Jonathan D. Gerber

The case involved a defendant's appeal from his conviction and sentence for possession of cocaine and drug paraphernalia, raising claims of insufficient evidence of possession, facial unconstitutionality of the drug statute for lacking a scienter requirement, an unconstitutional sentence length under strict liability, and improper imposition of a $1500 public defender fee without a hearing or proof. The court affirmed the conviction, the statute's constitutionality, and the three-year sentence without discussion, citing prior precedent on constructive possession and scienter. On the fee issue, the court reversed because the trial court failed to advise the defendant of his right to a hearing under Florida Rule of Criminal Procedure 3.720(d)(1), and a subsequent hearing on a postconviction motion was a nullity as it occurred after the sixty-day deadline, leading to remand for proper notice and hearing procedures if timely objected to.

criminal lawprocedure

In this dissolution of marriage case, the wife appealed the trial court's orders setting a time-sharing schedule for the parties' minor children, arguing that the court failed to consider the children's best interests, address parental responsibility, and create a parenting plan. The appellate court rejected the first argument, finding that the trial court had considered the children's best interests based on factors like stability and care arrangements. However, the court agreed with the second and third arguments, reversing the orders because the trial court did not establish shared parental responsibility or create a parenting plan as required by Florida Statutes section 61.13, and remanded for the creation of such a plan.

family law

In Simon v. Simon, the wife appealed a circuit court's order limiting her temporary support, fees, and costs in a pending dissolution action based on the parties' amended prenuptial agreement. The appellate court reversed the order, holding that under established precedent from Belcher v. Belcher, support cannot be conclusively determined by a prenuptial agreement until the marriage is dissolved. The court reasoned that the "need and ability to pay test" from section 61.16, Florida Statutes, continues to apply in the temporary setting prior to dissolution. On remand, the lower court must apply this statutory test rather than the agreement's terms.

family law

This case involves a post-divorce child custody dispute in which the father sought modification and emergency sole custody based on allegations that the mother was alienating the child and causing mental injury. During an evidentiary hearing on the father's motion, the family court judge sua sponte converted the proceeding into a shelter hearing under Chapter 39, Florida Statutes, accepted evidence from the guardian ad litem and a Department investigator, and issued an order placing the child in the father's custody without allowing the mother to present her evidence or arguments despite her presence and request to be heard. The mother appealed, arguing a violation of due process. The District Court of Appeal treated the appeal as a petition for writ of certiorari, granted the petition, and remanded with directions for the circuit court to conduct a proper shelter hearing, reasoning that the mother was entitled to notice and an opportunity to be heard when present at such a proceeding.

family lawprocedurecivil rights

The case involved a defendant convicted of first-degree murder of one of two children under her care. The defendant appealed, arguing that the trial court erred by admitting evidence that she misled her boyfriend into believing he was the father of the other child, claiming the evidence was irrelevant to the charged murder. The appellate court agreed that the evidence was inadmissible because it was neither relevant nor inextricably intertwined with the crime. However, the court concluded the error was harmless, as no reasonable juror would have found it significant to the determination of guilt, and therefore affirmed the conviction.

criminal lawprocedure

The case involved plaintiffs suing public officials for defamation and libel or slander per se based on statements made within the scope of their duties. The court affirmed the circuit court's dismissal with prejudice, holding that section 768.095, Florida Statutes (2009), does not abrogate the common law absolute immunity afforded to public officials for such statements. The core reasoning was that the statute's text applies only to employers that are not public officials and lacks the clear language required to limit or override common law immunity, consistent with the court's prior decision in Bates v. St. Lucie County Sheriff's Office.

torts & liabilityprocedure

The case involves a plaintiff, a women's health services provider, appealing a circuit court's grant of summary judgment to state defendants. The plaintiff contended that the order addressed only its declaratory judgment claims and overlooked its requests for injunctive relief. The appellate court affirmed the summary judgment, concluding that the lower court's findings of no justiciable controversy also demonstrated the absence of a clear legal right required for injunctive relief. This determination resolved both sets of claims without any genuine issue of material fact. The decision rests on established standards for granting injunctions under Florida law.

