Administrative Law
Appellate Law
Attorneys and Attorney's Fees Law
Business and Employment Law
Civil Procedure and Evidence Law
Collections Law
Constitutional Law
Consumer Protection Law
Estate Planning and Probate Law
Insurance Law
Real Property Law
Tort Law

This file was last updated September 14, 2002.

ADMINISTRATIVE LAW

State Retirement Commission's final order was not unenforceable even though rendered more than 600 days after hearing in violation of section 120.569(2)(l), which requires final orders be entered within 90 days.  Renick v. State Retirement Commission, 27 Fla. L. Weekly D1970 (Fla. 5th DCA August 30, 2002).

Whether adjacent landowners received notice of neighbors application to build a dock and ramp was a disputed factual issue that needs to be resolved at the administrative hearing.  Accardi v. Dept. of Environmental Protection, 27 Fla. L. Weekly D1943 (Fla. 4th DCA August 28, 2002).

A party's motion to disqualify the Secretary of Environmental Protection from issuing a final order because Secretary had made public comments in favor of the Administrative Law Judge's recommended findings on the day they were made should was facially sufficient and should have been granted.  Charlotte County v. IMC-Phosphates Co., 27 Fla. L. Weekly D1917 (Fla. 1st DCA August 22, 2002).

An association which is an adjacent landowner has standing to challenge a resolution amending a DRI project.   Edgewater Beachowners Ass'n., Inc. v. Walton County, 27 Fla. L. Weekly D1880 (Fla.  1st DCA August 22, 2002).

State employee is not entitled to credit for time working for The Florida Bar toward his retirement as The Florida Bar does not participate in, nor pay contributions to, the Florida Retirement System.  Boggs v. Dept. of Management Services, Division of Retirement, 27 Fla. L. Weekly D1848 (Fla. 1st DCA August 14, 2002).

Department of Health erred by rejecting Administrative Law Judge's findings that physician did not violate rules prohibiting delegation of professional responsibilities by having nurse sign written prescriptions.   Prusi v. Department of Health, 27 Fla. L. Weekly D1832 (Fla. 1st DCA August 12, 2002).

An optometrist's allowing a receptionist at a J.C. Penney Optical Center adjacent to his leased premises to make occasional appointments for him violated the rule prohibiting optometrists from suggesting they are affiliated with  a non-licensed entity.  Fowler v. Department of Health, Board of Optometry, 27 Fla. L.  Weekly D1735 (Fla. 1st DCA July 31, 2002).

Board erred by rejecting administrative law judge's recommendation that no fine be imposed as it did not state with particularity its reasons as required by section 120.57(1)(j).   Fowler v. Department of Health, Board of Optometry, 27 Fla. L.  Weekly D1735 (Fla. 1st DCA July 31, 2002).

Department of Business and Professional Regulation was entitled to suspend license of applicant who failed to disclose prior criminal convictions even though administrative law judge found there was no intent to deceive. Threnhauser v. Dept. of Business and Professional Regulation , 27 Fla. L. Weekly D1699 (Fla. 5th DCA July 26, 2002).

A lay person's letter stating she could prove where she was stating in response to notice seeking recoupment of AFDC benefits because of her failure to report her change of address was sufficient to put the Department of Children and Family Services that she was requesting a hearing even though the letter did not contain the words "request" or "hearing."   Kelly v. Florida Dept. of Children and Family Services, 27 Fla. L. Weekly D1619 (Fla. 3d DCA July 17, 2002).

Board of Medicine erred where it adopted the administrative law judge's findings but imposed a different penalty without citing to the record the specific reasons for its action.  Lusskin v. Dept. of Health, Board of Medicine , 27 Fla. L. Weekly D1546 (Fla. 4th DCA July 3, 2002). 

Board of Medicine erred by substituting its own expert opinion for that of the administrative law judge whose finding that a physician was not required to watch the loading of dye or the expulsion of air from the syringe during a ventriculogram as there was expert testimony that the physician met the standard of care.   Gross v. Dept. of Health, 27 Fla. L. Weekly D1492 (Fla. 5th DCA June 28, 2002). 

Although the Department of Environmental Protection was requred to grant a permit as it had failed to take any action within thirty days of when it received an application, it may impose conditions to protect the environment.   Tuten v. State of Florida, Dept. Environmental Protection , 27 Fla. L. Weekly D1150 (Fla. 4th DCA May 15, 2002). 

The Public Service Commission does not have rate structure jurisdiction over a rural electric cooperative's wholesale rate schedule established pursuant to contract.  Lee County Electric Cooperative, Inc. v. Jacobs, 27 Fla. L. Weekly S379 (Fla. May 2, 2002).

The NAACP and a couple of its representative members failed to produce competent substantial evidence would suffer a "real and sufficiently immediate injury in fact" to establish standing to challenge the Board of Regent's proposed rules prohibiting use of racial or gender set-asides, preference or quotas in the admissions process. NAACP, Inc. v. Florida Board of Regents, 27 Fla. L. Weekly D462 (Fla. 1st DCA Feb. 26, 2002).

  APPELLATE PROCEDURE
 

Florida's public policy of requring reciprocal fee awards in contract actions is not sufficiently strong enough to overcome choice of law provision in brokerage agreement.  Walls v. Quick & Reilly, Inc., 27 Fla. L. Weekly D1971 (Fla. 5th DCA August 30, 2002).  

Notice of appeal filed within thirty days of entry of corrective final judgment was dismissed as it was not timely with respect to original judgment that was final notwithstanding the fact it did not contain the words "for which let execution issue."   Friedman v. Friedman, 27 Fla. L. Weekly D1946 (Fla. 4th DCA August 28, 2002).

Party who waived statutory requirement that civil forfeiture be filed within forty-five days of seizure was not entitled to a writ of prohibition.  Ramos v. State, 27 Fla. L. Weekly D1935 (Fla. 3d DCA August 7, 2002).

Appellate division of circuit court erred by not following mandate in that it failed to determine whether there was competent substantial evidence county commission's decision and addressed matters that were not within the mandate.   Metropolitan Dade County v. Dusseau, 27 Fla. L. Weekly D1932 (Fla. 3d DCA August 28, 2002).

Rule 9.130(a)(3)(C)(vii) authorizing review of nonfinal orders concerning absolute or qualified immunity does not apply to claims of immunity under the Eleventh Amendment.   State Board of Education v. Azer, 27 Fla. L. Weekly D1932 (Fla. 1st DCA August 28, 2002).

The Florida Supreme Court amended the Rules of Appellate Procedure governing withdrawal of counsel in criminal cases, requiring appendices on briefs in cases invoking the Supreme Court's discretionary jurisdiction, and governing motions for rehearing in cases where no opinion was written.  Amendments to Florida Rules of Appellate Procedure, 27 Fla. L. Weekly S730 (Fla. August 29, 2002).

Petition for writ of prohibition was granted where Secretary of Environmental Protection refused to recuse himself from issuing a final administrative order in a case he publicly commented upon on the day the recommended order was rendered.   Charlotte County v. IMC-Phosphates Co., 27 Fla. L. Weekly D1917 (Fla. 1st DCA August 22, 2002).

As defense counsel did not object to "aggravation" instruction on ground aggravation of pre-existing injury was not specifically pled, the issue was not preserved for appellate review.   Goss v. Permenter, 27 Fla. L. Weekly D1911 (Fla. 5th DCA August 23, 2002).

District Court of Appeal denied petition for writ of mandamus seeking to compel clerk of circuit court and sheriff to act promptly on effectuating service of a civil complaint as it had been less than three weeks since petitioner had sent a letter to clerk seeking to resolve the matter and petitioner had not attempted to resolve the matter with the trial court.   Allen v. Young, 27 Fla. L. Weekly D1887 (Fla. 1st DCA August 20, 2002).

Hospitals are required to report every instance of brain damage to the Agency for Health Care Administration, even though it may not be permanent.  Florida Hospital v. State of Florida Agency for Health Care Administration, 27 Fla. L. Weekly D1885 (Fla. 1st DCA August 20, 2002).

Whether a party has standing is a pure question of law to be reviewed by de novo.   Edgewater Beachowners Ass'n., Inc. v. Walton County, 27 Fla. L. Weekly D1880 (Fla.  1st DCA August 22, 2002).

A discharge of a writ of certiorari as being improvidently granted does not constitute binding precedent.  Shaps v. Provident Life & Accident Ins. Co. , 27 Fla. L. Weekly S710 (Fla. August 29, 2002).

District Court of Appeal denied petition for writ of mandamus requesting court to reverse trial court's granting of untimely motion for recusal as motion was barely late and explanation was reasonable.  Ingram v. Coca Cola Enterprises, Inc., 27 Fla. L. Weekly D1870 (Fla. 5th DCA August 16, 2002).

Pursuant to Rule 9.315, District Court of Appeal summarily reversed final judgment which reserved jurisdiction to decide other counts and remanded to trial court to enter interlocutory order.   Molina v. Silver Pines Partners, Ltd., 27 Fla. L. Weekly D1835 (Fla. 3d DCA August 14, 2002).  

First District Court of Appeal denied petition to review non-final agency order requiring commission to pay cost of transcript where administrative law judge had entered a final order which was appealed to sister District Court of Appeal as commission could file a belated cross-appeal in that action.   Florida Fish & Wildlife Conservation Commission v. McGill, 27 Fla. L. Weekly D1800 (Fla.  1st DCA August 6, 2002).

Appointment of a co-personal representative is not an appealable order.   Garces v. Montano, 27 Fla. L. Weekly D1791 (Fla. 3d DCA August 7, 2002).

District Court of Appeal lacked jurisdiction to review an untimely appeal  of an order denying rehearing of a rehearing.  DeArdila v. Chase Manhattan Mortgage Corp., 27 Fla. L. Weekly D1789 (Fla. 3d DCA August 7, 2002).

 Party waived right to object that case was not at issue as no answer had been filed to counterclaim by not raising issue before trial.  Tower Group, Inc. v. Thyssen Elevator Co., 27 Fla. L. Weekly D1786 (Fla. 3d DCA August 7, 2002).

Trial court departed from essential requirements of law by deferring ruling on issue of whether a party was entitled to qualified immunity.  O'Brien v. Exposito , 27 Fla. L. Weekly D1787 (Fla. 3d DCA August 2, 2002).

Standard of review for summary judgments is de novo.  Scheibe v. Bank of America, N.A., 27 Fla. L. Weekly D1769 (Fla. 5th DCA August 2, 2002).

District Court of Appeal, pursuant to Rule 9.125, certified directly to the Florida Supreme Court the question of whether Chapter 2002-390, which requires proposed constitutional initiatives to have "an analysis and fiscal impact statement" is constitutional.  Harris v. Coalition to Reduce Class Size and Pre-K Committee , 27 Fla. L. Weekly D1685 (Fla. 1st DCA July 26, 2002).

Circuit court failed to observe essential requirements of by deferring to county court's determination that it had en personam jurisdiction instead of performing an independent analysis.  Ganiko v. Ganiko , 27 Fla. L. Weekly D1677 (Fla. 1st DCA July 23, 2002).

District Court of Appeal transferred to Florida Supreme Court appeal of trial court's "temporay" injunction enjoining enforcement of rule allowing eradication of canker infected trees, as it was final with respect to constitutionality of search and seizure issues and required immediate resolution by the Florida Supreme Court.  Florida Dept. of Agriculture and Consumer Services v. Haire,  27 Fla. L. Weekly D1583 (Fla. 4th DCA July 9, 2002).

As qualified and sovereign immunity protect government bodies and public officers from suit, a writ of certiorari should be granted where trial court denies motions for summary judgment.  Board of Regents v. Snyder, 27 Fla. L. Weekly D1634 (Fla. 2d DCA July 19, 2002).

Florida Supreme Court declined to accept jurisdiction of the citrus canker case, noting it could be appropriately handled by the District Court of Appeal.   Florida Dept. of Agriculture and Consumer Services v. Haire, 27 Fla. L. Weekly S683 (Fla. July 11, 2002).

Petition for mandamus in circuit court is appropriate method for reviewing clerk's refusal to respond to request for access to judicial records.   Itturaldes v. Gardner , 27 Fla. L. Weekly D1568 (Fla. 5th DCA uly 5, 2002).

De novo is the standard of review of Sunshine Law violation cases.   Bruckner v. City of Dania Beach , 27 Fla. L. Weekly D1550 (Fla. 4th DCA July 3, 2002).

Motion to amend order granting new trial on basis judge did not specify grounds fro granting motion did not toll the time for appealing the original order for new trial.  Tedder v. Visually Impaired Persons of Southwest Florida, Inc., 27 Fla. L. Weekly D1518 (Fla. 2d DCA June 28, 2002).

Motion for new trial filed on December 26 although ten days was on December 24, as Christmas Eve had been declared to be a legal holiday by a local administrative order issued by the Chief Judge of the Circuit.   R.J. Reynolds Tobacco Co. v. Kenyon, 27 Fla. L. Weekly D1513 (Fla. 2d DCA June 28, 2002).

Trial court erred in dismissing complaint for libel in its entirety where appellate court had previously ruled that at least one of the allegedly defamatory statements was  actionable.   Wilson v. News-Press Publishing Co., 27 Fla. L. Weekly D1511 (Fla. 2d DCA June 28, 2002). 

Order stating "Plaintiff's Second Amended Complaint shall be dismissed with prejudice and judgment in favor of defendant shall be entered" is a nonfinal, nonappealable order as it establishes entitlement to a judgment and does not actually enter or render a judgment.  Hoffman v. Hall, 27 Fla. L. Weekly D1468 (Fla. 1st DCA June 6, 2002)(Interestingly, the Court refused to relinquish jurisdiction to permit entry of a final order).

Lessee is not entitled to writ of mandamus against Sheriff who exercised his discretion in recovering furniture purportedly belonging to lessor.  Miller v. Bieluch, 27 Fla. L. Weekly D1450 (Fla. 4th DCA June 19,(2002). 

Dismissal of counts without prejudice is a nonfinal nonappealable order.   Figueredo v. Jenne, 27 Fla. L. Weekly D1383 (Fla. 4th DCA June 12, 2002). 

Mandamus is appropriate remedy to compel trial court to hold hearing on plaintiff's request to examine public records at the defendant's offices.   James v. Loxahatchee Groves Water Control District, 27 Fla. L. Weekly D1326 (Fla. 4th DCA June 5, 2002).

Law of the case does not result in a manifest injustice even though the law of the district has since changed.   Allstate Ins. Co. v. Perez, 27 Fla. L. Weekly D1191 (Fla. 3d DCA May 22, 2002).

An advisory council formed pursuant to section 228.58 is not a legal entity and therefore cannot pursue an appeal.  Berkley Elementary School Advisory Council v. School Board of Polk County , 27 Fla. L. Weekly D 1147 (Fla. 2d DCA May 17, 2002).

Appellate court did not have appellate jurisdiction to review non-final order denying Sheriff's 11th Amendment immunity claim, but granted certiorari as such denial  would cause irreparable injury.  Jenne v. Maranto , 27 Fla. L. Weekly D1094 (Fla. 4th DCA May 8, 2002).
 
Objection to some but not all allegedly improper closing arguments is sufficient to preserve issue on appeal. Garbutt v. LaFarnara, 27 Fla. L. Weekly D401 (Fla. 2d DCA Dec. 5, 2001).

Bank's filing petition to seek Supreme Court's discretionary review does not entitle it to a stay without posting bond under 12 U.S.C. section 91.  First Union National Bank v. Turney, 27 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 13, 2002).

The Supreme Court published its Manual of Internal Operating Procedures at 27 Fla. L. Weekly S150 (Fla. Jan. 31, 2002).  It is also posted it at its website 
  http://www/flcourts.org/sct//sctdocs/bin/ioprocedures.html.

Chiropractic physician was not entitled to appeal Board's decision to fine him as he had not filed exceptions to the Administrative Law Judge's recommended order.  Rubinstein v. Agency for Health Care Administration, 27 Fla. L. Weekly D339 (Fla. 3d DCA Feb. 6, 2002).

  ATTORNEYS AND ATTORNEY'S FEES

Administrative order capping court appointed attorney's fees in capital cases at $50 an hour is not confiscatory nor an infringement on defendant's right to competent counsel, approving Sheppard & White, P.A. v. City of Jacksonville, 751 So. 2d 731 (Fla. 1st DCA 2000) and quashing Charlotte County v. Shirley, 750 So. 2d 706 (Fla. 2d DCA 2000). Sheppard & White, P.A. v. City of Jacksonville, 27 Fla. L. Weekly S739 (Fla. Sept. 12, 2002).,

Attorney for personal representative cannot assert attorney-client privilege as an objection to being deposed where jury had found personal representative had breached her fiduciary duty and interfered with an inheritance.  Niles v. Mallardi, 27 Fla. L. Weekly D1997 (Fla. 4th DCA Sept. 4, 2002).

Defendant was entitled to attorney's fees under the reciprocity provision of section 57.105(5) where plaintiff voluntarily dismissed its case.  Ajax Paving Industries, Inc. v. Hardaway Co., 27 Fla. L. Weekly D1949 (Fla. 2d DCA
August 30, 2002).

In a dissenting opinion, Judge Cope explains that section 255.20(4), which authorizes attorney's fees, applies where the government has failed to use a competitive bidding procedure and does not apply to bid contests.  City of Sweetwater v. Solo Construction Corp., 27 Fla. L. Weekly D1879 (Fla. 3d DCA August 21, 2002).

Trial court abused its discretion in denying request for attorney's fees under 57.105 as defendants' objection to personal jurisdiction and submission of affidavits that they did not maintain business office in Florida, own real property in Florida, reside in Florida, pay taxes in Florida were bascially unresponsive to complaint's factual allegations concerning defendants using Florida professionals in procuring and developing Florida property.  Gahn v. Holiday Property Bond, Ltd., 27 Fla. L. Weekly D1822 (Fla. 2d DCA August 9, 2002).

Where PIP complaint requested attorney's fees, final judgment reserved jurisdicition on attorney's fees, and insurer waited until two years before objecting that request for fees did not specify statute, insurer was on notice of plaintiff's claim for attorney's fees and acquiesced to that claim.   Betancourt v. U.S. Security Ins. Co., Inc., 27 Fla. L. Weekly D1672 (Fla. 3d DCA July 24. 2002).

A plaintiff's communicating with two secretaries of a law firm in an attempt to retain counsel did not establish an attorney-client relationship and therefore is not a basis for seeking disqualfication of that firm.   Billings v. Martinez , 27 Fla. L. Weekly D1661 (Fla. 4th DCA July 17, 2002).

Section 768.28(5), which imposes a cap on attorney's fees to 25% judgment, applies to net judgment including costs and attorney's fees and is not limited only to damages awarded by jury. City of Jacksonville v. Brooks , 27 Fla. L. Weekly D1650 (Fla. 1st DCA July 16, 2002).

Motion for attorney's fees was untimely under new Rule 1.525 as it was filed more than thirty days after judgment was filed.  Ulico Casualty Co. v. Roger Kennedy Construction, Inc., 27 Fla. L. Weekly D1644 (Fla. 1st DCA July 19, 2002).

Party was entitled to attorney's fees under section 57.105 where opposing counsel filed post judgment motion based on allegations counsel was aware of months before trial.  Freedom Commerce Centre Venture v. Ranson , 27 Fla. L. Weekly D1640 (Fla. 1st DCA July 19, 2002).

