New Releases
from Florida's Circuit and County Courts
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New Releases
from Florida's Circuit and County Courts
Viewing the full text of these opinions will require logging in with your user name and password.
Licensing -- Driver's license -- Appeals
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to
breath test -- Implied consent warning -- Refusal affidavit in
combination with officer's testimony that he read implied consent
warning from form taped to wall of Intoxilyzer room was competent
substantial evidence to support finding that officer read implied
consent warning to licensee -- No merit to argument that licensee
was improperly denied blood test -- Licensee's right to request
test under section 316.1932(1)(d) is only triggered when arresting
officer does not request chemical or physical breath test, and
officer requested breath test in this case -- Independent blood
test -- Where licensee refused to submit to breath test, he was not
entitled to arrange for independent blood test, and officer was not
required to assist licensee in obtaining test
VIEW OPINION
Criminal law -- Driving under influence -- Evidence -- Marchman Act
records -- Where defendant who was transported to hospital after
accident left against medical advice, thereafter officer obtained
physician's certificate completed by attending physician for
purposes of planned emergency admission of defendant under Marchman
Act, and eventually state attorney's office obtained that
confidential medical record without subpoena or prior notice to
defendant, trial court did not err in excluding medical record --
Exclusionary rule precludes admission of medical record even though
state attorney's office subsequently attempted to comply with
statutory notice requirement
VIEW OPINION
Criminal law -- Counsel -- Waiver of counsel was defective where
trial court never actually offered defendant counsel, made no
showing that waiver of counsel was knowing and intelligent, and did
not make record sufficient to show how defendant's background
affected his competency to waive right to counsel -- Further,
defendant's queries about obtaining counsel, made upon learning his
sentence, may reasonably be interpreted as indicating that he did
not understand what he was doing when he waived counsel
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to
breath test -- Hearing -- Subpoenas -- Refusal to issue -- Hearing
officer's refusal to issue subpoena for officer who collected urine
sample from licensee did not constitute denial of due process where
license was suspended for failing to provide adequate breath test
samples -- Statute authorizing hearing officer to issue subpoenas
for officers and witnesses identified in list of documents does not
require issuance of subpoena for individual who possesses no
knowledge relevant to case -- Lawfulness of detention -- Where
officer responded to report of reckless driving at fast food
restaurant, spoke with restaurant manager who described licensee's
reckless driving, observed licensee's vehicle pulled up on curb
near drive-through window, and observed that licensee had odor of
alcohol and moved in lethargic and unsteady manner, officer had
reasonable suspicion to detain licensee for performance of field
sobriety exercises
VIEW OPINION
Criminal law -- Counsel -- Waiver -- Where judge informed entire
group of defendants of right to counsel, but at defendant's
arraignment judge did not address whether defendant needed or
wanted counsel and did not inform defendant of inherent dangers of
self-representation, record does not establish that waiver of
counsel was made knowingly and intelligently
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Driving with
unlawful breath alcohol level -- Hearing -- Subpoenas -- Refusal to
issue -- Error to refuse to issue subpoena for agency inspector who
was identified in agency inspection report submitted to support
license suspension -- Final order of license suspension is
quashed
VIEW OPINION
Counties -- School impact fees -- Certiorari challenge to county
commission's rejection of applications for calculation of
alternative school impact fees which were based on claims that high
rise developments will generate fewer students due to presence of
elevators and parking spaces and absence of playgrounds and
tot-lots -- Where county code provides that alternative school
impact fees are to be based on consideration of permanent physical
characteristics “of dwelling units,” and physical
characteristics and limitations which the developers contended
depressed the number of school age children generated in
developments were features of overall developments but not features
of dwelling units, county commission did not err in denying
applications
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to
breath test -- Lawfulness of stop -- Hearing officer erred in
failing to consider lawfulness of stop and subsequent DUI arrest of
licensee who refused to submit to breath test -- Final order of
license suspension is quashed
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Driving with
unlawful alcohol level -- Lawfulness of arrest -- Hearing officer
departed from essential requirements of law by sustaining license
suspension without considering argument that arrest was unlawful --
Order of license suspension quashed