procedurehealthcare

The case involved a father held in contempt for failing to pay child support arrearages totaling $18,499.75. The appellate court affirmed the contempt adjudication but reversed the portion of the order permitting repayment at only $20 per month, which could extend until the child reached age twenty-nine, and also required payment of interest on the arrearage. The court reasoned that the original support judgment created a presumption of the father's ability to pay and purge the contempt, which he failed to rebut by not appearing at the hearing. It further held that no competent evidence supported such an extended repayment schedule, citing precedent that delayed repayment until after the child reaches adulthood contradicts the purpose of child support.

family law

The case A.H. v. State concerned a juvenile charged under Florida law with possessing a weapon at a school bus stop after an unloaded BB gun was observed on his person. The trial court denied the motion for judgment of dismissal and found the appellant guilty, determining that the BB gun's weight allowed it to be used in a pistol-whipping manner to cause serious injury. The appellate court reversed, concluding that the evidence, viewed in the light most favorable to the state, did not support the conviction because there was no proof the BB gun was loaded or that it was used or threatened to be used as a bludgeon, consistent with prior precedent in K.C. v. State.

criminal lawguns

In Morgan v. Wagner, the plaintiff appealed a circuit court order that ruled in favor of the defendants in an action to enforce Florida's public records law, claiming errors in the court's factual findings and legal conclusions as well as a lack of procedural basis for the final order. The appellate court affirmed the circuit court's decision. The court reasoned that the plaintiff's procedural argument was not preserved for review because it was not raised below and no hearing transcript was provided, preventing evaluation of whether the issue was waived. Without a transcript, the court also could not review the factual findings or legal conclusions, and the order was not found to be fundamentally erroneous on its face based on the available record.

procedure

The case involved a defendant convicted on four counts of written threats to kill or do bodily injury under Florida Statute section 836.10 after sending two letters, each containing threats against the same two individuals. The defendant argued on appeal that the convictions violated double jeopardy because the allowable unit of prosecution should be the number of letters sent rather than the number of recipients threatened. The court affirmed the four convictions, holding that the statute's language and legislative intent establish the unit of prosecution as each person to whom a threatening communication is sent. The decision relied on the statute's references to threats directed to 'any person' and prior case law distinguishing the use of 'a' versus 'any' in defining prosecutable units.

criminal law

The case involved a defendant appealing his first-degree murder conviction on grounds that the trial court erred in denying his motion to suppress his confession. He claimed detectives failed to honor an asserted right to counsel, did not answer his question about the Miranda waiver form, and improperly appealed to his religious beliefs to coerce the statement. The appellate court affirmed the conviction, holding that the defendant understood and waived his Miranda rights without unambiguously invoking counsel. The court further reasoned that the detectives' references to religion, while invoking the defendant's own statements, were not coercive under the totality of circumstances because they were paired with disclosures of physical and witness evidence showing inconsistencies in his account, and did not render the confession involuntary.

criminal lawprocedure

The case involved a plaintiff suing her gynecologist and primary care physicians for medical negligence, alleging they failed to timely evaluate and treat her breast cancer over an 18-month period, resulting in a radical mastectomy. During the first trial, a mistrial occurred after the plaintiff's counsel improperly questioned a juror about 'doctoring of records' without having pled fraud or presented supporting expert testimony. The trial court granted the defendants' motions for attorney's fees and costs under section 57.105(1) based on that conduct but, on appeal, the court reversed those fee awards while affirming the final judgments for the defendants after a second trial. The appellate court reasoned that the plaintiff had a good-faith basis from discovery discrepancies to raise the records issue and that the trial court did not abuse its discretion in granting a motion in limine and issuing a curative jury instruction on the lack of evidence for record alterations.

torts & liabilityprocedurehealthcare

The case involved a martial arts business seeking to enforce a mandatory forum selection clause in an employee's non-compete agreement to transfer venue of lawsuits from Palm Beach County to Broward County. The employee, his wife, and his new employer had filed a declaratory action and opposed transfer, arguing the clause did not bind the non-signatories. The court decided that the clause applied to the non-signatories because of their close relationship to the signatory, derivative interests, and claims arising directly from the agreement, reversing the lower courts' orders denying transfer. The reasoning emphasized precedents enforcing forum selection clauses against non-signatories under similar conditions and rejected arguments about convenience or fraud in the clause itself.

