THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Attorney's fees -- Arbitration -- Nonbinding arbitration -- Trial de novo -- Trial court erred by denying plaintiff's motion for attorney's fees and costs based on determination that request was untimely and that plaintiff ‘s judgment at trial de novo was less than amount required to trigger fee award -- Because section 44.103 does not specify a method for computing time, rule 2.514 applies -- Plaintiff's motion, filed thirty-three days after final judgment, was timely under the rule where final judgment was entered on a Friday and thirty days after judgment was a legal holiday -- Trial court erred in its determination that plaintiff had obtained a judgment at least twenty-five percent less than arbitration award where defendant was not one of the parties found liable at arbitration and both plaintiff and defendant had filed motions for trial de novo -- Plaintiff's request for trial de novo against only nonliable defendants was permissible
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Civil procedure -- Torts -- Amendment of complaint to assert claim for punitive damages -- Violations of Adult Protective Services Act -- Where, as in instant case, plaintiff sues under statute that authorizes recovery of punitive damages but does not provide the procedure for pleading entitlement to those damages, plaintiff must comply with requirements set forth in section 768.72 and rule 1.190 -- Plaintiff must first seek and obtain leave of court to assert claim for punitive damages and must provide the trial court and the defendant with a copy of a proposed amended complaint that provides reasonable basis for recovery of such damages -- Failure to file proposed amended complaint is reversible error -- Although trial court properly struck punitive damages claim from plaintiff's initial complaint because claim was not authorized, trial court reversibly erred by subsequently treating initial complaint as the proposed “amended complaint” and granting plaintiff's motion for leave to seek punitive damages -- Portion of order striking punitive damages claim from initial complaint affirmed -- Remainder of order affirmed without prejudice to filing proper motion to amend that complies with statute and rule
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Civil rights -- Florida Civil Rights Act -- Exhaustion of administrative remedies -- Statutory requirement that a claimant file a complaint with the Florida Commission on Human Relations containing “a short and plain statement of the facts describing the violation and the relief sought” before bringing a civil action under the FCRA is satisfied when a claimant specifically references only federal law in a charge of discrimination dual filed with the federal Equal Employment Opportunity Commission and the Florida Commission on Human Relations -- A claimant need not allege he is seeking relief under FCRA to exhaust administrative remedies
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Condominiums -- Common elements -- Declaration -- Modification -- Multi-floor mixed-use building consisting of three parcels, including a residential condominium governed by its own declaration of condominium, a garage, and a commercial space, all three of which were governed by a Master Association, with each parcel getting one vote -- Trial court did not err in finding that terms of modified master declaration of condominium impermissibly divested residential unit owners of their undivided share in common elements of condominium by reclassifying condominium property, defined as “common elements” for the benefit of the unit owners, as property of the master association -- Removal of common elements from residential condominium control contravened section 718.107 by expropriating undivided common ownership of common elements and by separating, conveying, or encumbering common elements appurtenant to condominium units without conveying the title to the units -- Amendment also impermissibly removed condominium control over common elements under section 718.108
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Condominiums -- Repairs -- Declaration -- Dispute between unit owner and association regarding who was responsible for abating asbestos found in ceiling of unit during association's repairs to common elements -- Trial court erred by granting summary judgment in favor of association based on determination that association had no duty to abate asbestos because a provision of declaration made unit owners responsible for repair of unit ceilings -- Genuine issue of material fact existed where separate declaration provision provided that incidental damage caused to a unit by the association's maintenance and repair of common repairs shall be repaired by the association, and it was undisputed that asbestos was not discovered until after association's agent entered unit and damaged the interior in furtherance of the association's duty to repair and maintain common elements -- Conflict between two reasonable interpretations of declaration precluded entry of summary judgment
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Contracts -- Consumer law -- Funeral homes -- Preneed contracts -- Assignment of burial rights -- Class actions -- Class action alleging seller violated Florida Funeral, Cemetery, and Consumer Services Act by recognizing purchaser's right to transfer burial rights to third parties while refusing to recognize purchaser's right to assign burial services or burial merchandise -- Mootness -- Trial court did not err in granting summary judgment in favor of seller and dismissing operative complaint with leave to amend where operative complaint defined putative class as purchasers of preneed contracts “who are now prohibited from transferring or assigning the entire preneed contract to a third party,” and these claims became moot when seller had revised its policy and recognized that purchasers could transfer burial rights, burial services, and burial merchandise and had notified seller's affiliates and the named plaintiffs of this change in policy -- With respect to plaintiffs' assertions that they have other potential claims, operative complaint made no reference to these claims, and plaintiffs declined to amend their complaint to allege these claims or define a different class -- Attorney's fees -- Trial court properly reserved jurisdiction over plaintiffs' claim for attorney's fees under prevailing party statute in Funeral Act, section 497.169(2), where statute allows award of fees only after exhaustion of any appeal
