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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
May 3, 2021 - May 7, 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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Dissolution of marriage -- Magistrates -- Report and recommendations -- Exceptions -- Trial court abused its discretion by summarily denying former wife's exceptions to magistrate's report and recommendations based upon wife's failure to file transcript of hearing before the magistrate within 45 days allotted and ordered by court -- Hearing on exceptions is mandatory, and transcript is required only “if necessary for the court's review” -- Where exceptions raise pure issues of law, such as whether magistrate's report and recommendations improperly modified parties' property rights as previously determined by final judgment of dissolution, transcript would not be necessary -- Remand for trial court to hold hearing and consider exceptions on the merits
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Insurance -- Homeowners -- Appraisal -- Trial court did not err in determining that policy's appraisal provision clearly and unambiguously applied to claim by insured's assignee for water mitigation services -- Policy provided that either party could demand appraisal to resolve “disagreement regarding the amount of the covered loss,” and it was undisputed that water mitigation services performed by assignee were part of the amount of the covered loss
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Insurance -- Homeowners -- Preferred Contractor Endorsement -- Where insurer elected to repair hurricane damage to insured home under Preferred Contractor Endorsement, and insured failed to provide a compliant sworn proof of loss and completed his own repairs to home, thereby preventing insurer from completing repairs under Preferred Contractor Endorsement, trial court erred in entering judgment requiring insurer to pay appraisal amount -- Insured breached policy by failing to fulfill post-loss obligations and hiring his own contractor to perform repairs
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Mortgage foreclosure -- Relief from judgment -- Void judgment -- Foreclosure judgment in favor of junior mortgagee was properly found to be void as to senior mortgagee whose mortgage had been recorded before that of junior mortgagee -- Trial court erred in finding that motion to vacate judgment was not timely filed, as party may move to vacate void judgment at any time -- However, order denying motion to vacate judgment is affirmed, as section 702.036, Florida Statute, barred court from vacating judgment where vacation of judgment would adversely impact quality and character of title of property which had been purchased by third parties after foreclosure sale
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Municipal corporations -- Zoning -- Renting properties in violation of zoning code -- Constitutionality of land-use regulations -- Counterclaims -- Dismissal -- Lack of prosecution -- Error to dismiss defendants' counterclaims for lack of prosecution where the rule 1.420 notice which triggered the dismissal was entered by recused judge -- Any order entered by a recused judge is void, not merely voidable, and thus has no force or effect and is a nullity -- Notice entered by recused judge was not a ministerial act where order involved discretion -- Trial court erred in denying town's motion for summary judgment as to counterclaims alleging violations of substantive due process and equal protection -- Town's actions in issuing notices of violation and filing declaratory action did not result in substantial deprivation of defendants' fundamental or constitutionally protected right to own, possess, use, dispose of, and transfer property -- Defendant's right to rent properties to others is not a fundamental right for purposes of substantive due process -- Additionally, executive actions taken by town in directing its police chief to issue notices of violations and filing declaratory action were not arbitrary, irrational, or conscience-shocking so as to violate the Fourteenth Amendment -- Defendant's “class of one” equal protection claim alleging improper selective enforcement fails where there is no basis to conclude that town unequally applied ordinances for the purpose of discriminating against defendants, or that there was no rational basis for the town's actions
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Wrongful death -- Nursing homes -- Arbitration -- Selection of arbitrator -- Appeals -- Certiorari -- Petition seeking review of order compelling plaintiff to select a nominating arbitrator to act along with defendant's chosen nominating arbitrator for the single purpose of selecting a sole arbitrator in plaintiff's action against defendant -- Trial court departed from essential requirement of the law in rewriting parties' agreement in defendant's favor by allowing defendant to choose a nominator despite having forfeited its right to do so by missing the express deadline set forth in its own residency agreement -- Trial court's conclusion that plaintiff's arbitrator selection was somehow impermissible because it was transmitted near the end of the business day on the day it was due is not supported by the agreement or any legal authority -- Relief granted by trial court was not appropriate under either section 682.031 or 682.04 where defendant presented no good cause to rewrite agreement, and parties' chosen method of appointing arbitrators did not fail -- Because plaintiff will be able to challenge eventual arbitration award on appeal, it cannot establish irreparable harm -- Petition denied