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to
breath test -- Hearings -- Subpoenas -- Refusal to issue -- Hearing
officer erred in refusing to issue subpoena for breath test
technician sought to testify to licensee's condition and alleged
recantation of breath test refusal -- Remand for new hearing
VIEW OPINION
Counties -- Zoning -- Exceptions -- Conversion of residence into
religious facility -- County commissioner's independent site
investigation during pending contested administrative hearing
without placing his findings on record denied due process to
opponents of application for special zoning exception allowing
conversion of neighboring residence into Hindu temple -- Commission
order granting special exception is quashed where there is no
competent substantial evidence to support findings that proposed
temple meets requirements that it be similar and compatible with
surrounding area and not act as detrimental intrusion into
surrounding area
VIEW OPINION
Insurance -- Personal injury protection -- Summary judgment --
Opposing affidavit -- Peer review -- Appellate court lacks
jurisdiction to review purported order excluding peer review report
and affidavit from summary judgment evidence where hearing
transcript does not clearly demonstrate exclusion, and record
contains no order excluding report and affidavit -- Withdrawal of
benefits -- Notice -- Error to find that effective date of
withdrawal of benefits was date of letter suspending benefits based
on independent medical examination, not date that IME physician
concluded that further treatment would not be reasonable, related
or necessary
VIEW OPINION
Municipal corporation -- Code enforcement -- Building code --
Keeping vacant unsecured structure -- Due process -- Notice --
Where city sent notices of code enforcement proceedings to property
owner at correct address by certified mail and posted notice on
property, due process was satisfied irrespective of property
owner's actual receipt of notices -- Appeals -- Mitigation of fine
-- Appeal of mitigation order does not confer jurisdiction to
review underlying enforcement order and initial fine -- No merit to
argument that fine is excessive and unfair where fine lies within
range of fines prescribed by legislature -- There was no denial of
due process at mitigation hearing where special master gave
property owner notice and full hearing -- In mitigation proceeding,
special master was not required to consider three factors code
enforcement board is required to consider in levying fine --
Further, property owner waived issue of special master's failure to
consider three factors by failing to raise specific objection
during mitigation hearing
VIEW OPINION
Insurance -- Personal injury protection -- Error to enter summary
judgment in favor of medical provider where there were competing
reports from insured's physician and physician who performed
independent medical examination regarding reasonableness,
relatedness and necessity of medical bills -- Further, whether
benefits should have been withdrawn as of date of IME or as of date
of cut-off letter is issue for jury
VIEW OPINION
Insurance -- Personal injury protection -- Summary judgment --
Opposing affidavit -- Although trial court erred in refusing to
consider peer review affidavit because it was not obtained prior to
denial of medical bills, grant of summary judgment in favor of
medical provider is affirmed under tipsy coachman doctrine because
affidavit is conclusory, is based on unauthenticated and unattached
documents, and conflicts with report of independent medical
examination performed by same physician
VIEW OPINION
Insurance -- Personal injury protection -- Withdrawal of benefits
-- Notice -- Error to refuse to consider affidavit of physician who
conducted independent medical examination due to insurer's failure
to send notice of suspension of benefits -- Discovery --
Depositions -- Expert witness fee -- Where insurer sought to depose
treating physician regarding medical treatment and care of insured,
trial court did not err in granting motion to compel payment of
expert witness fee
VIEW OPINION
Counties -- Zoning -- Rezoning -- County commission's order denying
petition to rezone land classified as agricultural rural and lying
in Res-1 classification to planned development is quashed where
there is no evidence in record to support commission's findings
that uses permitted in PD classification are not compatible with
existing land uses present in surrounding property, that PD
classification is not compatible with zoning districts applicable
to surrounding property, and that rezoning would not be consistent
with Comprehensive Plan
VIEW OPINION
Attorney's fees
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to
breath test -- Hearing officers -- Departure from neutrality --
Hearing officer did not deviate from neutrality by questioning of
officer to clarify whether anything in particular was requested in
giving implied consent warning -- Refusal -- Where licensee
unequivocally refused to submit to breath test and consistently and
repeatedly refused to answer any questions or cooperate with
officer, hearing officer's finding of refusal is supported by
competent substantial evidence -- As clarified by hearing officer's
question, evidence supports finding that officer requested breath
sample, not breath, blood or urine sample -- Lawfulness of arrest