Trial court erred in granting summary judgment in favor of attorney in malpractice and breach of fiduciary duty action where client accused attorney of failure to protect her interest in marital asset during the pendency of a dissolution proceeding even though client had stated in Florida Bar complaint that the losses sustained in a brokerage account were due to a rogue broker's actions.   Behr v. Foreman, 27 Fla. L. Weekly D1638 (Fla. 2d DCA July 19, 2002).

Attorney's fees incurred in dissolving a lis pendens are not an element of damages where a surety bond is not involved. Tampa 
Bay L.L.L.C. v. Lorello Cypress Family Limited Partnership, 27 Fla. L. Weekly D1632 (Fla. 2d DCA July 19, 2002).

Association was entitled to award of attorney's fees under declaration's provision that party enforcing restrictive covenant shall have right to recover attorney's fees and reciprocity provision of sectrion 57.105(5), where property owners voluntarily dismissed complaint.   Holiday Square Owners Association, Inc. v. Tsetsenis, 27 Fla. L. Weekly D1600 (Fla. 5th DCA July 12, 2002).

Trustee who filed interpleader in land sales commission dispute was not individually liable for attorney's fees to the prevailing party.   Jonathan D. Commander, P.A. v. 3 Bridges Realty, Inc., 27 Fla. L.Weekly D1588 (Fla. 4th DCA July 10, 2002).

Trial court erred in determining it was required to find there was a prevailing party in a breach of contract case.  Miller v. Jacobs & Goodman, P.A., 27 Fla. L. Weekly D1567 (Fla. 5th DCA July 5, 2002). 

A proposal for settlement stating defendant would pay plaintiff "TWO HUNDRED AND 00/100 DOLLARS ($1,000.00)," and that there were no non-monetary terms when there were conditions that the parties sign releases was ambiguous and therefore did not provide a basis for an attorney's fees award.   Jamieson v. Kurland, 27 Fla. L. Weekly D1511 (Fla. 2d DCA June 28, 2002).

Trial court properly dismissed a National Assocication of Securities Dealers, Inc.'s member's complaint seeking to enjoin arbitration of a dispute with a customer even thought there was no agreement to arbitrate such dispute as the NASD's Code of Arbitration Procedure provides arbitration will apply to its member's disputes with customers "arising in connection" with their business.   K.W. Brown Co. v. McCutchen , 27 Fla. L. Weekly D1476 (Fla. 4th DCA June 26, 2002). 

Joint proposal for settlement from two plaintiffs to one defendant did not support award for attorney's fees as it failed to apportion the damages between the plainitffs.  Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 27 Fla. L. Weekly D1469 (Fla. 1st DCA June 6, 2002).

Unlike slander of title, neither a declaratory judgment nor a quieting title action can be a basis for recovering attorney's fees as an element of damages.  Tyler v. Price, 27 Fla. L. Weekly D1461 (Fla. 4th DCA June 19, 2002).

Trial court properly denied request fees sought under section 57.111 as Department of Health, Board of Dentristy was substantially justified in bringing complaint and later dismissed it because two of its witnesses had died.  Fish v. Dept. of Health, Board of Dentistry, 27 Fla. L. Weekly D1451 (Fla. 4th DCA June 19, 2002).

Trial court erred in awarding fees to Defendant where plaintiff took a nonsuit once it realized its proof was lacking to enforce a noncompete agreement on principles of equity.  American General Life and Accident Ins. Co. v. Spurlock, 27 Fla. L.Weekly D1444 (Fla. 2d DCA June 21, 2002).

Department of Health was entitled to attorney's fees as trial court found that assessment of fees was appropriate, but was not entitled to coningency risk multiplier.   Discovery Experimental and Development, Inc. v. Dept. of Health , 27 Fla. L. Weekly D1395 (Fla. 2d DCA June 14, 2002).

Defendant who offered judgment for $16,501 was entitled to attorney's fees and costs where plaintiff obtained verdict for $54,000, but judgment was for zero dollars after being offset by comparative negligence and receipt of proceeds from sale of boat.  Anderson v. King , 27 Fla. L. Weekly D1394 (Fla 2d DCA June 14, 2002).

A contingency fee agreement stating that the attorney's fees would be no less than 40% of the amount received by the plaintiff does not place a cap on the amount the attorney could seek under section 559.77.  Salzgeber v. Kelly, 27 Fla. L. Weekly D1329 (Fla. 2d DCA June 5, 2002).

Language in order authorizing withdrawal that court was reserving jurisdiction to entertain a petition to establish and enforce a charging lien which plainitt's former attorney "may"  elect to file was sufficient timely notice to defendants. Heller v. Held, 27 Fla. L. Weekly D1323 (Fla. 4th DCA June 5, 2002).

Doctrine of election of remedies does not preclude attorney who has obtained a judgment against former client for fees from asserting a charging lien and obtaining a judgment against defendants who settled with his client after his withdrawal.  Heller v. Held, 27 Fla. L. Weekly D1323 (Fla. 4th DCA June 5, 2002).

The "equities" of the situation and the fact party is being indemnified are not factors to be considered in determining whether fees should be assessed pursuant to section 57.105.   O'Grady v. Potash , 27 Fla. L. Weekly D1310 (Fla. 3d DCA June 5, 2002).

Trial court's award of attorney's fees, expert witness fees and costs in eminent domain action reversed as 1) attorney's fees award included time spent on matters unrelated to condemnation proceeding, 2) time spent by expert witnesses at post-trial depositions should be allocated between time spent on entitlement and time spent on amount, and 3) general overhead expenses such as photocopying, postage, long-distance telephone calls, fax transmissions and delivery services should not be taxed as costs.   Seminole County v. Chandrinos , 27 Fla. L. Weekly D1278 (Fla. 5th DCA May 31, 2002).

Trial court's awarding attorney's fees under its inherent authority reversed as it had not made a specific finding of bad faith or follow the procedures recently implemented by the Supreme Court in Moakley v. Smallwood , 27 Fla. L. Weekly S357 (Fla. Feb. 28, 2002), granting rehearing of opinion reported at 27 Fla. L. Weekly D441.   North County Company, Inc. v. Bologna, 27 Fla. L. Weekly D1275 (Fla. 4th DCA May 29, 2002).

Attorney did no violate Disciplinary Rule 4-4.2, prohibiting communications with managerial employees of opposing party, and therefore should not be disqualified where he took statement of managerial employee of subsidiary company wholly owned by opposing party.  Allstate Ins. Co. v. Bowne, 27 Fla. L. Weekly D1267 (Fla.  4th DCA May 29, 2002).

 Trial court did not abuse its discretion in relying upon an expert witness's opinion on attorney's fees even though expert witness admitted he spent a scant three hours of preparation in forming his opinion and did not review the attorney's entire file.   Island Hoppers, Ltd. v. Keith , 27 Fla. L. Weekly D1257 (Fla. 4th DCA May 29, 2002). (There is interesting dicta concerning the need to even have an expert witness testify at attorney's fees hearings.)

Trial court may apply a contingency factor to a claim for attorney's fees under the offer of judgment statute, section 768.79, certifying conflict with Allstate Ins. Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th DCA 2001).  Island Hoppers, Ltd. v. Keith, 27 Fla. L. Weekly D1257 (Fla. 4th DCA May 29, 2002).

Trial court improperly ordered a fine and incarceration for an attorney for :stonewalling and stalling tactics" as the attorney had previously been fined for prior activities and could not be found in contempt because of his clients' failure to provide affidavits and tax documents.  Levey v. D'angelo , 27 Fla. L. Weekly D1255 (Fla. 4th DCA May 29, 2002).

Attorney for company that repossessed yacht was not liable to yacht brokers for commission as a result of his client's dealing directly with the yacht brokers' client as he was simply acting as an agent for a disclosed principal.   Richard Bertram, Inc. v. Sterling Bank & Trust , 27 Fla. L. Weekly D1202 (Fla. 4th DCA May 22, 2002).

Insurer was liable for attorney's fees as it did not preauthorize surgery for an injury within medical payments coverage.   State Farm Mutual Automobile Ins. co. v. Gueimunde , 27 Fla. L. Weekly D1188 (Fla. 3d DCA May 22, 2002).

In a wrongful death case, a defendant may make a proposal for settlement to the personal representative and is not required to apportion the offer among the various survivors.  Thompson v. Hodson,  27 Fla. L. Weekly D1042 (Fla. 1st DCA May 9, 2002).

Trial judge properly denied claim for attorney's fees based on contract as jury found against plaintiff on its breach of contract claim, but also found plaintiff was not liable to defendants on their two breach of contract claims. Lasco Enterprises, Inc. v. Kohlbrand, 27 Fla. L. Weekly D1003 (Fla. 5th DCA May 3, 2002).

Proposal to settle for "TWO HUNDRED AND 00/100 DOLLARS ($1,000.00)" did not properly state the total amount as required by Rule 1.442 and therefore did not justify award for attorney's fees.  Jamieson v. Kurland , 27 Fla. L. Weekly D955 (Fla. 2d DCA April 26, 2002).

Trial judge erred in awarding pre-judgment interest on attorney's fees award from date of summary judgment, where motion for fees was filed three years later and did not specify the amount being requested.    Aries Insurance Co. v. Aleman , 27 Fla. L. Weekly D920 (Fla. 3d DCA April 24, 2002).

 Judge must recuse herself where party is represented counsel who opposed judge in reelection.27 Fla. L. Weekly D254 (Fla. 3d DCA Jan. 16, 2002).
 

  BUSINESS AND EMPLOYMENT LAW

Statute authorizing denial of workers' compensation benefits because of employee's committing a fraudulent act is not a violation of the employee's constitutional rights to due process, jury trial and access to courts.  Medinal v. Gulf Coast Linen Services, 27 Fla. L. Weekly D2021 (Fla. 1st DCA Sept. 6, 2002).

A party's belief that it was contracting with a different company was not sufficient support of judge's finding there was no meeting of the minds and therefore no contract.  Governing Board of the St. Johns Water Management District v. Continental Aerial Surveys, Inc., 27 Fla. L. Weekly D2017 (Fla. 5th DCA Sept. 6, 2002).

Employee's testimony that at time of accident he was hauling construction and demolition materials was insufficient evidence to support judge's finding that employee was actively engaged in the construction industry.  Allied Trucking of Florida, Inc. v. Lanza, 27 Fla. L. Weekly D2003 (Fla. 1st DCA Sept. 3, 2002).

Judge of compensation claims erred in finding that employer was not required to have knowledge of employee's preexisting permanent impairment in order to make claim for reimbursement from the Special Disability Trust Fund.  Special Disability Trust Fund v. Brevard County Board of County Commissioners, 27 Fla. L. Weekly D1999 (Fla. 1st DCA Sept. 3, 2002).

Party suing on lost or destroyed promissory note need only aver promissory note was lost or destroyed and does not have to explain how.  Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002).

Party suing on lost or destroyed promissory note was not required to be in possession when loss occurred. Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002).

Trial court erred in finding lack of consideration where guarantor executed promissory note to replace earlier note that had been discharged by the primary obligor's bankruptcy.   Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002).

Assignment of promissory note was effective regardless of whether it was made before or after promissory note was lost or destroyed.   Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002).

Provision in employment agreement that parties agree to submit to the venue and jurisdiction of the state and federal courts in Orange County was not a waiver of the employees rights to have the dispute submitted to arbitration pursuant to the rules of the National Association of Securties Dealers.   Qadri v. PointDirex, LLC., 27 Fla. L. Weekly D1913 (Fla. 5th DCA August 23, 2002).

Trial judge erred in ruling that contract was ambiguous and finding seller was responsible for paying sales tax where contract specifically stated buyer was responsible for all taxes and court's interpretation would have rendered contract illegal under section 212.07(4).  Starlite Diners, Inc. v. Oswalt, 27 Fla. L. Weekly D1866 (Fla. 5th DCA August 16, 2002).

Employee whose leg was amputated below the knee was entitled to both PTD benefits for catastrophic injury and TTD benefits for six months following the accident.   Neavins v. City of St. Petersburg, 27 Fla. L. Weekly D1831 (Fla. 1st DCA August 12, 2002).

Employee was entitled to unemployment benefits where she quit because employer had misrepresented the amount of pay she was going to receive.  Kelly v. Unemployment Appeals Commission, 27 Fla. L. Weekly D1826 (Fla. 5th DCA August 9, 2002).

Fact that employee did not miss work after his second industrial accident is not in and of itself competent substantial evidence to support judge's finding that first accident was the major contributing cause of his injury.  Vadala v. Polk County School Board, 27 Fla. L. Weekly D1801 (Fla. 1st DCA August 6, 2002)(clarificatrion of opinion reported at 27 Fla. L. Weekly D1032).
 

Trial court abused its discretion in not enforcing non-compete agreement on grounds that employer had failed to notify employee that she would have to sign a non-compete agreement when hiring her.  Open Magnetic Imaging, Inc. v. Nieves-Garcia , 27 Fla. L. Weekly D1785 (Fla. 3d DCA August 7, 2002).

Where a non-compete agreement is unreasonable in its geographic scope, trial court should modify the restraint to reasonably protect the employer's interest instead of denying injunctive relief.   Open Magnetic Imaging, Inc. v. Nieves-Garcia, 27 Fla. L. Weekly D1785 (Fla. 3d DCA August 7, 2002).

Unemployment Appeals Commission erred in denying benefits where Referee had found that employee's misrepresentations in getting a judge to sign a probation violation warrant were not intentional misconduct.  Anderson v. Unemployment Appeals Commission, 27 Fla. L. Weekly D1770 (Fla. 5th DCA August 2, 2002).

Members of non-profit corporation had right to pursue action to enforce their right to inspect corporate records even though corporation amended its articles abolishing the entire membership.  Raffinan v. Philippine Cultural Foundation, Inc., 27 Fla. L. Weekly D1764 (Fla. 2d DCA August 2, 2002).

An administratively dissolved corporation is not required to obtain reinstatement before bringing or defending a lawsuit.  National Judgment Recovery Agency, Inc. v. Harris, 27 Fla. L. Weekly D1747 (Fla. 4th DCA July 31, 2002).

Employer and insurance carrier were estopped from denying compensability of claim as they did not deny compensation within 120 days of receiving treating physician's report that claimant's lower back condition consisted of a pre-existing deggenerative disc condition coupled with an aggravation.  Travelers Ins. Co. v. Collins, 27 Fla. L. Weekly D1689 (Fla. 1st DCA July 26, 2002).

Judge of compensation claims erred in calculating adjunct professor's average weekly wage on 13-week period instead of 52 week period as professor fell within stautory definition of seasonal employee.  Gilbreth v. Genesis Eldercare, 27 Fla. L. Weekly D1683 (Fla. 1st DCA July 26, 2002).

Although there was evidence employee had smoked marijuana on day of accident, employer was not entitled to presumption contained in section 440.09(7)(b) that such use contributed to the injury as it did not require employee to submit to drug testing until nine days after the accident.   Wright v. DSK Group, 27 Fla. L. Weekly D1679 (Fla. 1st DCA July 23, 2002).

Claimant for permanent total disabiliyt benefits can meet burden of proof by showing impairment was related to injury and showing claimant was qualified to receive social security disability income benefits, and was not required to prove absence of substantial earning capacity.  Home Depot v. Turner , 27 Fla. L. Weekly D1649 (Fla. 1st DCA July 16, 2002).

Trial court erred in ruling that party waived right to compel arbitration as contract involving interstate commerce is controlled by the Federal Arbitration Act to the extent Florida law in inconsistent.  GLF Construction Corp. v. Recchi-GLF , 27 Fla. L. Weekly D1610 (Fla. 1st DCA JUly 9, 2002).

Denial of unemployment compensation benefits affirmed as there was evidence to support referee's finding that although employee had been subjected to rude and discourteous treatment, "the disharmony and unpleasantness was not so great that it would cause the average person to leave gainful employment."   Brown v. Unemployment Appeals Commission, 27 Fla. L. Weekly D1605 (Fla. 5th DCA July 12, 2002).

Noncompete provision in business purchase agreement  providing "BUYER shall not knowingly employ an individuals who have been employed" by seller was unambiguous and prohibited Buyer from hiring a former employee of seller who was not employed at time Buyer purchased the business.  Northstar Beauty Salon, Inc. v. Artzt , 27 Fla. L. Weekly D1555 (Fla. 4th DCA July 3, 2002).

A collectrive bargaining agreement's failure to provide for independent medical evaluations does not diminish a worker's entitled to such benefit under section 440.211.  Ulico Casualty Co. v. Fernandez, 27 Fla. L. Weekly D1533 (Fla. 1st DCA July 1, 2002).

A collective bargaining agreement which provides an alternative dispute resolution system as an alternative to Florida's workers' compensation system is not prohibited by 29 U.S.C. section 411(a)(4) which provides that no labor organization shall limit the right of any member to institute an action before an administrative agency.   Ariston v. Allied Building Crafts , 27 Fla. L. Weekly D1535 (Fla. 1st DCA July 1, 2002).

The 120-day period for investigating a claim concerning an exacerbation of a pre-existing condition begins when the employee petitions for surgey, not when surgery is first recommended by his physician.  Clements v. Walt Disney World Co. , 27 Fla. L. Weekly D1536 (Fla. 1st DCA July 1, 2002). 

Broward County has authority to charge an annual fee on telecommunications companies using its right-of-way.  Broward County v. Bellsouth Telecommunications, Inc., 27 Fla. L. Weekly D1490 (Fla. 4th DCA June 26, 2002).

Sales and use taxes imposed on operator of "cruise to nowhere" of 1) proceeds from gambling concessions, and 2) gambling equipment should be prorated on basis of mileage cruised in Florida waters but should not be imposed on proceeds from food and concession agreements which were more of a nature of a service agreement than a lease.   New Sea Escape Cruises, Ltd. v. Florida Dept. of Revenue , 27 Fla. L. Weekly D1480 (Fla. 4th DCA June 26, 2002).

Trial court erred in not enforcing an assignment of pension benfits as letter from attorney stating his client would not seek enforcement of property settlement agreement was adequate consideration for the assignment even though letter stated assignment was to an irrevocable trust, which was in fact a revocable trust, as fraud and misrepresentation were not raised as affirmative defenses nor tried by implied consent.  Cocoves v. Campbell, 27 Fla. L. Weekly D1459 (Fla. 4th DCA June, 19, 2002)

In breach of fiduciary duty action brought by minority shareholder on basis majority shareholder failed to disclose impending offer to purchase 100% shares of company by a third party when negotiatiing to purchase minority shareholder's 10% interest, trial court erred by failing to calculate compensatory damages based on value of company as opposed to what parties had agreed company was worth, by rejecting plaintiff's expert's opinion on grounds of lack of experience, and by not awarding punitive damages.  Mortellite v. American Tower, L.P., 27 Fla. L. Weekly D1441 (Fla. 2d DCA June 21, 2002).

Spouse of injured employee is entitled to be compensated for attendant care at statutory rate, not minimum wage, where she left her job at the undisputed request of the authorized treating physician.  Johnson v. Superior National Insurance, 27 Fla. L. Weekly D1430 (Fla. 1st DCA June 20, 2002).

Members of the Metro-Dade Fire Rescue Service Board did not have the right to adopt a resoultuion granting themselves compensation as the ordinance creating the Board  was silent as to the compensation of the Board's members.  Metro-Dade Fire Service Rescue Board v. Metropolitan Dade County, 27 Fla. L. Weekly D1404 (Fla. 3d DCA June 19, 2002).

Trial court erred in denying motion to compel arbitration of three counts of an eight count complaint even though arbitration clause contained unenforceable provision that award could not be appealed and complaint consisted mainly of nonarbitratable claims. Healthcomp Evaluation Services Corp. v. O'Donnell, 27 Fla. L. Weekly D1398 (Fla. 2d DCA June 14, 2002).

