THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Administrative law -- Workers' compensation -- Pharmacy or pharmacist -- Absolute choice -- Rule challenge -- Petition challenging proposed rules interpreting section 440.13, which entitles an injured employee “to free, full, and absolute choice in the selection of the pharmacy or pharmacist dispensing and filling prescriptions for medicines,” to include healthcare practitioners who are authorized to dispense drugs directly to their patients and prohibiting workers' compensation insurance carriers from denying authorization or reimbursement for prescription medication solely because a “dispensing practitioner” dispenses the medication -- Administrative law judge erred by rejecting employer/carriers' claim that rules constituted an invalid exercise of delegated legislative authority and dismissing their administrative petition -- Proposed rules improperly enlarge, modify, or contravene the “absolute choice” provision in section 440.13(3)(j) because the statute's use of the phrase “pharmacy or pharmacist” cannot be read to encompass a dispensing practitioner -- Court rejects argument that, by registering to be a dispensing practitioner, healthcare providers obtain a limited license to practice pharmacy -- Practitioners who register as dispensing practitioners have a “dispensing practitioner license” but do not possess the license, training, or credentials to be considered a licensed pharmacist -- Additionally, dispensing practitioners only practice a single part of the pharmacy profession -- While a separate provision of section 440.13 expressly referencing dispensing practitioners when addressing reimbursement rates for prescription medication confirms that the legislature contemplated that dispensing practitioners could have a role in dispensing medication, the setting of a reimbursement rate does nothing to broaden or transform the meaning of pharmacist in the “absolute choice” provision -- Had legislature wanted dispensing practitioners to be included in the “absolute choice” provision, it could have expressly included them in section 440.13(3)(j) or used a broader term like “health care provider”
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Dissolution of marriage -- Alimony -- Applicable statute -- Pending petition -- Trial court did not err by failing to apply 2023 amended version of section 61.08 when recalculating former husband's monthly aggregate alimony obligation on remand -- “Initial petition” for dissolution was no longer “pending” resolution on July 1, 2023, where trial court had already issued a written final judgment -- Fact that appeal was pursued, judgment was reversed in part, and trial court conducted further proceedings does not change fact that a decision was made regarding the initial petition -- Conflict certified
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Insurance -- Homeowners -- Property damage -- Post-loss obligations -- Notice of intent to initiate litigation -- Under court's decision in Cole v. Universal Property & Casualty Insurance Co., provision in section 627.70152 requiring claimant to file notice of intent to litigate prior to filing suit under a property insurance policy applies retroactively to policies that predate effective date of statute -- Fact that policy in instant case also expired prior to statute's effective date does not change result -- Remand for entry of dismissal without prejudice
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Real property -- Lis pendens -- Expiration -- Tolling of period -- Trial court erred by denying plaintiff's motion to toll expiration of its lis pendens during pendency of appeal of final judgment -- Because plaintiff's filing of notice of appeal occurred while lis pendens was still in effect, expiration of lis pendens was tolled pursuant to section 48.23(4) -- Plain language of statute expressly states that the period of time for which the notice of lis pendens is in effect “does not include the period of pendency of any action in an appellate court” -- Tolling of expiration triggered by the filing of a notice of appeal is mandatory and not discretionary
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Real property -- Torts -- Farms -- Nuisance -- Agritourism activities -- Action alleging public and private nuisance and violation of county land development code brought against defendant who built a customized barn on property designated agricultural for purpose of hosting weddings -- Trial court erred by granting summary judgment in favor of defendant on nuisance claims based on finding that claims were barred by Right to Farm Act, which provides that a “farm” may not be held liable for nuisance unless claim arises out of conduct that did not comply with state or federal environmental laws, regulations, or best management practices -- Discussion of Right to Farm Act -- Genuine issue of material fact remained as to whether defendant's property was being used as a farm or a commercial wedding venue and whether barn itself was consistent with a bona fide farm, livestock operation or ranch under section 570.86's definition of agritourism activity -- A property appraiser's agricultural classification under section 193.461 is not dispositive in determining whether property satisfies definitions of “farm” or “farm operation” under the Act -- Injunctions -- Trial court erred by granting summary judgment in favor of defendant on claim for injunctive relief alleging violations of county code based on its determination that, because appraiser designated property agricultural, it was not subject to county code pursuant to section 604.50(1)'s exemption for “nonresidential farm buildings” -- Based on evidence provided, reasonable jury could have concluded that barn did not meet definition of a “nonresidential farm building”
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Torts -- Medical malpractice -- Presuit requirements -- Failure to comply -- Corroborating medical opinion -- Trial court properly dismissed medical malpractice claim for failure to comply with presuit investigation requirements of section 766.203(2) where expert opinion submitted by plaintiff was vague, conclusory, and boilerplate -- Court rejects plaintiff's argument that language “failing to appropriately assess, monitor, recognize, and respond to [patient's] condition” put forth by an expert is sufficient to meet definition of word “corroborate” -- Further, expert's affidavit failed to articulate any opinion or factual basis supporting negligence by named defendant
