Wrongful death, arbitration, juror challenges, dissolution of marriage, and grilled salmon with fresh ginger and wasabi

Appeals -- Second-tier certiorari review of circuit court appellate division order reversing hearing officer's determination that respondent was in violation of County Code -- Circuit court applied correct law in determining whether hearing officer's findings were supported by competent substantial evidence and in finding that hearing officer had denied respondent due process -- Circuit court improperly remanded case with instructions to dismiss citation -- Available remedy to circuit court in granting writ of certiorari was limited to quashing hearing officer's order, and nothing more. MIAMI-DADE COUNTY, Petitioner, v. SNAPP INDUSTRIES, INC., Respondent. 3rd District.

Civil procedure -- Amendment of answer -- Trial court abused discretion in denying defendant's ore tenus motion, made at summary judgment hearing, to amend answer to assert affirmative defense -- Defendant had not abused privilege to amend, plaintiff would not be prejudiced by amendment, and amendment would not be futile. MISHPAJA SHAJINE, INC., et al., Appellants, v. GRANADA INSURANCE COMPANY, et al., Appellees. 3rd District.

Civil procedure -- Discovery -- Business records -- Examination -- Transport of documents -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law by requiring party to transport original corporate documents from California to opposing counsel in Florida where opposing party did not identify any reason to do so. LE-1, a Florida Limited Liability Company d/b/a LE-1, a California Limited Partnership, Petitioner, v. WILLIAM B. TROWER, as Successor Personal Representative of the Estate of LINDA B. WEISHEIT, Respondent. 4th District.

Civil procedure -- Discovery -- Depositions -- Former opposing counsel in pending case -- Trial court properly quashed subpoena and issued protective order to prohibit defendant from taking deposition of plaintiff's former counsel where defendant failed to allege or establish that no other means existed to obtain information sought. CENTRAL CONCRETE SUPERMIX, INC., Petitioner, v. JOSE A. “PEPE” CANCIO, SR., Respondent. 3rd District.

Contracts -- Limitation of actions -- Action for breach of contract filed against estate of plaintiffs' deceased aunt and uncle alleging entitlement to “incentive money” which was initially supposed to be given to the plaintiffs for each year of college they completed pursuant to incentive program initiated by the deceased, but which was never distributed and which plaintiffs assumed was being kept under loan-back provision which stated that plaintiffs could loan the funds back to the deceased to accrue 10% interest, compounded monthly, that plaintiffs could then collect at their discretion -- No error in entering final summary judgment in favor of defendant estate -- For each installment of incentive money, the right to obtain it vested when each plaintiff completed a year of college, and thus the statute of limitations began to run when each installment was due -- Because plaintiffs did not bring action against estate until more than five years after they had each completed their last year of college, their actions were barred by the statute of limitations -- Court rejects argument that statute of limitations would begin to run only if plaintiffs' demands for payment were denied -- Lend-back provision of contract required plaintiffs to communicate their election of the provision to the deceased -- Because neither plaintiff communicated their election of the lend-back provision the provision was not invoked -- Even assuming lend-back provision had been triggered, contract ended one year after each plaintiff's respective graduation. JOHN P. WOODWARD, and ROBERT C. WOODWARD, Appellants, v. TIMOTHY J. MORELL, in his capacity as Personal Representative of THE ESTATE OF MILDRED W. OLSON, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Modification -- Change in circumstances -- Magistrate's report and recommendation -- Former husband's modification petition seeking change in parental responsibility and time-sharing based, in part, on incidents involving former wife and her boyfriend -- Evidence supported magistrate's finding that there had been a substantial change in circumstances based on former wife's behaviors, her relationship with her boyfriend, and removal of children from former wife's “temporary care” during a dependency case -- Evidence supported magistrate's conclusion that, while removal of children from former wife during dependency proceedings was temporary, a substantial change in circumstances had occurred based on former wife's volatile relationship with her boyfriend which continued beyond the conclusion of dependency proceedings -- Trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting wife's exceptions to magistrate's report on that basis -- Remand with directions to enter order adopting report and recommendations of magistrate. P.D.V-G., Appellant, v. B.A.V-G., Appellee. 2nd District.

