Contempt, limitation of actions, indemnity, and beef medallions with portobello mushroom-fresh rosemary sauce on a bed of cauliflower mash

Adoption -- Circuit court erred in entering order requiring adoption agency to conduct a diligent search for putative father of child placed with agency for adoption -- Adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date the mother signs her consent for adoption -- Agency is not required to conduct a diligent search for the putative father unless the mother has identified a potential father by the time she signs the consent for adoption -- Court's sua sponte questioning of mother as to identity of potential father five months after she had consented to termination of parental rights and adoption was a violation of mother's privacy rights

CHILDREN'S HOME SOCIETY OF FLORIDA, Appellant, v. V. D., IN RE: THE MATTER OF TERMINATION OF PARENTAL RIGHTS FOR THE PROPOSED ADOPTION OF A MINOR CHILD, Appellee. 1st District.

Appeals -- Belated appeal of order dismissing petition for writ of mandamus -- Court has no authority to grant belated appeal in civil proceeding

MORRIS FAIN, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent. 1st District.

Civil procedure -- Relief from judgment -- Motion for relief from judgment on basis of fraud, misrepresentation, or other misconduct was untimely where it was brought more than one year after entry of judgment -- Motion for relief from judgment on basis that judgment was void fails where judgment was not void -- So long as court has jurisdiction over the subject matter and over defendant, a procedural defect occurring before entry of judgment does not render the judgment void

LIDIA E. CONTRERAS, Appellant, vs. NELSON E. MENDEZ, Appellee. 3rd District.

Civil procedure -- Summary judgment -- Notice of summary judgment evidence on which adverse party intends to rely -- Trial court properly interpreted rule 1.510 as requiring adverse party to file notice in response to a motion for summary judgment even if the evidence upon which it seeks to rely is already in the record -- Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonable, related and necessary treatment -- Trial court did not err in finding that insurer did not satisfy rule 1.510(c) by filing, during discovery, a doctor's affidavit stating affiant's conclusion that portions of treatment were not reasonable, related, or medically necessary, which was accompanied by notice stating insurer's intent to rely upon the affidavit “for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code” -- Circuit court acting in its appellate capacity did not depart from essential requirements of law by affirming county court ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FIGLER FAMILY CHIROPRACTIC, P.A., A/A/O LINDA MANNERS, Respondent. 4th District.

Contracts -- Asset purchase agreement -- Sale of insurance agency -- Unjust enrichment -- Conversion -- Trial court should have directed verdict on seller's claim for unjust enrichment against buyers where there was express agreement between seller and buyers -- Individual defendant could not be held personally liable for breach of agreement by buyers' agency where evidence did not establish that she personally benefitted beyond the amount awarded for buyers' agency's breach of contract or that she benefitted separate and apart from the agency -- Trial court should have granted defendants' motion for judgment notwithstanding verdict on conversion claim where jury awarded finite amount of damages for defendants' breach of contract, and there was no evidence that seller sustained any additional damages as result of conversion of other assets

VALERIE FULTON, FULTON INSURANCE AGENCY, INC., and DEAN C. FULTON, Appellants, v. JUDITH BRANCATO, Appellee. 4th District.

Contracts -- Settlement agreement -- Where, in plaintiff's action against bank for breach of employment agreement, fraud, negligent misrepresentation, and declaratory and injunctive relief, parties reached settlement agreement for certain payments to be made to plaintiff, with proposed payments to be submitted to federal regulatory entities for approval of payment terms within six months, the payment terms of the agreement were not enforceable when regulatory approval was not received within six months -- Trial court erred in granting defendants' motion to enforce settlement agreement upon finding that the six-month period in the agreement referred to a period of non-litigation rather than an expiration date of the agreement

DANIEL T. HESTER, an individual, Appellant, v. FLORIDA CAPITAL GROUP, INC., a Florida corporation; CHARLES E. HUGHES, an individual; and J. MALCOLM JONES, JR., an individual, Appellees. 2nd District.

