Spencer D. Levine

This case involved a dispute between the buyer and the seller's assignee over $400,000 in escrow funds under an asset purchase agreement for the assets of an insolvent company. The buyer missed the contractual 45-day deadline after the measurement period to submit a proposed statement seeking a purchase price adjustment based on lower-than-target revenues, submitting it 22 days late instead; the seller then exercised its right to declare that revenues had met targets and claimed the full escrow amount. The trial court ruled for the seller on the ground that missing the deadline waived any adjustment right. The appellate court reversed, concluding that time was not of the essence under the contract language, so the delay was not material and the buyer's calculations should be considered to effectuate the parties' intent to adjust the price based on actual performance.

business & regulatoryprocedure

In MM v. State, a juvenile appealed after police stopped and frisked him and a companion three blocks from a reported armed robbery based solely on a BOLO describing two white males fleeing on foot. Officers found marijuana in the juvenile's pocket during the frisk, leading to charges, and the trial court denied his motion to suppress the evidence. The Fourth District Court of Appeal reversed, holding that the officers lacked reasonable suspicion for the stop because the BOLO provided only a vague, non-specific description without details on height, weight, clothing, or direction of travel, the individuals showed no suspicious behavior, and other people were present in the area. The court emphasized that a BOLO must supply well-founded, articulable facts beyond mere proximity to a crime to justify an investigatory stop, and it directed discharge of the appellant since the suppression ruling was dispositive.

criminal lawprocedure

The case concerned whether Palm Beach County's development order allowing Bergeron Sand and Rock Mine Aggregates to expand mining operations in the Everglades Agricultural Area on land designated for agricultural production was consistent with the county's comprehensive plan. The relevant Future Land Use Element policy 2.3-e.3 states that mining may be permitted only to support public roadway projects, agricultural activities, or certain water management projects. The trial court granted summary judgment upholding the order, concluding that some portion of the mined material being used for road projects satisfied the policy. On appeal, the court reversed, holding that the word "only" makes the enumerated purposes restrictive and that the order was inconsistent with the plain language of the policy because it did not limit mining to those purposes.

environmentpropertybusiness & regulatory

In Allen v. State, the defendant was charged with sexual battery of two minors and lewd and lascivious molestation of a third; he was acquitted of the molestation charge but convicted of the sexual batteries following a jury trial. The appellate court affirmed the convictions, holding that the defendant's confession was properly admitted under section 92.565, Florida Statutes, even without proof of corpus delicti for one victim, because the trial court correctly found the statement trustworthy based on corroborating details from the other victim's account, the defendant's letter of apology, and initial statements by the recanting victim. The court reversed the sentence, however, because the scoresheet erroneously assessed points for sexual penetration that were not supported by the jury's verdict form, and it remanded for resentencing with a corrected scoresheet.

criminal lawprocedure

In Henn v. Ultrasmit Racing, LLC, the plaintiff sued the defendant for breach of contract after damage to a rented race car. After the plaintiff failed to appear with counsel at status conferences, the trial court dismissed the case without prejudice. The defendant then sought attorney's fees under the rental contract as the prevailing party, but the trial court denied the motion, reasoning that the dismissal without prejudice did not end the litigation. On appeal, the court reversed, holding that the defendant was the prevailing party entitled to fees whether the dismissal was voluntary or a sanction, based on precedents allowing fees without an adjudication on the merits.

procedurebusiness & regulatory

This case arose from a motor vehicle accident where the defendant admitted negligence and the trial focused on damages, including whether the plaintiff suffered a permanent injury. The trial court initially excluded the treating physician's opinion on permanency for lack of prior disclosure under discovery rules, resulting in a jury verdict of no permanent injury, but later granted a new trial after finding the defendant had adequate notice from pleadings, interrogatories, and medical records. The appellate court reviewed for abuse of discretion and affirmed, reasoning that the key issue was lack of prejudice or surprise to the defendant under Binger v. King Pest Control, rather than the witness's classification as a fact or expert witness, and that exclusion was not warranted given the circumstances.

proceduretorts & liability

The case involved appellant Joseph appealing his conviction for first-degree murder and aggravated battery of an individual over sixty-five, arguing the trial court erred in denying his motion for judgment of acquittal on grounds of insufficient evidence of sanity and premeditation. The appellate court affirmed the conviction and sentence, finding no error in the denial of the motion. The core reasoning was that Florida law presumes sanity with the burden on the defendant to prove otherwise, the state presented competent substantial evidence through its expert witness attributing appellant's conduct to drug use along with evidence of flight, and the conflicting evidence on sanity created a jury question that precluded acquittal.

