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Apex Doctrine Does Not Prohibit CEO’s Deposition

Updated November 25, 2019 to reflect the court’s order on motion for rehearing, granting the appellant’s request to certify a question of great public importance

In Suzuki Motor Corp. v. Winckler (Fla. 1st DCA Aug. 29, 2019), a divided panel of the First District Court of Appeal held that Plaintiff’s counsel in a personal injury case could take the deposition of Osamu Suzuki, the former CEO and current chairman of Suzuki Motor Corporation. The majority opinion held that the trial court did not depart from the essential requirements of the law by declining to apply the apex doctrine in this case.

In this products liability case, Plaintiff alleges that he was seriously injured in a crash because his Suzuki motorcycle’s brakes failed. Suzuki later issued a recall on the brakes installed on Plaintiff’s motorcycle.

Apparently unsatisfied with the deposition testimony of Suzuki’s corporate representative, Plaintiff’s counsel requested the deposition of Mr. Suzuki. Plaintiff successfully argued that, because Mr. Suzuki had signed a document related to the recall, he possessed unique information relevant to the facts of the case.

Suzuki opposed Plaintiff’s attempt to depose Mr. Suzuki pursuant to the apex doctrine. The apex doctrine holds that the high-ranking officials of an organization should not be compelled to give deposition testimony unless the opposing parties have exhausted other avenues of discovery, and the official has a unique ability to provide relevant information that cannot be obtained from other sources.

The majority opinion agreed with the trial court’s determination that the apex doctrine in Florida has only been clearly applied to governmental agencies, not corporations. Moreover, the majority held that there was a legitimate basis in the record to suggest that Mr. Suzuki had personal knowledge of the issues. Thus, under the strict certiorari standard that governs pretrial appellate review of discovery orders, there was no departure from the essential requirements of the law.

Judge Thomas provided a lengthy dissent to the majority’s opinion. He argued that Plaintiff had not made a proper showing that Mr. Suzuki’s testimony was relevant. Judge Thomas noted that Mr. Suzuki’s signature only appeared on a single one-page document among a production of more than 250,000 pages of documents, and that Mr. Suzuki filed an affidavit denying any personal knowledge of the document. Moreover, the evidence showed that Mr. Suzuki himself did not have the authority to issue recalls; rather, recall decisions were made by an independent Quality Countermeasure Committee. Tellingly, Plaintiff never sought to depose any member of the Committee.

Based on the facts of the case, Judge Thomas concluded that the deposition could not be justified on relevance grounds, and thus was intended to harass the corporation, and attempt to force a settlement in order to avoid significant corporate disruption. Judge Thomas further noted the potential for widespread disruption if the executives of large corporations could be compelled to testify in hundreds of routine lawsuits involving the corporation, despite an executive’s lack of personal knowledge of the facts of a given case.

After the original opinion was issued, the First DCA granted Suzuki’s motion to certify a question of great public importance to the Florida Supreme Court. The certified question, as phrased by the court, asks: “Does a trial court depart from the essential requirements of law by not requiring a party seeking to depose the top officer of a corporation to show that (1) other means of discovery have been exhausted and (2) the corporate officer is uniquely able to provide relevant information that cannot be obtained from other sources? stated differently, does a departure from the essential requirement of law occur when the so-called apex doctrine, which applies to governmental entities is not applied to a corporation?”

By certifying a question of great public importance, the First DCA gives the Florida Supreme Court the opportunity to decide whether the apex doctrine should apply in Florida.

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Attorneys Representing Themselves Are Entitled To Seek Attorney’s Fees For Their Own Work

In Nunez v. Allen (Fla. 5th DCA Oct. 11, 2019), the Fifth District Court of Appeal held that an attorney representing himself is entitled to an award of his own attorney’s fees pursuant to a proposal for settlement. However, the attorney’s legal fees must reflect time reasonably spent on actual legal services, and must not be duplicative of time spent by co-counsel. Furthermore, Fifth DCA ruled that the reasonableness of an attorney fee award may be independently evaluated on appeal.

