THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Administrative law -- Department of Health -- Licensing -- Physician assistants -- Revocation -- Competent, substantial evidence supported determination that licensee practiced outside the scope of his professional assistant license and accepted and performed complex plastic surgery procedures he knew, or had reason to know, he was not competent to perform -- Argument that Florida law permitted licensee to perform procedures at issue when delegated by, and under indirect supervision of, a qualified Florida licensed physician fails -- Mere delegation does not automatically confer competency within meaning of section 456.072(1)(o) -- Department did not adopt a “categorical rule” prohibiting physician assistants from performing procedures at issue as a matter of law, but instead presented competent, substantial evidence that a P.A. who has not attended medical school and completed a medical residency in plastic surgery, or undergone equivalent type of education and training, was not competent to perform the procedures as a matter of fact -- Provision of final order finding that licensee violated administrative rule prohibiting physician assistant from disseminating or causing the dissemination of any advertisement or advertising that contains the licensee's name without clearly identifying licensee as a P.A. must be set aside because undisputed evidence showed that licensee clearly identified himself as a P.A. -- Challenges to agency's conclusions as to two counts which were purportedly based on requirements that applied to supervising physician who delegates a task, not to the P.A. operating under supervision, were not preserved for appellate review where challenges were not raised in licensee's exceptions to administrative law judge's recommended order -- Remand for reconsideration of proper penalty in light of appellate court's elimination of one violation
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Arbitration -- Award -- Attorney's fees -- Prevailing party -- Timeliness of motion -- Successor judge erred by granting motion to clarify a nearly three-year-old final judgment and awarding appellees attorney's fees and costs pursuant to section 682.15 based on finding that, because final judgment had granted appellees' motion for summary judgment which had included a request for attorney's fees, no additional notice or motion for seeking fees was required -- Appellees were required to comply with the time requirements of rule 1.525 -- No exception to the rule applied where final judgment contained no specific finding of entitlement to fees, and it did not reserve jurisdiction to address the matter -- Court rejects argument that such language was unnecessary because final judgment granted all relief requested -- Language of final judgment does not reflect such a broad finding -- Fact that fees and costs were not mentioned in summary judgment hearing further supports conclusion that final judgment did not award entitlement to fees and costs -- Final judgment could not be amended or altered to reflect an award of fees and costs pursuant to rule 1.530 or 1.540(b) because appellees' motion to clarify was untimely -- Judgment could not be amended pursuant to rule 1.540(a) because the failure to specifically determine entitlement to attorney's fees and costs is not a clerical mistake
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Arbitration -- Federal Arbitration Act -- Jurisdiction -- Action involving contract governed by Federal Arbitration Act and requiring arbitration in a foreign state -- Error to deny petition to compel arbitration based on determination that trial court lacked jurisdiction to do so -- Section 4 of the FAA did not deprive trial court of jurisdiction to compel arbitration -- While section 4 authorizes federal district courts to consider and compel arbitration, it does not preclude state courts from exercising their own jurisdictional power to compel arbitration when construing a contract governed by the FAA -- The foreign-state venue provision within the parties' contract did not divest trial court of its lawful power to consider defendant's petition to compel arbitration -- Trial court erred in determining that defendant was not a “party aggrieved” under section 4 of FAA -- Defendant was an aggrieved party under section 4 because written notification of dispute plaintiff's counsel sent to defendant initiated a dispute under the parties' contract, the notification sufficiently described various points of controversy which could be arbitrable, and plaintiffs refused to arbitrate disputes identified in their notification
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Attorney's fees -- Amount -- Proposal for settlement -- Fee agreements -- Trial court erred in awarding defendant a fraction of the amount of trial attorney's fees it sought pursuant to a rejected proposal for settlement and denying defendant's request for appellate attorney's fees based on determination that defendant's attorneys were operating under a flat fee agreement -- Regardless of fee arrangement between defendant and its attorneys, trial court was bound to award appellate attorney's fees where appellate mandate did not afford trial court discretion to award less than a reasonable fee or deny appellate fees altogether -- Alternative fee recovery provision in defendant's master engagement agreement with its attorneys, which provided that attorneys would be entitled to the greater of either a specified fee if the fee is paid by the client, or a court-awarded reasonable fee if the fee is paid by a third party pursuant to section 768.79, was valid and enforceable -- Court rejects argument that defendant's counsel waived enforcement of master agreement because counsel preserved his privilege objection while advocating for a reasonable fee under the fee-shifting framework -- By awarding defendant less than one-thirteenth of fees it sought, trial court required defendant to absorb enhanced hourly rate promised under alternative fee recovery provision, thereby shielding plaintiff and distorting the punitive objective of section 768.79 -- Remand for award of reasonable attorney's fees and costs, including reasonable expert fee
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Attorney's fees -- Prevailing party -- Jurisdiction -- Trial court erred in concluding that it lost jurisdiction to determine amount of trial and appellate level attorneys' fees to award prevailing party because of party's “unreasonable” delay in setting for hearing the matter of the amount of fees to be awarded -- Rule 1.525 imposes no jurisdictional time limit for scheduling hearing on amount of attorney's fees after a motion seeking fees or costs has been timely filed -- Although trial court may impose sanctions against a party for not adhering to reasonable case management deadlines after following process established in Kozel v. Ostendorf, denial of fees cannot be construed as Kozel sanctions because record does not indicate that trial court either considered Kozel factors or made explicit findings as to those factors
