life insurance, absent appropriate circumstances requiring him to maintain such policy -- Husband's advanced age of seventy with two minor children does not qualify as a special or appropriate circumstance
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Dissolution of marriage -- Property settlement agreement -- Enforcement -- Jurisdiction -- Scope of family court's continuing jurisdiction -- Family court judge erred in awarding money damages for husband's breach of parties' settlement agreement where the agreement did not specify the damages sought by former wife and awarded by the court -- Award of damages for husband's delayed delivery of stock and failure to deliver accurate tax information, together with injunction intended to secure the payment of those damages, reversed
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Judges -- Certification of need for additional judges
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Rules of Juvenile Procedure -- Amendment
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Rules of Appellate Procedure -- Amendments -- Discretionary Proceedings to Review Decisions of District Courts of Appeal -- Briefs -- Effective date of amendments
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Torts -- False arrest -- Malicious prosecution -- Action by plaintiffs who had been arrested against arresting detectives and county after charges were dismissed -- Trial court properly entered summary judgment for defendant on one plaintiff's false arrest and malicious prosecution claims where probable cause for that plaintiff's arrest was established -- Trial court erred in entering summary judgment for defendants on other plaintiff's false arrest and malicious prosecution claims where there were disputed factual issues as to whether there was probable cause for that plaintiff's arrest -- Trial court properly entered summary judgment for defendants on claim for negligent reporting of criminal activity -- Cause of action for negligent reporting is applicable to negligent reporting to law enforcement, but is not applicable to negligent reporting by law enforcement -- Trial court erred in entering summary judgment for defendants on battery claim where there was factual issue as to whether defendants used excessive force during arrest of plaintiffs
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Torts -- Medical malpractice -- Hospitals -- Apparent agency -- Trial court erred in entering summary judgment for defendant hospital upon finding that there was no evidence from which jury could have concluded that doctor was an apparent agent of hospital -- There is evidence in record from which jury could conclude that hospital engaged in activities to create the appearance of an agency relationship
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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 -- Jurors -- Peremptory challenge -- Preservation of objection to challenge -- Defense counsel's request for a standing objection to nonspecific things previously objected to in preliminary proceedings did not renew a specific objection to state's peremptory challenge when the defense had, prior to that request, accepted the jury without reservation
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Criminal law -- Sentencing -- Criminal Punishment Code -- Scoresheet -- Lowest permissible sentence -- Excess of statutory maximum -- Defendant sentenced to lowest permissible sentence for two of defendant's three convictions, which exceeded the statutory maximum for both offenses individually -- When applying the provision of section 921.0024(2) which requires the trial court to impose the lowest permissible sentence if it exceeds the statutory maximum sentence, the lowest permissible sentence must exceed the collective statutory maximum, not each individual statutory maximum, before such exception is triggered -- Because the lowest permissible sentence did not exceed the collective statutory maximum sentence of twenty-five years, the trial court was not required to impose the lowest permissible sentence and sentences should have been capped by their individual statutory maximums -- Consequently, defendant's sentences are illegal because they exceed the statutory maximum in contravention of section 921.0024(2) -- Conflict certified -- Question certified: Is the lowest permissible sentence as defined by and applied in section 921.0024(2), Florida Statutes, an individual minimum sentence and not a collective minimum sentence where there are multiple convictions subject to sentencing on a single scoresheet?
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Criminal law -- Sentencing -- Prison releassee reoffender -- Qualifying offenses -- Offense committed by juvenile -- Defendant's mandatory life sentence as a PRR was not illegal pursuant to Graham v. Florida -- Trial court may consider a prior juvenile offense where defendant was adjudicated as an adult in determining whether a defendant qualifies for a mandatory life sentence under PRR statute -- Defendant's life sentence was a result of crimes committed when he was an adult, and the fact that his juvenile priors qualified defendant for a mandatory life sentence is irrelevant
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