Unemployment appeals referee erred by refusing to issue requested subpoenas of witnesses on grounds their testimony would be irrelevant.   Ibarra v. Unemployment Appeals Commission, 27 Fla. L. Weekly D1393 (Fla. 2d DCA June 14, 2002).

Judge of Insustrial Claims did not err in excluding testimony of employer/servicing agent's vocational rehabilitation expert as their request for re-employment assessment was made after the pretrial conference.   Mimi/Medpartners, Inc. v. Boestfleisch, 27 Fla. L. Weekly D1357 (Fla. 1st DCA June 12, 2002).

Judge of compensation claims erred in reversing finding there was a conflict in medical testimony and vacating order requiring claimant to appear at independent medical examination after being informed claimant was out of the country and would not be back until after judge's position was due to terminate as section 440.12(9)(c) provides that sanctions for failure to cooperate is a fortfeiture of benefits during period of failure to cooperate.  Martinez v. Healthsouth Doctor's Hospital, 27 Fla. L. Weekly D1353 (Fla. 1st DCA June 10, 2002).

Judgment for civil theft reversed as there was no evidence that funds delivered for the purchase of office equipment were to be kept intact or held in a specific fund.  Florida Desk, Inc. v. Mitchell International, Inc., 27 Fla. L. Weekly D1346 (Fla. 5th DCA June 7, 2002).

Employee of lessee who was injured on the premises, received worker's compensation and settled claim against lessor in which he received assignment of lessor's rights to indemnification and contribution did not have a claim against his employer for equitable subrogation or common law indemnification, but did have a contractual indemnification claim base on the indemnification clause of the lease agreement.  Welch v. Complete Care Corp., 27 Fla. L. Weekly D1337 (Fla. 2d DCA June 7, 2002).

 A judge of compensation claims is required to apply the standards of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), prior to admitting expert opinions concerning novel scientific principles or methodologies in a workers' compensation proceeding.   United States Sugar Corp. v. Henson , 27 Fla. L. Weekly S551 (Fla. June 6, 2002).

Employee is liable to employer for overpayment of wages even though he spent the money after being mistakenly advised by the accounting department that payments were correct.   Watson Clinic, LLP v.  Verzosa, 27 Fla. L. Weekly D1231 (Fla. 2d DCA May 24, 2002).

Arbitration provision in brokerage agreement was binding notwithstanding customer's claim of fraudulent inducement as such claim was directed at rescinding the contract as a whole and not limited to that provision.   Qubty v. Nagda , 27 Fla. L. Weekly D1225 (Fla. 5th DCA May 24, 2002).

Employee was entitled to unemployment compensation benefits as termination report stating termination was for "inability to perform the work" clearly showed he was discharged for incompetence rather than misconduct, insubordination, absenteeism, falsification of employment application, or violation of company rules.   Fisher v. Unemployment Appeals Commission , 27 Fla. L. Weekly D1221 (Fla. 5th DCA May 24, 2002).

Trial court erred in compelling arbitration of employee's grievance as collective bargaining agreement was very clear that only the union, not the employee, had the right to submit grievance dispute to arbitration and the union could not avoid its exlusive representaion responsibility by authorizing the employee to request arbitration.   City of Pembroke Pines v.  DeSantis , 27 Fla. L. Weekly D1206 (Fla. 4th DCA May 22, 2002).

Judge of compensation claims does not have discretion to deny request for temporary partial disability benefits for period of time claimant was approved by Division of Workers' Compensation Dvision to receive reemployment services.   Workman v. Aluminum , 27 Fla. L. Weekly D1192 (Fla. 1st DCA May 22, 2002). 

Although he breached the harvesting of timber contract, purchaser was entitled to restitutuion from seller under theory of unjust enrichment where seller retained title to timber and had collected payment in advance.   Timberlane Consolidated Partnership v. Andrews Land and Timber, Inc., 27 Fla. L. Weekly D1168 (Fla. 5th DCA May 17, 2002).

Summary judgment in federal court on claims for violation of First Amendment and retaliation did not collaterally estop her from filing state claim under Whistleblower's Act as the issues were different.   Rice-Lamar v. City of Ft. Lauderdale , 27 Fla. L Weekly D1152 (Fla. 4th DCA May 15, 2002).

Partnership agreement created for the purpose of obtaining investors in exchange for a fee or commission was unenforceable as it violated section 517.12.  Umbel v. Foodtrader Com, Inc. , 27 Fla. L. Weekly D1133 (Fla. 3d DCA May 15, 2002). 

Trial court erred in finding arbitration clause in wireless telephone service agreement was unconscionable as there was no evidence whether consumer knew he was giving up certain rights or was unable to find competing service.  Bell South Mobility, LLC v. Christopher, 27 Fla. L. Weekly D1093 (Fla. 4th DCA May 8, 2002).

Letter friom EEOC stating it was unable to conclude whether there had been a violation was not a finding of "no cause," certifying conflict with Woodham v. Blue Cross & Blue Shield of Florida, 793 So. 2d 41 (Fla. 3d DCA 2001).  Hagan v. Seacrest Services, Inc., 27 Fla. L. Weekly D1091 (Fla. 4th DCA May 8, 2002),

Employment agreement providing employee would be exclusive sales agent for five years, but silent as to length of contract, was not one of indefinite duration and therefore not terminable at will.  Iniguez v. American Hotel Register C0., 27 Fla. L. Weekly D1054 (Fla. 3d DCA May 8,2002).

Fact that employee worked after second accident was insufficient to support judge's finding that first accident was the sole cause of the employee's disabiltiy.  Vadala v. Polk County School Board, 27 Fla. L Weekly D1032 (Fla, 1st DCA May 7, 2002). 

Shareholders' claims for fraud, securities violations and breach of fiduciary duty were not subject to arbitration clause of investor participation agreement. Davidson v. Fox Paine & Co., LLC., 27 Fla. L. Weekly D1022 (Fla. 2d DCA May 3, 2002).

A City's appointing a committee to select the "most responsible" bidder to evaluate bid proposals violated section 255.20, Florida Statutes.  City of Sweetwater v. Solo Construction Corp., 27 Fla. L. Weekly D971 (Fla. 3d DCA  May 1, 2002).

Team assembled to interview candidates for principal and make advisory recommendation is not subject to Florida's Sunshine Law. Knox v. District School Board of Brevard, 27 Fla. L. Weekly D1017 (Fla. 5th DCA May 3, 2002).

In occupational disease cases, date of accident is deternined as of date claimant became unable to work, not date of detection.  Mitchels v. Orange County Fire/Rescue, 27 Fla. L. Weekly D911 (Fla. 1st DCA April 22, 2002).

Section 448.01 does not apply to employees hired by the hour as opposed to by the day, week, month or year. Quaker Oats Co. v. Jewell, 27 Fla. L. Weekly D734 (Fla. 5th DCA March 28, 2002). 

Trial court erred in submitting breach of employment contract dispute to jury as there was no evidence that employer had ever said that its employee manual constituted a contract.  Quaker Oats Co. v. Jewell, 27 Fla. L. Weekly D734 (Fla. 5th DCA March 28, 2002).

A parent company does not have standing to bring a breach of contract action on behalf of one of its wholly owned subsidiaries. GFN Corp. v. KPMG Peat Marwick , 27 Fla. L. Weekly D695 (Fla. 3d DCA March 27, 2002).

Error to deny unemployment compensation benefits as result of excessive absenteeism without showing that absences were unauthorized.  Nelson v. State of Florida , 27 Fla. L. Weekly D9 (Fla. 2d DCA Dec. 19, 2001).

CIVIL PROCEDURE AND EVIDENCE

Trial judge erred in not recusing himself on grounds that moving party had engaged in serious misconduct during discovery.   Deakter v. Menendez, 27 Fla. L. Weekly D1980 (Fla. 3d DCA Sept. 4, 2002).

Trial court departed from essential requirements of law by ordering production of photographs of psychiatrict patients in case where patient sued psychiatrict ward as a result of being physically and sexually assaulted by other patients.   Cedars Healthcare Group, Ltd. v. Cedars Medical Center, 27 Fla. L. Weekly D1977 (Fla. 3d DCA Sept. 4, 2002)(I suggest you read Judge Cope's dissent).

Although non-public employers do not have standing to assert employee's privacy concerns in responding to request for production of employee's personnel files, they can assert relevancy in which case trial court should hold an en camera proceeding and consider employee's privacy interests regardless of whether the employees have intervened, approving Alterra Health Care Corp. v. Estate of Shelley, 779 So. 2d 635 (Fla. 1st DCA 2001) and disapproving Beverly Enterprises-Florida, Inc. v. Deutsch, 765 so. 2d 778 (Fla. 5th DCA 2000).   Alterra Health Care Corp. v. Estate of Shelley, 27 Fla. L. Weekly S735 (Fla. Sept. 12, 2002).

Trial court erred in ordering insurer to produce "copies of all coverage opinions" as such are work-product privilege and to produce "copies of lawsuits where defendant has been sued"  as insured could obtain this information through court system.  Liberty Mutual Fire Ins. Co. v. Hanson, 27 Fla. L. Weekly D1966 (Fla. 5th DCA August 30, 2002).

Patient suing psychotherapist for engaging in sexual relationship with her while she was a patient was not entitled to production of documents relating to other patients.  Pauker v. Olson, 27 Fla. L. Weekly D1953 (Fla. 2d DCA August 30, 2002).

Trial court properly granted new trial where depostions of witnesses taken in other tobacco litigation pursuant to section 90,803(22), which the Florida Supreme Court refused to adopt as a rule.  Jones v. R.J. Reynolds Tobacco Co. , 27 Fla. L. Weekly D1952 (Fla. 2d DCA August 30, 2002).

Trial court erred in entering temporary injunction requiring utility to continue making franchise fee payments after the franchise agreement expired.  Florida Power Corp. v. Town of Belleair, 27 Fla. L. Weekly D1951 (Fla. 2d DCA August 30, 2002).

In small claims actions, county court may after default and on its own motion transfer venue.  Tax Certificates Judgments, Inc. v. Wright, 27 Fla. L. Weekly D1945 (Fla. 4th DCA August 28, 2002).

Trial court did not err in allowing defendant physician to testify that he had been as a "top ten doctor," even though such testimony was an improper bolstering of credibility, as in this case evidence was relevant to whether co-defendant hospital was negligent and its prejudicial effect did not outweigh its probative value.  Maksad v. Kaskel, 27 Fla. L. Weekly D1937 (Fla. 4th DCA August 28, 2002).

While trial court erred in allowing defendants to cross-examine plaintiff physician who admitted to self-medicating as to whether it was wrong for other physicians to write prescriptions without examining him, such error was harmless.   Maksad v. Kaskel, 27 Fla. L. Weekly D1937 (Fla. 4th DCA August 28, 2002).

Trial court erred in granting new trial after denying original motion for new trial as rules do not provide for supplental motions for new trial or motions for rehearing of order denying motions for new trials.  ACA Brandon, Inc. v. Hooyman , 27 Fla. L. Weekly D1917 (Fla. 2d DCA August 23, 2002).

Trial court properly sustained objection to defense counsel's question to plaintiff's expert witness as to whether he had attempted to give testimony in another case on emergency room practice as it was a collateral and irrelevant matter.   Goss v. Permenter, 27 Fla. L. Weekly D1911 (Fla. 5th DCA August 23, 2002).

Use of slightly different words such as "no damage" and "mild damage" was not a clear inconsistency required for impeachment purposes.  Goss v. Permenter, 27 Fla. L. Weekly D1911 (Fla. 5th DCA August 23, 2002).

Trial court erred in striking Defendant's only expert witness for failure to submit to deposition by a court ordered date as there was no finding of contempt or other misconduct.  Premark International, Inc. v. Pierson , 27 Fla. L. Weekly D1910 (Fla. 5th DCA August 23, 2002).

Trial court erred by denying verified motion for temporary injunction seeking to prohibit former employee from using customer lists and trade secrets without holding a hearing.  I.C. Systems, Inc. v. Oliff, 27 Fla. L. Weekly D1907 (Fla. 4th DCA August 21, 2002).

Motion to appoint commissioner to take deposition in another state constitutes record activity that precludes dismissal for failure to prosecute even though trial judge found it was not filed in good faith because it did not list witnesses to be deposed and party did not notice it for hearing until after hearing on motion to dismiss for failure to prosecute was scheduled.  Abaddon, Inc. v. Schindler, 27 Fla. L. Weekly D1906 (Fla. 4th DCA August 21, 2002).

Mediated settlement agreement providing insurer shall pay $75,000 by specific date should not be set aside on grounds there was no meeting of the minds as to whether insurer was entitled to a $40,000 setoff as a result of a previous payment since insurer's mistake in not including such a provision was unilateral and not mutual.   Feldman v. Kritch, 27 Fla. L. Weekly D1904 (Fla. 4th DCA August 21, 2002).

Statutory privilege protecting the confidentiality of communications made during mediation does not apply where a party seeks to set aside a settlement agreement based on mutual mistake.  Feldman v. Kritch, 27 Fla. L. Weekly D1904 (Fla. 4th DCA August 21, 2002).

Judgment entered eighteen months after bench trial was affirmed as highly detailed factual findings showed judge had not forgotten or was confused as to the issues or facts presented at trial  Leto v. State of Florida Dept. of Environmental Protection, 27 Fla. L. Weekly D1898 (Fla. 4th DCA August 21, 2002).

Pendency of another related action is sufficient non-record activity to preclude dismissal for failure to prosecute.  Lisa, S.A. v. Gutierrez, 27 Fla. L. Weekly D1875 (Fla. 3d DCA August 21, 2002).

Case law that the burden of proving that an insured has not been continuously disabled has shifted to the insurer where the insurer has made disability benefits is a matter of procedural law and should be employed even though the contract states it shall be governed by the laws of New York.   Shaps v. Provident Life & Accident Ins. Co., 27 Fla. L. Weekly S710 (Fla. August 29, 2002).

Trial court erred in denying motion to compel arbitration and treating case as a single issue case as there were multiple parties and multiple counts and pending motions to dismiss should have been ruled on first.  Pulte Home Corp. v. Smith, 27 Fla. L. Weekly D1851 (Fla. 2d DCA August 14, 2002).

Employee was collaterally estopped from suing employer under Florida's Whistleblower Act, as federal court had entered summary judgment against him on 1983 actions filed against co-employees for violating his first amendment rights.   Amador v. Florida Board of Regents, 27 Fla. L. Weekly D1844 (Fla. 3d DCA August 14, 2002).

Trial court departed from essential requirements of law by denying motion to compel discovery of material central to the central issue of the case.   Gevas v. Fernandez , 27 Fla. L. Weekly D1842 (Fla. 3d DCA August 14, 2002).

Physician on cruise ship accused of malpractice while in Florida waters is subject to en personam jurisdiction.  Rana v. Flynn, 27 Fla. L. Weekly D1837 (Fla. 3d DCA August 14, 2002).

A court may retain jurisdiction to enforce terms of settlement agreement, certifying conflict with General Dynamics Corp. v. Paulucci, 797 So. 2d 18 (Fla. 5th DCA 2001); George Vining & Sons, Inc. v. Jones, 498 So. 2d 695 (Fla. 5th DCA 1986) and Wallace v. Townsell, 471 So. 2d 662 (Fla. 5th DCA 1985).  Kinser v. Crum, 27 Fla. L. Weekly D1828 (Fla. 1st DCA August 12, 2002).

Trial court erred in granting summary judgment on basis of statute of limitations where physicians could not specifically recall plaintiff's case, but rather testified it was their common practice to inform patient about the cause of his need for surgery.  Overholt v. Neto, 27 Fla. L. Weekly D1819 (Fla. 2d DCA August 9, 2002).

Trial court did not abuse its discretion in denying homeonwers' association's motion to temporarily enjoin construction of new high school.  Banyan Lakes Homeowners Ass'n., Inc. v. School District of Palm Beach County , 27 Fla. L. Weekly D1804 (Fla. 4th DCA August 7, 2002).

Trial court did not err by precluding plaintiff's expert witness from testifying that pads on ladder were well worn and defendant's use of the ladder was "careless or stupid."  Kayfetz v. A.M Best Roofing, Inc. , 27 Fla. L. Weekly D1792 (Fla. 3d DCA August 7, 2002).

Trial court erred by allowing defendant's expert witness to testify that by pulling permit plaintiff homeowner was essentially a contractor and therefore responsible for the equipment and the safety of materials and people on the job site.   Kayfetz v. A.M Best Roofing, Inc., 27 Fla. L. Weekly D1792 (Fla. 3d DCA August 7, 2002).

Trial court abused its discretion in denying motion to dimiss on forum non conveniens where accident occurred on foreign cruise ship off the coast of Argentina even though plaintiff received some medical treatment in Florida and the employee benefits administrator is a Florida corporation.   Cruise Ships Catering and Services International, N.V. v. Tananta , 27 Fla. L. Weekly D1788 (Fla. 3d DCA August 7, 2002).

Juror's failure to disclose existence of reimbursement agreement with insurer did not require a new trial as juror did not understand voir dire questions and his answers did not constitute concealment. Tran v. Smith, 27 Fla. L. Weekly D1772 (Fla. 5th DCA July 29, 2002)(amending opinion reported at 27 Fla. L. Weekly D958).

Juror's failure to disclose that he had filed two workers' compensation claims six to seven years earlier did not require a new trial as such claims were immaterial to automobile accident case.   Tran v. Smith, 27 Fla. L. Weekly D1772 (Fla. 5th DCA July 29, 2002)(amending opinion reported at 27 Fla. L. Weekly D958).

Trial counsel's reference to a document as a State Farms damage estimate did not mandate a mistrial.  Tran v. Smith, 27 Fla. L. Weekly D1772 (Fla. 5th DCA July 29, 2002)(amending opinion reported at 27 Fla. L. Weekly D958).

Trial court erred in granting summary judgment of foreclosure as defendants had raised issues of waiver and estoppel as affirmative defenses.   Scheibe v. Bank of America, N.A., 27 Fla. L. Weekly D1769 (Fla. 5th DCA August 2, 2002).

Trial court properly granted summary judgment on basis that a release specifically bound a party's agent and there was no genuine issue of fact there was an agency relationship even though the principal and agent submitted affidavits denying an agency relationship.  Johnson v. Gourmet Gardens, Inc. , 27 Fla. L. Weekly D1766 (Fla. 2d DCA August 2, 2002).

Trial court erred in directing verdict on claim patient did not consent to surgery as expert testimony is not needed to support such claim as opposed to claim that physician failed to give sufficient information on which patient could make an informed consent.  Gouveia v. Phillips, 27 Fla. L. Weekly D1751 (Fla. 4th DCA April 24, 2002)(This opinion has an extensive analysis of the law on informed consent and corrects opinion reported at 27 Fla. L. Weekly D930.)

Trial court abused its discretion in granting summary judgment based on requests for admissions that were not timely denied where defendants filed a partial response denying liability before the hearing on summary judgment.   Mahmoud v. King, 27 Fla. L. Weekly D1748 (Fla. 4th DCA July 31, 2002).

Trial court erred in granting motion to dismiss on basis of lack of authority to bring action as such lack of authority did not appear on face of complaint.   Patriotcom, Inc. v. Vega, 27 Fla. L. Weekly D1747 (Fla. 4th DCA July 31, 2002).