-- In determining probable cause for arrest, arresting officer was
entitled to rely on observations of stopping officer that licensee
was speeding and failing to maintain single lane
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving with no valid license -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
traffic charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Attorney's fees -- Insurance -- Personal injury protection --
Contingency risk multiplier -- No abuse of discretion in applying
2.0 multiplier, despite absence of evidence that medical provider
actually experienced difficulty in obtaining counsel, where
provider's attorney testified that he would not have taken case
without possibility of multiplier and expert witness testified that
he would not have taken case and that it would have been difficult
to obtain counsel without possibility of multiplier
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Criminal history record -- Sealing or expunction --
No error in denying petition for expunction or sealing of record of
misdemeanor arrest where defendant did not submit Florida
Department of Law Enforcement certificate of eligibility with
petition -- Defendant may re-submit petition if he obtains
certificate of eligibility, but it does not appear that he will
ever be eligible to obtain one because he has been adjudicated
guilty of other crimes
VIEW OPINION
Criminal law -- Unlawful tag/tag not assigned to vehicle --
Sentencing -- Probation -- Version of section 948.01(2) in effect
at time of sentencing mandated that county court impose term of
probation when it withheld adjudication after defendant entered
plea to criminal traffic charge -- Requirement to impose
probationary sentence when withholding adjudication does not apply
only to matters originating in circuit court
VIEW OPINION
Criminal law -- Unlawful tag/tag not assigned to vehicle --
Sentencing -- Probation -- Version of section 948.01(2) in effect
at time of sentencing mandated that county court impose term of
probation when it withheld adjudication after defendant entered
plea to criminal traffic charge -- Requirement to impose
probationary sentence when withholding adjudication does not apply
only to matters originating in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Failing to register vehicle -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
traffic charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Appeals -- Failure to transmit record and transcript -- Affirmance
of lower court ruling
VIEW OPINION
Criminal law -- Petit theft -- Sentencing -- Probation -- Version
of section 948.01(2) in effect at time of sentencing mandated that
county court impose term of probation when it withheld adjudication
after defendant entered plea to misdemeanor criminal charge --
Requirement to impose probationary sentence when withholding
adjudication does not apply only to matters originating in circuit
court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Driving while license suspended -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
DWLS charge -- Requirement to impose probationary sentence when
withholding adjudication does not apply only to matters originating
in circuit court
VIEW OPINION
Criminal law -- Resisting without violence -- Sentencing --
Probation -- Version of section 948.01(2) in effect at time of
sentencing mandated that county court impose term of probation when
it withheld adjudication after defendant entered plea to criminal
msdemanor charge -- Requirement to impose probationary sentence
when withholding adjudication does not apply only to matters
originating in circuit court
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Driving under
influence -- Blood draw -- Where licensee was only person injured
in crash, and at time of request for blood draw officer knew only
that licensee had been taken to hospital by ambulance after crash
of unknown severity and had stated to nurse that he thought his
neck was broken, officer did not have probable cause to believe
licensee sustained “serious bodily injury” permitting
blood to be drawn without his consent
VIEW OPINION
Torts -- Medical malpractice -- Limitation of actions -- Where
defendant received notice of intent to initiate litigation
thirty-seven days before expiration of two-year limitation period,
limitation period was tolled for period of ninety days when claim
was rejected -- Section 766.106(4) also provides that if the
defendant serves a notice of intent to terminate the negotiations
during the extended period of time, the plaintiff shall have sixty
days or the remainder of the statute of limitations, whichever is
greater, to file suit -- Where only thirty-seven days remained in
original limitations period when plaintiff received defendant's
notice of intent to terminate negotiations, plaintiff had sixty
days within which to file complaint under section 766.106(4) --
Complaint was not timely filed -- Summary judgment granted in favor
of defendant
VIEW OPINION
Torts -- Jurisdiction -- Plaintiffs' claims that do not meet
circuit court's minimum jurisdictional threshold must be filed in
county court -- Punitive damages -- Demand for punitive damages is
stricken where plaintiffs failed to follow procedural requirements
of law by first properly seeking and receiving court's permission
