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Dissolution of marriage -- Trial court did not err in denying former husband's request for downward modification of alimony where there was evidence to support finding that former husband's income reduction was neither permanent nor involuntary -- Error to hold former husband in contempt for failure to pay alimony without including finding that he willfully failed to comply with alimony obligation despite having financial ability to do so -- Appeal of order determining that former wife is entitled to attorney's fees, but not determining the amount, is premature -- Court was without jurisdiction to enter restraining order against former husband's current wife where current wife was not party to litigation or served with process -- Error to hold former husband in civil contempt and to order incarceration with a purge condition without providing factual basis for finding that former husband has present ability to pay purge condition
Reported at 32 Fla. L. Weekly D2280b
Dependent children -- Termination of parental rights -- Appeals -- Mother did not waive challenge to sufficiency of evidence supporting termination of parental rights by failing to move for judgment of dismissal at conclusion of agency's case -- Conflict certified -- Competent substantial evidence supported determination that, despite mother's love and affection for children, her lack of capacity to care for them and her prior conduct in refusing necessary services and programs and failing to follow through on treatment for her special-needs children demonstrated that her continuing involvement in parent-child relationship threatened life, safety, or well-being of children irrespective of provision of services -- Evidence also supported finding that mother failed to substantially comply with terms and conditions of case plan as to one of the children
Reported at 32 Fla. L. Weekly D2265a
Workers' compensation -- Judge of Compensation Claims erred in ordering payment of medical bills to claimant's authorized treating psychiatrist because Agency for Healthcare Administration has exclusive jurisdiction over disputes between psychiatrist and E/C and because clamant lacks standing to seek additional payments on behalf of her psychiatrist -- Jurisdiction -- JCC lacks jurisdiction over dispute between insurance carrier and authorized psychiatric care provider concerning payment of medical bills to psychiatrist because Section 440.13(11)(c) provides that AHCA has exclusive jurisdiction over reimbursement disputes and utilization reviews, and record clearly indicates reimbursement and overutilization disputes between psychiatrist and E/C -- JCC does not have general jurisdiction over any subject matter beyond that specifically conferred by statute, because courts of compensation claims are not courts of general jurisdiction -- Standing -- Claimant is without standing to pursue reimbursement dispute on psychiatrist's behalf absent any real financial liability, and statutorily claimant is shielded from liability in any dispute between E/C and health care provider regarding reimbursement for claimant's authorized medical or psychological treatment
Reported at 32 Fla. L. Weekly D2274b
Civil procedure -- Default -- Vacation -- Trial court reversibly erred by granting motion to vacate default final judgment entered against defendant where defendant failed to demonstrate due diligence in seeking to vacate the final judgment entered against him -- Defendant gave no reason for ten-week delay in filing his motion to vacate -- No merit to tipsy coachman argument that trial court should have vacated final judgment under Rule 1.540(b)(4), which permits trial court to grant relief from judgment if that judgment is void -- Default final judgment is not void for lack of notice of the hearing that resulted in judgment where plaintiff sent notice of hearing to defendant's last known address as ordered by trial court, and thus, did not send notice to an incorrect address -- Default final judgment is not void because of plaintiff's administrative dissolution where plaintiff filed its breach of contract action against defendant before it was administratively dissolved -- Because plaintiff's cause of action was filed before its administrative dissolution, cause of action may continue after dissolution, as ruled by trial court
Reported at 32 Fla. L. Weekly D2270b
Corporations -- Minority shareholder seeking, among other things, to enjoin corporation's sale of office park -- Trial court departed from essential requirements of law in ordering plaintiff to post bond of $8.5 million as condition of maintaining two counts of his complaint which purportedly created a cloud on the title, even though a previously filed notice of lis pendens had been discharged -- Order violated plaintiff's constitutional right of access to courts
Reported at 32 Fla. L. Weekly D2266a