Creditors' rights -- Fraudulent transfers -- Limitation of actions -- For purpose of Florida Uniform Fraudulent Transfer Act's provision that a claim of fraudulent transfer is extinguished unless brought within 4 years after the transfer was made or, if later, within 1 year after the transfer was or could reasonably have been discovered, the one-year savings clause is triggered by a creditor's discovery of the transfer rather than by the creditor's discovery of the facts showing the transfer to have been fraudulent -- Statute is a statute of repose which is not subject to an assertion of equitable estoppel

NATIONAL AUTO SERVICE CENTERS, INC., a Florida corporation; NATIONAL AUTO PROPERTIES, INC., a Florida corporation; LEONARD D. LEVIN, individually; CAROL LEVIN, individually; DURANT HOLDINGS, LLC; and BEDFORD INVESTMENTS, LLC, Appellants, v. F/R 550, LLC, a Florida limited liability company; and F/R 3329, LLC, a Florida limited liability company, Appellees. 2nd District.

Criminal law -- Contempt -- Jurors -- Competent substantial evidence supports convictions for contempt by juror who, during voir dire, concealed and failed to disclose his ex-wife's DUI arrest and, against the instructions of the trial court that jurors not conduct their own investigations, conducted a drinking experiment on himself to test the impairment effects of alcohol

DENNIS DeMARTIN, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Discovery -- Appeals -- Certiorari -- Where defense had issued subpoenas duces tecum to various third parties without permission of trial court and without notifying state of its intent to issue the subpoenas, and state, upon discovering that the subpoenas had been issued, filed a motion to compel production of all evidence produced pursuant to the illegal subpoenas, state is not entitled to writ of certiorari to have appellate court quash trial court order finding that state was not entitled to copies of all documents provided pursuant to the subpoenas, but only to those documents which were intended to be used at any hearing or trial -- State is not entitled to issuance of writ of certiorari because state has failed to demonstrate irreparable harm

THE STATE OF FLORIDA, Petitioner, vs. WESLEY FOLEY, Respondent. 3rd District.

Criminal law -- First degree murder -- Evidence -- Hearsay -- Trial court erred when it admitted into evidence an audio recording of statement made to police by person who implicated defendant in crime -- Admission of testimony violated right to confrontation of witnesses where statement was testimonial in nature and witness was not available or subject to prior cross-examination -- Trial court was within its discretion in finding that witness's refusal to testify rendered him an unavailable witness -- Fact that defendant had opportunity to cross-examine witness during pretrial discovery deposition does not satisfy cross-examination requirement of Crawford v. Washington -- Error not harmless

HECTOR JOSUE VAZQUEZ PADILLA, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Meritless pro se filings -- Clerk of Court directed to reject any future pleadings or other requests for relief submitted by defendant unless such filings are signed by a member in good standing of The Florida Bar -- Clerk of Court directed to forward certified copy of opinion to Department of Corrections institution or facility where defendant is incarcerated

OTIS D. BLAXTON, Petitioner, vs. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Dissolution of marriage -- Child custody -- Although trial court's factual findings supported provision that husband would have sole parental responsibility for decisions relating to children's education and medical care, final judgment failed to include specific finding that shared parental responsibility would be detrimental to children

DENISE COLLINS, Appellant, v. DWAYNE COLLINS, SR., Appellee. 5th District.

Dissolution of marriage -- Child support -- Trial court erred in ordering that parties be equally responsible for payment of all non-covered medical expenses for children where this allocation conflicts with allocation of parties' relative financial responsibility for child support -- As general rule, if non-covered medical expenses are ordered to be separately paid, absent some logically established rationale in the final judgment to the contrary, they must be allocated in the same percentage as the child support allocation

KELLY M. DEMMI, Former Wife, Appellant, v. MARK S. DEMMI, Former Husband, Appellee. 1st District.

Dissolution of marriage -- Equitable distribution -- Marital/non-marital assets -- Prenuptial agreement -- Error to include as marital asset in equitable distribution scheme the portion of value of former husband's premarital home attributable to appreciation and contribution of marital funds to pay down home equity line of credit and mortgage where prenuptial agreement provided that husband would be entitled to any and all equity in premarital home and that wife would not be entitled to any interest in home unless granted such interest in a formal written instrument -- Child custody -- Parenting plan -- Error to fail to incorporate into amended final judgment the amended parenting plan that trial court ordered on rehearing from original final judgment -- Interrelated issue of attorney's fees may be revisited on remand

ANTHONY FELICE, Appellant, v. MELISSA FELICE, Appellee. 2nd District.