to allege claim for punitive damages -- Amended complaint in which
each count incorporates by reference preliminary allegations of
complaint and all allegations of each preceding count violates
rules of pleading -- Amended complaint is dismissed without
prejudice
VIEW OPINION
Mortgages -- Foreclosure -- Standing -- Where allegations in
complaint that plaintiff is holder of note and mortgage are
contradicted by attached mortgage and note, motion to dismiss is
granted
VIEW OPINION
Eminent domain -- Inverse condemnation -- Final judgment providing
for compensation for inverse condemnation of portions of property
included within city's sidewalk improvements, vesting of title in
city and city's construction of driveway to property
VIEW OPINION
Condominiums -- Where condominium developer violated section
718.202(3) by failing to place legend disclosing its right to use
portion of buyers' deposit for construction purposes on either
first page of purchase agreement or immediately above place for
buyer's signature, buyers could exercise option to void contract
without any obligation to show that they suffered any damage as
result of violation -- Buyers are entitled to recover deposit plus
interest
VIEW OPINION
Contracts -- Torts -- Misappropriation of trade secrets and other
confidential information -- Breach of contractual and fiduciary
duties -- Default entered against defendant as sanction for
spoliation of evidence where plaintiff alleged that defendant,
while employed by plaintiff, copied plaintiff's data, trade
secrets, and confidential information onto his personal laptop
computer without authorization, plaintiff served defendant with
request for production for, among other things, “all personal
computers,” defendant ultimately produced computer on which
new operating system had been installed, and defendant's
explanation that he threw away the original hard drive because it
had “crashed” and was “inoperable” was not
credible -- Defendant's answer stricken -- All well-pled
allegations of complaint are deemed admitted as matter of law, and
defendant's liability has been established -- Plaintiff's request
for injunctive relief granted -- Issue to be decided at trial is
amount, if any, of plaintiff's damages -- Plaintiff entitled to
attorney's fees and costs incurred in bringing motion for
sanctions
VIEW OPINION
Contracts -- Insurance -- Choice of law -- Claims under contract
are governed by laws of state in which contract was executed
VIEW OPINION
Constitutional law -- Due process -- Summary judgment is entered in
favor of sports umpire association in action against it by umpire
as to count seeking damages based on alleged disciplinary action
taken without affording umpire notice of allegations -- Due process
protections under U.S. and Florida constitutions extend only to
state action, not to conduct of private association -- Further,
where umpire rejected assigned games pending receipt of allegations
against him and had no vested right to be assigned to umpire any
post-season games, there is no evidence suggesting that association
took disciplinary action or that association deprived umpire of
income, jeopardized his umpire designation, or caused umpire to
suffer humiliation or embarrassment
VIEW OPINION
Torts -- Discovery -- Medical records of nonparties -- Medical
expert is not required to comply with request to produce records of
last 20 compulsory medical examinations where plaintiffs have not
complied with statutory requirement to provide notice and obtain
written authorization from patients whose records they seek to
obtain and have not shown why they cannot comply with statute --
Further, where expert has not yet been deposed, plaintiffs have not
established that records are reasonably calculated to lead to
discovery of admissible evidence
VIEW OPINION
Torts -- Discovery -- Compulsory medical examination -- Conditions
of CME defense examination established -- Plaintiff's attorney,
parent, spouse or other representative and court reporter and/or
videographer may attend exam -- Defense attorney's presence is
prohibited -- Defense is responsible for providing any documents or
films to CME doctor other than new x-rays taken within last 30 days
-- Plaintiff will not submit to testing other than physical exam,
and questioning of plaintiff is limited -- Plaintiff will rely on
report of CME doctor -- Videotape of examination is protected under
work-product privilege -- Protected health information generated or
obtained by CME doctor shall be kept in accordance with HIPPA
requirements
VIEW OPINION
Torts -- Discovery -- Compulsory medical examination -- Conditions
of CME defense examination established -- Plaintiff's attorney,
parent, spouse or other representative and court reporter and/or
videographer may attend exam -- Defense attorney's presence is
prohibited -- Defense is responsible for providing any documents or
films to CME doctor -- Plaintiff will not submit to testing other
than physical exam, and questioning of plaintiff is limited --
Plaintiff will rely on report of CME doctor -- Videotape of
examination is protected under work-product privilege -- Protected
health information generated or obtained by CME doctor shall be
kept in accordance with HIPPA requirements
VIEW OPINION
Taxation -- Ad valorem -- Property appraiser did not improperly
remove homestead exemption on property owned by taxpayer where