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Securities -- Sale of unregistered securities -- Ordinary commercial transaction -- Trial court erred in finding defendants liable for selling unregistered securities based on parties' execution of private loan participation agreements -- Although there is presumption that participation agreements fall within regulatory ambit because legislature included these agreements in text of Chapter 517, court is required to examine economic reality of transaction before classifying an instrument as a security -- Plaintiff performed its own due diligence into borrower prior to executing participation agreements, and any significant decisions required unanimity among the parties; loans were collateralized and payable in fixed amounts at specified times, and there was no public offering; participation was not available to a number of investors, but instead offered to plaintiff in conjunction with an ongoing business relationship -- Moreover, there was no common venture involving pooled funds of multiple investors intending to share in profits, and plaintiff only expected to receive repayment of principal it loaned, along with interest at a fixed rate, in a year's time -- Consideration of factors lead to conclusion that participation agreements were routine commercial transactions beyond purview of Florida securities law
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Torts -- Premises liability -- Restaurants -- Slip and fall -- Transitory foreign substance -- Knowledge of dangerous condition -- Directed verdict -- Trial court erred by granting defendant's motion for directed verdict following jury verdict assigning no negligence to plaintiff and awarding her damages for past and future medical expenses and pain and suffering -- Plaintiff presented sufficient evidence of restaurant's constructive notice of dangerous condition where testimony regarding color and condition of water and the amount of foot traffic in the area provided evidence that water had been present on floor long enough for restaurant to discover it, and expert testimony and defendant's admissions established that condensate in the area of the fall was a reoccurring, foreseeable condition -- New trial -- Argument -- No abuse of discretion in alternatively granting defendant's motion for new trial based plaintiff's counsel's act of reading an excerpt from the restaurant manager's deposition that had not been introduced into evidence because the parties had agreed to exclude it, telling the jury that a doctor had testified as to the cost of knee surgery despite plaintiff's withdrawal of her claim for future medical expenses and lack of any trial evidence as to the cost, and suggesting that the restaurant might have withheld or destroyed evidence
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Torts -- Premises liability -- Slip and fall -- Arbitration -- Arbitrable issues -- Action arising from injuries plaintiff suffered after slipping in restroom of trampoline park for which plaintiff had signed a liability waiver -- Trial court erred by denying defendant's motion to compel arbitration pursuant to provision in liability waiver agreement based on determination that injuries did not arise out of the contractual relationship -- Agreement signified defendant's intention that any claim, including personal injury, resulting from use of any portion of the premises be subject to arbitration where, although use of the bathroom does not involve many of the activities listed in the agreement, agreement listed use of locker room area, dining area, sidewalks, parking lots, and any other portion of the premises under “Nature of the Activities” provision
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Torts -- Premises liability -- Slip and fall -- Damages -- Evidence -- Treating physician -- New opinion -- Trial court erred by excluding any testimony from plaintiff's treating physician regarding plaintiff's need for future medical treatment and the anticipated cost of treatment based on determination that such testimony would be in violation of Binger v. King Pest Control because physician's medical reports did not include recommendations for future treatment and testimony was based on other physician's medical records -- A treating physician may offer opinions based on treatment rendered and on review of relevant records -- Physician did not change his opinion, but rather formed it based on his examinations of plaintiff as well as his review of plaintiff prior to treatment -- Moreover, physician's observations and recommendations were disclosed to defendant pre-trial, thereby limiting possibility of surprise and substantial prejudice to defendant -- Any surprise was self-inflicted where physician was timely disclosed as a hybrid witness on causation and damages, yet defendant waited until five days before trial to depose him -- Exclusion of physician's testimony of observations and diagnoses reached subsequent to his physical examination of plaintiff materially prejudiced plaintiff's ability to prove a central element of damages -- Trial court further erred by finding that physician's testimony regarding future medical expenses was inadmissible because physician could not state with certainty that plaintiff would undergo recommended treatments -- Future medical expenses are recoverable when they are “reasonably certain” to be incurred -- Directed verdict -- Trial court erred in granting directed verdicts against plaintiff on her claims for damages from two prior surgeries and future pain and suffering where plaintiff's expert linked plaintiff's fall to the surgeries with reasonable degree of medical certainty and his opinion was corroborated by other evidence -- Remand for new trial
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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 -- Probation revocation -- Contact with victim -- Email -- Victim receiving promotional email from defendant's place of work -- Trial court erred by revoking defendant's probation based on finding that defendant had violated condition of probation prohibiting contact with victim where state failed to present substantial evidence showing that defendant sent or caused the promotional email to be sent to victim