Dissolution of marriage -- Injunctions -- Freezing accounts -- Trial court abused its discretion by exceeding the scope of wife's requested relief for a freeze of marital accounts when it ordered husband's individual bank accounts to be placed in both parties' names -- Issue was not tried by consent. AJAY KUMAR DODDAPANENI, Appellant, v. CANDACE ELAINE DODDAPANENI, Appellee. 5th District.

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. ROSEMITA JEAN, Appellant, v. JOSUE JEAN, Appellee. 2nd District.

Insurance -- Coverage -- Venue -- Forum selection clause -- Ambiguity -- Trial court erred in transferring action to Miami-Dade County where automobile insurer has its headquarters based on determination that policy's forum selection clause, which stated that any legal action against insurer to determine coverage under the policy “shall be filed and maintained in the county where the policy was issued,” mandated exclusive venue in that county -- Forum selection clause in policy is reasonably interpreted as not restricting venue to Miami-Dade County where policy failed to define “issued” and contained no terms expressly mandating venue exclusively in Miami-Dade County. THOMAS ROBLES, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. 1st District.

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. EXPRESS DAMAGE RESTORATION, LLC, etc., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

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. PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. ALEJANDRO AMARO, Appellee. 3rd District.

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. WELLS FARGO BANK, N.A., Appellant, v. CHI PENG TAN, BANK OF AMERICA, N.A., as assignee of FIRST MAGNUS FINANCIAL CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Acting solely as Nominee for FIRST MAGNUS FINANCIAL CORPORATION, an Arizona Corporation, SCHINDLER ELEVATOR CORPORATION, SOUTHERN CONSTRUCTION SERVICES, INC., PRECISION U.S.A., INC., PARK TOWER ASSOCIATION, INC., NISSIM SHANI and MICHELE SHANI, Appellees. 4th District.

Torts -- Automobile accident -- Comparative negligence -- Summary judgment -- Appeals -- Mootness -- Action brought against plaintiffs' insurer to recover damages stemming from two separate rear-end collisions involving plaintiffs within a two-week period -- Argument that trial court erred by not granting plaintiffs' motion for summary judgment on issues of liability and plaintiff driver's comparative negligence in causing the accidents is moot where issues were tried before a jury, and evidence authorized jury's verdict -- Argument that evidence was insufficient to allow jury to apportion negligence to plaintiff driver for failing to mitigate his business losses and his pain was not preserved for appeal where plaintiffs failed to move for a directed verdict on issue at close of evidence at trial -- Even if trial court improperly allowed mitigation factors to enter comparative negligence equation, result appears to be harmless where jury's apportionment of negligence to plaintiff driver can be attributed to evidence that plaintiff driver helped cause rear-end collisions by driving forward then suddenly stopping his vehicle. ROY STRICKLAND and KATHRYN STRICKLAND, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. 1st District.

Torts -- Automobile accident -- Rear end collision -- Successor judge who did not preside over trial erred in granting directed verdict in favor of defendant where there was competent substantial evidence to support jury's verdict that defendant was negligent and to support jury's rejection of defendant's defense that he unexpectedly lost consciousness or experienced syncope prior to collision. KAREN HERNANDEZ, etc., Appellants, v. SHULI ANDREW MISHALI, Appellee. 3rd District.

Torts -- Discovery -- Plaintiff failed to meet his burden to establish reversible error in trial court's order granting defendant's motion for protective order and denying plaintiff's motion to compel depositions where plaintiff has failed to provide transcript of hearing during which discovery motions were discussed -- Summary judgment -- Claim that trial court erred in denying plaintiff's motion to continue summary judgment hearing was not preserved for appellate review where plaintiff never obtained an order denying his motion to continue hearing. HENRY TIEN, Appellant, v. AKERMAN LLP (and the terminated AKERMAN, SENTERFITT & EIDSON, P.A.), Appellees. 3rd District.

Torts -- False arrest -- Municipal corporations -- Trial court properly entered summary judgment for defendant city on claim of false arrest where city police officers had probable cause to arrest plaintiff for obstruction without violence -- Where plaintiff had been called by police to pick up her son who was being detained for trespassing at a theater, after arriving at scene plaintiff continued to videotape and audiotape officers after being told to stop and obstructed officers' investigation and processing of her son's detention, there was probable cause for her arrest for obstruction without violence. SHARRON TASHA FORD, Appellant, v. CITY OF BOYNTON BEACH, a Florida municipal corporation, Appellee. 4th District.