evidence established that plaintiff did not reside at the property
and make it is his permanent residence so as to qualify for Florida
homestead exemption
VIEW OPINION
Criminal law -- Driving under influence -- Evidence -- Breath test
-- Maintenance and testing of machine -- Substantial compliance
with administrative rules -- Inspector's method of scooping testing
solution into mouth to perform mouth alcohol test was in
substantial compliance with administrative rule requiring that
inspector rinse with solution -- No merit to argument that
Intoxilyzer used to test defendant's breath deviated from standards
set in administrative rule where there is substantial evidence that
micron filters in Intoxilyzer are same filters used in instrument
approved by Department of Transportation and that Intoxilyzer is
same instrument placed on DOT conforming products list -- No merit
to argument that breath test results are unreliable due to
Intoxilyzer's inability to detect certain volatile organic
compounds that could be present in person and mistaken for alcohol
where defendant does not allege that any VOCs other than alcohol
were present in his breath, and state's expert testified that
instrument does detect most common VOC -- Falsification of
inspection reports -- Defendant has failed to prove allegation that
premature terminations of Intoxilyzer inspections to hide test
failures and falsify inspection reports occurred where evidence of
power interruptions based on data in log-in records is speculative,
and eyewitnesses testified that no intentional power interruptions
occurred -- Discovery -- State's failure to comply -- Although
court does not approve of state's manner of disclosing information
regarding intentional power interruptions by inspector in other
counties by directing defense to material on its website, state's
conduct did not prejudice defense where defense has now been made
aware of all material on issue and has been able to contest
admissibility of breath test on that basis -- No merit to claim
that FDLE rules for breath testing do not provide sufficient
safeguards on their face -- Motion to suppress is denied
VIEW OPINION
Civil procedure -- Discovery -- Depositions -- Failure of
plaintiff's corporate designee to appear at initial or rescheduled
deposition, in violation of court order -- Failure to pay
court-ordered sanctions -- Failure to respond to written discovery
requests or to comply with court order compelling response --
Defendant's second motion for sanctions is granted -- Upon failure
of plaintiff to comply with provisions of order, court shall
consider further sanctions, including but not limited to striking
of pleadings and entry of judgment in favor of defendant
VIEW OPINION
Child custody -- Relocation of child -- Procedural defects in
mother's second or amended petition to relocate children and in
father's answer, which is unsworn and contains no statement of
facts, are insignificant where law requires court to decide custody
issues based solely on best interests of children -- Mother's
motion for default summary judgment due to father's insufficient
answer is denied
VIEW OPINION
Child custody -- Supervised contact -- Father's motion for order
requiring that mother's current husband have only supervised
contact with children based on four-year-old order requiring
husband to have only supervised contact with his own children is
denied without prejudice -- Order entered four years ago in another
case is no substitute for evidence concerning best interests of
children today
VIEW OPINION
Child custody -- Jurisdiction -- Temporary emergency jurisdiction
-- Florida court does not have emergency jurisdiction over custody
of children who are living in Florida with mother and whose home
state is Texas where only evidence of abuse of either child was
hearsay, claimed abuse in Texas in 2009, even if proven, does not
establish that emergency concerning children exists in Florida, and
Texas court is already exercising jurisdiction over children
VIEW OPINION
Contracts -- Credit card agreement -- Limitation of actions --
Where periods since both last payment on account and charge off
date advocated by plaintiff exceed applicable Arizona or Delaware
three-year statute of limitations on actions for credit card debt,
original and amended complaints are time-barred -- Further, there
is no clear chain of ownership and assignment conferring standing
on plaintiff
VIEW OPINION
Contracts -- Account stated -- Money lent -- Complaint for account
stated, open account and money lent is dismissed where account
statement is not attached to complaint and complaint does not state
dates money was lent and repayment was due
VIEW OPINION
Landlord-tenant -- Public housing -- Eviction -- Noncompliance with
lease -- Waiver -- By failing to commence eviction action within 45
days of date of tenant's arrest, landlord waived right to seek
eviction for noncompliance with lease -- 45-day period for filing
eviction action commences on date of noncompliance, not date
landlord determines noncompliance has occurred -- Complaint
dismissed without leave to amend
VIEW OPINION
Insurance -- Personal injury protection -- Examination under oath
-- Failure to attend -- Where insured failed to attend EUO or
provide reason for non-attendance, summary judgment is entered in
favor of insurer -- Attendance at EUO is condition precedent to