Dissolution of marriage -- Modification of parenting plan -- Service of process -- Error to deny motion to quash service of process and to set aside order granting former wife's motion to modify timesharing and child support on the basis that former husband's counsel's general appearance constituted a waiver of service -- Attorney's filing of general notice of appearance in order to conduct a review of trial court files in case did not constitute a waiver of service of process -- An after-the-fact general appearance does not waive a defect in the service of process related to a supplemental modification petition

MANUEL E. SALINAS, Appellant, vs. KRISTIN N. PASCARIELLO, Appellee. 3rd District.

Employer-employee relations -- Civil rights -- Claims alleging wrongful retaliatory termination of employment under Florida Whistleblower Act and Florida Civil Rights Act -- Trial court properly entered summary judgment for defendant upon determining that plaintiff cannot establish that the grounds for his termination were causally linked to protected activity, and that employer evidenced a pretextual reason for his termination

ELADIO GONZALEZ, Appellant, vs. NORTHWINGS ACCESSORIES CORP., etc., Appellee. 3rd District.

Injunctions -- Dating violence -- Error to enter injunction against dating violence where there was insufficient evidence of reasonable cause to believe that petitioner was in imminent danger of another act of dating violence

VICTOR NUILA, Appellant, v. CRYSTAL STOLP, Appellee. 5th District.

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Statutory fee schedules -- Clear and unambiguous notice to insured of insurer's intent to determine reasonableness by reference to Medicare fee schedules -- Language of policy endorsement stating that amounts payable “shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise contained in the law, including but not limited to, all fee schedules” gave insureds and their respective medical care providers legally sufficient notice of insured's election to use Medicare fee schedules

ALLSTATE INDEMNITY COMPANY, Appellant, v. MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC, as assignee of Ilene Chavez, Appellee. 2nd District.

Insurance -- Sinkhole claims -- Multi-building condominium property -- Insured prevailing in action against insurer -- Costs -- Trial court abused its discretion in including reimbursement for public adjuster and property management fees in taxable costs, as property management fees and public adjuster fees were not litigation costs -- Trial court erred in awarding as taxable cost various expenses and fees incurred in appraisal process where policy required insured to pay its own appraiser and bear equal share of umpire and other appraisal expenses -- Attorney's fees -- Multiplier -- Error to apply contingency risk multiplier where fee agreement guaranteed payment at a lesser hourly rate, which mitigated the risk of nonpayment, and evidence showed that attorney had been paid under the contract -- Trial court erred by limiting recovery of attorney's fees and prejudgment interest to only one building where suit encompassed other buildings in condominium complex

CITIZENS PROPERTY INSURANCE CORP., Appellant/Cross-Appellee, v. RIVER OAKS CONDOMINIUM II ASSOCIATION, INC., a/k/a RIVER OAKS II CONDO ASSOCIATION, INC., Appellee/Cross-Appellant. 2nd District.

Torts -- Indemnity -- Indemnity provision in agreement between automobile distributor and carrier of automobiles, which included the words “in whole or in part,” did not contain clear and unequivocal terms providing that carrier would indemnify distributor for distributor's own acts of negligence where parties were held jointly liable for the underlying personal injury -- Trial court erred in granting summary judgment finding that language in agreement was sufficiently unequivocal to require carrier to indemnify distributor for distributor's own negligence

ATC LOGISTICS CORPORATION, A/K/A ATC LOGISTICS, INC., Appellant, v. SOUTHEAST TOYOTA DISTRIBUTORS, LLC, et al. Appellees. 1st District.