This case arose from simple facts: a vehicle driven by one defendant struck a parked, unoccupied vehicle owned by the plaintiff. The plaintiff sued the driver, as well as the driver’s father who owned the vehicle. The plaintiff served separate proposals for settlement on each defendant. The question of whether the proposals for settlement were unenforceable due to ambiguity ultimately was decided by the Florida Supreme Court. As I wrote in a previous article, the Florida Supreme Court held that the proposals were enforceable.

On remand, the Fifth DCA addressed the remaining issues not resolved by the supreme court’s decision: whether the plaintiff was entitled to an attorney’s fee award for his own self-representation, and whether the trial court’s fee award was unreasonable under the evidence.

The plaintiff is “a very experienced, competent civil trial lawyer,” and represented himself throughout the majority of the litigation, including after he retained co-counsel to assist him. The defendants argued that the plaintiff should not be awarded attorney’s fees for his own self-representation.

The defendants recognized that Florida law has long allowed attorneys representing themselves to seek an attorney’s fee award if fees would be recoverable by the same party if represented by independent counsel. However, the defendants sought reconsideration of the issue in light of a United States Supreme Court decision that held that attorneys representing themselves in civil rights actions could not be awarded their own attorney’s fees.

In a 1991 decision, the United States Supreme Court held that attorney’s fees awards for self-representation were contrary to the policy of the civil rights statute. The Supreme Court held that the purpose of allowing attorney’s fee awards in civil rights cases was to enable potential plaintiffs to obtain the assistance of competent counsel to vindicate their rights. Thus, allowing self-represented attorneys to claim their own attorney’s fees would create a disincentive to employ independent counsel.

In this case, the Fifth DCA held that the purpose of the proposal for settlement statute and rule is far different. The purpose of a proposal for settlement is to penalize a party who rejects a reasonable settlement offer, rather than to encourage a party to obtain the advice of independent counsel.

The defendants also argued that the plaintiff was not entitled to an attorney’s fee award for his own representation for any work performed after he retained co-counsel. They argued that a fee award was improper because the attorney had then shifted from being the attorney to being the client. The Fifth DCA rejected that argument. However, it held that fees for an attorney’s own services must be limited to actual legal services performed by the party-attorney, rather than time expended in the attorney’s capacity as a client. Furthermore, fees awarded to a party-attorney must be carefully analyzed to avoid duplication of time expended by co-counsel.

The defendants did prevail, however, on their argument that the attorney’s fee award in the case was unreasonable. The opinion first noted that in attorney’s fees cases, an appellate court has a “special responsibility” to closely scrutinize the reasonableness of attorney’s fee awards, irrespective of the “expert” opinions presented in the trial court.

The trial court awarded a total of $343,590.00 in attorney’s fees in the case, for 694.6 hours in attorney and paralegal time. Given that the case was not novel or complex, and the modest amount of the damages, the trial court’s award of attorney’s fees was clearly unreasonable and constituted an abuse of discretion.

Therefore, the Fifth DCA reversed the attorney’s fee award, and remanded the case to the trial court for a redetermination of the attorney’s fee award.

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Florida Supreme Court Considers Adopting Federal Summary Judgment Standard

The Florida Supreme Court has issued an order seeking briefs on the issue of whether Florida should adopt the Federal summary judgment standard.

Earlier this year, I wrote about the case of Lopez v. Wilsonart, LLC. In that case, a semi truck driver was granted summary judgment based upon dashboard cam video evidence, which clearly showed that the semi was traveling safely in its lane until being impacted by the plaintiff’s vehicle.

The Fifth DCA nonetheless reversed the summary judgment. The Fifth DCA held that summary judgment was inappropriate because an eyewitness testified that the semi truck swerved before the collision. Even though the video was “compelling” and “directly contradictory” to the eyewitness’s testimony, the Fifth DCA held that the trial court incorrectly weighed the evidence by determining that the eyewitness’s testimony was not credible.