Trial court erred in denying motion to compel arbitration as contract provided any controversy would be governed by the Federal Arbitration Act, even though plaintiffs argued agreement was void ab initio as it was criminally usurious.   Buckeye Check Cashing, Inc. v. Cardegna , 27 Fla. L. Weekly D1730 (Fla. 4th DCA July 24, 2002).

New trial should be granted where trial court erred in telling jury in response to question during deliberations that it could not award future damages without finding plaintiff was permanently injured.  Inman v. City of Hollywood, 27 Fla. L. Weekly D1728 (Fla. 4th DCA July 24, 2002).

Trial court properly dissolved temporary injunction as it neither specified the reasons for entry nor did it describe in reasonable detail the act or acts to be restrained.  Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 27 Fla. L. Weekly D1727 (Fla. 4th DCA July 24, 2002).

Trial court erred in denying motion for enlargement of time to effectuate service where plaintiff had shown process server had made twenty-six attempts and defendant was probably in Greece for the summer and may be intentionally avoiding service.  Gary J. Rotella & Associates, P.A. v. Andrews, 27 Fla. L. Weekly D1718 (Fla. 4th DCA July 24, 2002).

Trial court erred in granting class action status as plaintiffs did not show that joinder of 25 to 31 plaintiffs was not practical, that their claims were typical, that they suffered the same injuries as the other members, ot that class representation was superior to other methods of adjudicating the matter.   Terry L. Braun, P.A. v. Campbell, 27 Fla. L. Weekly D1712 (Fla. 5th DCA July 26, 2002).

Trial court erred in affirming arbitration award where the procedures outlined in section 44.103 and Florida Rule of Civil Procedure 1.820 were not followed.   Gallardo v. Scott, 27 Fla. L. Weekly D1709 (Fla. 5th DCA July 26, 2002).

Trial court erred in ordering insurer to produce its entire claim file in bad faith action as there was no showing that the information could not be obtained without undue hardship.  Vesta Fire Ins. Corp. v. Figueroa , 27 Fla. L. Weekly D1700 (Fla. 5th DCA July 26, 2002).

California  court order that documents are to be confidential until they "are ordered to be unsealed by any court" did not preclude order requiring disclosure.  Residence Inn by Marriott, Inc. v. Cecile Resort. Ltd., 27 Fla. L. Weekly D1697 (Fla. 5th DCA July 26, 2002).

Trial court erred in excluding expert witness testimony as to amount of future medical expenses as the witness's concession that plaintiff might not need any future medical treatment was relevant to the weight of his opinion, not its admissibility.  Shearon v. Sullivan, 27 Fla. L. Weekly D1686 (Fla. 1st DCA July 26, 2002).

A non-resident's oral agreement to make payments to Florida resident and the making of such payments is not sufficient minimum contacts to establish en personam jurisdiction.   Ganiko v. Ganiko, 27 Fla. L. Weekly D1677 (Fla. 1st DCA July 23, 2002).

Trial court in amending judgment to change amount of interest as motion to amend was not filed within ten days as required by Rule 1.530 and change did not involve a clerical error under Rule 1.540.  Mocegui v. Public Service Mutual Ins. Co., 27 Fla. D1667 (Fla. 3d DCA July 24, 2002).

Florida courts do not have jurisdiction over non-resident defendants accused of maliciously prosecuting a case in another state.  Forman v. Kent, 27 Fla. L. Weekly D1660 (Fla. 4th DCA July 17, 2002).

Jundicial nominating commissions are not public agencies subject to the public records law.   Justice Coalition v. First District Court of Appeal Judicial Nominating Commission, 27 Fla. L. Weekly D1645 (Fla. 1st DCA July 16, 2002).

A company's creating a website that can be viewed by Florida residents and assisting in arranging a shipment of furniture to Florida is not sufficient business activity to subject company to Florida's long arm statute, section 48.193.   Homeway Furniture Company of Mount Airy, Inc. v. Horne, 27 Fla. L. Weekly D1636 (Fla. 2d DCA July 19, 2002).

Board of Regents is immune from suits filed under 42 U.S.C. section 1983.   Board of Regents v. Snyder, 27 Fla. L. Weekly D1634 (Fla. 2d DCA July 19, 2002).

The rule prohibiting the splitting of causes of action does not apply to claims involving personal property damage and personal injury even though they arose from the same accident.  Bettcher v. Wadsworth, 27 Fla. L. Weekly D1629 (Fla. 2d DCA July 17, 2002).

Service by mail was sufficient to invoke the court's en personam jurisdiction where defendants had signed a contract that provided the parties submitted to the jurisdiction of the state court and agreed that service may be made by mail.   Barker v. Greenstreet Financial, L.P., 27 Fla. L. Weekly D1623 (Fla. 3d DCA July 17, 2002).

Two failed attempts to personally serve out of state defendant did not constitute sufficient diligent search to justify request to proceed with constructive service in foreclosure action. De Vico v. Chase Manahattan Bank, 27 Fla. L. Weekly D1580 (Fla. 3d DCA July 10, 2002).  

Trial court departed from essential requirements of law by ordering production of documents claimed to be privileged as trade secrets without first holding an evidentiary hearing.  Harley Shipbuilding Corp. v. Fast Cats Ferry Service, LLC. , 27 Fla. L. Weekly D1572 (Fla. 2d DCA July 10, 2002).

The Florida Supreme Court amended the rules of evidence adopting legislative changes in 2000 providing that discussions which do not constitute a meeting under sthe Sunshine Law shall not be construed to waive the attorney-client privilege, limiting interrogation of witnesses under fourteen, allowing admission of evidence of other child molestation in child molestation cases, and providing that statements. writings or benevolent gestures expressing sympathy or general sense of benevolence made to injured party or injured party's family are not admissible.  In Re: Amendments to the Florida Evidence Code, 27 Fla. L. Weekly S679 (Fla. July 11, 2002).

Louisianna's one year statute of limitations applies to automobile accident case where accident occured in Louisianna although drivers were residents of New Jersey and Florida.  Jenkins v. Rockwood , 27 Fla. L. Weekly D1558 (Fla. 4th DCA July 3, 2002).

City commissioners meeting with city attorney to discuss several settlement possibilities did not violate Sunshine Law.  Bruckner v. City of Dania Beach, 27 Fla. L. Weekly D1550 (Fla. 4th DCA July 3, 2002).

Trial court abused its discretion in allowing defendants to use American College of Obstetricians and Gynecologist bulletins to bolster their expert witness testimony and allowing defendant to testify he was recognized as a "top doctor" with a "good reputation" in a national survey.   Liberatore v. Kaufman, 27 Fla. L. Weekly D1549 (Fla. 4th DCA July 3, 2002).

A chief executive officer's traveling to Florida weekly, obtaining a Florida driver's license and using a Florida address on a consultant agreement is "substantial and not isolated activity" to support en personam jurisdiction.   May v. Needham, 27 Fla. L. Weekly D1549 (Fla. 4th DCA July 3, 2002).

 Email in government computers is not automatically public records, certifying the following question as one of great public importance: "Whether all emails transmitted or received by public employees of a government agency are public records pursuant to section 119.011(1), Florida Statutes (2000), Article I, Section 24(A) of the Florida Constitution by virtue of their placement on a government owned computer system if the agency has a written policy that informs the employees that the agency maintains a right to custody, control and inspection of e-mails?"   Times Publishing Co. v. City of Clearwater, 27 Fla. L. Weekly  D1544 (Fla. 2d DCA July 3, 2002)(on reehearing of opinion reported at 27 Fla. L. Weekly D1073)

Judge's comments as to why plaintiff had not pressed criminal charges and directing plaintiff to conduct discovery to determine criminal liability supported a well founded fear that defendant would not be afforded a fair trial.   Copiers International Corp. v. All American Business Systems, Inc. , 27 Fla. L. Weekly D1541 (Fla. 3d DCA July 3, 2002). 

Miami-Dade County Code specifically prohibiting discrimination in employment did not create a private cause of action. De La Campa v. Grifols America, Inc. , 27 Fla. L. Weekly D1523 (Fla. 3d DCA June 26, 2002).

Plaintff's allegations that State Farm should treat all of its insureds alike is an insufficient basis to grant class certification as they do not meet the burden of proving numerosity or commonality.  State Farm Mutual Automobile Ins. Co. v. Kendrick, 27 Fla. L. Weekly D1521 (Fla. 3d DCA June 26, 2002).

Trial court erred in granting motion to transfer venue on basis of convenience where contract specifically stated venue "shall" be in Pasco County even though it did not include the language "the sole'" "the exclusive," or "the only."   General Home Development Corp. v. Kwirant, 27 Fla. L. Weekly D1512 (Fla. 2d DCA June 28, 2002).

Trial court by refusing to instruct jury on concurring causes and aggravation of a pre-existing disease or defect as there was expert witness testimony that defendant's applying excessive traction during birth of child suffering with Erb's palsy could have caused or worsened child's damages.   Hart v. Stern , 27 Fla. L. Weekly D1499 (Fla. 5th DCA June 28, 2002).

The entire medical malpractice action must be stayed where one of the defendant's insurers has become insolvent so that the Florida Insurance Guaranty Association time to investigate, evaluate and defend the claim.   Halili v. Radiation Oncology Consultants, P. A. , 27 Fla. L. Weekly D1492 (Fla. June 28, 2002).

Trial court was not required to hold evidentiary hearing before dissolving temporary injunction to enforcemen noncompete agreement on basis that it was overly broad.   Griggs v. State of Florida, 27 Fla. L. Weekly D1487 (Fla. 4th DCA June 26, 2002).

Party waived right to object to improper notice of ex parte request for temporary injunction by filing a motion to dissolve injunction as opposed to appealing appealing it.  Griggs v. State of Florida , 27 Fla. L. Weekly D1487 (Fla. 4th DCA June 26, 2002).

Statutory mediation of confidentiality privilege does not preclude party from submitting evidence as to what occurred in mediation where one of the party's claim there was a $600,000 clerical error.  Dr. Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 27 Fla. L. Weekly D1484 (Fla. 4th DCA June 26, 2002). 

Trial court abused its discretion in granting new trial in defamation case as there was evidence to support the jury's finding that plaintiff had not been dishonest and manager's statement to plaintiff's co-em ployees that plaintiff was fired for dishonesty was a qualified privilege.  Borino v. Publix Supermarkets, Inc., 27 Fla. L. Weekly D1460 (Fla. 4th DCA June 19, 2002).

Trial court erred in ordering pary to execute settlement documents as attorney's letter confirming purported agreement was insufficient attorney had client's authorization to settle case.  Wlaker v. Palm West Hospital, Inc., 27 Fla. L. Weekly D1458 (Fla. 4th DCA June 19, 2002).

Trial court erred in allowing plaintiff to read into the record portions of deposition of defendant's expert witness who was not called as a witness by defendant.  Jordan v. Masters, 27 Fla. L. Weekly D1454 (Fla. 4th DCA June 19, 2002).

Trial court in instructing jury that it could draw an adverse inference from Defendant's failure to produce a videotape as plaintiff failed to present supporting the existence of the videotape or his inablity to proceed without it.  Jordan v. Masters, 27 Fla. L. Weekly D1454 (Fla. 4th DCA June 19, 2002).

 Service of process on tenant is not effective service on owner of property in foreclosure proceeding.  Grosheim v. Greenpoint Mortgage Funding, Inc., 27 Fla. L. Weekly D1453 (Fla. 4th DCA June 19, 2002).

Evidence of the presence of THC/cTHC in blood indicating marijuana usage is admissible even though it cannot be quantitatively related to impairment.  State v. Sercy, 27 Fla. L. Weekly D1415 (Fla. 1st DCA June 17, 2002).  

Trial court erred in refusing to correct misspelling of defendant's name after default had been entered.  Veigle v. St. Cloud Marine, Inc. , 27 Fla. L. Weekly D1389 (Fla. 5th DCA June 14, 2002).

Trial court did not abuse its discretion in denying pro se defendant's request for continuance because of husband's illness where pro se litigant had previously indicated she was not going travel to Florida and had ample time to retain an attorney.  Skoller v. Law Office of Donald M. Jacob , P.A., 27 Fla. L. Weekly D1384 (Fla. 4th DCA June 12, 2002).

Trial court departed from essential requirements of law in ordering non-party to produce documents without first holding an evidentiary hearing on non-party's privacy rights.  Ross v,  Fly Me to the Moon, LLC, 27 Fla. L. Weekly D1384 (Fla. 4th DCA June 12, 2002).

Although failure to plead statutory prerequisites of section 768.28(6)(a) supported dismissal, trial court erred in dismissing with prejudice.   Figueredo v. Jenne, 27 Fla. L. Weekly D1383 (Fla. 4th DCA June 12, 2002). 

Trial court did not err by denying plaintiff's requests to add expert witnesses, by denying motion for mistrial on basis that defense counsel's statements suggested infant's injuries were caused by shaken baby syndrome, nor by denying motion for new trial on basis that juror who had asked to be excused because of economic harship was subsequently fired.  Myron v. Shulman, 27 Fla. L. Weekly D1381 (Fla. 4th DCA June 12, 2002).

Plaintiff's unawareness of trial court's order granting motion to seek punitive damages as result of it being mailed to wrong address is not a unilateral mistake which would warrant setting aside a settlement agreement.   Stamato v. Stamato , 27 Fla. L. Weekly D1380 (Fla. 4th DCA June 12, 2002).

Defendant did not waive right to pursue timely filed motion challenging service of process by subsequently filing pleadings, motions to dismiss and for summary judgment, and propounding discovery.   Berne v. Beznos, 27 Fla. L. Weekly D1370 (Fla. 3d DCA June 12, 2002)(rehearing of opinion reported at 27 Fla. L. Weekly D2).

Court erred in not granting motion to quash as service on concierge, although valid under New York law, is not valid under Florida law.   Berne v. Beznos, 27 Fla. L. Weekly D1370 (Fla. 3d DCA June 12, 2002)(rehearing of opinion reported at 27 Fla. L. Weekly D2).

An insurer's broker's maintaining  a Florida bank account to collect premiums is insufficient contacts to subject insurer to en personam jurisdiction.   La Reunion Francaise, S.A. v. La Costena , 27 Fla. L. Weekly D1264 (Fla. 3d DCA June 12, 2002).

Trial court erred in dismissing complaint on basis of workers' compensation immunity and sovereign immunity even though contract attached to complaint contained many indicators that Department of Transportation exercised extensive control over certain functions of independent contractor.   Agner v. APAC-Florida, Inc. , 27
Fla. L. Weekly D1358 (Fla. 1st DCA June 12, 2002).

Circuit court had jurisdiction on suit to collect promissory note for $14,950, as amount of late fees supported good faith claim that amount in controversy exceeded $15,000.  Becker v. Re/Max Horizons Realty, Inc. , 27 Fla. L. Weekly D1357 (Fla. 1st DCA June 12, 2002).

Clerk's entry of default is void ab initio where defendant had previously filed request for extension of time to file answer. Becker v. Re/Max Horizons Realty, Inc., 27 Fla. L. Weekly D1357 (Fla. 1st DCA June 12, 2002).

Trial court order setting case management conference is not record activity that would preclude dismissal for failure to prosecute, approving Moossun v. Orlando Regional Health Corp. , 760 So. 2d 193 (Fla. 5th DCA 2000), and disapproving Samuels v. Palm Beach Motor Cars Limited by Simpson, Inc. , 618 So. 2d 310 (Fla. 4th DCA 1993) and Miami Beach Awning Co. v. Heart of the City, Inc., 565 So. 2d 739 (Fla. 3d DCA 1990).   Moossun v. Orlando Regional Health Corp. , 27 Fla. L. Weekly S596 (Fla. June 20, 2002).

District Court of Appeal erred in finding trial judge abused his discretion in granting motion for new trial on basis of trial counsel's statement:  "It will not be something you need to consider as to why they aren't in this courtroom, although you might want to aske yourself that question.  I assure you though that Miss Ricks and her attorney  aren't going to tell you why they aren't here." even though trial court reserved ruling and did not grant the motion until after six day trial was held, quashing Loyola v. Ricks , 777 So. 2d 423 (Fla. 4th DCA 2000).   Ricks v, Loyola , 27 Fla. S591 (Fla. June 20, 2002).

Agreement to make payments in Florida does not establish "minimum contacts" sufficient to establish en personam jurisdiction.  Hartcourt Companies, Inc. v. Hogue, 27 Fla. L. Weekly D1351 (Fla. 5th DCA June 7, 2002).

Although generally the addition of a new party does not relate back to the date of original filing, the merger of two corporations provides a sufficient relationship to allow the amended complaint to relate back to those causes of action contained in the original complaint, but not to causes of action pleaded for the first time.  Arnwine v. Huntington National Bank, N.A., 27 Fla. L. Weekly D1335 (Fla. 2d DCA June 5, 2002).

Trial court erred in granting plaintiff's motion for mistrial as jury's verdict that one co-defendant was 100% at fault was not inconsistent with trial court's directed verdict that co-defendant was negligent as jurty found co-defendant's negligence did not cause plaintiff's injuries.  Cocca v. Automotive Rentals, Inc., 27 Fla. L. Weekly D1334 (Fla. 2d DCA June 5, 2002).

Trial court departed from essential requirements of law in overruling work-product privilege raised with respect to request for "statements of any other witnesses who have or may have claimed knowledge of the incident."  Furman's, Inc. v. Cameron, 27 Fla. L. Weekly D1333 (Fla. 2d DCA June 5, 2002).

Trial court erred by not giving reasons why it was denying plaintiff's request to examine public records at the defendant's offices.   James v. Loxahatchee Groves Water Control District, 27 Fla. L. Weekly D1326 (Fla. 4th DCA June 5, 2002).

Inconsistencies in plaintiff's affidavit that funds given to defendant were to be invested and amended complaint stating they were a loan did not support the trial judge's deteremination the amended complaint was a sham pleading.   Furst v. Blackman , 27 Fla. L. Weekly D1322 (Fla. 4th DCA June 5, 2002).

Trial court departed from essential requirements of law by granting a protective order preventing defendant from taking the deposition of the plaintiff's corporate representative unless it first subpoenaed the officers and directors and traveled their state of residence, as the defendant was not seeking any affirmative relief.  Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc. , 27 Fla. L. Weekly D1309 (Fla. 3d DCA June 5, 2002).

The making of telephonic, electronic or written communications into this state may constitute "committing a tortious act" within Florida to subject a nonresident defendant to personal jurisdiction under section 48.193(1)(b), quashing Horowitz v. Laske, 751 So. 2d 82 (Fla. 5th DCA 1999), and disapproving McLean Financial Corp. v. Winslow Loudermilk Corp., 509 So. 2d 1373 (Fla. 5th DCA 1987) and Intercontinental Corp. v. Orlando Reg'l Med. Cir. , 586 o. 2d 1191 (Fla. 5th DCA 1991).   Wendt v. Horowitz, 27 Fla. L. Weekly S573 (Fla. June 13, 2002).

Trial court should hold evidentiary hearing where there are conflicting affidavits as to whether defendant had "minimum contacts" with Florida.   Overdorf v. Transam Financial Services, Inc., 27 Fla. L. Weekly  D1280 (Fla. 5th DCA May 31, 2002).

Trial court did not abuse its discretion in vacating default as prisoner defendant was properly served when copy of complaint and summons were delivered to warden's secretary even though prisoner did not receive papers until nineteen days later as prisoner failed to file affidavit and did not obtain transcript of hearing.   Carter v. Lil' Joe Records, Inc. , 27  Fla. L. Weekly D1270 (Fla. 4th DCA May 29, 2002).