recovery under PIP policy, not condition subsequent to recovery
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- Medical
expenses -- CPT coding -- Insurer cannot deny payment for CPT code
recognizable under Medicare Part B fee schedule on grounds that
Medicare's National Correct Coding Initiative provides that code
cannot be billed on same day as another code billed by medical
provider where PIP statute forbids insurer from applying
utilization limits -- No merit to argument that NCCI is payment
limitation rather than utilization limitation
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- Medical
expenses -- CPT coding -- Insurer cannot deny payment for CPT code
recognizable under Medicare Part B fee schedule on grounds that
Medicare's National Correct Coding Initiative provides that code
cannot be billed on same day as another code billed by medical
provider where PIP statute forbids insurer from applying
utilization limits -- No merit to argument that NCCI is payment
limitation rather than utilization limitation
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- 2007 PIP
statute in effect at time policy was executed, which provides for
payment of 80% of reasonable charges, rather than 2008 PIP statute
in effect at time of treatment, which provides for payment of 80%
of 200% of Medicare Part B fee schedule, is applicable where
statutory change impairs vested rights
VIEW OPINION
Contracts -- Credit card agreement -- Default -- Vacation --
Default final judgment entered in action to collect credit card
debt is void where cardholder had due process right to, but did not
receive, notice of trial on unliquidated damages
VIEW OPINION
Insurance -- Standing -- Assignment -- Court will overlook clerical
error in name of medical provider/assignee in assignment where
error does not go to substance of assignment -- Motion for summary
judgment regarding lack of standing is denied
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- Version of
PIP statute in effect at time PIP policy was executed, which
provided for payment of 80% of reasonable charges, rather than
version in effect at time of treatment, which provides for payment
of 80% of 200% of Medicare Part B fee schedule, is applicable where
statutory change is substantive, and statement in policy that
insurer “will pay in accordance with Florida Motor Vehicle
No-Fault Law, as amended” does not clearly and unambiguously
provide that insured has expressly consented to future statutory
changes -- Question certified
VIEW OPINION
Landlord-tenant -- Eviction -- Default -- Failure to deposit rent
into court registry operates as waiver of tenant's right to raise
defective notice or lack of notice in defense of eviction action --
Question certified
VIEW OPINION
Insurance -- Personal injury protection -- Discovery -- Depositions
-- Expert witness fee -- Insurer is not required to pay expert
witness fee to depose treating physician for purpose of discovering
course of treatment of insured or facts related to physician's
capacity as corporate representative
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- Policy
issued during statutory gap period -- Where PIP policy was executed
during statutory gap period when there was no PIP statute, policy
language requiring that insurer pay 80% of medical expenses
controls reimbursement -- 2008 amendment to PIP statute to provide
for payment of 200% of Medicare and/or workers' compensation fee
schedules cannot be applied retroactively to policy executed prior
to effective date of amendment where statutory change is
substantive, and policy does not clearly and unambiguously provide
that insured has expressly consented to incorporate future
statutory changes into policy
VIEW OPINION
Landlord-tenant -- Eviction -- Tenant's motion for rent
determination hearing is denied where tenant did not raise any
defense
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for giving less than three business
days to pay or vacate -- Due to fatally defective notice and
landlord's failure to terminate rental agreement prior to filing
eviction action, there was no requirement for tenant to deposit
rent into court registry -- Complaint dismissed without leave to
amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for giving less than three business
days to pay or vacate and for demanding payment or possession in
different city and county than leased premises without giving
additional five days for mailing rent or keys -- Successive notices
-- To extent letters sent to tenant prior to service of three-day
notice are also considered three-day notices, they are rendered
legal nullities by subsequent notice -- Further, letters are
defective for demanding payment of monies other than rent due by
demanding late fees and water charges, for not including address
for delivery of rent or keys, for failing to provide statutory
notice to pay or vacate and for being addressed to only one
co-tenant -- Due to fatally defective notice and landlord's failure
to terminate rental agreement prior to filing eviction action,
there was no requirement for tenant to deposit rent into court
registry -- Complaint dismissed without leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for giving less than three business
days to pay or vacate, for failing to include landlord's address,
telephone number and place where payment could be made or keys