The Fifth DCA certified a question of great public importance to the Florida Supreme Court, asking whether Florida’s strict summary judgment standard should be modified in cases where objective video evidence clearly negates or refutes evidence in opposition to summary judgment.

The Florida Supreme Court has now issued an order accepting jurisdiction on the case. In addition to addressing the certified question, the Florida Supreme Court has also asked the parties to brief the question of whether Florida should adopt the Federal summary judgment standard as stated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and its progeny, and if so, whether the Florida rule of civil procedure governing summary judgment needs to be amended to reflect any change in the summary judgment standard.

Under a long line of cases beginning with Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), Florida courts have repeatedly held that the party moving for summary judgment must conclusively show that the opposing party can not possibly prove its case at trial. Thus, summary judgment is unavailable if the record reflects the possibility of any genuine issue of material fact, or if the record raises even the slightest doubt that an issue might exist. This standard shifts the burden of proof to the party defending against a cause of action, requiring it to be able to completely negate the opposing case in order to obtain summary judgment.

Under the Federal summary judgment standard, on the other hand, the party with the burden of proof at trial must establish that there is sufficient evidence to create an issue for the jury on the party’s cause of action in order to survive a summary judgment motion. Until now, Florida’s courts have repeatedly rejected suggestions to adopt the Federal summary judgment standard.

The Florida Supreme Court’s order is certain to launch a flurry of amicus briefs on the issue, especially from the personal injury/insurance defense bar. Defense attorneys, businesses, and insurers have long advocated for adopting the Federal summary judgment standard in order to weed out cases with dubious proof of negligence, reduce litigation expenses, and conserve judicial resources. The Plaintiff’s bar, however, favors the current standard as it allows the jury to decide most negligence cases, and encourages settlement of claims.

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What Do Trial Judges Want? To Not Be Reversed On Appeal

In an article for the American Bar Association, Illinois trial judge Mark Drummond published a “Top Ten” list of things judges want. Judge Drummond offers several guidelines that are extremely helpful in being an effective advocate. Moreover, following these principles will enhance the chances of success in the event of an appeal.

Trial Judges Want To Be Affirmed On Appeal

Judge Drummond wrote that that a judge’s “biggest fear is having a jury trial overturned and having to do it all over again.” However, because a judge is not as familiar with the case as the attorneys, a judge may need time or more information in order to fully analyze the admissibility of a particular piece of evidence.

Thus, Judge Drummond recommends that attorneys make liberal use of offers of proof. In addition to preserving issues for appeal, an offer of proof gives a judge more time to think about an issue without the pressure of making a split-second decision in front of a packed courtroom. An offer of proof or a request for reconsideration likewise allows the trial judge the opportunity to conduct quick legal research during a break.

Therefore, Judge Drummond advises attorneys to not “assume that objection sustained is the end of it. I don’t want to have to do this again, and if I can trust you on issues of law or evidence, I will always give you a second chance.”

Judges Want Attorneys to Disclose Contrary Authority

Judge Drummond writes that “there is nothing more impressive” than the advocate who discloses cases that are arguably adverse to the lawyer’s position. Judge Drummond recommends going beyond the minimum requirement found in most states’ professionalism rules to disclose cases that are directly adverse to a party’s position.

Because judges have large caseloads, and must often make quick decisions, it is extremely powerful to be known as an attorney that a judge can always count on to provide accurate statements of the law.

Furthermore, the disclosure of contrary cases has strong persuasive power, because it demonstrates to the court that the attorney is less concerned about the contrary authority when its existence is admitted.

Judges Want Good Jury Instructions

Judge Drummond writes that judges value juror’s time more than any other trial participant. Thus, nothing frustrates a judge more than requiring jurors to wait while the court and counsel try to craft a useable set of jury instructions.