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Torts -- Negligence -- Vicarious liability -- Punitive damages -- Gross negligence -- Action stemming from injuries plaintiff suffered when he was struck by a pipe that was sticking out to the side of a trailer operated by defendant driver -- Trial court erred by granting plaintiff's motion for leave to amend to assert claims for punitive damages against driver based on finding that driver's decision to continue driving with an expired driver's license, knowing that he had a substantially similar accident just two days prior to accident at issue, and driver's history of license suspensions was willful and wanton conduct that subjected driver to punitive damages -- Driver's past driving record was not relevant where nothing in record shows that license suspensions were issued for moving violations or reckless driving, and issues leading to suspensions had been resolved -- Driver's decision to drive after his license was expired was irrelevant -- Expiration of license alone is not evidence that driver had the inability to operate the type of trailer he was operating and is unrelated to driver's alleged failure to properly secure a pipe on the trailer -- None of the evidence implying that driver may have had a similar accident two days prior supports finding of gross negligence where there was no evidence detailing what caused the pipe to come unsecured during prior accident -- Without any evidence showing how the pipe came loose in prior accident, prior accident cannot provide a reasonable basis to conclude driver's actions on day of incident at issue were grossly negligent -- Because trial court erred by granting leave to assert a claim for punitive damages against driver, it also erred by allowing plaintiff to assert punitive damages claim against employers based on theory of vicarious liability -- Negligent hiring, retention, and supervision -- Trial court erred by granting plaintiff's motion for leave to amend to assert claims for punitive damages against employers based on theory of direct liability -- Claim that employers were grossly negligent because they failed to scrutinize driver's license and driving history when hiring driver fails where driver was initially hired to work as a mechanic before being transferred -- Claim that employers were grossly negligent because they failed to ensure driver was properly trained and qualified to safely drive a vehicle and operate trailer fails where evidence shows that driver was not transferred until after his license suspension was lifted -- Although driver's license was expired at time of accident, there is no evidence that the managing agents were aware of this fact or instituted a policy encouraging employees to continue driving despite such circumstances -- Furthermore, evidence shows that employers gave driver appropriate training and plaintiff presented no evidence that employers were aware of the alleged accident two days prior
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Workers' compensation -- Benefits -- Attendant care -- Entitlement -- Trial court erred by awarding claimant attendant care benefits based upon a discussion of such benefits in an independent medical evaluation -- While attendant care benefits may be awarded if they are “prescribed” in writing by a physician and performed at the direction and control of the physician, an IME physician's report does not qualify as a written prescription and the IME physician did not direct or control the claimant's treatment
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Criminal Law Headnotes (Jump to Civil Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Successive motion -- Newly discovered evidence -- No error in summarily denying newly discovered evidence claim alleging that a juror's recent social media post mentioning her reaction to the number of law enforcement officers in the courtroom showed that defendant was unconstitutionally deprived of a fair penalty phase trial because jury was subject to improper external influences -- Claim was untimely and procedurally barred where it was premised on facts that could have been discovered decades ago and could have been raised in prior proceedings -- Jurors -- Interview -- Trial court did not abuse its discretion by denying defendant's motion to interview juror where defendant failed to establish good cause for filing untimely motion and failed to provide a legally valid basis for interview -- Public records -- No abuse of discretion in denying as untimely defendant's public records request seeking any communications between law enforcement agencies and the juror -- Claim was untimely where, although defendant found juror's post hours after expiration of deadline imposed by trial court's scheduling order, defendant filed request six days after deadline expired without explanation for delay and without seeking leave to file late demand -- Furthermore, defendant's theory that government agencies engaged in misconduct by contacting juror about her post was speculative and did not provide basis for colorable claim of relief -- Intellectual disability -- No error in denying claim that a 2026 IQ test score constituted newly discovered evidence that defendant is intellectually disabled and categorically exempt from execution -- Claim was untimely where claim was not filed within a year of when IQ score could have been discovered through exercise of due diligence -- Claim was also procedurally barred -- Even if timely and not procedurally barred, claim fails on merits where defendant did not allege concurrent adaptive deficits as required by statute -- No error in denying motion to declare the clear and convincing evidence standard of proof for establishing intellectual disability unconstitutional -- Habeas corpus -- Claim that defendant's death sentence is unconstitutional because of the defendant's age at the time of offense and his significantly subaverage intellectual functioning is procedurally barred where claim was raised and previously rejected in prior post conviction motion -- Even if not procedurally barred, claim is meritless -- Stay of execution denied
