Tuesday, March 30, 2010

New flavors of the week

Rules of Civil Procedure -- Amendments -- General Rules of Pleading -- Verification of mortgage foreclosure complaints involving residential real property -- Forms -- Affidavit of diligent search and inquiry -- Final judgment of foreclosure -- Motion to cancel and reschedule foreclosure sale
Reported at 35 Fla. L. Weekly S97b

Civil procedure -- Relief from judgment -- Insurance -- Where plaintiff's complaint alleged that bouncers at defendant's bar and club assaulted and battered him, defendant's liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff's motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim -- Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel
Reported at 35 Fla. L. Weekly D342a

Contracts -- Home construction -- Retention of purchase deposit after buyer cancelled due to delay that was neither party's fault -- Consumer law -- Section 501.1375, which requires a building contractor or developer to hold certain deposits of a prospective buyer of a one- or two-family residential dwelling unit in an escrow account unless the buyer waives the escrow requirements in writing, does not apply to general contractor who contracts to build single-family residence upon land owned by the consumer at the time the contract was signed
Reported at 35 Fla. L. Weekly D331a

Contracts -- Real property sale -- Specific performance -- Where purchasers brought action for specific performance of initial contract for sale of property, and court found that initial contract was superceded by subsequent contract in a novation, it was error for court to sua sponte amend pleadings to substitute later contract for contract specified in pleadings and to grant specific performance on the later contract without providing defendant opportunity to respond to the complaint as amended
Reported at 35 Fla. L. Weekly D320a

Contracts -- Real property sale -- Rescission of contract -- Violation of Interstate Land Sales Full Disclosure Act by failing to deliver copy of property report to purchaser before she signed purchase contract -- Exemptions -- Developer of residential community was exempted from ILSA's disclosure requirements because language in purchase and sale contract extending construction completion period for delays caused by specified events or “any other similar causes not within Seller's control” did not render developer's obligation to complete construction of residence within two years illusory
Reported at 35 Fla. L. Weekly D337c

Criminal law -- Conspiracy to commit home invasion robbery -- Jury instructions -- Uncharged act -- Where defendant was charged with conspiring with a named individual to commit crime of home invasion robbery, it was error to instruct jury that it could find defendant guilty if he conspired with the named individual “and/or another black male” -- It is fundamental error to instruct the jury that defendant may be convicted for uncharged acts
Reported at 35 Fla. L. Weekly D339b

Criminal law -- First degree murder -- Kidnapping -- Burglary of dwelling -- Aggravated stalking -- Argument -- Claim that prosecutor impermissibly shifted to defendant the burden of proving essential element of crime by misstating that if jury believed beyond a reasonable doubt that the victim was not dead, they should acquit defendant was not preserved for review by contemporaneous objection, and misstatement did not constitute fundamental error -- Misstatement occurred only once and was not intentional, and jury was repeatedly told that state had burden of proving that victim was dead
Reported at 35 Fla. L. Weekly D355b

Criminal law -- Jurors -- Peremptory challenge -- Gender discrimination -- State's explanation that it had a bad feeling about juror was not a valid gender-neutral explanation for strike of last male on panel -- Trial court erred in upholding strike based upon fact that state had struck an equal number of male and female jurors -- It is improper for court to consider overall makeup of jurors that have been seated in determining sufficiency of gender-neutral reason for peremptory strike -- Issue was properly preserved for appeal -- When court reconsidered defendant's objection to strike, it was not necessary for defendant to renew his objection
Reported at 35 Fla. L. Weekly D321a

Criminal law -- Murder -- Jury -- Questions -- Trial judge abused his discretion by responding to jury's question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses' testimony, ignoring the request of both the state and defense -- Conflict certified -- Trial judge's apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area -- Error was not harmless -- Evidence -- Confession -- State presented sufficient evidence to establish corpus delicti independently of defendant's confession
Reported at 35 Fla. L. Weekly D328a

Dissolution of marriage -- Child support -- Error to include in husband's income, for purpose of calculating child support, anticipated annual financial gifts which husband's mother had historically made to minor children for their education
Reported at 35 Fla. L. Weekly D327a