criminal lawprocedure

The case concerned whether a prior conviction for battery on a law enforcement officer under section 784.07, Florida Statutes, qualifies as a predicate offense for felony battery under section 784.03(2), which requires a previous conviction for battery, aggravated battery, or felony battery. After a jury found the defendant guilty of battery in the first phase of trial and determined in the second phase that he had the requisite prior conviction, the trial court convicted and sentenced him for felony battery. The appellate court reviewed the issue de novo as a matter of statutory interpretation and held that the prior conviction satisfied the predicate requirement. The court reasoned that battery on a law enforcement officer involves the identical conduct as simple battery but is reclassified as a felony solely due to the victim's status, making it equivalent to the listed predicate of battery, consistent with prior precedent treating aggravated battery as a form of battery for this purpose.

criminal law

The case involved a defendant charged with sale of cocaine within 1000 feet of a park and possession of cocaine. During jury deliberations, the trial court responded to new questions from the jury about the definition of "abiding conviction of guilt" and the difference between possible doubt and reasonable doubt without first consulting the attorneys, after having initially sought their input on a related question. The appellate court held that this violated Florida Rule of Criminal Procedure 3.410, which requires notice to the prosecuting attorney and defense counsel before jury instructions are given. Relying on precedents such as Mills v. State and Jenkins v. State that establish a per se reversible error rule for such communications due to the risk of prejudice, the court reversed the convictions and remanded for a new trial.

criminal lawprocedure

The case involved the Florida Office of the Attorney General issuing a civil investigative subpoena to the law firm Shapiro & Fishman, LLP, under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) to investigate potential unfair practices in the firm's representation of lenders in foreclosure cases. The law firm petitioned to quash the subpoena, and the trial court granted the petition. The appellate court affirmed, holding that the subpoena was not authorized because the firm's activities did not constitute "trade or commerce" as defined and required by FDUTPA. The court reasoned that the statute's scope is limited to advertising, providing, or distributing goods or services, and the law firm's foreclosure-related legal work did not fall within that definition, even if it involved preparing documents for litigation.

business & regulatoryprocedure

The case involved a defendant who pled no contest to charges of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia, reserving the right to appeal the denial of her motion to suppress evidence seized during a warrantless police entry into her residence after a 911 call about a violent argument. The court affirmed the conviction for possession of marijuana, finding the initial entry and seizure of drugs in plain view justified by exigent circumstances and officer safety concerns, but reversed the convictions for cocaine trafficking and paraphernalia possession. It held that the subsequent forced entry into a locked bedroom during a protective sweep was not supported by articulable facts showing a risk of danger from hidden individuals, exceeded the limited scope allowed under Maryland v. Buie, and thus violated the Fourth Amendment.

criminal lawprocedure

The case involved the state's petition to involuntarily commit appellant Hayes to the Department of Children and Families as a sexually violent predator under the Jimmy Ryce Act following his prior conviction for lewd assault on a minor. A jury determined that Hayes was a sexually violent predator, leading the trial court to order his commitment until it is safe for him to be released. On appeal, Hayes raised issues regarding improper prosecutorial statements, inadmissible exhibits reviewed by the jury, and prejudicial testimony from a doctor, but the appellate court affirmed the commitment, concluding that any errors were harmless given the overwhelming evidence of his mental abnormality and likelihood to reoffend.

criminal lawprocedure

The case involved a dispute between Quality Health Plans, Inc. (QHP), a Medicare HMO, and University Medical Clinics, Inc. (UMC) along with its president Dr. Samuel Sadow, arising from a provider agreement under which UMC provided medical and management services. After QHP terminated the contract, it alleged that UMC and Sadow violated non-solicitation and confidentiality provisions by encouraging QHP members to switch to competing plans and failed to turn over member medical records as required. The trial court granted QHP's request for temporary injunctive relief to stop the solicitation and compel record production. On appeal, the court affirmed the grant of injunctive relief, finding sufficient evidence of ongoing violations and irreparable harm to support the four required elements for a temporary injunction, but remanded for the trial court to issue a revised order with specific factual findings rather than conclusory statements.