Evidence that defendant ran inside when approached by the process server and was later seen picking up the papers posted on his door supported the trial court's finding that he had been personally served.   Palamara v. World Class Yachts, Inc., 27 Fla. L. Weekly D`26` (Fla. 4th DCA March 29, 2002).

Trial court improperly ordered a fine and incarceration for an attorney for :stonewalling and stalling tactics" as the attorney had previously been fined for prior activities and could not be found in contempt because of his clients' failure to provide affidavits and tax documents.   Levey v. D'angelo , 27 Fla. L. Weekly D1255 (Fla. 4th DCA May 29, 2002).

Trial court did not abuse its discretion in dismissing for failure to prosecute even though the plaintiff had filed a request for admissions within the previous year as there had been no activity for the previous seven year's and plaintiff's attorney did not appear at the show cause hearing.  Sheen v. Time, Inc. , 27 Fla. L. Weekly D1248 (Fla. 3d DCA May 29, 2002)(granting motion for rehearing of opinion reported at 27 Fla. L. Weekly D285).

Trial court erred in granting summary judgment in favor of city in suit brought against it by company for breach of contract concerning the assignment code enforcement liens on the basis of statute of limitations as it was unclear whether letter from city attorney notifying the assignee that the city would assist the assignee but would not take any independent action was a repudiation of the contract which would begin the running of the five year statute of limitations or a confirmation of the contract.   Collections USA, Inc. v. City of Homestead, 27 Fla. L. Weekly D1243 (Fla. 3d DCA May 29, 2002).

 Certiorari was proper as the trial court departed from the essential requirements of law in granting a rehearing of an order denying a motion to transfer a case to another division of the circuit court.   Miller v. Strategica Capital Corp. , 27 Fla. L. Weekly D1242 (Fla. 3d DCA May 29, 2002).

Denial of motion for rehearing does not divest trial court of jurisdiction to consider Rule 1.540 motion claiming that party obtaining default judgment on basis of breach of mediated settlement agreement made misrepresentation by failing to mention existence of promissory note which payment terms differed from those in settlement agreement.  Maresca v. Olivo , 27 Fla. L. Weekly D1227 (Fla. 5th DCA May 24, 2002).

A person without symptoms of HIV does not have constructive knowledge of being tested positive for HIV when his health care provider failed to disclose the test results to him as required by section 381.004 and is therefore not necessaily barred by the seven year statute of repose in filing medical malpractice claim.   Doe v. Hillsborough County Hospital Authority , 27 Fla. L. Weekly  D1215 (Fla. 2d DCA May 22, 2002).

Where Frye hearing is conducted after trial has begun, party should be entitled to a new trial if it should be determined that expert witness's opinion is not admissible.  Holy Cross Hospital, Inc. v. Marrone , 27 Fla. L. Weekly D1212 (Fla. 4th DCA May 17, 2002).

Trial court did not error in denying Rule 1.540 motion to vacate underlying summary judgment in foreclosure of judgment lien action as summary judgment was a non-final order not subject to this rule and trial court was not required to accept movant's testimony that he had no notice of previous judgment being entered against him.   Harris v. National Judgment Recovery Agency, Inc. , 27 Fla. L. Weekly D1210 (Fla.  4th DCA May 22, 2002).

Trial court did not abuse its discretion in denying motion to transfer venue on basis of forum nonconveniens even though defendant submitted affiavits from four expert witnesses and two attorneys who all said they practiced in Pinellas County and it would be a burder to travel to Orange County.  Safety National Casualty Corp. v. Florida Municipal Ins. Trust, 27 Fla. L. Weekly D1172 (Fla. 5th DCA May 17, 2002).

A non-party insurer cannot be compelled to produce its claim file or prepare a privilege log.  Allstate Ins. Co. v. Latimer , 27 Fla. L. Weekly D 1135 (Fla. 3d DCA MaY 13, 2002)..

A jury's finding there was fraudulent lien was not necessarily inconsistent with its finding there was tortious interference with business relationship.   J.T.A. Factors, Inc. v. Phil Con Services, Inc ., 27 Fla. L. Weekly D1131 (Fla. 3d DCA May 13, 2002).

Communications between purchaser of business and accounting firm hired to perform due diligence are protected by the accountant-client privilege even though such evidence may be relevant to issue of whether purchaser relied on seller's alleged misrepresentations.  Choice Restaurant Acquisition, Ltd. v. Whitley, Inc., 27 Fla. L. Weekly D1093 (Fla. 4th DCA May 8, 2002).

Trial counsel's unobjected to closing argument that plaintiff was pursuing only one doctor defendant when plaintiff had in fact filed suit against several physicians did not constitute fundalmental error.  Thompson v. Hodson, 27 Fla. L. Weekly D1042 (Fla. 1st DCA May 9, 2002).

Trial court erred in denying request for new trial as three jurors had failed to disclose prior litigation experience and communicated among themselves during the course of the trial, quashing Kelly v. Community Hospital of the Palm Beaches, Inc., 756 So. 2d 144 (Fla. 3d DCA 2000). Kelly v. Community Hospital of the Palm Beaches, Inc., 27 Fla. L. Weekly S470 (Fla. May 16, 2002).  

Amended motion for summary judgment constituted record activity precluding dismissal for failure to prosecute even though it did not allege nor argue anything different from previous motion that had been denied as brief in support of amended motion raised new factual allegations and legal arguments. Amorello v. Tauck, 27 Fla. L Weekly D1017 (Fla. 4th DCA May 1, 2002)(rehearing of original opinion reported at 27 Fla. L. Weekly D482).

Language providing for arbitration of "any claim, dispute or other matter in question arising out of of or related to" agreement for architectural work was broad enough to include third-party indemnification claim alleging faulty design and specifications.  Ramon Pacheco & Associates, Inc. v. Betancourt Castellon Associates, Inc., 27 Fla. D975 (Fla. 3d DCA May 1, 2002).

 Trial court erred in denying motion to dismiss for lack or en personam jurisdiction without holding evidentiary hearing, as affidavits were irreconcilable as to whether defendant in legal malpractice action had any contact with Florida after transferring case to Florida firm.  Law Offices of Sybil Shainwald v. Barro, 27 Fla. L. Weekly D960 (Fla. 5th DCA April 26, 2002).

Juror's failure to disclose six-year old workers' compensation claim was not material to autmobile accident case.  Tran v. Smith, 27 Fla. L. Weekly D958 (Fla. 5th DCA April 26, 2002).

Trial court erred in directing verdict on claim patient did not consent to surgery as expert testimony is not needed to support such claim as opposed to claim that physician failed to give sufficient information on which patient could make an informed consent.  Gouveia v. Phillips, 27 Fla. L. Weekly D930 (Fla. 4th DCA April 24, 2002)(This opinion has an extensive analysis of the law on informed consent.)

Finance company is entitled to bring indemnification action against owner of vehicle as the owner's claims it was guilty of corrupt conduct (forgery) in attempting to obtain financing was irrelevant to the  the issue of active and passive negligence under Florida's dangerous instrumentality doctrine.  McDowell v. Rodriguez, 27 Fla. L. Weekly D917 (Fla. 5th DCA March 1, 2002)(on motion for rehearing en banc at 27 Fla. L Weekly D507).

Sending notice of intent to sue under section 766.104(2) to one defendant tolled running of statute of limitations with respect to all defendants.  Burbank v. Kero, 27 Fla. L. Weekly D901 (Fla. 5th DCA April 19, 20020.

Trial court did not abuse its discretion in denying motion for new trial where jury awarded $,081.38 for past medical expenses and nothing for past pain and suffering. Trowell v. J.C. Penney Co., Inc., 27 Fla. L. Weekly D897 (Fla. 4th DCA April 17, 2002).

Trial court did not error in allowing impeachment with convictions over ten years old.  Trowell v. J.C. Penney Co., Inc., 27 Fla. L. Weekly D897 (Fla. 4th DCA April 17, 2002).

Judgment based on settlement has same res judicata affect as judgment based on verdict.  Falkanger v. Boca Developers, Inc., 27 Fla. L. Weekly D884 (Fla. 4th DCA April 17, 2002).


Problems in locating witness was sufficient record activity to preclude dismissal for failure to prosecute.  Jain v. Green Clinic, Inc., 27 Fla. L. Weekly D872 (Fla. 2d DCA April 19, 2002).


A cause of action for oral loan accrues, and the statute of limitations begins to run, at the time when demand for payment is made, approving Mason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986) and quashing Anderson v. Mosher, 758 So. 2d 1177 (Fla. 4th DCA 2000).   Mosher v. Anderson, 27 Fla. L. Weekly S363 (Fla. April. 25, 2002).

Trial court's order requiring nursing home to list particular ACHA surveys which it deemed relevant did not violate work-product privilege although it may indicate counsel's stategy as it had no more effect than standard pretrial order requiring party to list relevant documents to be used during trial.  Gardner v. Manor Care of Boca Raton, Inc. , 27 Fla. L. Weekly D837 (Fla. 4th DCA April 10, 2002).

Trial court erred in denying motion for remittitur as there was no evidence support jury's award for future medical expenses.  Nevarez v. Friskney, 27 Fla. L. Weekly D805 (Fla. 5th DCA April 5, 2002).

Trial court departed from essential requirements of law by forbidding health care defendants from communicating with a deponent physician as the physician-patient privilege established by section 455.667 does not apply to health care providers involved in the care or treatment of the patient.  Royal v. Watson Clinic, L.L.P. , 27 Fla. L. Weekly D786 (Fla. 2d DCA April 5, 2002).

Trial court erred in granting motion for new trial on basis that expert witness's trial testimony differed from his deposition as plaintiff's counsel had failed to object.  Millar Elevator Service Co. v. McGowan , 27 Fla. L. Weekly D783 (Fla. 2d DCA April 5, 2002).

Trial court did not err in refusing to strike veniremember for cause as his being employed by public library system did not establish he was employed or controlled by the County School Board. Fernandez v. School Board of Hillsborough County, 27 Fla. L. Weekly D780 (Fla. 2d DCA April 5, 2002).

Trial court erred in dismissing complaint with prejudice based on affirmative defense of res judicata as complaint did not mention prior lawsuit.  Hayward & Associates, Inc. v. Hoffman, 27 Fla. L. Weekly D765 (Fla. 2d DCA April 3, 2002).

Trial court properly excluded backdated loan documents offered to support claim for damages in negligence action brought against accountants. GFN Corp. v. KPMG Peat Marwick , 27 Fla. L. Weekly D695 (Fla. 3d DCA March 27, 2002).

Trial court did not abuse its discretion in denying father and step-brother's claims as they had been brought together and were interrelated.   Brodfuehrer v. In re: Estate of Brodfuehrer, 27 Fla. L. Weekly D577 (Fla. 3d DCA March 13, 2002).

Trial court erred in dismissing for failure to prosecute as the death of plaintiff's predecessor counsel contributed a substantial part in the delay of prosecution of the action.  Greenberg v. Singerman , 27 Fla. L. Weekly D518 (Fla. 3d DCA March 6, 2002).

Co-defendant who had judgment entered against her based on agreement of defense counsel was entitled to have it set aside where it was undisputed there was no legal basis for entry of judgment against her.  Pardo v. Decoplage Condominium Ass'n., Inc., 27 Fla. L. Weekly D515 (Fla. March 6, 2002).

Motion for summary judgment, although it incorporated allegations and argument of a previous motion, was record activity that precluded dismissal for failure to prosecute.  Amorello v. Tauck, 27 Fla. L. Weekly D482 (Fla. 4th DCA Feb. 27, 2002).

Trial court did not abuse its discretion in finding that claimant had standing to challenge forfeiture of cash, but erred in granting summary judgment based on claimant's oral tenus motion as insufficient notice had been given.  State v. In re: The Forfeiture of Twenty-Nine Thousand Nine Hundred and Eighty (29,980) in U.S. Currency , 27 Fla. L. Weekly D479 (Fla. 3d DCA Dec. 12, 2002).

Trial court did not abuse its discretion in denying Department of Insurance's motion to transfer venue in proceedings supplementary as policy reasons for judicially created doctrine of home venue privilege do not apply.  State v. Accelerated Benefits Corp. , 27 Fla. L. Weekly D474 (Fla. 4th DCA Feb. 27, 2002).

Trial court lost jurisdiction once it denied motion for new trial even though it did so "without prejudice."  McMahon v. Carter, 27 Fla. L. Weekly D400 (Fla. 2d DCA Feb. 13, 2002).

Trial judge erred in granting new trial on basis of juror's failure to disclose prior litigation experience as trial counsel had ample opportunity during two week trial to check local public records where Pennsylvania order pertaining to juror was registered. Vanderbilt Inn on the Gulf v. Pfenninger, 27 Fla. L. Weekly D356 (Fla. 2d DCA Feb. 8, 2002).

    Trial court did not abuse its discretion in determining that requests for admission were not sufficient record activity to preclude the dismissal for failure to prosecute as trial counsel failed to show up at show cause hearing as to why case should not be dismissed.  Sheen v. Time Inc. Magazine Co., 27 Fla. L. Weekly D285 (Fla. 3d DCA Jan. 30, 2002).

Landlord sued on theory of vicarious liability for negligence of independent contractor was not entitled to have the nonparty independent contractor listed on the verdict form. Suarez v. Gonzalez, 27 Fla. L. Weekly D104 (Fla. 4th DCA Jan. 2, 2002).

The Frye test should have been undertaken where expert testified that staging studies show that as a tumor gets bigger the chances of lymph nodes getting bigger is greater.  Holy Cross Hospital, Inc. v. Marrone , 27 Fla. L. Weekly D39 (Fla. 4th DCA Dec. 19, 2001).

Service of process on New York resident by leaving papers with concierge and mailing a copy to defendant, although authorized by New York law, should have been quashed as it did not comply with section 49.194.  Berne v. Beznos, 27 Fla. L. Weekly D2 (Fla. 3d DCA Dec. 19, 2001).

COLLECTIONS

In domesticating a foreign judgment, trial court erred by including language that judgment creditor had an equitable lien on certain real property owned by debtor as no proof of fraud, misrepresentation or affirmative deception was presented while domesticating the judgment.   Pegram v. Pegram, 27 Fla. L. Weekly D1765 (Fla. 2d DCA August 2, 2002).

Home venue privilege does not apply to supplementary proceedings.   Department of Ins. v. Accelerated Benefits Corp., 27 Fla. L. Weekly D1378 (Fla.  4th DCA June 12, 2002)(substituting opinion reported at 27 Fla. L. Weekly D474).

Enforcement of the fugitive disentitlement rule  in a forfeiture action does not violate due process.  Tejada v. In Re: Forfieuture of the Following Described Property: $406,626,11 in U.S. Currency , 27 Fla. L. Weekly D1244 (Fla. 3d DCA May 29, 2002)

A judgment lienholder may file a judgment foreclosure action and record a lis pendens and while such action is pending enforce the judgment through levy under writ of execution.   Harris v. National Judgment Recovery Agency, Inc., 27 Fla. L. Weekly D1210 (Fla.  4th DCA May 22, 2002).

A spouse's transfer of funds from a joint tenancy account may be subject to the Uniform Fraudulent Transfer Act, chapter 726 Florida Statutes.  NationsBank, N.A. v. Coastal Utilities, Inc., 27 Fla. L. Weekly D982 (Fla. 4th DCA May 1, 2002).

Although a single incident cannot be a basis for recovery under Florida's Unfair and Deceptive Trade Practices Act, this issue was not preserved for review as appellant failed to raise it at trial.  Keech v. Yousef, 27 Fla. L. Weekly D967 (Fla. 5th DCA April 26, 2002).

Scondary assignments are not authorized in insolvency proceedings under Chapter 727.  Champaign National Bank v. SOS Industries, Inc. 27 Fla. L. Weekly D965 (Fla. 5th DCA April 26, 2002).

Registration of consumer collection agencies is complete upon submission of the registration form, not upon the Department of Banking and Financing's issuance of a certificate of registration.  Welch v. Florida West Coast, Inc., 27 Fla. L. Weekly D925 (Fla. 2d DCA April 24, 2002).

Transfer of debtor corporation's real property should have been voided as a fraudulent transfer as it was done without consideration even though the judge had found there was no fraudulent intent and the debtor corporation had at the time a judgment against the creditor in excess of the the amount of the creditor's judgment.  Levin v. Ethan Allen, Inc., 27 Fla. L. Weekly D894 (Fla. 4th DCA April 17, 2002).

Trial court erred in granting summary judgment in favor of defendant in fraudulent transfer case as transfer of one corporation's customers, receivables, accounting system and database to another corporation without consideration raised factual issues as to whether there was a fraudulent transfer or a de facto merger.  Laboratory Corp. of America v. Professional Recovery Network, Inc., 27 Fla. L. Weekly D849 (Fla. 5th DCA April 12, 2002).
 
Cooperative apartment may qualify for homestead exemption from forced sale.  Southern Walls, Inc. v. Stilwell Corp., 27 Fla. L. Weekly D552 (Fla. 5th DCA March 9, 2002).

Creditor is not required to obtain judgment before proceeding with claim under the Uniform Fraudulent Transfer Act. Freidman v. Heart Institute of Port St. Lucie, Inc. , 27 Fla. L. Weekly D345 (Fla. 4th DCA Feb. 6, 2002).

Trial court erred in dismissing with prejudice an amended proceedings supplementary complaint on grounds that it raised issues beyond the scope of the appellate court's remand.  Sackett v. Shahid, 27 Fla. L. Weekly D329 (Fla. 1st DCA Feb. 6, 2002).

In proceedings supplementary brought against sole shareholder of judgment debtor for fraudulent transter, findings in previous foreclosure action that judgment debtor acted with unlcean hands did not act as collateral estoppel as the parties and issues were not identical. Goodman v. Aldrich & Ramsey Enterprises, Inc., 27 Fla. L. Weekly D162 (Fla. 2d DCA Jan. 16, 2002).

Facts that personal guarantees were not canceled and were located in a file concerning a mortgage on a certain parcel of property raised 
genuine issues of material fact as to whether they were still valid thereby precluding summary judgment.  First Paradee, Ltd. v. Jones, 27 Fla. L. Weekly D186 (Fla. 2d DCA Jan. 16, 2002). 

CONSTITUTIONAL LAW

Rule of judicial administration requiring pro se litigants to sign pleadings is not a violation the Free Exercise Clauses of the Florida and Federal Constitutions, the federal Religious Freedom Restoration Act of 1993, Florida's Religious Freedom Restoration Act of 1998, and a United Nations treaty known as the International Covenant on Civil and Political Rights.  Toca v. State, 27 Fla. L. Weekly D2008 (Fla. 2d DCA Sept. 6, 2002).

The 2000 amendment to the Indigent Care Surtax Statute, setion 212.055 diverting maintenance of effort (MOE) dollars from public general hospitals to private hospitals is an unconstitutional special law as it applies only to Miami-Dade County.  Homestead Hospital, Inc. v. Miami-Dade County, 27 Fla. L. Weekly D1982 (Fla. 3d DCA Sept. 4, 2002).

Section 440.16(7), which imposes a $50,000 cap on wrongful death actions for aliens who are non-residents of the United States or Canada is unconstitutional.   Lopez v. Ideal Roofing Systems, 27 Fla. L. Weekly D1644 (Fla. 1st DCA July 19, 2002).

Statute exempting photographs and video and audio recordings autopsy from Public Records law is constitutional and can be retroactively applied as it is remedial in nature and does not affect a vested right, certifying the following questions to be of great public importance: "Is Section 406.135 Constitutional?" and "If section 406.135 is constitutional, should it be applied retroactively?".   Campus Communications, Inc. v. Earnhardt, 27 Fla. L. Weekly D1595 (Fla. 5th DCA July 12, 2002).