Wrongful death -- Medical malpractice -- Limitation of actions -- No error in dismissing complaint as time-barred where plaintiff alleged in her presuit notice of intent to initiate litigation that the family and estate of decedent discovered defendants' negligence on the date of decedent's death, a date which was more than two years prior to date complaint was filed -- Plaintiff was bound by statement in notice of intent -- No merit to plaintiff's contention that complaint was timely filed because she not only served her first notice of intent one day prior to expiration of limitations period, but also petitioned for extensions of the limitations period -- Ninety-day period during which statute of limitations is tolled following service of notice of intent commences on date notice is received, rather than date notice is mailed -- Because none of defendants received notice of intent until after statute of limitations expired, plaintiff could not revive it by filing petition for extension of limitations period

GINA MARIE BOVE, as Personal Representative of the Estate of Anthony Bove, deceased, Appellant, v. NAPLES HMA, LLC, d/b/a PHYSICIANS REGIONAL MEDICAL CENTER-PINE RI

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Bodily Injury: COURT FINDS NO BODILY INJURY IN DEAD-BODIES CASE, Owners Ins. Co. v. Warren Funeral Chapel, 21 No. 41 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage July 22, 2011

A funeral home's insurer owed no coverage against allegations that the home caused emotional distress when it mishandled and improperly disposed of bodies because the discovery occurred months after its policy was canceled, a federal judge in Missouri has ruled. U.S. District Judge Nanette K. Laughrey of the Western District of Missouri noted that Owners Insurance Co.'s policy with Warren Funeral Chapel Inc. covered emotional distress under its definition of bodily injury.  

Child custody -- Parenting plan -- Time-sharing -- Evidence was insufficient to support trial court's finding that annual rotating time-sharing plan was in best interest of school-age child whose parents lived more than 300 miles apart -- Due process -- Moreover, trial court could not order annual, rotating time-sharing plan where neither parent requested such a plan in pleadings or argued for plan at final hearing

Reported at 36 Fla. L. Weekly D1699a

Civil rights -- Search and seizure -- Excessive force -- Male partygoer who was tased during tense incident outside of club prior to his arrest for disorderly conduct and resisting arrest without force and female partygoer who was knocked to the ground and knocked unconscious during incident, filed complaint against local police officers alleging multiple claims, including excessive force, and officers moved for summary judgment based on qualified immunity -- District court did not abuse discretion by considering plaintiffs' statement of material facts submitted with their brief opposing summary judgment, which did not comply with the letter of the local rule -- District court did not abuse discretion in considering depositions filed four days after filing deadline -- District court erred by denying qualified immunity to officer with respect to female plaintiff's excessive force claim because officer's taser report indicated that he applied contact tase to plaintiff, where plaintiff never based her excessive force claim on officer's contact tase, and district court should not have constructed theory of liability on plaintiff's behalf from facts that plaintiff never alleged -- A district court may look at all evidence in record to determine whether issue of material fact exists regarding the plaintiff's asserted causes of actions, but may not act as a plaintiff's lawyer and construct party's theory of liability from facts never alleged, alluded to, or mentioned during the litigation -- Officers, who fired taser probes into male plaintiff's chest and applied contact taser to back of his neck, are not entitled to summary judgment based on qualified immunity where officers' use of taser was excessive and law was sufficiently clear to put officers on notice that their conduct violated plaintiff's Fourth Amendment rights -- Under facts viewed in light most favorable to male plaintiff, officers' use of taser was excessive where crime for which plaintiff was arrested was not serious, plaintiff clearly did not present threat to officer safety or to safety of anyone else, and plaintiff was not resisting arrest or attempting to escape -- Unprovoked force against non-hostile and non-violent suspect who has not disobeyed instructions violates suspect's rights under Fourth Amendment -- Under either of two methods for determining whether reasonable officer would know that his conduct is unconstitutional, defendant-officers should have known that their conduct violated Fourth Amendment rights of plaintiff who was tased even though he committed at most a minor offense, did not resist arrest, did not threaten anyone, and did not disobey any instructions -- Officer, who tackled female plaintiff to ground after observing plaintiff screaming and stepping toward back of officer who was firing his taser at another partygoer, was entitled to qualified immunity where officer could have reasonably believed that plaintiff was about to attack officer from behind

Reported at 23 Fla. L. Weekly Fed. C176a

Police Misconduct (Expert Testimony): EX-L.A. COP CAN TESTIFY FOR CHICAGO POLICE-ASSAULT VICTIM, Obrycka v. City of Chicago, 8 No. 8 Westlaw Journal Expert and Scientific Evidence 1, Westlaw Journal Expert and Scientific Evidence July 20, 2011

An Illinois federal judge has ruled that a former member of the Los Angeles Police Department can testify on behalf of a bartender allegedly beaten by a Chicago officer when she refused to serve him more alcohol. Plaintiff Karolina Obrycka retained Lou Reiter as an expert witness to testify on an alleged "code of silence" within the Chicago's police department.In a July 5 ruling U.S. District Judge Amy St. Eve of the Northern District of Illinois rejected the city's argument otherwise.