Wrongful death -- Negligence -- School boards -- Personal representative of student killed in car crash that occurred after she left campus without authorization brought negligence claims against school board alleging that his daughter and driver were habitually truant and the school board failed to follow habitual truancy policies and owed a duty to prevent high school students from leaving campus without authorization -- Summary judgment properly granted in favor of school board where students were not habitually truant, as matter of law; school board owed no duty to lessen risk of injuries sustained in car crash away from school grounds by preventing high school students from leaving campus without authorization; and in any event, decision as to appropriate campus security measures was a policy decision as to which school board enjoys sovereign immunity -- Principal had no duty to report students or to file truancy petitions because students were not habitually truant, as matter of law, “Habitual truant,” by statute is a student who accumulates 15 unexcused absences within 90 calendar days, and these students, counting one missed class as a full day's absence, had no more than 8 absences in ninety day -- School rules relating to a student's presence on campus do not impose a legal duty of care running from school board to third parties who are injured as a result of the negligent driving conduct of a student who has violated school's policies -- For a high school student, skipping school is not so dangerous as to pose an “unreasonable risk” of harm, and thus should create no duty of care to prevent such student from leaving school property without authorization -- In context of a negligence cause of action brought on behalf of a student injured off campus, a school may not be held liable for injuries suffered by a student who has violated the school's campus attendance policies -- Sovereign immunity bars the plaintiffs' suit against school board
Reported at 32 Fla. L. Weekly D2247a
Attorney's fees -- Justiciable issues -- Conspiracy in restraint of trade in violation of antitrust laws -- Trial court did not err in awarding attorney's fees to defendant after entering summary judgment for defendants in plaintiff's action alleging that plaintiff was selling retail merchandise for less than other retailers, and that wholesaler was coerced by other retailers to stop doing business with plaintiff -- 2002 amendment to section 57.105, Florida Statutes, which requires 21 days' notice to non-moving party to withdraw challenged claim or defense, is not retroactive
Reported at 32 Fla. L. Weekly D2251a
Arbitration -- Error to grant motion to compel arbitration of former employer's claim against investment advisor where there was no express agreement between plaintiff and defendant that required arbitration of dispute -- No merit to claim that plaintiff was required to arbitrate based on National Association of Security Dealers rules -- No merit to claim that plaintiff should be required to arbitrate because plaintiff's wholly owned subsidiary was a NASD member and defendant was an associated person of that firm
Reported at 32 Fla. L. Weekly D2253b
Contracts -- Real property sale -- Recovery of earnest money deposit -- Where original contract to purchase commercial property provided that, “in the event any condition of this Contract is not met Buyer's deposit will be returned in accordance with applicable Florida laws and regulations,” and addendum to contract made the existence of a clear environmental study a condition to seller's right to a closing, it was error to enter judgment for seller in action to recover earnest money deposit after sale did not close because of absence of clear environmental study
Reported at 32 Fla. L. Weekly D2253c
Municipal corporations -- Ordinances -- Trial court properly found to be constitutional a section of Land Development Code providing criteria to be considered by city commission in evaluating applications for certificate of appropriateness for demolition of buildings -- No merit to claim that section vests unbridled discretion in city commission to approve or deny application for certificate of appropriateness for demolition of historic structure because code lacks sufficient standards and criteria -- Section uses mandatory language that requires city commission to consider objective criteria, and does not allow commission to consider factors outside criteria provided
Reported at 32 Fla. L. Weekly D2254a
Trusts -- Attorney's fees -- Where, in trustee's action for judicial accounting of trust, beneficiaries' answers to trustee's interrogatories contained allegations of breaches of fiduciary duty and trust mismanagement by trustee, trial court properly found that beneficiaries' answers to interrogatories should have alerted trustee to realization that it was going to be facing charges of individual/corporate liability and was required to seek court approval before paying its attorney's fees from trust assets -- Trustee should have realized that it was in a position of conflict and sought court approval prior to paying its attorney's fees from trust assets
