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 © 2025 Judicial & Administrative Research Associates, Inc. A cumulative listing of headnotes for opinions appearing in the next issue of FLW Supplement. A link to each opinion is provided. will not be active in this area. until date of issue publication.
Posted on Wednesday, August 27Consumer law -- Florida Consumer Collection Practices Act -- Contempt -- Bad faith conduct -- Sanctions -- Attorney's fees -- Defendant operated in bad faith and caused unnecessary and vexatious delay by repudiating settlement agreement and violating court order requiring defendant to pay plaintiff's counsel for time expended enforcing settlement agreement -- Court orders sanctions of additional attorney's fees to be paid to plaintiff's counsel -- Per diem fee for half of days defendant remained in contempt to be paid to legal aid organizationTONY GWYNN, Plaintiff, v. RENT-A-TIRE, L.P., d/b/a RAW WHEELS & TIRES, Defendant. County Court, 4th Judicial Circuit in and for Duval County.
Contracts -- Quasi contracts -- Account stated -- Unjust enrichment -- Dismissal with prejudice -- Limitation of actions -- Plaintiff's failure to appear at case management conference warrants dismissal of case where plaintiff had ample notice of conference and was warned that nonattendance could result in dismissal -- Dismissal is with prejudice where account statement filed by plaintiff in support of claims for account stated and unjust enrichment shows payment due date that was more than four years prior to date of complaint
Insurance -- Personal injury protection -- Breach of contract -- Limitation of actions -- Statute of limitations applicable to medical provider's action against PIP insurer commenced five years from the date insurer denied reimbursement for last date of service and, taking into account tolling for an additional 60 business days based on two demand letters, expired prior to entry of agreed order adding insurer to medical provider's suit against another PIP insurer -- Provider failed to properly raise equitable tolling and equitable estoppel avoidances in reply to insurer's affirmative defenses -- Further, equitable tolling does not apply where insurer did not mislead or lull provider into inaction, provider did not mistakenly file claim in wrong forum, and provider was represented by experienced counsel -- Equitable estoppel is also inapplicable where insurer did not submit any representations regarding denial of coverage that were contrary to its later asserted positions -- Final judgment is entered in favor of insurer
Insurance -- Automobile -- Windshield repair or replacement -- Coverage -- Conditions precedent -- Notice of loss -- Failure to comply with condition precedent of policy requiring that insurer be notified of loss so that damaged windshield could be inspected prior to being replaced relieved insurer of its obligation to reimburse insured's assignee for replacement of windshield
Declaratory judgments -- Insurance -- Personal injury protection -- Attorney's fees -- Insured seeking declaration that PIP insurer improperly stopped payment for chiropractic services based on independent medical examination -- Insured is not entitled to award of attorney's fees under 86.121 where insured did not allege ultimate facts demonstrating that insurer made a “total coverage denial”
Insurance -- Automobile -- Windshield repair or replacement -- Coverage -- Conditions precedent -- Notice of loss -- Where insured failed to comply with condition precedent of notifying insurer of loss prior to repairs being completed, and repair shop did not provide any record evidence to rebut presumption that insurer was prejudiced by breach of policy terms, insurer was entitled to deny coverage for windshield replacement -- Neither invoice for repair work nor retention of damaged windshield for inspection by insurer satisfied policy conditions requiring pre-repair notice of loss
Insurance -- Motion for final summary judgment is denied where factual issues remain -- Insured who obtained partial summary judgment is entitled to attorney's fees and costs
Insurance -- Discovery -- Depositions -- Failure to appear -- Sanctions -- Attorney's fees awarded as sanction for defendant's failure to appear for duly noticed deposition of corporate representative -- Protective order -- Although defendant filed motion for protective order, defendant failed to schedule hearing on motion before failing to appear -- Plaintiff's counsel is entitled to attorney's fees for time related to deposition, filing of motion for sanctions, and attending hearing on motion for sanctions
Insurance -- Discovery -- Claims history spreadsheet is summary within meaning of section 90.956 -- Summary and original or duplicates of underlying data must be made available for examination or copying or both
Criminal law -- Driving under influence -- Detention -- Arrest -- 911 call from defendant's wife, reporting that he was intoxicated and describing his vehicle and location in abandoned lot, is not hearsay where call was not admitted at suppression hearing for truth of matter asserted, but to show information deputy had in determining that he had founded suspicion for detention and probable cause for arrest -- Furthermore, hearsay is admissible in suppression hearing -- Deputy had founded suspicion justifying detention based on information provided in 911 call, unusual location of defendant in abandoned lot late at night, odor of alcohol, and defendant's unusual behavior of laying limp across console -- Deputy had probable cause to arrest defendant for resisting officer where defendant physically refused to get out of vehicle when deputy was ordering him to do so and attempting to forcefully remove him from vehicle -- Deputy had probable cause for DUI arrest based on circumstances that formed basis of founded suspicion determination in addition to defendant's actions in refusing to exit vehicle and his appearance, speech and gait -- Motion to suppress is denied
Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Reasonable suspicion -- Officers had reasonable suspicion of criminal activity justifying stop of defendant's vehicle where they had encountered defendant in bar parking lot 12 minutes earlier, had observed indicia of impairment, and had put defendant in rideshare vehicle to be transported home, but rideshare driver subsequently reported that defendant had been returned to her vehicle at her request -- Motion to suppress is denied
Posted on Monday, August 25Paternity -- Child custody -- Parental responsibility and parenting plan -- Sole parental responsibility -- Best interests of child -- Abandonment by parent -- Father abandoned child when child was a toddler by failing to establish or maintain substantial and positive relationship and failing to make any significant contribution to child's care and maintenance -- Family ordered to comply with parenting plan that does not include shared parental responsibility between mother and father -- Reunification with father is not viable option, and there will be no time-sharing -- It is in child's best interests to remain with mother and not return to El Salvador where father residesYESICA ELIZABETH MERINO RIVAS, Petitioner/Mother, v. DIEGO EDGARDO AVALOS SANCHEZ, Respondent/Father. Circuit Court, 2nd Judicial Circuit in and for Gadsden County.
Torts -- Negligence -- Automobile accident -- New trial -- Verdict against manifest weight of evidence -- Jury's verdict in favor of defendant cannot be said to be against manifest weight of evidence where evidence on issue of fault was conflicting -- Court will not speculate as to whether verdict demonstrated jury's misunderstanding of the law governing evidence and/or liability where it is at least as likely that jurors understood law and concluded that plaintiff had not met his burden of proof -- Evidence -- Defendant's statements about vehicle speed did not violate pretrial order prohibiting testimony, suggestion, or reference to speed of plaintiff's vehicle by defendant or defense counsel -- Moreover, new trial would not be warranted where testimony was not so prejudicial as to vitiate entire trial and was invited error -- Amended motion for new trial denied
Civil procedure -- Summary judgment -- Response -- Timeliness -- Extension of time -- Plaintiff's response to motion for summary judgment filed less that twenty-four hours before hearing was untimely -- Motions for continuance and extension of time were not properly noticed for hearing and do not provide a basis for delaying entry of summary judgment -- Defendant's motion for summary judgment granted
Arbitration -- Enforceability of arbitration clause -- Motion to compel arbitration in suit regarding injuries sustained by rider in ride-share vehicle is granted -- Valid arbitration agreement exists between rider and companies that supply rider app, claims arising from use of services available through companies' rider app fall squarely within scope of agreement, and companies did not actively participate in lawsuit or waive right to arbitrate
Mortgages -- Foreclosure -- Deficiency judgment -- Service of process -- Deficiency judgment is void as matter of law where defendant was not personally served or provided notice and opportunity to be heard on motion for deficiency judgment
Estates -- Creditors' rights -- Fraudulent transfer -- Civil procedure -- Summary judgment -- Opposition -- Timeliness -- Summary judgment entered in favor of personal representative in action alleging that now-deceased former personal representative, who was found liable for civil theft of stock in estate, fraudulently conveyed real property to defendant, who was his longtime significant other -- Affidavit of defendant in opposition to personal representative's motion for summary judgment was untimely where affidavit was filed less than 20 days before hearing on motion -- Opposing affidavit of attorney who facilitated property transfer is not untimely where, although affidavit was filed less than 20 days prior to initial hearing date, hearing was continued before parties presented any argument, and affidavit was filed more than 20 days before date of continued hearing -- Personal representative made prima facie showing of six badges of fraud in transfer of property where defendant was insider to transfer, former representative was being sued before property was transferred, property was substantially all of former representative's assets, consideration paid was not reasonably equivalent to value of property, former representative became insolvent shortly after transfer, and transfer occurred shortly before substantial debt was incurred -- Defendant's argument that she took property in good faith is unavailing where her payment of $10 does not constitute reasonably equivalent value for property -- No merit to argument that defendant was in putative marriage with former representative where marriage does not rebut presumption of fraudulent transfer
Real property -- Partition -- Partial final judgment for partition and sale is granted -- Plaintiff and defendant own real property as joint tenants with right of survivorship, property is not divisible and not subject to partition in kind, and clerk's default has been entered against defendant