Condominiums -- Assessment liens -- Trial court properly entered summary judgment for condominium association in its action to foreclose assessment lien where special assessment was passed in manner required by commercial condominium's bylaws and was for purpose of maintenance and repair of common elements, and there was no factual issue as to the validity of the assessment -- Unit owner's allegation of breach of fiduciary duty by association was not a valid defense to or avoidance of obligation to pay assessment lien -- Trial court properly severed lien foreclosure complaint from breach of fiduciary duty counterclaim, as facts giving rise to claims are not inextricably interwoven

Reported at 36 Fla. L. Weekly D1677b

Contracts -- Sale of hotel -- Directed verdict -- Trial court erred in granting directed verdict for plaintiff seller after plaintiff rested and prior to defendant having an opportunity to present any evidence -- Because defendant was not given any opportunity to call witnesses or to present any evidence regarding claim of fraudulent inducement, defendant was effectively denied due process

Reported at 36 Fla. L. Weekly D1676a

Life Insurance: WELLS FARGO'S 'STOLI' COUNTERSUIT PROCEEDS AGAINST INSURER, Pruco Life Ins. Co. v. Brasner, 21 No. 41 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 22, 2011

Wells Fargo can press a countersuit for negligent misrepresentation against a life insurer that allegedly verified a $10 million "stranger-originated life insurance" policy as valid, a Florida federal judge has ruled. U.S. District Judge James I. Cohn of the Southern District of Florida rejected Pruco Life Insurance Co.'s argument that the "economic loss" rule barred a negligent-misrepresentation claim because Wells Fargo Bank N.A. only alleged economic harm.

Employee Theft: ONGOING THEFTS WORTH $1.5 MILLION NOT 'OCCURRENCE' UNDER POLICY, IFCO Sys. N. Am. v. Am. Home Assurance Co., 21 No. 41 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 22, 2011

An insurer had no duty to cover alleged ongoing thefts of goods totaling $1.5 million by its policyholder's employee as the thefts did not meet the policy's definition of an occurrence, a Maryland federal court judge has ruled. American Home Assurance Co.'s policy with IFCO Systems North America defined an occurrence as an unintentional act, U.S. District Judge William M. Nickerson of the District of Maryland said. He granted AHAC's summary judgment motion, finding the insurer owed no coverage.

Mortgage Investment: MORTGAGE FIRM'S POLICY MIGHT COVER INVESTMENT, COURT FINDS, Certain Underwriters at Lloyd's London v. Cal. Mortgage & Realty, 21 No. 41 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 22, 2011

An insurer may have a duty to defend a mortgage brokerage firm under its errors-and-omissions policy against lawsuits seeking the return of a combined $9 million in investment funds, a California federal judge has ruled. U.S. District Court Judge William Alsup of the Northern District of California said a policy by Certain Underwriters at Lloyd's London might cover California Mortgage & Realty's alleged negligence in remitting funds or servicing investments.

Bad Faith: ATTORNEY'S ADVICE SHIELDS INSURER FROM BAD-FAITH FINDING, Finger v. State Farm, 21 No. 41 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 22, 2011

State Farm did not act in bad faith when it denied coverage of a judgment for slander based on the advice of its attorney, an Alabama federal judge has ruled. U.S. District Judge Kristi K. DuBose of the Southern District of Alabama called the insurer's post-verdict coverage denial "unusual" but concluded its reliance "on an experienced and highly qualified attorney's contradictory but thoroughly analyzed opinion was in good faith."The judge nevertheless ordered State Farm Fire to pay policyholders.