Reported at 32 Fla. L. Weekly D2255b
Paternity -- Where husband filed petition for dissolution of marriage, and husband and wife thereafter served joint voluntary dismissal of dissolution proceeding, man with whom wife had long-term affair when husband and wife were separated had no standing to claim paternity of child who was born after husband and wife reconciled -- Putative father has no right to seek to establish paternity of child who was born into intact marriage when married woman and her husband object -- Once husband and wife dismissed their dissolution action there was no pending divorce proceeding, so that trial court was not authorized to conduct any qualitative evaluation of whether marriage was intact -- Trial court departed from essential requirements of law in denying husband's motion to dismiss other man's petition to determine paternity
Reported at 32 Fla. L. Weekly D2259a
Real property -- Receiver -- Sale of property by receiver -- Action in which plaintiff sought recovery of property which her attorney-in-fact allegedly unauthorizedly transferred to himself under a durable power of attorney, and in which plaintiff sought appointment of receiver -- Defendant is not entitled to review of order appointing receiver because defendant did not timely seek non-final review of order -- Order authorizing receiver to sell property is reviewable as an order providing for immediate possession of property -- Trial court did not abuse discretion in approving sale of property by receiver where evidence supported finding that property is in state of disrepair, that property is in peril of loss to both parties by reason of foreclosure, and that property represents a health and safety hazard in its present condition
Reported at 32 Fla. L. Weekly D2264a
Standard jury instructions -- Civil -- Insurance -- Claim for personal injury protection benefits -- Medical benefits only
Reported at 32 Fla. L. Weekly S563a
Insurance -- Homeowners -- Valued Policy Law -- Valued Policy Law does not require an insurance carrier to pay the face amount of the policy to an owner of a building deemed a total loss when the building is damaged in part by a covered peril but is significantly damaged by an excluded peril -- District court erred in holding that insurer was required to pay for total loss of home where wind, a covered peril, caused some damage to home, but remaining loss was caused by flood damage and storm surge, which were excluded perils
Reported at 32 Fla. L. Weekly S564a
Insurance -- Homeowners -- Coverage -- Supplemental ordinance and law provision -- Valued Policy Law does not override language of a policy as it relates to supplemental coverage -- Plain language of VPL requires insurer to pay that amount listed on face of policy in event of a total loss without the necessity of any additional proof of the actual value of the loss incurred -- “Face value” means value which can be ascertained from language of the instrument without aid from extrinsic facts or evidence -- Because supplemental coverage provisions in policy at issue did not directly state dollar amount, but stated only the maximum percentage of the limit of liability, VPL did not apply to that coverage -- Accordingly, although homeowners were entitled to, and received, face value of their insurance policy for loss of their home, that loss did not affect their obligation to show that they had incurred additional loss in order to recover under supplemental coverage -- As insurer's counsel conceded in oral argument “to incur” means to become liable for the expense, but not necessarily to have actually expended it
Reported at 32 Fla. L. Weekly S566a
Consumer law -- Deceptive and Unfair Trade Practices Act -- Attorney's fees -- Prevailing party -- Compensable time -- Trial court correctly awarded attorney's fees for time spent on fraud and contract claims which arose from same common core of facts as deceptive or unfair trade practice claim and were not clearly beyond scope of a 501 proceeding -- Where deceptive or unfair trade practice claims under Chapter 501 are based on same transaction as alternative theories of recovery, no allocation of attorney's services need be made except to extent counsel admits that a portion of services was totally unrelated to Chapter 501 claim or it is shown that services related to issues, such as punitive damages, which are clearly beyond scope of a 501 proceeding -- Legal work done prior to inclusion of Chapter 501 claim, which pertained to subsequently filed 501 claim, is compensable to prevailing party as “hours spent on the case” under Section 501.2105(3) -- Fee award should not have included counsel's travel time where competent local attorneys could have handled the case -- Remand for reduction of attorney's fees by amount in excess of what a local attorney would have spent
Reported at 32 Fla. L. Weekly D2242c