delivered and for not indicating that it was served or when and how
it was served -- Due to fatally defective notice and landlord's
failure to terminate rental agreement prior to filing eviction
action, there was no requirement for tenant to deposit rent into
court registry -- Complaint dismissed without leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for giving less than three business
days to pay or vacate -- Due to fatally defective notice and
landlord's failure to terminate rental agreement prior to filing
eviction action, there was no requirement for tenant to deposit
rent into court registry -- Complaint dismissed without leave to
amend
VIEW OPINION
Attorney's fees -- Landlord-tenant -- Prevailing tenant
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for failing to include landlord's
address, telephone number and address where payment could be made
or keys delivered -- Further, where lease requires landlord to give
notice by mail, notice posted at property is of no legal effect and
is defective for failing to give additional five days for mailing
keys or rent to landlord -- Due to fatally defective notice and
landlord's failure to terminate rental agreement prior to filing
eviction action, court cannot require tenant to deposit rent into
court registry or enter default -- Complaint dismissed without
leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for not being dated, for not indicating
that it was served or when and how it was served, for not
accurately describing leased property and for demanding payment or
possession in different city and county than leased premises
without giving additional five days for mailing rent or keys --
Standing -- Landlord that is corporation may not represent self in
eviction action -- Complaint dismissed without leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for demanding monies other than and in
excess of rent owed by demanding deposit -- Due to fatally
defective notice and landlord's failure to terminate rental
agreement prior to filing eviction action, there was no requirement
for tenant to deposit rent into court registry -- Complaint
dismissed without leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for demanding late fee not yet due and
requiring that rent or keys be delivered to different city and
county than leased premises without giving additional five days for
mailing -- Complaint dismissed without leave to amend
VIEW OPINION
Landlord-tenant -- Eviction -- Notice -- Defects -- Three-day
notice is fatally defective for failing to include landlord's
address, telephone number and place where payment could be made or
keys delivered, for not indicating that it was served and when or
how it was served and for referencing inapplicable statute -- Due
to fatally defective notice and landlord's failure to terminate
rental agreement prior to filing eviction action, there was no
requirement for tenant to deposit rent into court registry --
Complaint dismissed without leave to amend
VIEW OPINION
Insurance -- Personal injury protection -- Coverage -- Medical
expenses incurred during statutory “gap period” --
Insurer correctly applied MRI fee schedule contained in 2007 PIP
statute, which was in effect at time policy was issued, to MRI
rendered during “gap period” created by sunsetting of
PIP statute -- Insurer has no legal duty to provide copy of PIP
policy and declarations page upon pre-suit demand of medical
provider/assignee -- Demand letter that demanded amount in excess
of statutory MRI fee schedule is invalid
VIEW OPINION
Landlord-tenant -- Eviction -- Complaint -- Eviction complaint to
which three-day notice is not attached does not state cause of
action -- Additionally, eviction complaint filed by corporation
representing self is legal nullity -- Complaint dismissed without
leave to amend
VIEW OPINION
Insurance -- Attorney's fees -- Justiciable issues -- Safe harbor
provision -- Sanction for insurer's failure to comply with 21-day
safe harbor provision of section 57.105 is denial of motion for
attorney's fees
VIEW OPINION
Judges -- Code of Judicial Conduct -- Judge married to public
defender may not preside over cases to which public defender is
assigned in juvenile and mental health divisions even if private
attorneys handle those cases under case-by-case contracts and
public defender does not exercise any supervisory authority over
those attorneys because, by law, public defender is ultimately
responsible for those cases and for employment of persons handling
those cases
VIEW OPINION
Judges -- Code of Judicial Conduct -- Judge may ethically allow
probationer to complete course sponsored by private for-profit
organization in exchange for waiving all or part of any community
service ordered as part of probationer's sentence, but judge should
be personally satisfied that program is well-run and truly serves
intended purpose
VIEW OPINION
Judges -- Code of Judicial Conduct -- Judge may retain attorney and
negotiate fee discount, so long as negotiated rate is based on
legitimate considerations other than fact that client is judge and
is not so low that it can reasonably be perceived as exploiting
judge's judicial position -- Judge is required to comply with
reporting requirements if discount is gift -- Judge may accept
reimbursement from former employer for attorney's fees incurred in
connection with former employment
VIEW OPINION