Where a judicial vacancy occurs during an election period, it should be filled by the elective rather than the appointive process.  Advisory Opinion to the Governor Re: Appointment or Election of Judges , 27 Fla. L. Weekly S660 (Fla. July 10, 2002).

The constitutional initiative requiring pre-kindergarten schooling be offered to every four-year old does not violate the single subject requirement and its ballot summary clearly and unambiguously sets forth the innitiative's primary purpose.   Advisory Opinion to the Attorney General Re: Voluntary Universal Pre_Kindergarten Education , 27 Fla. L. Weekly S663 (Fla. July 11, 2002). 

Section 218.503(5), which authorizes municipalities with a resident population of 300,000 or more by April 1, 1999 to impose a surcharge on parking facility revenues, constitutes a special law authorizing the imposition of non-advalorem taxes in violation of Article VII, sections 1(a) and 9(a) of the Florida Constitution.   City of Miami v. McGrath, 27 Fla. L. Weekly S667 (Fla. July 11, 2002).

Rule making race-animal trainers absolute insurers of the condition of animals entered into any race at a pari-mutuel wagering facility was a valid exercise of delegated legislative authority.  Hennessey v. Dept. of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 27 Fla. L. Weekkly D1429 (Fla. 1st DCA June 17, 2002). 

Enforcement of the fugitive disentitlement rule  in a forfeiture action does not violate due process.  Tejada v. In Re: Forfieuture of the Following Described Property: $406,626,11 in U.S. Currency , 27 Fla. L. Weekly D1244 (Fla. 3d DCA May 29, 2002).

The Third District Court of Appeal certified the following question as one of great public importance::
    Does the Florida Supreme Court's decision in Department of Agriculture & Consumer Services v. Polk, 568 So. 2d 35 (Fla. 1990), which held that the Department's destruction of healty commercial citrus nursery stock within 125 feet of trees infected with citrus canker did not compel state reimbursement, also apply to the Department's destruction of uninfected, healty noncommercial, residential citrus trees within 1900 feet of trees infected with citrus canker?
Patchen v. State of Florida, Dept. of  Agriculture and Consumer Services, 27 Fla. L. Weekly D1195 (Fla. 3d DCA May 22, 2002).

    The proposed constitutional initiative creating a separate board of trustees for each state university does not violate the single-subject requirement and its ballot summary is plain and unequivocal.   Advisory Opinion to the Attorney General Re: Local Trustees and Statewide Governing Board to Manage Florida's University System , 27 Fla. L. Weekly S512 (Fla. May 23, 2002). 

Duval and Pinellas as chartered counties cannot impose term limits on county officer positions (sheriff , tax collector, property appraiser, supervisor of election and clerk) authorized by article VIII, section 1(d), Florida Constitution, quashing City of Jacksonville v. Cook , 765 So. 2d 289 (Fla. 1st DCA 2000) and Pinellas County v. Eight is Enough in Pinellas , 775 So. 2d 317 (Fla. 2d DCA 2000).   Cook v. City of Jacksonville , 27 Fla. S495 (Fla. May 23, 2002).
 
The proposed constitutional initiative allowing first and second time non-violent drug offenders to choose treatment instead of incarceration is properly explained in the ballot summary and does not violate the single subject rule.   Advisory Opinion to the Attorney General Re: Right to Treatment and Rehabilitation for Non-Violent Drug Offenses , 27 Fla. L. Weekly S488 (Fla. May 16, 2002).

Statute requiring ambulatory surgical centers, diagnostice-imaging centers, freestanding radiation therapy centers and clinical laboratories to contribute to the Public Medical Assistance Trust Fund even though they would receive no benefit from the fund is not unconstitutional as it is conceivable the legislature intended to level the playing field between these groups and hospitals which are obligated to treat indigents.  Agency for Health Care Administration v. Hameroff , 27 Fla. L. Weekly D952 (Fla. 1st DCA April 26, 2002).

Proposed initiative petition seeking to limit the number of students assigned to each teacher does not violate the single subject rule and the ballot summary complies with section 101.161(1).  Advisory Opinion to the Attorney General Re: Florida's Amendment to Reduce Class Size, 27 Fla. L. Weekly S367 (Fla. April 25, 2002).
  

The 1998 amendment to section 90.803(22) allowing former testimony of a witness given in a previous proceeding or deposition to be admitted even though the witness is availabe to testify is an unconstitutional infringement upon the Florida Supeme Court's authority to regulate procedure under article V, section 2(a) of the Florida Constitution, certifying the question as one of great public importance.   Grabau v. Dept. of Health, Board of Psychiatry , 27 Fla. L. Weekly D914 (Fla. 1st DCA April 22, 2002).

Rule making race-animal trainers absolute insurers of the condition of their animals is a valid exercise of delegated legislative authority.   Hennesey v. Dept. of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 27 Fla. L. Weekly D907 (Fla. 1st DCA April 22, 2002).

The South Florida Water Management District has the statutory authority under the Everglades Forever Act to impose an ad valorem on non-polluters notwithstanding article II, section 7(b) of the Florida Constitution which provides that polluters would be "primarily responsible" for the cost of abatement as that provision was not self-executing.  Barley v. South Florida Water Management District , 27 Fla. L. Weekly S308 (Fla. April 11, 2002).

    A property appraiser does not have standing to initiate an independent action challenging the validity of a taxing statute that provides for an ad valorem tax exemption, approving Turner v. Hillsborough County Aviation Authority, 739 So. 2d 175 (Fla. 2d DCA 1999) and reversing Fuchs v. Robbins, 738 So. 2d 338 (Fla. 3d DCA 1999).  Fuchs v. Robbins, 27 Fla. L. Weekly S288 (Fla. April 4, 2002).

    The proposed citizen initiative amendment to the Florida Constitution prohibiting smoking in workplaces does not violate the single subject rule and the ballot title and summary is not misleading.  Advisory Opinion to Attorney General Re: Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Work-Place Smoking, 27 Fla. L. Weekly S266 (Fla. March 28, 2002).

The Florida Supreme Court struck from the ballot the proposed constitutional initiative that would authorize county voters to approve slot machines within existing pari-mutual facilities as it violated the single subject rule and the simmary was incorrect and therfore misleading.  Advisory Opinion to the Attorney General Re: Authorization for County Voters to Approve or Disapporve Slot Machines Within Existing Pari-Mutuel Facilities, 27 Fla. L. Weekly S243 (Fla. March 14, 2002).

    The "First Amendment does not provide a shield behind which a church may avoid liability for harm caused to a third party arising from the alleged sexual misconduct by one of its clergy members duuring the course of an established marital counseling relationship."  Doe v. Evans, 27 Fla. L. Weekly S229 (Fla. March 14, 2002).

   The "First Amendment does not provide a shield behind which a church may avoid liability for harm caused to an adult and a child  parishoner arising from the alleged sexual assault or battery by one of its clergy."  Malicki v. Doe , 27 Fla. L. Weekly S234 (Fla. March 14, 2002).

CONSUMER PROTECTION

County court properly granted summary judgment in favor of defendant bank in claim for violation of the Florida Consumer Collection Practices Act as bank submitted affidavit it did not know of plaintiff's bankruptcy and although plaintiff submitted letters indicating the contrary, they were not authenticated nor supported by affidavit.  First North American National Bank v. Hummel , 27 Fla. L. Weekly D2010 (Fla. 2d DCA Sept. 6, 2002).

Trial court erred in granting summary judgment in favor of pathologists in claim against health and welfare fund for unfair and deceptive trade practices and tortious interference with business relationship for sending letter to patients not to pay statements received from pathologists as pathologists had failed to show where patients had contractual obligation to pay the "professional component"  charge of rendering pathology services.  Central States Southeast and Southwest Area Health and Welfare Fund v.  Florida Society of Pathologists, 27 Fla. L. Weekly D1593 (Fla. 5th DCA July 12, 2002).

The Consumer Protection law, the Fair Credit Reporting Act  and the right to privacy do not prohibit  a collection agency from having to disclose the home addresses of its employees and telephone records and correspondence concerning other debtors.   Florida First Financial Group, Inc. v. De Castro , 27 Fla. L. Weekly D1161 (Fla. 4th DCA May 15, 2002).

Florida's Consumer Collection Practices Act applies to all persons, not just debt collectors.  Schauer v. General Motors Acceptance Corp. , 27 Fla. L. Weekly D663 (Fla. 4th DCA March 20, 2002).

Complaint alleging company willfully harassed co-signer of automobile financing agreement and his family with respect to collection of debt states a cause of action under Florida's Deceptive and Unfair Trade Practices Act.  Schauer v. General Motors Acceptance Corp., 27 Fla. L. Weekly D663 (Fla. 4th DCA March 20, 2002).

Consequential, speculative or other special damages are not recoverable under  Florida's Deceptive and Unfair Trade Practices Act.  Schauer v. General Motors Acceptance Corp., 27 Fla. L. Weekly D663 (Fla. 4th DCA March 20, 2002).

. ESTATE PLANNING AND PROBATE

Trial court erred in denying claimant's motion for extension of time to file an independent action where no amended notice of hearing was delivered to claimant's attorney although attorney for personal representative had called claimant's attorney's office and informed them that judge requested hearing be moved up one day.   Messner v. Dedeo, 27 Fla. L. Weekly D1985 (Fla.  3d DCA Sept. , 2002).

A constructive trust may not be imposed upon the assets of an estate pursuant to an unsigned will even though it expresses the decedent's clear intention, approving Dalk v. Allen, 774 So. 2d 787 (Fla. 5th DCA 2000).  Allen v. Dalk , 27 Fla. L. Weekly S708 (Fla. August 29, 2002).

Probate court erred in not giving full faith and credit to Montana judgment approving incapacitated beneficiary's assignment of her interest in decedent's estate.   O'Keefe v. Burchett, 27 Fla. L. Weekly D1814 (Fla. 2d DCA August 9, 2002).

Probate court erred in not giving full faith and credit to California judgment as parties had consented to personal jurisdiction on issue of whether beneficiary's assignment of his interest in decedent's estate was procured by fraud.   O'Keefe v. Burchett, 27 Fla. L. Weekly D1814 (Fla. 2d DCA August 9, 2002).

Trial court did not abuse its discretion in refusing to appoint guardian for an individual declared to be incompetent where there was evidence that individual was competent when she had executed a durable power of attorney.  Smith v. Lynch , 27 Fla. L. Weekly D1717 (Fla. 4th DCA July 24, 2002).

Trial court improperly dismissed petition for guardianship as 1) petititioner was not noticed that dismissal would be considered at hearing on opposing party's motion to vacate temporary order enjoining him from contacting ward, 2) attorney appearing on behalf of ward had not been properly substituted as counsel, and 3) court failed to obtain examining committee's report as required by section 744.331(3).   Borden v. Guardianship of Borden-Moore , 27 Fla. L. Weekly D1169 (Fla. 5th DCA May 17, 2002). 

Claim may not be stricken because estate is insolvent.  Chase Manhattan Bank USA, N.A. v. Estate of Silveira, 27 Fla. L. Weekly D1097 (Fla. 4th DCA May 8, 2002).

Fact that certain creditors have not been paid is no impediment to personal representative obtaining a discharge.     Chase Manhattan Bank USA, N.A. v. Estate of Silveira , 27 Fla. L. Weekly D1097 (Fla. 4th DCA May 8, 2002).

Co-trustee is personally liable for other co-trustee's misappropriation of funds even though other co-trustee had been ordered to make restitution.   Anton v. Anton, 27 Fla. L. Weekly D1090 (Fla. 4th DCA May 8, 2002).

Trial court erred in dividing estate equally between son and step-daughter where will expressly provided son would get 75% of insurance and step-daughter 25% even though decedent changed beneficiary to son so life insurance proceeds did not become part of the estate.   Budney v. Mikell , 27 Fla. L. Weekly D1071 (Fla. 2d DCA May 10, 2002).

Claim for attorney's fees against estate is not subject to the two year limitation for filing claims provided by sections 733.703 and 733.710.   Thompson v. Hodson, 27 Fla. L. Weekly D1042 (Fla. 1st DCA May 9, 2002).

Widow was entitled to attorney's fees incurred in obtaining family allowance.   Hoyt v. Hoyt, 27 Fla. L. Weekly D996 (Fla. 2d DCA May 3, 2002).

The Florida Supreme Court adopted emergency rules to comport with the 2001 legislative changes to the Florida Probate Code.   Probate Rules - Amendments, 27 Fla. L. Weekly S423 (Fla. May 2, 2002).

Court did not abuse its discretion in conditioning claimant's request for extension to file a claim upon claimant's returning motorcycle to the estate.  Brodfuehrer v. In re: Estate of Brodfuehrer , 27 Fla. L. Weekly D577 (Fla. 3d DCA March 13, 2002).

INSURANCE

Insurer was not estopped from asserting cancellation date contained in premium finance company's notice of cancellation by its own notice containing a later date.  U.S. Security Ins. Co. v. Shivbaran, 27 Fla. L. Weekly D1979 (Fla. 3d DCA Sept. 4, 2002).

Trial judge erred in determining commercial liability coverage extended to an unlisted truck and unlisted driver as policy specifically provided "NO AUTOMATIC COVERAGE IS AFFORDED UNDER THIS BINDER AND/OR POLICY FOR NEW AND/OR REPLACEMENT VEHICLES" and there was no grace period for listing additional trucks or drivers.   General Security Ins. Co. v. Barrentine, 27 Fla. L. Weekly D1883 (Fla. 1st DCA August 20, 2002).

Trial court should have granted summary judgment for homeowners' insurer, and not the insured, in claim for damages caused by construction blasting near property as policy excluded coverage for losses from any earth movement however caused.  State Farm Fire and Casualty Co. v. Castillo , 27 Fla. L. Weekly D1845 (Fla. 3d DCA August 14, 2002).

An insured is entitled to recover expenses incurred in defending himself against a covered claim even though he had violated the policy provision requiring prompt notice.  Nationwide Mutual Fire Ins. Co. v. Beville, 27 Fla. L. Weekly D1808 (Fla. 4th DCA August 7, 2002).

Workers' Compensation carrier that denied coverage cannot raise statutory immunity as a defense to claim by its insured's assignee.  Wright v. Hartford Underwriters Ins. Co., 27 Fla. L. Weekly D1806 (Fla. 4th DCA August 7, 2002).

The Agency for Health Care Administration is not required to reimburse health care provider  on a per claim as opposed to a per item basis.   Agency for Health Care Administration v. Baker County Medical Services, Inc. , 27 Fla. L. Weekly D1799 (Fla. 1st DCA August 6, 2002).

The six month stay granted to the Florida Insurance Guaranty Association, Inc. by section 631.67 applies to the entire proceeding, not just to an individual party.  Martinez v. Iturbe, 27 Fla. L. Weekly D1793 (Fla. 3d DCA Ausgust 7, 2002).

Trial court erred in finding that PIP insurer's reliance on computer generated database in denying a claim was not reasonable.  State Farm Mutual Automobile Insl. Co. v. Sestile, 27 Fla. L. Weekly D1757 (Fla. 2d DCA July 31, 2002).

The antistacking clause in a automobile liabiliy policy was uambiguous and limited liability to one million dollars even though the general liability policy issued by an affiliated company did not contain the same language.   Hartford Ins. Co. of the Midwest v. Bellsouth Telecommunications, Inc. , 27 Fla. L. Weekly D1723 (Fla. 4th DCA July 24, 2002).

Insured suing HMO for failing to authorize medically necessary treatment does not have to comply with the presuit notice requirements in Chapter 766.   Solomon v. Well Care HMO, Inc., 27 Fla. L. Weekly D1722 (Fla. 4th DCA July 24, 2002).

Endorsement to PIP policy specifically provided that benefits would not be provided where insured was injured outside of the state while occupying a vehicle that was not owned by him or a relative.  Harris v. Cotton States Mutual Ins. Co., 27 Fla. L. Weekly D1681 (Fla. 1st DCA July 26, 2002).

Excess insurer's policy that states it will pay "all interest on the entire amount of the judgment" requires payment of interest on the entire judgment, not just the amount in excess of that covered by the primary carrier.   Mocegui v. Public Service Mutual Ins. Co., 27 Fla. D1667 (Fla. 3d DCA July 24, 2002).

Notice of cancellation of insurance cannot specify a date sooner than receipt of the notice.   Southern Group Indemnity, Inc. v. Cullen, 27 Fla. L. Weekly D1659 (Fla. 4th DCA July 17, 2002).

When a policy does not define the term "vehicle," the court should look to the definition contained in section 324.021(1).  Progressive Ins. Co. v. Boyce , 27 Fla. L. Weekly D1640 (Fla. 2d DCA July 19, 2002).

An insurer's letter expressing an "intention to consummate a settlement"  was a conditional statement of intention to take action in the future, and was not a binding committment.  GEICO Casualty Ins. Co. v. Dupotey , 27 Fla. L. Weekly D115 (Fla. 3d DCA July 17, 2002).

The entire medical malpractice action must be stayed where one of the defen dant's insurers has become insolvent so that the Florida Insurance Guaranty Association time to investigate, evaluate and defend the claim.   Halili v. Radiation Oncology Consultants, P.A. , 27 Fla. L. Weekly D1492 (Fla. June 28, 2002).

UM carrier does not have a duty to obtain a new UM selection form where insurer simply adds an additional vehicle.  Nationwide Mutual Fire Ins. Co. v. Hild, 27 Fla. L. Weekly D1440 (Fla. 2d DCA June 21, 2002). 

Trial court erred in not allowing UM carrier from introducing into evidence plaintiff's application for social security benefits made eight months before accident as statements made in application were not "merely coumulative" and did constitute evidence of receipt of benefits.  Lumbermens Mutual Casualty Co. v. Poling, 27 Fla. L. Weekly D1345 (Fla. 5th DCA June 7, 2002).

Trial court erred in allowing insurer to place a former codefendant who had settled with plaintiff on the verdict form as insurer had not pled such party's negligence as an affirmative defense  even though the plaintiff was familiar with the insurer's expert witness's opinions that the former codefendant was at fault.  Bogosian v. State Farm Mutual Automobile Ins. Co. , 27 Fla. L. Weekly D1240 (Fla. 3d DCA May 29, 2002)(granting motion for rehearing of opinion reported at 25 Fla. L. Weekly D1306).

Plaintiff's receipt of disability insurer's equitable subrogation lien in exchange for $1,000 is not subject to collateral source set-off.   Centex-Rodgers Construction Co. v. Herrera , 27 Fla. L. Weekly D1208 (Fla. 4th DCA May 22, 2002).

Arbitration award affirmed as insurer never moved to vacate, modify or clarify as required by section 682.12.  American Reliance Ins. Co. v. Devecht , 27 Fla. L. Weekly D1196 (Fla. 3d DCA May 22, 2002).

Prejudgment interest under section 766.209 should be award in excess of policy limits as it is not tied to liquidation of damages and is therefore subject to the additional benefits provision of the insurance contract.  Graber v. Clarendon National Ins. Co., 27 Fla. L. Weekly D11148 (Fla. 4th DCA May 15, 2002).  

Section 627.737(2) exempts a covered defendant from liability for all noneconomic damages, not just those specifically listed, except in cases involving a threshold injury, certifying the qestion as one of great public importance.  Giles v. Luckie, 27 Fla. L. Weekly D1126 (Fla. 1st DCA May 16, 2002).