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Contracts -- IRA accounts -- Beneficiary designation -- Validity -- Trial court erred in granting summary judgment upholding the validity of deceased's change in beneficiary designation to IRA account where agreement between deceased and IRA custodian expressly provided that the last form accepted by custodian would control post-death distribution, and there was no record evidence that custodian ever accepted or received the beneficiary designation which was purportedly sent by deceased's counsel prior to death -- Court rejects argument that substantial compliance doctrine overrides the failure to demonstrate custodian's receipt or acceptance of the beneficiary designation -- Acceptance of new beneficiary designation was a material term of custodial agreement, and law of substantial compliance cannot override a failure to comply with such a material term
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Insurance -- Uninsured motorist -- Coverage -- Damages -- In the absence of a judicial determination of bad faith, trial court erred in entering judgment against insurer for net amount of jury verdict that exceeded policy limits while limiting execution on the judgment to the policy limits -- Discussion of supreme court's decision in Fridman v. Safeco Ins. Co. of Illinois -- Trial courts may reference the net verdict amount as the measure of damages should an insured ultimately prevail on a bad faith claim, but may not enter a judgment in that amount -- Error to award post-judgment interest on net verdict amount because insured is not presently entitled to be paid that amount and may never be so entitled unless insured brings and prevails on bad faith claim
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Mortgage foreclosure -- Sale -- Surplus funds -- Entitlement -- Tenancy by the entireties -- No error in granting junior lienholder's motion for surplus funds based on determination that lien took priority over rights of married owners who had held the non-homestead property as tenants by the entirety -- Junior lienholder's mortgage was not void from its inception based on fact that it was not signed or consented to by wife -- Once the property was sold in superior lienholder's foreclosure sale, the property was severed from the unities required for the property to retain its tenancy by entirety protections -- Warranty contained in junior lienholder's mortgage was effective as an expression of an intention to create a lien on owners' interest for the debt
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Rules Regulating the Florida Bar -- Amendments -- Legal specialization and education programs -- Sunset of certification areas -- Administration -- Reporting requirements -- Basic skills course requirement -- Noncompliance and sanctions -- Disciplinary action -- Reinstatement -- Confidentiality
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Torts -- Nursing home -- Arbitration -- Enforceability of arbitration clause -- Nursing home admission agreement signed by individual who was both the nursing home resident's attorney-in-fact pursuant to a durable power of attorney and her health care surrogate -- Trial court erred in granting nursing home's motion to compel arbitration -- Arbitration provision in admission agreement was not enforceable where agreement was signed on behalf of resident in signatory's capacity as health care surrogate, and not as attorney-in-fact -- Although agreement contained preprinted language indicating that it was being signed by a “legal representative,"” that term was not defined within the document and did not alter the fact that the agreement specifically reflects signatory's status as resident's health care surrogate -- An agreement to arbitrate executed on behalf of a nursing home resident is unenforceable when the signor does not sign in his or her capacity as attorney-in-fact pursuant to a DPOA
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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 -- Justifiable use of deadly force -- Jury instructions -- Defense theory alleging that defendant, who had recently had surgery to insert a pacemaker, had stabbed victim because victim was grabbing him by the throat and punching him -- Trial court erred by refusing to instruct jury on first page of standard jury instruction 3.6(f) based on finding that instruction 7.1 contained sufficient instructions on the justifiable use of deadly force, and that giving the requested portion of 3.6(f) would have been duplicative -- Under circumstances of case, reading instruction 7.1 on its own could confuse or mislead jury as to the issue of the justifiable use of deadly force -- Instruction 7.1 was not complete statement of the applicable law concerning the justifiable use of deadly force and not duplicative where 7.1, when read alone, could be understood to ask the jury to determine whether the defendant was actually resisting an attempt to murder or commit a felony upon him rather than whether the defendant reasonably believed that such force was necessary to prevent imminent death or great bodily harm -- Furthermore, if requested instruction was given, the jury would have also had to determine whether victim's conduct constituted an attempt to commit an aggravated battery -- Given defendant's presumed heightened state of physical vulnerability and his testimony that victim was starting to choke him, the evidence was sufficient to entitle defendant to requested portion of instruction 3.6(f) -- Error in refusing to give requested instruction was not harmless
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Criminal law -- Search and seizure -- Vehicle -- Stop -- Traffic infraction -- Apparent window tint violation provided probable cause for stop of vehicle because excessive window tint is a noncriminal traffic infraction -- Accordingly, fact that officer also believed he had seen an illegal narcotics transaction was irrelevant to whether stop was valid -- Probable cause to search defendant and his vehicle existed given totality of facts available to officer, including his prior observation of what he, an officer trained in narcotics surveillance, believed was a hand-to-hand narcotics transaction and the odor of marijuana emanating from defendant and his vehicle at time of stop -- Order granting motion to suppress reversed
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