Attorney's fees -- Error to decline to award interest on attorney's fee award -- Enforcement of judgment -- Court properly found that statute of limitations tolls enforcement of final judgment -- Execution directed at judgment must cease at expiration of 20 years from rendition of judgment -- Defendant's absence from jurisdiction did not toll statute of limitations because service on defendant was possible by publication
Reported at 32 Fla. L. Weekly D2231c
Torts -- Dismissal -- Fraud on court -- Trial court did not abuse discretion in dismissing negligence action in which plaintiff claimed that he developed post-traumatic stress disorder and leukemia as result of injuries suffered while working on vessel where defendant falsely testified in deposition that he had not been treated for leukemia prior to injury, that he had never been involved in any litigation, that he had not applied for or received any disability benefits in Greece, his native country, and that he had not received any pension benefits in Greece -- Plaintiff has forfeited his right to seek redress for his claimed injuries based upon his material misrepresentations and omissions that go to the heart of his claims
Reported at 32 Fla. L. Weekly D2230a
Civil procedure -- Dismissal -- Failure to prosecute -- Record activity -- Error to dismiss complaint for lack of prosecution where plaintiff filed a status report less than one month prior to motion and order dismissing complaint for lack of prosecution
Reported at 32 Fla. L. Weekly D2228a
Contempt -- Dissolution of marriage -- Enforcement of alimony obligations -- Jurisdiction -- Trial court erred in finding that it lacked subject matter jurisdiction to hear wife's motion for contempt and enforcement of alimony obligations of husband, who was receiving disability benefits from Veterans' Administration -- Trial court improperly concluded that federal law, presumably provisions of Uniformed Services Former Spouses' Protection Act, preempted state court enforcement of alimony obligation -- USFSPA's preclusion of assignment or division of disability benefits does not void alimony award merely because payor spouse receives such benefits, and husband's agreement to pay wife a specified amount of alimony was not an impermissible assignment or division of those benefits -- Argument that enforcement was also precluded by 38 U.S.C.A. section 5301 was not raised in trial court and, accordingly, not preserved for review
Reported at 32 Fla. L. Weekly D2227a
Child support -- Modification -- Trial court erred in including in the basic child support obligation that it used to calculate father's share of obligation a monthly installment payment which was payable for twenty months pursuant to mother's contract with an orthodontist for child's necessary treatment -- Trial court should have ordered this monthly amount to be separately paid on a percentage basis, making it unnecessary for father to move for reduction in support obligation when contract has expired -- Remaining aspects of final judgment must be affirmed because father failed to furnish record adequate for appellate review, and final judgment, on its face, reveals neither error nor abuse of discretion
Reported at 32 Fla. L. Weekly D2225a
Counties -- Ordinances -- Appeal from final summary judgment invalidating three ordinances by which county attempted to create an exclusive method of voluntary municipal annexation -- County may provide an exclusive method of voluntary municipal annexation in its charter under section 171.044(4) -- Plain reading of statute makes obvious that charter itself must set forth the method -- In case at issue, county's exclusive method of voluntary municipal annexation was ineffective because it was not set forth in the county charter and approved by the voters, but was instead set forth in a separate voluntary annexation ordinance -- Trial court properly granted summary judgment in favor of cities which challenged the county ordinances, although it erred in concluding that county could not provide for an exclusive method of voluntary municipal annexation in its charter
Reported at 32 Fla. L. Weekly D2220b
Civil procedure -- Dismissal -- Failure to prosecute -- Change of address constituted sufficient record activity to preclude dismissal
Reported at 32 Fla. L. Weekly D2220a
Insurance -- Homeowners -- Coverage -- Windstorm damage -- Error to enter summary judgment in favor of insurer in action brought by insured after insurer denied coverage for hurricane damage based on insurer's assertion that insured made material misrepresentation in her application for insurance when she indicated that her home was three miles from the “gulf,” although independent inspector reported that home was one and one-quarter miles from gulf -- Genuine issues of material fact existed as to actual distance to shoreline from insured's home; whether average person in insured's position should know that distance to shoreline must be measured “as the crow flies” or how insured should accomplish such a measurement, as opposed to relying on her experience traveling the shortest route or estimating the distance; whether independent insurance agent was insured's agent for purpose of insurer's notice of its intent to cancel wind damage coverage of homeowner's policy or if, in fact, insurer actually notified agent of the problem; and whether insurer waived defense to wind damage coverage by failing to give notice for over sixty days and waiting until after hurricane had passed to issue policy change endorsement -- Moreover, application was ambiguous in asking only “distance to gulf” without explaining meaning or purpose of question or specifying means by which applicant was to determine or estimate distance