The submission of a fraudulent bill under the PIP portion of a divisible automobile liability policy does not void uninsured motorist coverage where the policy contains a general condition that the insurer "will not provide coverage for any loss that occurs in connection withy any material facts, or if any material misrepresentation or omission was made on the auto insurance application," quashing Flores v. Allstate Ins. Co., 772 So. 2d 4 (Fla. 2d DCA 2000).  Flores v. Allstate Ins. Co., 27 Fla. S499 (Fla. May 23, 2002). 

Collision policy providing insurer will "repair or replace' damaged or stolen property with other of like kind or quality" does not cover diminished value, approving Siegle v. Progressive Consumer Ins., Co., 788 So. 2d 355 (Fla. 4th DCA 2001).   Siegle v. Progressive Consumer Ins., Co.,  27 Fla. S492 (Fla. May 23, 2002).

Attorney defending legal malpractice claim is not entitled to setoff amount plaintiffs received as UM benefits.   Terri Van Winkle, P.A. v. Johnston, 27 Fla. L. Weekly D1020 (Fla. 1st DCA April 22, 2002).
 
Trial court erred in requiring PIP carrier to disclose names and addresses of other PIP claimants who were advised that a healthcare provider must arbitrate directly with the carrier.   Nationwide Mutual Fire Ins Co. v. Hess , 27 Fla. L. Weekly D1005 (Fla. 5th DCA May 3, 2002),

General commercial liability carrier had duty to defend as advertisment at a trade show constituted "widespread public distribution."   Bear Wolf, Inc. v . Hartford Ins. Co. of the Southeast, 27 Fla. L. Weekly D985 (Fla. 4th DCA May 1, 2002).

    There is a new Statement of Insured Client's Rights an attorney must provide when representing an insured.   Rules Regulating the Florida Bar - Amendments, 27 Fla. L. Weekly S387 (Fla. April 25, 2002).

Indemnity provision in PIP insurance contract does not alter insured's right of action against PIP insurer if payment is not made within thirty days after written notice even though insured had not been sued by affected medical providers.  Burgess v. Allstate Indemnity Co., 27 Fla. L. Weekly D814 (Fla. 2d DCA April 10. 2001).

Trial court did not err in allowing evidence that defendant was insured as such evidence was relevant to the issue of identification of the driver.  Nevarez v. Friskney, 27 Fla. L. Weekly D805 (Fla. 5th DCA April 5, 2002).

Insurer that wishes to rescind contract on basis of fraud on the application must tender for the entire period of time the policy was in effect and not just the renewal year of the policy. Bankers Ins; Co. v. General No-Fault Ins. Co., 27 Fla. L. Weekly D778 (Fla. 4th DCA April 3, 2002).

Section 627.727(2), which requires an isurer to offer UM benefits, applies to a self-insured car rental agency.  Ferrerio v. Philadelphia Indemnity Ins. Co. , 27 Fla. L. Weekly D748 (Fla. 3d DCA April 3, 2002).

Liability policy covered spoilation of evidence claim as it arose from a claim for bodily or personal injury, certifying conflict with Norris v. Colony Ins. Co ., 760 So. 2d 1010 (Fla. 4th DCA 2000).  Home Emergency Services, Inc. v. Humana Worker's Compensation , 27 Fla. L. Weekly D628 (Fla. 3d DCA March 13, 2002).

An attorney's failure to include several physicians in a suit before the statute of limitations had expired was a single act of malpractice so that the aggregate policy limits did not apply.  Eagle American Ins. Co. v. Nichols , 27 Fla. L. Weekly D596 (Fla. 4th DCA March 13, 2002).

Department of Insurance properly revoked license to operate as a viatical settlement provider as licensee knew or should have known that the life insurance policies it purchased were obtained unethically as a result of the misrepresentation as to the state of health of the viator.     Accelerated Benefits Corp. v. Dept. of Ins., 27 Fla. L. Weekly D457 (Fla. 1st DCA Feb. 26, 2002)(correcting opinion reported at 26 Fla. L. Weekly D2906)

  REAL PROPERTY

Trial judge properly entered order evicting commercial tenant for failing to deposit ad valorem property taxes into registry of court even though provision in lease requiring such payments was contained in section on lease covenants and conditions and not in section governing rent.  Cascella v. Canaveral Port Authority , 27 Fla. L. Weekly D2015 (Fla. 5th DCA Sept. 6, 2002).

Trial court improperly reversed Town's decision to deny application for rezoning to permit building of docks as expert witness and neighboring landowners' testimony that docks would seriously impact view supported Town's finding that denial was consistent with Comprehensive Plan's aesthetic objectives.   Town of Manalapan v. Gyongyosi, 27 Fla. L. Weekly D1992 (Fla. 4th DCA Sept. 4, 2002).

A challenge to a development agreement pursuant to section 163.3243 does not have to comply with the presuit requirements of challenging development orders found in section 163.3215.  Elhanon v. City of Naples, 27 Fla. L. Weekly D1952 (Fla. 2d DCA August 30, 2002).

Trial court properly granted summary judgment in favor of developer on prospective purchaser's claim for specific performance where she admitted she and her husband were separating and therefore she could not go through with the purchase.   Martinez v. Melrose Townhomes, Inc., 27 Fla. L. Weekly D1946 (Fla. 4th DCA August 28, 2002).

Joint annexation planning agreements do not necessarily have to be implemented by amending local comprehensive plans.  1000 Friends of Florida, Inc. v. State, Dept. of Community Affairs, 27 Fla. L. Weekly D1941 (Fla. 4th DCA August 28, 2002).

Trial court properly denied claim for inverse condemnation as plaintiffs application was to build a duplex which was not permitted to be built on the seaward side of the Broward County Coastal Construction Control Line and they never sought to amend it to seek approval to build a single family residence which is a permittable use. Leto v. State of Florida Dept. of Environmental Protection, 27 Fla. L. Weekly D1898 (Fla. 4th DCA August 21, 2002).

Trial court erred in granting summary judgment against County on rezoning request on principle of collateral estoppel as landowners' affidavits did conclusively demonstrate that earlier zoning was initiated or made on their behalf.   Leon County v. Bradfordville Phipps Limited Partnership , 27 Fla. L. Weekly D1850 (Fla. 1st DCA August 14, 2002).

Landowner is strictly liable under section 376.313 for migration of contaminated ground water.  Easton v. Aramark Uniform and Career, 27 Fla. L. Weekly D1802 (Fla. 1st DCA August 6, 2002).

Contract between owners and appraiser was not a contingent fee contract in violation of section 475.628.  Bouche v. Walt Disney World Hospitality & Recreation, 27 Fla. L. Weekly D1770 (Fla. 5th DCA August 2, 2002).

Trial court erred in granting summary judgment of foreclosure as defendants had raised issues of waiver and estoppel as affirmative defenses.   Scheibe v. Bank of America, N.A., 27 Fla. L. Weekly D1769 (Fla. 5th DCA August 2, 2002).

A lien can attach to one spouse's interest in property that was owned by the entirety where the judgment of dissolution did not contain language conveying the interest in the marital home, but rather required the spouse to quit claim his interest to the other spouse.  Pegram v. Pegram , 27 Fla. L. Weekly D1765 (Fla. 2d DCA August 2, 2002).

Trial court should have remanded case to property appraiser for reassessment instead of reducing the amount of assessment by using its own calculations.   Todora v. Venice Golf and Country Club #1, Inc., 27 Fla. L. Weekly D1691 (Fla. 2d DCA July 26, 2002).

Trial court erred in reforming deed as 1) intermingling cows with other owner's consent belied claim for adverse possession; 2) there was no evidence to support finding of boundary by agreement, and 3) fact that fence location did not conform to legal description in deeds did not support claim of boundary by acquiescence.  Sanders v. Thomas, 27 Fla. L. Weekly D1688 (Fla. 1st DCA July 26, 2002).

In premises liability case, trial court properly directed verdict in favor of defendant landlord where evidence showed landlord was not in possession of premises at time of plaintiff's injury.  Verges v. Pacheco & Sons, Inc. , 27 Fla. L. Weekly D1672 (Fla. 3d DCA July 24, 2002).

A party who pays the full price for a parcel of real property, but takes title jointly with full rights of survivorship, is deemed to have given one half interest to the other joint owner and therefore is entitled to only one half the proceeds from a partition sale with credit for incurred costs and expenses for improvements, repairs, insurance and taxes.   O'Donnel. v. Marks, 27 Fla. L. Weekly D1660 (Fla. 4th DCA July 17, 2002)(on rehearing of opinion at 27 Fla. L. Weekly D1261)..

Trial court properly denied South Florida Water Management District's motion for summary judgment as issue of whether drainage ditch that ran between canal and road was "land for outdoor recreational purposes" and therefore subject to the immunity provision of section 373.1395, was a factual issue to be determined by the jury. South Florida Water Management District v. Daiagi , 27 Fla. L. Weekly D1658 (Fla. 4th DCA July 17, 2002).

Language in contract that  "Payments will be made . . . within 7 business days after receipt of payment from owner" is ambiguous as to whether it is setting a condition precedent to payment or fixing a reasonable time for payment and is therefore insufficient to shift the risk of payment failure by the owner to the subcontractor.   Schroeder v. Gebhart , 27 Fla. L. Weekly D1652 (Fla. 5th DCA July 19, 2002).

Although easement language for road right-of-way to "waters" of a river contained the riparian right to build a dock, there was evidence supporting trial court's finding that the height and length of proposed dock increased the burden upon the servient tenements.  Shore Village Property Owners Association, Inc. v. Henry, 27 Fla. L. Weekly D1590 (Fla. 4th DCA July 10, 2002).

Trial court erred in entering summary judgment for ten percent commission as there was a dispute as to whether parties had orally agreed that commission would be paid from proceeds of closing only.   Cosman v. Bea Morley Real Estate Group, Inc., 27 Fla. L. Weekly D1589 (Fla. 4th DCA July 10, 2002).

Two failed attempts to personally serve out of state defendant did not constitute sufficient diligent search to justify request to proceed with constructive service in foreclosure action. De Vico v. Chase Manahattan Bank , 27 Fla. L. Weekly D1580 (Fla. 3d DCA July 10, 2002).  

The word "modified" in restrictive covenant includes the ability to extend the restrictive covenants beyond specified termination date.   Venetian Isles Homeowners Association, Inc. v. Albrecht, 27 Fla. L. Weekly D1575 (Fla. 2d DCA July 10, 2002).

A public golf course, situated on publicly owned property, but operated by a private for-profit business is not entitled to a "public purpose" exemption from ad valorem taxes.  Turner v. Concorde Properties, Inc. , 27 Fla. L. Weekly D1508 (Fla. 2d DCA June 28, 2002).

Trial court erred in directing propety appraiser to award an agricultural classification where property owner had failed to file bot a late application and a timely petition to the value adjustment board by the statutory March 1 deadline.   Turner v. Lusk, 27 Fla. L. Weekly D1506 (Fla. June 28, 2002).

Commercial lease providing "Tenant shall pay its pro-rata share of any of these ultility charges" should be interpreted as requiring Tenant pay for only those utitlites it acutally used as opposed to paying on basis of percentage of leased square footage.  Sorota v. Belmat, Inc. , 27 Fla. L. Weekly D1485 (Fla. 4th DCA June 26, 2002).

Trial court properly etntered foreclosure judgment despite mortgagee's failure to produce the origninal mortgage and promissory note and failure to establish lost intruments pursuant to section 673.3091 as evidence supported trial court's conclusion that assignee owned the original mortgages and notes and the the assignor's exucution of satisfactions was fraudulent.   Slizyk v. Smilack, 27 Fla. L. Weekly D1475 (Fla. 4th DCA June 26, 2002).

Trial court erred in terminating easement on basis of doctrine of merger as ownership of one of the dominant estates was by equitable title which is not equal in the quality and validity as legal title.   Tyler v. Price , 27 Fla. L. Weekly D1462 (Fla. 4th DCA June 19, 2002).  

Trial court properly found City was liable to refund  stormwater utility fees and not entitled to "equitable considerations" defense as it found City had various means at its disposal to raise sufficient revenues to cover refund.   City of Port St. Lucie v. Zlinkoff , 27 Fla. L. Weekly D1448 (Fla. 4th DCA June 19, 2002).

Owners' suit challenging property appraiser's application was time barred as owners failed to file an application by March 1 and there was nothing in the record other than counsel's implications that the property appraiser waived this requirement.   Sugarmill Woods, Inc. v. Schultz , 27 Fla. L. Weekly D1436 (Fla. 5th DCA June 21, 2002).

Evidence of husband's negligence in not repairing fence known by him to be in a state of disrepair could not be imputed to wife.  Boswell v. Russell , 27 Fla. L. Weekly D1434 (Fla. 5th DCA June 21, 2002).

Trial court should have dismissed petition challenging denial of rezoning request as property owner was not entitled to such relief until it succeeded in amending comprehensive plan.  City of Miami Beach v. East Coastline Development, Ltd. , 27 Fla. L.  Weekly D1403 (Fla. 3d DCA June 19, 2002).

City of Coral Gables ordinance limiting a single family residence to one or more platted lots where there is an existing fence precludes purchaser of lot from building a house where contiguous property's concret block wall extended along its perimeter even though such wall had not been permitted.   Velez v. City of Coral Gables , 27 Fla. L. Weekly D1401 (Fla. 3d DCA June 19, 2002).

Orange County's ordinance imposing a 5,000 foor separation between liquor package stores is a valid exercise of police power "bearing a substantial relationship to the health, safety, morals, or general welfare of the community,"  quashing Costco Wholesale Corp. v. Orange County, 780 So. 2d 198 (Fla. 5th DCA 2001). Orange County v. Costco Wholesale Corp., 27 Fla. L. Weekly S608 (Fla. June 27, 2002)
 
A variance obtained by a property owner's attorney constitutes a nonmonetary benefit for which the attorney is entitled  to a fee under section 73.092.   Dept. of Trans. v. CNE Income Fund VIII, Ltd., 27 Fla. L. Weekly D1388 (Fla. 5th DCA June 14, 2002).                                                                                                                                                            
Person who executed quit claim deed had not standing to appeal order denying motion to dissolve lis pendens.   Penabad v. A.G. Gladstone Associates, Inc., 27 Fla. L. Weekly D1373 (Fla. 3d DCA June 12, 2002).  

Developer's complaint against Orange County for breach of contract and promissory estoppel on grounds that it breached its agreement to "support and expeditiously process" its request for rezoning in exchange for agreement to donate 50 acres was affirmed as such contract is a void effort to engage in contratual zoning and promissory estoppel cannot be applied against a governmental entity to accomplish an illegal result.  Morgan Company, Inc. v. Orange County, 27 Fla. L. Weekly D1347 (Fla. 5th DCA June 7, 2002).

Clerk does not have a duty to take any further steps to locate owner where notice of tax deed sale sent to vacant property is returned.  Kidder v. Cirelli, 27 Fla. L. Weekly D1343 (Fla. 5th DCA June 7, 2002).

County ordinance prohibiting manufactured housing in R-1 subdivisions is in violation of section 553.38, which prohibits local authorities from making distinctions between conventionally constructed and manufactured buildings.  Marion County v. Dept. of Community Affairs, 27 Fla. L. Weekly D1342 (Fla. 5th DCA June 7, 2002).

Trial court erred in granting summary judgment of foreclosure as plaintiff did not factually refute the affirmative defenses or show they were legally insufficient.  Manassas Investments, Inc. v. O'Hanrahan, 27 Fla. L. Weekly D1339 (Fla. 2d DCA June 7, 2002).

The term "municipality" in section 337.401(3) encompasses chartered counties, thereby authorizing them to charge telecommunications companies a fee for the use of rights-of-way.   Palm Beach County v. Bellsouth Telecommunications, Inc. , 27 Fla. L. Weekly D1317 (Fla. 4th DCA June 5, 2002).

Amendment to comprehensive plan establishing Natural Resource Protection Areas although there were no "specific standards for the density or intensity of use" required by section 163.3177(6), as such requirement is applicable only to land uses involving the presence of buildings and structures.   Florida Wildlife Federation v. Collier County, 27 Fla. L. Weekly D1305 (Fla. 1st DCA May 28, 2002).

Trial court properly vacated foreclosure sale where adequacy of bid price was not at issue as second mortgagor who had paid off first mortgage and received assignment had not been named as plaintiff in notice and did not receive notic of sale, certifying the following question as one of great public importance:
Does the test set forth in Arlt v. Buchanan , 190 So. 2d 575, 577 (Fla. 1966), for vacating a foreclosure sale apply when adequacy of the bid price is not at issue?
Ingorvaia v. Horton, 27 Fla. L. Weekly D1294 (Fla. 2d DCA May 31, 2002).

The Florida Supreme Court's decision in Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001), shifting the burden of proof in premise liability cases, applies to cases where summary judgment has been entered provided the appeal is not yet final.   D'Aquisto v. Costco Wholesale Corp ., 27 Fla. L. Weekly D1283 (Fla. 5th DCA May 31, 2002).

Final judgment foreclosing construction lien vacated as contractor had failed to file and serve affidavit five days prior to filing suit and his filing and serving affidavit five days before filing amend complaint occurred more than one year after recording of lien.   Privas v. Brisson Custom Homes, Inc., 27 Fla. L. Weekly D1272 (Fla. 4th DCA May 29, 2002).

A tenant's counterclaim for damages based on a lease provision stating that the landlord's potential liability for breach was limited to his interest in the property does not involve a potential interest in the realty itself and therefore cannot be a basis for recording a lis pendens.  Okub v. Torres , 27 Fla. L. Weekly D1247 (Fla. 3d DCA May 29, 2002).

 .Buyers of a condomimium were not entitled to a refund of their deposit even though the parties never agreed to an addendum specifying the type of floor covering as the purchase agreement signed by both parties specifically stated that floor coverings were not included in the sale.  Dimase v. Aquamar 176, Inc. , 27 Fla. L. Weekly D1237 (Fla. 3d DCA May 29, 2002).

Jury verdict finding lessor breached provision requiring it to improve premises was affirmed as 1) provision for reduced rent was not a liquidated damages provision, 2) trial court did not abuse its discretion in denying jury instruction on waiver as lease specifically provided any inaction by Lessee would not be construed as a waiver, 3) trial court did not prevent lessor from cross-examining lessee's expert witness about statements made in first report, and 4) lessor's simply filing a copy of  a mortgage foreclosure judgment where one of the defendants had the same name as one of the jurors was not sufficient proof of juror misconduct.   Glover Distributing Co., Inc. v. F.T.D.K., Inc., 27 Fla. L. Weekly D1228 (Fla. 5th DCA May 24, 2002). 

 Trial court properly granted summary judgment in favor of landowner as plaintiff, an experienced repairman, admitted he was not aware of anything wrong with ladder and landowner averred he did not know of any defect in the ladder.  Portal v. Asencio, 27 Fla. L. Weekly D1191 (Fla. 3d DCA May 22, 2002).

Trial court erred in refusing to enforce deed restrictions on grounds Association did not act reasonably as it was undisputed that Architectural Review Committee denied application to erect four antenna and on grounds antenna were "grandfathered" in as Association took steps to enforce deed restrictions immediately upon ascensionto power.  Emerald Estates Community Ass'n., Inc. v. Gorodetzer, 27 Fla. L. Weekly D1164 (Fla. 4th DCA May 15, 2002).

Language in mortgage broker agreement that fees were included in total amount paid in interest, points and fees and may be paid in part by mortgagor and in part by lender was ambiguous as to whether fees were earned upon mortgagors obtaining a loan commitment or upon closing.   Ieracitano v. Stuart D. Shaw, P.A. , 27 Fla. L. Weekly D1157 (Fla. 4th DCA May 15, 2002).
 