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Ineffectiveness of counsel -- No error in denying claim that trial counsel was ineffective for failing to object to several allegedly improper prosecutorial statements made during closing argument -- Prosecutor's comments were insufficient to undermine confidence in outcome as required under Strickland prejudice standard -- No error in denying relief on claim that post conviction judge erred by not allowing defendant's expert to testify to prevailing norms of effective representation in capital cases relevant to defendant's proceeding -- No merit to claim that counsel was deficient in failing to timely discover and introduce testimony of witness that allegedly would have testified that defendant confided to him that defendant had been sexually abused as child, and that this testimony would have refuted claim that defendant recently fabricated his claims of abuse -- No error in denying claim of ineffectiveness in failing to convey negative impact on possible mitigation which resulted from plea agreement retraction and for failing to seek enforcement of plea offer -- By failing to demonstrate that additional witnesses would have testified and what those witnesses would have said, failing to explain how that testimony would improve on testimony that was given in case, and failing to explain how additional testimony would interact with other evidence and circumstances of case, defendant failed to establish that he suffered prejudice from counsel's alleged deficiencies -- Ring v. Arizona claim is procedurally barred as it was raised and rejected on direct appeal, and even if claim were not barred, it is rejected
Reported at 35 Fla. L. Weekly S106a

Criminal law -- Murder -- Death penalty -- Identification -- No error in denying motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel -- Because photographic and live lineups occurred before any charges were filed against defendant, they were not critical stages of proceedings and did not trigger right to counsel -- Counsel -- Trial court made sufficient inquiry into defendant's complaint that counsel had been given names of alibi witnesses but had never spoken with these witnesses -- Defense counsel adequately explained her investigator's discussions with the alibi witnesses and her decision not to pursue their use as witnesses -- No error occurred in allowing defense counsel to respond to this issue in camera, out of earshot of defendant and state -- Sentencing -- No error in instructing jury on avoid arrest aggravator where state presented competent substantial evidence to support the aggravator, notwithstanding fact that trial court ultimately declined to find this aggravating circumstance -- Death penalty was proportionate -- Evidence was sufficient to support convictions
Reported at 35 Fla. L. Weekly S108a

Dissolution of marriage -- Trial court erred in denying wife's motion to enforce parties' consent final judgment -- Property settlement agreement that has been incorporated into final judgment of dissolution is non-modifiable, regardless of either party's financial position -- Where final judgment did not contain a reservation of jurisdiction, trial court lacked authority to change terms of contract parties had agreed to and the court had adopted -- Emails exchanged between parties' attorneys did not form a novation where there was no evidence that parties intended to form a new contract -- Where final judgment of dissolution provides for the transfer of assets, it is the responsibility of the spouse in possession of those assets to effectuate the transfer
Reported at 35 Fla. L. Weekly D340a

Insurance -- Subrogation -- Rental dwelling policy -- Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant's negligence caused the fire -- Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord's insurance policy and that insurer cannot seek subrogation against its own insured or co-insured -- In order to determine whether landlord's insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence -- Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant's liability for negligent acts
Reported at 35 Fla. L. Weekly D352a

Mortgage foreclosure -- Relief from judgment -- Trial court did not abuse discretion in denying motion to vacate default judgment and relief from final judgment of foreclosure -- Process server's affidavit of diligent search was facially sufficient to uphold service of process by publication -- There was sufficient competent evidence to conclude that diligent search was conducted to locate an address for defendant who resided at an undisclosed location in the Bahamas -- Foreclosure sale to bona fide purchaser cannot be set aside
Reported at 35 Fla. L. Weekly D348a

Torts -- Parochial high school was not liable for injuries suffered by student in automobile accident that occurred while student was driving automobile after consuming alcohol at an end-of-year party at a private residence -- Party at which student consumed alcohol was not a school sponsored or school related event -- Neither school principal's visit to private residence during party nor school's handbook regarding such parties created a duty on part of school pursuant to undertaker's doctrine -- Trial court erroneously struck defendant's affirmative alcohol or drug defense on the ground that the defense was not applicable because the student's parents, not the student, were the plaintiffs -- Trial court abused discretion in excluding records and testimony relating to student's treatment for alcohol abuse -- Judgment for plaintiffs reversed
Reported at 35 Fla. L. Weekly D344a

Torts -- Workers' compensation immunity -- Where defendant denied plaintiff's workers' compensation claim on the basis that plaintiff's condition was not the result of an injury by accident arising out of and in the course and scope of employment, defendant was estopped from raising workers' compensation exclusivity defense in plaintiff's negligence action -- Because defendant asserted irreconcilable positions as to whether plaintiff's injury occurred in the course and scope of his employment, trial court properly ruled that defendant was not entitled to workers' compensation exclusivity defense as a matter of law
Reported at 35 Fla. L. Weekly D342b

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