Reported at 32 Fla. L. Weekly D2212c
Liens -- Construction -- Discharge of lien -- Trial court erred by granting lienor's motion for reconsideration and by failing to vacate mechanic's lien where property owner invoked section 713.21(4), and lienor failed to file enforcement action within 20 days or show cause within that period why enforcement should not be commenced -- Reasons cited by counsel, which were confusion over trial court's show cause order and waiting to hear from client, not proper basis for trial court to grant lienor's motion for reconsideration and avoid discharging lien
Reported at 32 Fla. L. Weekly D2210b
Counties -- Development orders -- Inconsistency with comprehensive plan -- Destruction of wetlands and replacement of wetlands with fill -- Civil procedure -- Dismissal -- Abuse of discretion to deny plaintiffs' motion to file amended complaint where it does not appear that amendment would prejudice defendants, that privilege to amend has been abused, or that amendment would be futile
Reported at 32 Fla. L. Weekly D2210a
Torts -- Banks -- Uniform Commercial Code -- Bank deposits and collections -- Action alleging that bank's release of funds from plaintiff's bank account to plaintiff's bookkeeper without signature of any person listed on signature card constituted failure to exercise ordinary care as matter of law -- Error to hold void the parties' deposit agreement, which required plaintiff to notify bank of any “problems or unauthorized transactions” within 60 days -- Agreement did not disclaim bank's responsibility to exercise ordinary care or limit bank's damage for its failure to exercise such care -- Use of term “problems or unauthorized transactions” rather than “items” or “instruments,” as used in chapter 674, did not absolve bank of duty to exercise ordinary care, but simply provided a broader definition of types of transaction plaintiff was required to report in order to seek reimbursement for unauthorized use of account -- Reducing time period in which plaintiff was required to notify bank of unauthorized transactions from one year to 60 days did not absolve bank of duty to exercise ordinary care, but only created a condition precedent with which customer was required to comply before seeking reimbursement -- Error to grant plaintiff's motion for summary judgment -- Remand for consideration of plaintiff's claims based on controlling deposit agreement
Reported at 32 Fla. L. Weekly D2209a
Administrative law -- Agency for Health Care Administration -- Public Medical Assistance Trust Fund -- Hospital assessments -- Calculation -- Methodology -- During 2000 legislative session, PMATF assessment rate on public hospitals was amended from an amount equal to one-and-a-half percent of hospital's net operating revenue to one-and-a-half percent of annual net operating revenue for inpatient services and one percent of annual net operating revenue for outpatient services -- On various dates beginning in 2002, hospitals sought refunds of overpaid assessments, which were denied, and consolidated formal administrative hearings were conducted to resolve the correct legal interpretation of section 395.701(2) -- Administrative law judge erred in concluding that statute was clear and unambiguous because statute does not address the date on which assessment is to be calculated -- Assessment reductions take place immediately following effective date of chapter 2000-256 and are computed based upon date the assessments become due rather than when the revenue was earned
Reported at 32 Fla. L. Weekly D2191a
Torts -- Medical malpractice -- Limitation of actions -- Statute of repose -- Extension of repose period -- Concealment -- Error to dismiss second amended complaint which alleged that physician concealed fact that plaintiff's chest x-ray showed a mass in plaintiff's lung that was suspicious for malignancy, a condition which was known to physician, which required immediate attention, and which deteriorated for want of treatment -- Court rejects defendant's “tipsy coachman rule” argument that judgment should be affirmed because a physician-patient relationship was not adequately alleged because allegations were sufficient to plead existence of physician-patient relationship
Reported at 32 Fla. L. Weekly D2186c
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