Auto: INSURER CAN'T DENY COVERAGE BASED ON CDL REQUIREMENT, Devese v. Transguard Ins. Co., 21 No. 41 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 22, 2011

The estate of an unlicensed commercial truck driver killed in a collision can move forward with claims for breach of contract and bad faith where the policy's license requirement was overbroad and designed to dodge coverage, Nebraska's highest court has ruled. The state Supreme Court held in a written opinion that the insurer failed to show a causal link between the driver's failure to maintain a commercial driver's license and the accident.

Wrongful death -- Nursing homes -- Arbitration -- Power of attorney -- Nonfinal order compelling arbitration of claims reversed where deceased's power of attorney did not authorize surrogate to consent to arbitration -- The language of the POA supports no conclusion that deceased intended to authorize surrogate to act for deceased in matters related to property rights or potential litigation with health care providers where POA specifically listed powers that related to the direct provision of medical care and identified surrogate as a “health care surrogate,” and the third parties whom POA directed to accept surrogate's actions were all related to the provision of health care -- Particularly persuasive is fact that language of POA is strikingly similar to language in health care surrogate statute -- Reversed and remanded with instructions to deny motion to compel arbitration

Reported at 36 Fla. L. Weekly D1684a

Pain Patch: W.VA. HIGH COURT REVIVES SUIT OVER MYLAN PAIN PATCH OVERDOSE, Mace v. Mylan Pharm., 18 No. 11 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices July 18, 2011

A divided West Virginia Supreme Court of Appeals has restored a product liability suit filed against Mylan Pharmaceuticals by a man who says his wife died from an overdose of fentanyl that leaked from a pain patch. The high court, in a 2-1 decision, said a state circuit court judge erred when he dismissed the suit on forum non conveniens grounds without considering that the limitations period for the action in the other available forum, North Carolina, had expired.

Discovery: HOSPITAL INFECTION RATES NOT PRIVILEGED, ILLINOIS APPEALS COURT RULES, Zangara v. Advocate Christ Med. Ctr., 8 No. 8 Westlaw Journal Expert and Scientific Evidence 3, Westlaw Journal Expert and Scientific Evidence July 20, 2011

A Chicago-area hospital must disclose the number of its patients who contracted the deadly MRSA bacteria because the information is not protected by Illinois' peer-review privilege, a state appellate court has ruled. The 1st District Appellate Court reinstated lawsuits filed by Joseph Zangara and the family of Zigmund Dziamara, determining the plaintiffs had a legitimate reason for initially failing to attach affidavits of merit as required under state law.

Criminal law -- Search and seizure -- Vehicle -- Dog sniff -- Probable cause -- Trial court erred in determining that dog's alert on defendant's vehicle provided probable cause to search and in denying defendant's motion to suppress cocaine discovered in vehicle as a result of the search -- Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where dog's field performance records indicated that dog had conducted seventeen vehicle sniffs and alerted to the presence of drugs fourteen times, but drugs were found after only four of those alerts -- The fact that officer documented and explained some type of narcotics history associated with each vehicle to which dog alerted but in which no drugs were found was relevant to the issue of whether an alert was false or an alert to a residual odor; however, the officer's explanations were not specific enough to establish the existence of residual odors on which dog should have alerted -- Nine of the unverified alerts where officer testified that vehicle had drug history or that someone in each vehicle had used narcotics recently are not considered in calculating dog's field accuracy rate because officer's explanations failed to identify what the drug history entailed, why it ensured that drugs had once been in the vehicle, how long before the stop someone in the vehicle had used narcotics, or how residual of an odor dog could be expected to detect -- Even if final unverified alert where officer testified that he actually smelled marijuana in the vehicle was added to dog's positive alert calculation, dog's accuracy rate is still only thirty-six percent, which is insufficient to establish reliability -- Additionally, the state's failure to set forth the details of the dog's alert on defendant's vehicle makes it impossible to tell if dog alerted on residual odor or whether he alerted on the actual cocaine itself -- Therefore, under a totality of the circumstances analysis, the state failed to present sufficient evidence to establish probable cause to believe that contraband actually would be found in vehicle after dog's alert

Reported at 36 Fla. L. Weekly D1688a

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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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Chew on some interesting criminal law cases, last week of January 2009:

Criminal law -- Manslaughter -- Evidence -- Error to exclude evidence of victim's blood-alcohol level at time of affray in which defendant struck victim one time and victim fell where theory of defense was that victim was acting in an aggressive, threatening manner, under the influence of alcohol, and that defendant was only defending himself when he punched the victim a single time -- New trial required
Reported at 34 Fla. L. Weekly D223c

Criminal law -- Incest -- Defendant who had sexual intercourse with his 18-year-old adopted daughter and niece by his marriage to her biological mother's sister was erroneously convicted of incest because adopted daughter was not related to defendant by consanguinity -- Legal definition of incest is limited to persons who are related either by lineal consanguinity or collateral consanguinity -- It does not extend to persons who are related by affinity or adoption, but not biologically by blood
Reported at 34 Fla. L. Weekly D217a

Criminal law -- Murder -- Circumstantial evidence -- Trial court did not err in denying defendant's motion for judgment of acquittal where circumstantial evidence was sufficient for jury to exclude every reasonable hypothesis except for that of guilt -- No merit to defendant's claim that court's finding in penalty phase of trial that state failed to prove heinous, atrocious, or cruel aggravator applied to issue of whether evidence was sufficient to rebut defendant's hypothesis of innocence that someone else killed victim -- Penalty phase proceedings are distinct from guilt phase of murder trial, and court's findings regarding aggravators in penalty phase are not intended to override jury's verdict in guilt phase
Reported at 34 Fla. L. Weekly D213a

Criminal law -- Possession of cocaine, marijuana, and paraphernalia -- Search and seizure -- Vehicle stop -- Error to stop vehicle on ground that trailer hitch partially blocked tag and officers could not read letters on tag from distance of thirty to fifty feet -- Properly attached trailer hitch is not “other obscuring matter” for purposes of statute requiring that identifying information on plate be clear and distinct and free from defacement, mutilation, grease, and “other obscuring matter”
Reported at 34 Fla. L. Weekly D220a

Criminal law -- Habeas corpus -- State court reasonably applied Supreme Court precedent to facts of case in rejecting claim that certain jury instructions on accomplice liability used at petitioner's trial on murder and related charges were ambiguous and were likely misinterpreted by jury to relieve state of burden of proving every element of crime beyond a reasonable doubt -- Circuit court erred in granting habeas relief where state-court decision did not result in “unreasonable application of . . . clearly established Federal law”
Reported at 21 Fla. L. Weekly Fed. S602a

Criminal law -- Conspiracy to distribute cocaine base and powder cocaine -- Sentencing -- Federal guidelines -- Offense level -- Quantity of drugs -- Circuit court of appeals' order requiring petitioners' resentencing based on the district courts' categorical rejection of the 100:1 crack-to-powder cocaine ratio and substitution of its own 20:1 ratio conflicts with Kimbrough v. United States, which recognized district courts' authority to vary from the crack guidelines based solely on a policy disagreement, and not simply on individualized determination that guidelines yield excessive sentence in a particular case
Reported at 21 Fla. L. Weekly Fed. S596a

Civil rights -- Search and seizure -- Qualified immunity -- Under two-step procedure for resolving government officials' qualified immunity claims mandated by Court in Saucier v. Katz, court must decide whether facts alleged or shown by plaintiff make out violation of constitutional right and, if so, whether that right was “clearly established” at time of defendant's alleged misconduct -- Saucier procedure, although often beneficial, it should no longer be regarded as mandatory in all cases -- Law enforcement officers in this case, who conducted warrantless search of plaintiff's house incident to arrest for sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises, were entitled to qualified immunity on ground that it was not clearly established at the time of the search that their conduct was unconstitutional -- Officers relied on “consent-once-removed” doctrine, which permitted warrantless police entry into home when consent to enter had already been granted to undercover officer who observed contraband in plain view -- At time of entry, “consent-once-removed” doctrine had gained acceptance in lower courts and had been approved in some cases involving consensual entry by private citizens acting as informants, and officers were entitled to rely on those cases without facing personal liability for their actions even though their own federal circuit had not yet ruled on “consent-once-removed” entries
Reported at 21 Fla. L. Weekly Fed. S588a

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