business & regulatorylabor & employmentproceduretorts & liability

The case involved a civil lawsuit in which the plaintiff sued the defendant for conversion, fraud in the inducement, and violations of Florida’s Deceptive and Unfair Trade Practices Act, prompting the defendant to file a counterclaim for unjust enrichment. After the defendant’s counsel withdrew, all subsequent notices, motions, and court orders regarding discovery and sanctions were mailed exclusively to an Annapolis address that the defendant’s Costa Rica-based corporate representatives did not monitor or receive, resulting in the trial court striking the defendant’s pleadings for noncompliance. The defendant moved for relief under Florida Rule of Civil Procedure 1.540(b) on grounds of excusable neglect, supported by affidavits and testimony confirming lack of actual notice, but the trial court denied the motion. On appeal, the court reversed, concluding that the defendant had shown excusable neglect because it could not update its address without receiving the documents and that striking pleadings was an unduly severe sanction when the defendant had cured any prejudice by complying with discovery and appearing for depositions.

proceduretorts & liabilitybusiness & regulatory

In Lustgarten v. Lustgarten, a former husband appealed a contempt order for failing to pay for his former wife's liver transplant under the terms of their divorce judgment, which required him to cover reasonable and necessary medical expenses not covered by insurance. The trial court found the transplant reasonable and necessary and held the husband in contempt, but the appellate court reversed the contempt finding. The court agreed the expenses were reasonable and necessary based on medical testimony showing the transplant was the best option for survival, but concluded the husband's actions were not willful because he had a good faith basis to question the request, relying on recommendations for a less expensive resection covered by Medicare and guidelines labeling the transplant experimental. The court remanded with instructions to order payment of the final amount due without contempt sanctions or attorney's fees.

family law

The case involved an appeal from a circuit court's order committing the appellant as a sexually violent predator under Florida's Jimmy Ryce Act after the end of his prison sentence. The court decided to reverse the commitment order and remand for a new trial. The core reasoning was that the appellant was denied procedural due process when the trial date was reset without any notice to him until he appeared in court, leaving him without a meaningful opportunity to prepare and be heard, and the court could have continued the trial under the applicable rules without requiring a waiver of time limits.

procedurecriminal law

In State v. Lopez, the state appealed a circuit court order granting the defendant's motion to suppress evidence obtained from a search of her person. The defendant had argued that police lacked probable cause to arrest her and that the search required a warrant; the lower court agreed on the warrant issue after finding only reasonable suspicion for detention. The appellate court held that a search incident to a lawful arrest does not require a warrant, but determined that the arrest here was unlawful due to the absence of probable cause. It therefore concluded that suppression was correct, albeit for the reason of an unlawful arrest rather than the lack of a warrant, and affirmed the order.

criminal lawprocedure

The case involved the plaintiff appealing a final order that awarded the defendant attorney's fees after the defendant prevailed on a motion to record a satisfaction of judgment. This fees award rested on a Florida statute providing that the prevailing party in such an action is entitled to fees and costs. The appellate court had previously reversed the underlying order that designated the defendant as the prevailing party. As a result, the court reversed the attorney's fees order as well, applying precedent that requires vacating a fees judgment when the underlying judgment is reversed.

procedure

In Kelly v. Lodwick, the plaintiffs, as assignees of a private school and its employee, sued insurance agents for negligence and breach of fiduciary duty after the agents failed to secure replacement casualty coverage, leaving the school uninsured when a student was injured in March 2004. The circuit court dismissed the action with prejudice, finding that the four-year statute of limitations began running on March 1, 2004, when the school learned it lacked coverage. The appellate court reversed, holding that the limitations period did not commence until the school and employee incurred damages by retaining counsel to defend the underlying suit filed in April 2005, as alleged in the amended complaint. The court reasoned that, accepting the pleadings as true, no legally cognizable injury appeared on the face of the complaint until after the underlying suit was filed, making dismissal on limitations grounds improper at that stage.

torts & liabilityprocedure