Torts -- Jurors -- Challenge -- Trial court erred in denying plaintiff's motion to excuse prospective juror who specifically stated that his previous negative experience with a similar type of claim in an accident involving juror's son made it difficult for juror to remain impartial in his evaluation of facts and evidence in plaintiff's case -- Juror's later answer that he would keep an open mind because “every case is different” was not sufficient to rehabilitate juror -- New trial required where plaintiff was forced to use peremptory challenge against this prospective juror and trial court later denied plaintiff's request for additional peremptory challenge of juror over whom plaintiff expressed concern. ALEJANDRA RIVAS, Appellant, v. ALICIA SANDOVAL, Appellee. 3rd District.

Torts -- Negligence -- Excessive use of force -- Duty of care -- Amendment of complaint -- Appeals -- Action alleging that detention officers used excessive force during incident in which plaintiff was restrained and seriously injured after inmate medical services failed to conduct a mental evaluation -- Trial court erred in dismissing negligence counts against sheriff -- Plaintiff alleged an independent, common law duty of reasonable care by sheriff and the detention officers charged with his supervision -- Although plaintiff's negligence count did reference sheriff's use of force policy which does not create an independent duty of care, plaintiff's complaint stated a cause of action against sheriff for negligently failing to fulfill its independent duty of care because the detention officers allegedly used excessive force -- Sovereign immunity does not bar action against sheriff where allegations appear to be regarding sheriff's negligence in performance of established duties and failure to follow the policies already established -- These are operational level activities for which sheriff is not immune from suit -- No error in dismissing negligence claims against inmate medical services which alleged that inmate medical services had breached duties imposed upon it through its contract with the sheriff -- Contract clearly provides that it creates no right or cause of action to a third party -- Plaintiff waived any claim that he was entitled to amend his complaint for a third time because he failed to request leave to amend before or after court dismissed the complaint. CHARLES WILLIAMS, Appellant, v. GREGORY TONY, as Sheriff of Broward County Florida, ARMOR CORRECTIONAL HEALTH SERVICES, INC., and WANDA LOWES, R.N., Appellees. 4th District.

Torts -- Product liability -- Restaurants -- Service of contaminated food -- Action alleging that raw oysters served by defendant was legal cause of plaintiff's Guillain-Barré Syndrome -- Trial court erred in granting defendant's posttrial motion for entry of judgment in accordance with defendant's motion for directed verdict, which had been filed in a prior trial that had resulted in a deadlocked jury, based on determination that plaintiff's expert's testimony was based on impermissible inference stacking -- Defendant was required to move for directed verdict during second trial where parties did not stipulate that defendant's motion for directed verdict made during the prior trial would carry over to the second trial -- Additionally, motion for directed verdict made in prior trial could not apply to second trial where inferences identified by defendant in its motion in limine, which served as the premise for the motion for directed verdict, were stipulated facts in second trial -- While the legal theory might have been the same, the evidence upon which it would have been based was different -- Even if trial court could have considered posttrial motion for judgment in accordance with the motion for directed verdict, the trial court misapplied law with regard to directed verdicts -- Trial court's findings improperly evaluated testimony in favor of the moving party rather than the nonmoving party, and either disregarded conflicts in the evidence or resolved them in favor of defendant -- There was no stacking of inferences in this case -- Singular inference made by plaintiff's expert was the ultimate conclusion that GI infection, the stipulated cause of which was defendant's defective food, caused plaintiff's GBS -- Because plaintiff's expert did not simply provide a summary conclusion without a factual basis, jury was entitled to determine that the defective food was the legal cause of plaintiff's GBS. ANGEL MARTINEZ and MARIA ELENA MARTINEZ, Appellants, v. LOBSTER HAVEN, LLC, Appellee. 2nd District.

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. THE ESTATE OF GRACE QUINN, by and through BARBARA ECK, Personal Representative, Petitioner, v. CCRC OPCO FREEDOM SQUARE LLC; BKD TWENTY-ONE MANAGEMENT; BROOKDALE SENIOR LIVING, INC.; and SHELLY CRADDOCK, ADMINISTRATOR, (AS TO THE INN AT FREEDOM SQUARE), Respondents. 2nd District.

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