business & regulatoryhealthcareprocedure

In Schuman v. International Consumer Corp., the appellant challenged the denial of his motion for relief from a $360,000 fraud judgment entered after he did not appear for trial, asserting that he had not received notice of the trial date following his original counsel's withdrawal. The trial court denied the motion without an evidentiary hearing, finding that the appellant had received proper notice. The appellate court reversed and remanded, concluding that the trial court abused its discretion because the motion raised a colorable claim of entitlement to relief based on lack of notice, which implicates due process protections against judgment without opportunity to be heard. The court held that such motions alleging excusable neglect due to non-receipt of notice generally require an evidentiary hearing rather than summary denial.

procedure

The case concerned whether SunTrust Bank could be held liable for permitting a transfer of $150,000 from a Totten trust account pursuant to a durable power of attorney executed by the account holder in favor of her niece. The niece used the power of attorney to move the funds to another account shortly after the document was signed, and the estate later sued the bank for unauthorized withdrawal from a disposition effective at death. The trial court dismissed the complaint, and the appellate court affirmed that ruling. The court reasoned that the power of attorney’s broad language authorized the attorney-in-fact to take any action the principal could have taken personally, including withdrawing funds from the revocable Totten trust, and that such a withdrawal did not constitute creating or modifying a disposition effective at death under the governing statute.

property

The case concerned an appeal from a trial court order vacating a default final judgment entered against National City Bank for failing to respond to a third-party complaint served in September 2009. A default was entered in November 2009, followed by multiple notices and proposed judgments sent to the bank in November 2009, December 2009, and January 2010, culminating in a $90,865.93 judgment in January 2010. The bank moved to set aside the default in February 2010, submitting affidavits describing its internal procedures for handling lawsuits, but the affidavits did not address the subsequent notices. The appellate court reversed, holding that the bank failed to demonstrate excusable neglect under Florida Rule of Civil Procedure 1.540(b) because its inaction in the face of repeated correspondence amounted to gross negligence rather than a clerical error or system failure.

procedure

The case involved an appellant convicted of manslaughter with a firearm following a trial over a fatal shooting during a confrontation at the appellant's home, where the victim had approached threateningly after an earlier dispute. The central issue was whether the trial court erred in denying a motion for new trial after a juror used a smartphone during deliberations to look up the definition of 'prudent,' a term appearing in the jury instructions and closing arguments, and shared that definition with other jurors. The appellate court reversed the conviction and remanded for a new trial, holding that this constituted juror misconduct because external information about a potentially key concept was introduced without oversight. The court reasoned that it could not conclude there was no reasonable possibility the misconduct affected the verdict, aligning with longstanding precedents barring jurors from consulting dictionaries or similar sources outside the trial record.

criminal lawprocedure

The case concerned whether an all-terrain vehicle qualifies as a dangerous instrumentality under Florida tort law, which would impose strict vicarious liability on its owner for negligent operation by another. The trial court granted judgment against the plaintiff on the pleadings, concluding it would not extend the doctrine to a new vehicle type. The appellate court reversed, holding that precedents such as Meister v. Fisher and Festival Fun Parks v. Gooch require an evidentiary record addressing the vehicle's statutory classification, regulatory treatment, and actual danger in normal use before the doctrine can be applied or rejected. Because no such factual record existed, the court remanded for an evidentiary hearing rather than deciding the issue on the current pleadings.

torts & liabilityprocedure

The case involved a defendant's appeal of his convictions for burglary with assault or battery, sexual battery, and sexual activity with a minor, based on an alleged error in admitting the victim's 911 call reporting the rape. The court affirmed the convictions and sentence, holding that the trial court did not abuse its discretion in admitting the call under the excited utterance exception to the hearsay rule, given the short time interval after the attack and the victim's ongoing stress. The court noted that even if the admission was erroneous, any error was harmless because the call merely corroborated the victim's trial testimony.

criminal lawprocedure

The case involved an appeal of a first-degree murder conviction and life sentence after the defendant was found guilty of shooting his former girlfriend at her vocational school, contrary to his trial testimony blaming an acquaintance named Cesar. The trial court had excluded the defendant's testimony about Cesar's later shooting of the victim's uncle and barred cross-examination using an unauthenticated photo to suggest physical similarities between Cesar and the defendant. The appellate court affirmed, finding no abuse of discretion because the excluded evidence was irrelevant to the defendant's state of mind at the time of the 2002 shooting and the photo lacked authentication.

criminal lawprocedure