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Opportunity to amend -- Trial court did not abuse its discretion by denying defendant's motion to amend his post conviction motion to add four additional claims -- COVID-19 pandemic, voluminous records in the case, and turnover at law firm representing defendant did not, either individually or in the aggregate, constitute good cause for failing to include claims which were readily accessible at time initial motion was filed -- Jurors -- Interview -- No error in denying motion to interview jurors from second penalty phase where motion was untimely and defendant failed to establish good cause for delay -- Counsel -- Ineffectiveness -- No error in denying claim that counsel was ineffective for failing to use a victim-blaming strategy -- Based on evidence presented at evidentiary hearing, counsel had a reasonable strategic reason for not impugning reputation of victims -- Defendant was not entitled to relief on claims that counsel was ineffective for failing to investigate and present certain mitigation witnesses to testify regarding defendant's mental health, military service, and background -- No error in denying meritless claims that counsel was ineffective for failing to impeach witness who discovered victims' bodies and failing to object to introduction of witness's 911 call on relevancy grounds -- Trial court properly denied claim that counsel was ineffective for failing to object to state's closing argument comments regarding defendant's abusive childhood and his military service where court had previously found that certain comments were not improper on direct appeal, and counsel offered reasonable strategic decision for not objecting to other comments -- Counsel's failure to request a continuance of penalty-phase trial based on impending hurricane was a reasonable strategic decision -- Furthermore, defendant failed to show prejudice -- No error in summarily denying claim that counsel was ineffective for failing to ask adequate life-qualifying questions during voir dire -- No error in summarily denying claim that counsel was ineffective for failing to object to the verdict form because it failed to expressly inform jurors that they could consider a mitigator even if other jurors did not find that mitigator was established -- Conflict of interest -- No evidence supports defendant's claim that counsel's impending move influenced her decisions and compromised her efforts to represent defendant -- Habeas corpus -- Appellate counsel was not ineffective for failing to raise claim related to prosecutorial misconduct based on state's suggestion to jury that it should not consider a life sentence because defendant did not give that choice to victims -- While “same mercy” arguments are impermissible, they do not, standing alone, constitute reversible error -- Appellate counsel was not ineffective for failing to argue the lack of life-qualifying questions during voir dire and for failing to raise trial counsel's alleged conflict of interest where issues lacked merit -- Defendant is not entitled to relief based on cumulative error -- Due process -- Claim that redactions to appellate record on direct appeal constituted a due process violation is procedurally barred -- Additionally, defendant failed to suggest that any portion of redacted record would have supported viable appellate argument -- Remaining claims of ineffective assistance of appellate counsel are procedurally barred where claims could have been raised in prior post conviction motion -- Defendant is not entitled to relief on claim that post conviction process is inherently biased because it allows the same judge who presided over a defendant's trial to adjudicate the defendant's post conviction claims -- Claim is procedurally barred where defendant did not file motion for judicial disqualification or otherwise present argument below -- Even if not procedurally barred, claim lacks merit
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Criminal law -- Prostitution -- Dismissal -- Entrapment -- Trial court erred by dismissing information charging defendant with offering to commit, committing, or engaging in prostitution based on finding that government's sting operation had subjectively entrapped defendant -- Section 777.201(2) mandates that entrapment is to be tried by a jury unless undisputed facts establish both improper inducement by law enforcement and the defendant's lack of predisposition to commit the offense charged -- Accepting the undercover agent's account of her interaction with defendant and the conversation that followed, a jury could conclude that the government merely created the opportunity which, standing alone, does not qualify as inducement
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Criminal law -- Sentencing -- 10-20-Life statute -- Mandatory minimum -- Information -- Defects -- Appeals -- Preservation of issue -- Trial court did not fundamentally err by imposing twenty-five-year minimum mandatory sentence pursuant to section 775.087(2)(a)3 despite fact that information failed to allege that great bodily harm was inflicted “as the result of” the discharge of the firearm -- Defect in information was technical, not substantive, where the missing phrase relates solely to causation language required to trigger enhanced sentencing provision rather than an essential element of the crime charged -- Because defect was technical in nature, any challenge to that defect was required to be preserved by contemporaneous objection -- Defect did not constitute fundamental error where record forecloses any plausible claim that defendant lacked notice of the mandatory minimum sentencing consequences -- Defendant's filing of a rule 3.800(b) motion did not preserve issue for review because a defect in a charging document may not be raised under that rule -- Conflict certified
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