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Successive motion -- Self-incrimination -- No error in denying claims alleging that detective and assistant state attorney engaged in misconduct which resulted in the presentation of false testimony in violation of Giglio and the withholding of exculpatory or impeachment evidence in violation of Brady, and that witness affidavits revealing this alleged misconduct constitute newly discovered evidence -- Trial court did not err by permitting witnesses at evidentiary hearing to invoke their privilege against self-incrimination -- Argument that witnesses' invocation of the privilege against self-incrimination violated defendant's Sixth Amendment right of confrontation is without merit -- Newly discovered evidence -- In addition to being untimely, newly discovered evidence claims based on affidavits of two witnesses purporting to recant their trial testimony and alleging coercion and promises of leniency for their testimony are without merit -- Even accepting affidavits as true, defendant can establish neither materiality prong of Brady nor prejudice prong of Giglio -- Furthermore, evidence would probably not produce an acquittal or lesser sentence on retrial -- Newly discovered evidence claims based on information other witnesses provided to investigators alleging investigative and prosecutorial misconduct are untimely -- Claims also lacked merit and were insufficiently pled -- Based on record, court rejects allegation that state threatened witnesses with perjury charges -- Death warrant -- No merit to argument that death warrant time period is unreasonably short and deprived defendant of notice and opportunity to be heard -- Motion for stay of execution denied
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Criminal law -- Murder -- Death penalty -- Aggravating circumstances -- Jury instructions -- Trial court did not abuse its discretion by denying defendant's request to supplement standard jury instruction on avoid-arrest aggravator -- Standard instruction adequately encompassed defendant's theory of defense that his actions were result of psychotic episode and that some victims were non-eyewitnesses of other murders -- Even if refusal to give special instruction was an abuse of discretion, any instructional flaw was harmless -- Cruel and/or unusual punishment -- Court rejects argument that elimination of proportionality review and the number and breadth of aggravating factors in section 921.141(6) renders capital sentencing scheme arbitrary and capricious -- Death penalty does not violate Eighth Amendment based on “evolving standards of decency” -- Plea -- Defendant's guilty plea was knowing, intelligent, and voluntarily entered
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Criminal law -- Murder -- Death penalty -- Venue -- Trial court did not err in denying motions for judgment of acquittal based on state's failure to prove that murder and sexual battery charges occurred in Monroe County rather than Miami-Dade County -- Jury could reasonably infer from evidence at trial that crimes were committed in Monroe County despite the possibility that they occurred in another county -- Jurors -- Challenge -- Cause -- Inability to be impartial regarding death penalty -- Trial court did not abuse its discretion in granting state's cause challenge to juror who gave equivocal or evasive answers when asked whether she could recommend death penalty if she felt it was appropriate -- Trial court did not abuse its discretion in denying defendant's cause challenges to three jurors whose answers purportedly indicated a rigidity toward imposing the death penalty, either because the penalty was automatically appropriate if defendant was convicted or because they expressed the need to hear mitigating evidence if aggravating factors were proven -- Evidence -- Hearsay -- Officer's testimony regarding information originated from a nontestifying trooper and detective describing car parts found in certain location was not inadmissible hearsay where testimony was not offered to prove that defendant's van was a match to car parts found near victim's body, but instead to explain why officer stopped defendant's vehicle -- No merit to argument that relaying information provided by nontestifying witnesses violated Confrontation Clause in this case -- Penalty phase proceedings -- Argument -- Although prosecutor's comments in penalty-phase closing arguments impermissibly indicated that jury should show defendant the same mercy he showed victim, comments did not rise to such level that recommendation of death could not have been obtained without them -- Aggravating circumstances -- Nonstatutory -- Comments that defendant lied to law enforcement and got rid of evidence were not reference to improper nonstatutory aggravators but a review of evidence and explication of reasonable inference to be drawn from it -- Moreover, even if improper, comments did not rise to level of fundamental error -- Facts not in evidence -- Misstatement of medical examiner's testimony to indicate that victim was conscious and aware of her impending death did not reach into validity of trial such that recommendation of death could not have been obtained in its absence -- Jury instructions -- Mercy -- No abuse of discretion in refusing to give special instruction on mercy -- Statutory aggravators -- Evidence was sufficient to support heinous, atrocious, and cruel aggravator -- State was not required to charge aggravators in indictment -- Cumulative error -- Any errors, even when considered cumulatively, did not deprive defendant of fair trial -- Evidence was sufficient to support convictions
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Criminal law -- Search and seizure -- Electronic devices -- Independent source doctrine -- Trial court erred by granting defendant's motion to suppress evidence of child pornography found on his home electronic devices based on determination that search warrant was informed by officers' initial warrantless entry into defendant's apartment and that officers would not have obtained warrant without warrantless entry -- Evidence showed that officers' initial warrantless entry for purposes of conducting a sweep did not prompt warrant where warrant application was planned and announced in advance of entry into apartment and probable cause portion of warrant application did not include any information that officers did not already know before entering apartment or disclose specific electronic devices observed during sweep -- Scope of warrant was consistent with common practices followed in child-pornography investigations and was not tailored to anything officer could have seen in apartment -- No information obtained during warrantless entry was transmitted to warrant judge which affected entry of warrant -- While officer appropriately disclosed occurrence of protective sweep, he did not disclose any information obtained during the sweep -- Because warrant was issued wholly on basis of information known before warrantless entry, evidence was admissible under independent source doctrine
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Rules of Criminal Procedure -- Amendment -- Computation of Time
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