Real property -- Partition -- Sale -- Special magistrate appointed to sign listing agreement and execute deeds and closing documents necessary to effectuate sale of subject property where plaintiff and defendant own real property as joint tenants with right of survivorship, court granted partial final judgment for partition and sale requiring both parties to execute listing agreement for sale of property, but defendant has failed or refused to execute agreement and participate in sale -- Sale proceeds are to be deposited with clerk of court, and fees and costs of magistrate and attorneys will be paid from top of net sale proceeds
Insurance -- Homeowners -- Coverage -- Replacement cost value -- Insurer's obligation to pay replacement cost value was not triggered where express terms of policy required insureds to perform repairs related to the loss and submit proof of costs incurred in making repairs -- As a matter of law, insureds cannot recover RCV where they did not perform repairs and can no longer perform repairs because home has been sold -- Insureds cannot meet burden to show that ACV payment was insufficient or that any breach of contract occurred where insurer paid the only ACV estimate it received, and insureds failed to submit valid competing ACV estimate prior to suit being filed -- No merit to argument that insurer, by its conduct, waived right under policy loss settlement provision -- Waiver and estoppel cannot be used to circumvent coverage restrictions or expand recovery rights
Posted on Tuesday, August 12Licensing -- Driver's license -- Revocation -- Fourth DUI -- Hardship license -- Due process -- Licensee whose application for hardship license was denied was afforded due process where he was given opportunity to be heard, ask questions, and present evidence -- No due process violation resulted from agency's enforcement of requirements that applicant for hardship license not have driven vehicle or consumed alcohol for five years prior to hearing although agency did not notify licensee of revocation for more than five years after fourth DUI -- Licensee's testimony established that he had, in fact, driven vehicle and had consumed alcohol within preceding five years -- Further, even if licensee was correct that hearing officer misapplied no-driving requirement because licensee had a valid driver's license at the time he drove, licensee was nonetheless ineligible for hardship license because of his consumption of alcoholHOWARD KEVIN WILSON, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 1st Judicial Circuit (Appellate) in and for Okaloosa County.
Criminal law -- Misdemeanor battery -- Speedy trial -- Trial court erred in discharging defendant who had waived speedy trial and obtained two continuances after it was discovered on eve of trial that information had not been filed and information was subsequently filed 137 days after defendant's arrest -- No merit to argument speedy trial waiver was a nullity because trial court lacked jurisdiction before information was filed -- Speedy trial period ran from date defendant was taken into custody, not date information was filed, and defendant made two explicit waivers of speedy trial
Counties -- Zoning -- Special exceptions -- Certiorari challenge to county commission's resolution granting special exception for operation of K-12 school on property zoned open use estate, 1 unit per 5 acres, is denied -- Standing defense was waived where neither county nor developer contested petitioners' standing -- Claim that application failed to include “consequences statement” discussing impact of noise produced by school lacks merit where application fulfilled format required by county to demonstrate that proposed use would be adequately buffered to separate traffic, visual impact, and noise from existing or intended nearby uses -- County development code did not require either “consequences statement” or noise study -- Voluntary stipulations agreeing that noise from use of outdoor PA system at sporting events would not exceed decibels allowed at property line by county noise ordinance did not conflict with noise ordinance and were enforceable through development code remedies -- Fact that county noise ordinance exempts sporting events and school functions does not render stipulations unlawful -- Failure of school to complete limited cultural assessment survey regarding recorded archeological site adjacent to property was waived where issue was not raised before county commission -- Approval of special exception without completion of cultural assessment survey was not fundamental error where no egregious deprivation of constitutional right occurred and error did not go to heart of judicial process before commission -- Competent substantial evidence -- Application, staff report, and testimony was sufficient to support conclusion that proposed use was adequately buffered to effectively separate noise from nearby existing or intended uses -- No merit to argument that record fails to contain competent substantial evidence regarding traffic impacts because of flaws in traffic study -- Traffic study's proposed methodology was pre-approved by county staff, study accounted for 100% of maximum number of students permitted at school, and ingress and egress from school was via arterial road, not neighborhood street -- Further, evaluating reliability of study's methodology approaches bar against appellate court reweighing, or judging credibility of, evidence
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