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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 -- Post conviction relief -- Juror misconduct -- Claim of juror misconduct based on juror's nondisclosure of information during voir dire -- Claim is not procedurally barred because it should have been raised on direct appeal where defendant could not have discovered underlying facts with due diligence in time to raise claim on direct appeal or within one year after judgment and sentence became final -- To be entitled to post conviction relief based on juror misconduct, there must be a showing, based on legally sufficient evidence, of actual juror bias against defendant -- Mistaken but honest answer to a question will not warrant post conviction relief -- In post conviction proceedings, challenger must establish that juror's misconduct resulted in defendant being denied constitutional right to impartial jury -- In post conviction cases raising standalone juror misconduct an evidentiary hearing will sometimes be required to determine whether a juror was intentionally dishonest and, if so, whether defendant can prove actual bias -- Competent substantial evidence supports post conviction court's finding that juror was not actually biased against defendant -- Court properly summarily denied claims of ineffective assistance of counsel
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Criminal law -- Murder -- Sentencing -- Death penalty -- Jurors -- Challenge -- Cause -- Jury instructions -- Aggravating circumstances -- Trial court did not abuse its discretion in denying defendant's cause challenges against two penalty phase jurors -- While some of first juror's responses to defense counsel's initial questioning indicated she had a predisposition to imposing death on a defendant who committed premeditated murder, after further questioning from both parties, the first juror stated that she could follow the instructions or the law about the death penalty, and confirmed that she understood she was never compelled to vote for death because a person was convicted of first-degree murder, that she could weigh the aggravators and mitigators, and that the death penalty was not automatic -- Although second juror initially expressed a disposition to automatically imposing death penalty where first-degree murder was premeditated and some of second juror's answers to defense counsel's subsequent questioning again indicated second juror's predisposition, given supreme court's deferential review, a plurality of the court concludes that trial court did not abuse its discretion in denying defendant's cause challenge against second juror -- No error in failing to instruct jury that it must determine beyond a reasonable doubt whether the aggravators were sufficient to impose death and whether those aggravators outweighed the mitigators in his case because those determinations are not subject to the beyond a reasonable doubt standard of proof -- No error in denying motion to bar imposition of the death penalty based on fact that defendant was under the age of twenty-one when he committed the murder -- Because defendant was over the age of eighteen, he is not entitled to relief under Roper v. Simmons -- Argument that trial court erred in instructing jury on particularly vulnerable victim and heinous, atrocious or cruel aggravators was not preserved for appellate review -- No error occurred when both jury and trial court found PVV and HAC aggravators
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Criminal law -- Search and seizure -- Incident to arrest -- Violation of municipal ordinance -- Trial court erred in granting motion to suppress evidence discovered during search incident to defendant's arrest for a violation of city's “open container” ordinance which occurred in officer's presence -- Officer had authority to arrest and search defendant because a violation of the subject ordinance was punishable by criminal penalties -- Discussion of custodial arrests for violations of municipal ordinances and the criminal/noncriminal nature of ordinances -- Section 316.1936, which regulates possession of open containers in vehicles, does not expressly or implicitly preempt subject ordinance which regulates possession of open containers on public property
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Criminal law -- Sexual battery -- Evidence -- Rape shield statute -- Confrontation of witnesses -- Under circumstances, trial court did not unconstitutionally infringe upon defendant's right of confrontation by prohibiting him from introducing evidence of prior sexual assault allegations purportedly fabricated by victim against another man several years earlier -- Probative force of proffered evidence was attenuated and risk of undue prejudice high -- Moreover, defendant was free to cross-examine victim with object of revealing any possible ulterior motive or bias or to further adduce reputation evidence and, accordingly, was not precluded from developing theory that victim inculpated him in sexual crime in order to conceal consensual act of intimacy with her boyfriend
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