In DENNIS v. STATE, No. SC09-941 (Fla. Dec. 16, 2010), the Court considered the proper procedure for a motion under § 776.032 Florida Statutes (2006), the "Stand Your Ground" statute. The Court held that a "motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of rule 3.190(c)(4) but instead should be treated as a motion filed pursuant to rule 3.190(b)." Slip opinion at 15. Therefore "where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity." Slip opinion at 2. The Dennis Court approved the opinion in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), where the district court held that "the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section 776.032." Dennis, slip opinion at 2.
In COMPANIONI v. CITY OF TAMPA, No. SC09-1800 (Fla. Dec. 16, 2010), during the trial of a civil case, the City objected to several instances of misconduct by Plaintiff's counsel, and the trial court sustained the objections. After the jury found in favor of Plaintiff and the trial court entered final judgment, the City moved for a new trial, alleging in part that opposing counsel had engaged in misconduct throughout the trial, the cumulative effect of which was to deprive the City of a fair trial. The trial court denied the motion, reasoning that although the cumulative conduct of Plaintiff's counsel was so pervasive and prejudicial that the City's right to a fair trial was impaired, the City had not moved for a mistrial and the misconduct was not so extreme that it would undermine the public's confidence in the judicial system. The Second District Court reversed, holding that although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial. The Supreme Court disagreed, holding that when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court's review on a motion for a new trial.
In BALLINGER v. BAY VIEW CREDIT UNION, No. 2D09-4561 (Fla. 2d DCA Dec.15, 2010), a civil case, the DCA considered the sufficiency of an oath.A verified complaint stated that the affiant had read everything therein and that the facts stated were "true to the best of my knowledge and belief." The court held that a verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment. However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits which, in turn, provides that affidavits must be based on personal knowledge and shall show affirmatively that the affiant is competent to testify to the matters stated therein. A verification which is improperly based on information and belief is insufficient to entitle the verifying party to relief because the verification is qualified in nature. Here the verification was insufficient because, as shown by the fact that the verification included the word "belief", it was not based on the affiant's personal knowledge.
In ARCE v. HAAS, No. 2D09-5801 (Fla. 2d DCA Dec. 15, 2010), the DCA considered the standard for summary judgment in a civil case. In its order granting summary judgment, the trial court stated that the facts "clearly and unequivocally convince this Court" that a tort had not occurred. However the trial court's opinion of the weight of the evidence and its speculation as to the case's ultimate outcome are immaterial at the summary judgment stage. The question presented on a motion for summary judgment is whether there are disputed issues of material fact. A trial court is not permitted to resolve disputed issues or weigh the evidence to determine whether some act was committed. The existence of a disputed issue of material fact precludes entry of a final summary judgment.