 Evidence that grantor delivered deed to grantee with instructions not to record it just yet supported trial judge's determination there was no delivery of the deed and therefor no conveyance of the property.   James v. Mabie, 27 Fla. L. Weekly D1116  (Fla. 1st DCA May 13, 200).

On rehearing of opinion reported at 27 Fla. L. Weekly D571, the court certified the following question:
If a statutory payment bond does not contain reference to the notice and time limitation provisions of section 255.05 as required by section 255.05(6), are those notice and time limitations nevertheless enforceable by the surety, or is the claimant entitled to rely upon the notice and time limitations applicable under the common law?
American Home Assurance Co. v. Plaza Materials Corp. , 27 Fla. L. Weekly D1075 (Fla. 2d DCA May 10, 2002).

Trial judge erred in preventing property appraiser from presenting evidence of construction costs and subsequent sale in justifying the total assessment.   Turner v. Bell Chevrolet, Inc ., 27 Fla. L. Weekly D1069 (Fla. 2d DCA May 10, 2002).

An addendum to a lease granting either party the right to cancel the lease if either desire to relocate a billboard should not be interpreted as implying cancellation must be based on good faith or with prior notice.   Churchill Development, Inc. v. Prime Outdoor Group, LLC. , 27 Fla. L. Weekly D1065 (Fla. 2d DCA May 8, 2002).

County properly interpreted its Code restricting the expansion of nonconforming use of land or structures in denying request to expand permit to serve beer and wine to include serving all alcoholic beverages.  JPM Investment Group, Inc. v. Brevard County Board of County Commissioners, 27 Fla. L. Weekly D1019 (Fla. 5th DCA May 3, 2002).
 
Language in mortgage broker agreement that commission for obtaining a committment was to be paid at closing was not ambiguous as to whether commission was to be paid, and the law implies payment be made in a reasonable time.   Indepedent Mortgage and Finance, Inc. v. Deater, 27 Fla. L. Weekly D977 (Fla. 3d DCA May 1, 2002).

A surety's failure to comply with the requirements of section 255.05(4) may estop the surety from defending on the basis of the claimant's noncompliance with the provisions of subsection (2) "if such non-compliance has resulted from the failure of the bond to contain the information required by the statute," certifying the issue as one of great public importance.  Florida Crushed Stone Co. v. American Home Assurance Co., 27 Fla. L. Weekly D969 (Fla. 5th DCA April 25, 2002).

Miami-Dade County's alternate system for enforcing its Code does not require it to grant a grace period and permits it to impose a fine without prior notice and an opportunity to cure.  Miami-Dade County v. Brown , 27 Fla. L. Weekly D922 (Fla. 3d DCA April 24, 2002). 

Sign on washer and dryer stating whom to call for repairs was not sufficient notice to purchaser that premises were being leased.   Pepe Coin Laundries, Inc. v. Catovest International, Inc. , 27 Fla. l. Weekly D867 (Fla. 3d DCA April 17, 2002).

Trial court erred in dismissing complaint seeking injunction against erection of billboard as plaintiffs had an ingress/egress easement over the entire parcel of land and it therefore did not matter whether the billboard actually interfered with their ability to access the property.  Sand Lake Shoppes Family Limited Partnership v. Sand Lake Courtyards, L.C., 27 Fla. L. Weekly D791 (Fla. 5th DCA April 5, 2002).

Trial court erred in granting summary judgment in favor of land owner in slip and fall case as there was evidence that stairs had been covered with a powdery drywall material even though plaintiff could not specifically identify which item of debris caused his fall.  Kinney v. R.H. Halt Associates, Inc., 27 Fla. L. Weekly D767 (Fla. 2d DCA April 3, 2002).

Landlord has nondelegable duty to use reasonable care in selecting a competent independent contractor to make improvements or repairs to the premises.  Suarez v. Gonzalez, 27 Fla. L. Weekly D730 (Fla. 4th DCA March 27, 2002)(rehearing of opinion reported at 27 Fla. L. Weekly D104).

Bonding company that failed to provide notice required by section 255.05(6) was not entitled to enforce restrictions contained in section 255.05(2).  American Home Assurance Co. v. Plaza Materials Corp., 27 Fla. L. Weekly D571 (Fla. 2d DCA March 8, 2002).

City of Miami's fees on pawnshop operators to cover the costs of inspection are user fees and not an unconstitutional tax.  City of Miami v. Quic Cash Jewelry & Pawn, Inc. , 27 Fla. L. Weekly D533 (Fla. 3d DCA March 6, 2002).

Residential property owners were not entitled to bring inverse condemnation action for destruction of trees as they were within the 125 foot radius of Canker-infested trees and therefore had no value and were a source of public danger.  Patchen v. State of Florida Dept. of Agriculture and Consumer Services , 27 Fla. L. Weekly D517 (Fla. 3d DCA March 6, 2002).

Statute of limitations and doctrine of laches barred landowners from recovering taxes assessed for maintenance beyond four years.  Spring Lake Improvement District v. Tyrrell , 27 Fla. L. Weekly D267 (Fla. 2d DCA Jan. 25, 2002).

Landowners were not entitled to refund capital taxes as bond validation decree acted as res judicata.  Spring Lake Improvement District v. Tyrrell, 27 Fla. L. Weekly D267 (Fla. 2d DCA Jan. 25, 2002).

As mortgage did not contain maturity date, statute of limitation was 20 years even though mortgage incorporated terms of unrecorded promissory note which did contain a maturity date. Layton v. Bay Lake Limited Partnership, 27 Fla. L. Weekly D248 (Fla. 2d DCA Jan. 23, 2002).

Landlord was liable to tenant for injuries sustained by kitchen cabinet falling on him on theory that Landlord "negligently selected the anonymous 'phantom' contractor who installed the cabinets." Suarez v. Gonzalez , 27 Fla. L. Weekly D104 (Fla. 4th DCA Jan. 2, 2002).

TORTS

A single fall in a nursing home can constitute a violation of Chapter 400.  Angelo v. Healthcare and Retirement Corp. of America, 27 Fla. L. Weekly D1944 (Fla. 4th DCA August 28, 2002).

In a negligence case, trial court erred in allowing Defendant contractor's expert witness to testify as to Plaintiff homeowners' responsibilities under the South Florida Building Code when the homeowner was the one who pulled the permit.   Kayfetz v. A.M Best Roofing, Inc., 27 Fla. L. Weekly D1878 (Fla. 3d DCA August 7, 2002)(correcting opinion reported at 27 Fla. L. Weekly D1792).

Evidence of previous slip and fall incidents and that 135,000 square was patroled only once an hour had constructive notice that liquid detergent often spilled and was negligent.  Costco Wholesale Corp. v. Marsan, 27 Fla. L.  D1843 (Fla. 3d DCA August 14, 2002).

Childrens' judgments against Department of Children and Family Services for damages incurred while in foster care reversed as trial judge permitted jury's consideration of planning activities instead of limiting evidence to operational activities.  State Dept. of Health and Rehabilitative Services v. T.R., 27 Fla. L. Weekly D1837 (Fla. 3d DCA August 14, 2002).

Trial court properly denied plaintiff's motion for directed verdict as defendant's medical expert testified plaintiff's rotator cuff injury could not have been caused by accident.  D'Angelo v. Orkin Extermination, Inc. , 27 Fla. L. Weekly D1741 (Fla. 4th DCA July 31, 2002).

A medicaid recipient is not a third party beneficiary to the settlement agreement between the State and the tobacco companies and is therfore not entitled to a share of the distribution proceeds.  Oliva v. State of Florida, 27 Fla. L. Weekly D1642 (Fla. 1st DCA July 19, 2002).

Trial court erred in dismissing medical malpractice action on statute of limitations as complaint did not state when misdiagnosis was discovered, which is the date the statute of limitations begins to run.   Woods v. Sapolsky , 27 Fla. L. Weekly D1611 (Fla. 1st DCA July 9, 2002).

The "drum off" unloading of  sulfuric acid from a tanker through a hose a nozzle into fifty gallon drums is not an ultrahazardous activity. Baltonado v. CTL Distribution, Inc., 27 Fla. L. Weekly D1541 (Fla. July 3, 2002). 

Trial court properly dismissed five count complaint for fraud, negligent misrepresentation, breach of fiduciary duty, malicious conspiracy to defraud and intentional infliction of emotional distress based on allegations that university employees made erroneous representations that university offered an entomology degree as university catalog showed university no longer offered an entomology degree.  Ward v. Florida Board of Education, 27 Fla. L. Weekly D1527 (Fla. 1st DCA June 27, 2002).

Allegations that employer subjected employee to a severe and pervasive pattern of sexual harassment by making derogatory comments about homosexuality were not so outrageous to support a claim for intentional infliction of emotional distress.   De La Campa v. Grifols America, Inc. , 27 Fla. L. Weekly D1523 (Fla. 3d DCA June 26, 2002).

Four year statute of repose was not tolled because of negligent misdiagnosis of pap smere, certifying the following question as one of great public importance: "Does the term concealment as used in section 95.11(4)(b), Florida Statutes, encompass negligent diagnosis by a medical provider?"   Mehme v. Smithkline Beecham Clinical Laboratories, Inc. , 27 Fla. L. Weekly D1498 (Fla. 5th DCA June 28, 2002).

Trial court erred in entering a directed verdict on Jones Act claim even though steardess declined captain's offers of assistance, ignored doctor's orders and contributed to her injury by delaying follow up medical care as the law places a greater obligation on the captain to provide for the crew members' welfare than it does on the crew members themselves.   Mill v. Bay Data, Inc. , 27 Fla. L. Weekly D1479 (Fla. 4th DCA June 26, 2002).

Judgment declaring two motorcycles "lost or abandoned" in sheriff's forfeiture sale and denying petition for replevin was void as owners were engaged in ongoing correspondence and litigation so notice claiming the motorcycles were lost or abandoned was improper.  Kirchoff v. Jenne , 27 Fla. L. Weekly D1478 (Fla. 4th DCA June 26, 2002).

Evidence that party disputed scope of damage provision of demolition contract was insufficient to support jury finding that party fraudulently induced other party into entering an escrow agreement.   New Florida Properties Corp. v. Gene Contracting, Inc. , 27 Fla. L. Weekly D1378 (Fla. 3d DCA June 12, 2002).

City of  Miami Beach was not liable for two drownings.  Judge Cope wrote a lengthy dissent, arguing the City had a duty to warn swimmers of rip tides.   Poleyeff v. City of Miam Beach , 27 Fla. L. Weekly D1375 (Fla. 3d DCA June 12, 2002).

The Florida Supreme Court adopted amendments to the personal injury standard jury instructions and verdict forms to reflect the recent statutory and case law changes on comparative negligence and apportionment of damages.  Standard Jury Instructions-Civil Cases (Nos. 01-1 & 01-2), 27 Fla. L. Weekly S555 (Fla. June 6, 2002).   

County was not liable for injuries received by beachgoer from lightning, even though County assumed duty by establishing warning procedures, as there was no evidence that County employees were negligent in following those procedures.   Seelbinder v. County of Volusia , 27 Fla. L. Weekly D1281 (Fla. 5th DCA May 31, 2002).

Hospital may be liable under "The Rescue Doctrine," for injuries plainitff incurred in trying to prevent patient from falling off gurney where hospital employee failed to put up bed rail.  Reeves v. North Broward Hospital District, 27 Fla. L. Weekly D1265 (Fla. 4th DCA May 29, 2002).

Provision of Good Samaritan Act immunizing conduct of  hospital and its employees does not apply to suit against paramedics for negligently dropping patient while carrying her.   Knox v. Adventist Health System/Sunbelt, Inc. , 27 Fla. L. Weekly D1221 (Fla. 5th DCA May 24, 2002).

Trial court properly granted summary on claim against Florida Fish and Wildlife Conservation Commission for false imprisonment, false arrest and violation of civil rights as officer had probable cause to believe plaintiff 's nets were illegal when he visually observed two very large cast nets.   Grix v. Florida Fish and Wildlife Conservation Commission , 27 Fla. L. Weekly D1204 (Fla.  4th DCA May 22, 2002).

Trial court erred in granting summary judgment in favor of race horse's trainer on third party claim for contribution and indemnification brought by race track owner as there were genuine issues of fact as to whether trainer's alleged negligence was a contributing cause to the horse's fracturing leg while racing on a soft turf course.   Gulfstream Park Racing Ass'n., Inc. v. Gold Spur Stable, Inc., 27 Fla. L. Weekly D1202 (Fla. 4th DCA May 22, 2002).

Trial court properly granted summary judgment in favor of landowner as plaintiff, an experienced repairman, admitted he was not aware of anything wrong with ladder and landowner averred he did not know of any defect in the ladder.   Portal v. Asencio , 27 Fla. L. Weekly D1191 (Fla. 3d DCA May 22, 2002).

Trial court properly denied motion for new trial in wrongful death action as electric company's employee's turning off a traffic signal to make non-emergency repairs created a foreseeable zone of risk to the driving public.   Florida Power & Light Co. v. Goldberg, 27 Fla. D117 (Fla. 3d DCA May 22, 2002). 

In Birth RelatedNeurological Injury claim, the administrative law judge does not have the authority to require plaintiff to elect his remedies.   Gugelmin v. Division of Administrative Hearings , 27 Fla. L. Weekly D1101 (Fla. 4th DCA May 8, 2002).

Trial court erred in granting summary judgment as there was a genuine dispute as to whether plaintiff  was reassigned to light-duty land-based work and therefore covered by the Longshore and Harbor Workers' Compensation Act  or was simply a seaman assigned light duty because of injuries and therefore covered by the Jones Act. Gulfcoast Transit Co. v. Burns , 27 Fla. L. Weekly D997 (Fla. 2d DCA May 2, 2002).

Trial court erred in dismissing accountant's malicious prosecution case against purchasers of business who had accused him of fauty preparation of financial statement as accountant had alleged purchasers had signed contract to purchase before being provided a financial statement.   Durkin v. Davis , 27 Fla. L. Weekly D995 (Fla.  2d DCA May 3, 2002).  

Trial judge erred in granting summary judgment in case accusing owner of shopping center of failure to maintain sign even though driver averred that she knew the sign was there and had stopped, as injured party's affidavit that driver did not stop created genuine issue as to whether sign was twisted away from oncoming drivers.   Defelice v. SB Partners Limited , 27 Fla. L. Weekly D983 (Fla. 4th DCA May 1, 2002).

Trial court erred in granting summary judgment in favor of subcontractor in suit filed by another subcontractor's employee who was injured in tripping over metal stud that had fallen from a stack of material even though injured party could not identify the person who cut the bundle as there were questions of fact as to whether defendant subcontractor followed OSHA guidelines.  Richardson v. Wal-Mark Contracting Group, LLC. , 27 Fla. L. Weekly D957 (Fla. 2d DCA April 26, 2002).

Motor vehicle owner consents to en personam jurisdiction by loaning car to son whom he specifically knew was living in and going to be driving the vehicle in Florida.   Stevenson v. Brosdal , 27 Fla. L. Weekly D888 (Fla. 4th DCA April 17, 2002).

Release of initial tortfeasor acts as a release of subsequent tortfeasor, certifying the following questions:
     (1)  Has the doctrine of Stuart v. Hertz been abrogated by the Tort Reform and Insurance Act of 1986, Chapter 86-160, Laws of Florida?
    (2)  Does Stuart v. Hertz apply when the initial cause of action is one in medical malpractice and both the initial and subsequent tortfeasors are sued in the same action?
Caccavella v. Silverman, 27 Fla. L. Weekly D838 (Fla. 4th DCA April 10, 2002).

Trial court erred in granting summary judgment in favor of tire manufacturer in wrongful death action arising from tire exploding when decedent attempted to mount 16 inch tire on 16.5 inch rim, because adequacy of warning there was a danger doing such should have been left to the jury.  Scheman-Gonzalez v. Saber Manufacturing Co., 27 Fla. L Weekly D829 (Fla. 4th DCA April 10, 2002).

A tire rim manufacturer may be liable for death caused by exploding tire when decedent attempted to mount 16 inch tire on 16.5 inch rim as the rim itself may have been defective. Scheman-Gonzalez v. Saber Manufacturing Co., 27 Fla. L Weekly D829 (Fla. 4th DCA April 10, 2002).

A sudden stop to make a left turn at a break in a grass median is not sufficient evidence to overcome the presumption of negligence arising from a rear-end collision.  Hunter v. Ward , 27 Fla. L. Weekly D808 (Fla. 1st DCA April 8, 2002).

The 1999 amendment to section 768.81 limiting joint and several liability does not retroactively apply to cause of action accruing before October 1, 1999.  Basel v; McFarland & Sons, Inc., 27 Fla. L. Weekly D792 (Fla. 5th DCA April 5, 2002).

Trial court erred in granting summary judgment in products liability case in favor of tire manufacturer on basis of spoilation of evidence as there was no evidence that either party had possession or control of remnants of tire which had not been seen since date of accident. Derosier v. Cooper Tire & Rubber Co. , 27 Fla. L. Weekly D773 (Fla. 4th DCA April 3, 2002).

Landlord may be liable to tenant for injuries cause by falling cabinet installed by an independent contractor on theory that landlord had negligently selected, instructed or supervised the contractor.  Suarez v. Gonzalez , 27 Fla. L. Weekly D730 (Fla. 4th DCA March 27, 2002).

Trial court improperly granted summary judgment in favor of BellSouth in wrongful death action arising from electrocution from downed power lines on grounds that Florida Power and Light Co. was responsible for maintenance of poles pursuant to a joint use agreement as there were factual issues as to whether such agreement was a contract for bailment that transferred exclusive use and possession of the poles. Meeks v. Florida Power & Light Co. , 27 Fla. L. Weekly D679 (Fla. 5th DCA March 22, 2002).

Florida's Wrongful Death Act does not limit a minor's claim for damages for lost of parental companionship and mental pain and suffering to that period of time before the minor reaches the age of 25, certifying the question as one of great public importance. Meeks v. Florida Power & Light Co. , 27 Fla. L. Weekly D679 (Fla. 5th DCA March 22, 2002).

Trial court properly dismissed forgery complaint as forging signature on credit application form did not obligate plaintiff to sign or make payments under separate retail sales installment contract.  Schauer v. General Motors Acceptance Corp., 27 Fla. L. Weekly D663 (Fla. 4th DCA March 20, 2002).

Insurer of car owner can bring indemnification action against person who had possession of the vehicle.  McDowell v. Rodriguez, 27 Fla. L. Weekly D507 (Fla. 5th DCA March 1, 2002)(rehearing en banc of opinion reported at 26 Fla. L. Weekly D2007).

    The "First Amendment does not provide a shield behind which a church may avoid liability for harm caused to a third party arising from the alleged sexual misconduct by one of its clergy members duuring the course of an established marital counseling relationship."  Doe v. Evans , 27 Fla. L. Weekly S229 (Fla. March 14, 2002).

   The "First Amendment does not provide a shield behind which a church may avoid liability for harm caused to an adult and a child  parishoner arising from the alleged sexual assault or battery by one of its clergy."  Malicki v. Doe , 27 Fla. L. Weekly S234 (Fla. March 14, 2002).

Party was not liable for spoilation of evidence where it gave opposing party an opportunity to inspect vessel before selling it.   North v. Altech Yachts, Inc., 27 Fla. L. Weekly D173 (Fla.4 th DCA Jan. 16, 2002).

Copyright Randall O. Reder 2002

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