Under most circumstances, proposed jury instructions can be completed before trial. Likewise, alternate jury instructions that depend on how the evidence may shake out should also be prepared in advance, so they are ready to be presented at the instruction conference.

In addition to the points raised by Judge Drummond, thoughtful advance preparation of proposed jury instructions reduces the chances of the jury being erroneously instructed, as well as properly preserves for appeal any disputes in the instructions.

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No transcript? Sorry, you will probably lose your appeal.

Without a transcript of a hearing or trial, an appellate court cannot provide meaningful review of many of the issues that are disputed in an appeal. In the absence of a transcript, the appellate court cannot evaluate the sufficiency of evidence, analyze the reasoning of the trial judge, or determine if proper arguments or objections were made to preserve a claim for appeal.

The seminal Florida case on this issue is Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). In Applegate, the Florida Supreme Court noted that in appellate proceedings, the decision of a trial court has the presumption of correctness. Therefore, the appellant has the burden to demonstrate reversible error. Thus, if the issue on appeal involves underlying questions of fact, the reviewing court is being asked to draw conclusions about the evidence. In the absence of a transcript or a proper substitute, the appellate court cannot resolve underlying factual issues, nor can it conclude that the trial judge improperly applied the law to the facts.

The Applegate case has been cited by Florida’s appellate courts more than 1,400 times since it was issued in 1979. Thus, Florida’s attorneys and judiciary continue to grapple with the consequences of the failure to bring a court reporter to a proceeding.

However, appellate review is possible under certain circumstances even if there is no transcript. Most significantly, an appellate court can reverse an order if fundamental error appears on the face of the order. This usually involves situations where the trial court is required to make specific findings in its order.

Also, an appellate court can usually review a summary judgment order in the absence of the transcript. By rule, summary judgment evidence must be filed in advance of the hearing. Appellate review of a summary judgment motion is a question of law subject to de novo review. Thus, the appellate court usually has the same information before it as the trial court did. A major limitation, however, is that any arguments made orally at the hearing, but not included in the written motion or opposition, are not preserved if there is no transcript.

Finally, Florida Rule of Appellate Procedure 9.200(b)(5) allows a party to “prepare a statement of the evidence or proceedings from the best available means.” The statement can be based upon the party’s recollection. However, such a statement must either be stipulated to by the parties, or settled and approved by the trial court. In practice, it is rare for the parties to reach sufficient agreement to be able to successfully prepare a statement of the evidence or proceedings.

Therefore, if any issue being heard in the trial court could potentially result in an appealable issue, it is wise to have the proceedings recorded by a court reporter.

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Poorly-Worded Summary Judgment Order Causes Havoc

Chaos was unleashed in an otherwise unremarkable case when a poorly-written order granting partial summary judgment also included language improperly suggested that the order was a final judgment.

In Surijon v. Zarria (Fla. 3d DCA Sept. 4, 2019), Plaintiff filed a five count complaint against a defendant all arising from the same set of facts. Plaintiff filed a motion for summary judgment addressing only three of the five counts. The trial court’s order reflects that the trial court granted summary judgment as to one count only, and denied summary judgment as to the other two counts raised in the motion. The remaining two counts were not addressed in the summary judgment motion, and were never disposed of by any other order. Thus, the substance of the trial court’s rulings strongly suggests that the court granted partial summary judgment as to one count only.

However, the summary judgment order was titled “Summary Final Judgment.” The order further states that Plaintiff was entitled to recover $150,000 from Defendant, plus attorney’s fees and prejudgment interest. The order also contained boilerplate language of judgment finality: “for all of which let execution issue.” The result of this inconsistently-worded order was to enter final judgment against Defendant, and close the case on all counts.

The Third DCA reversed, directing the clerk to reopen the case, and directing the trial court to enter an interlocutory order granting summary judgment on the one intended count, without words of execution, and to retain jurisdiction to consider the pending related claims.

This case illustrates the importance of careful wording on all court orders. It’s not clear in this case whether the order was written in such a confusing matter because it was based on an improperly-adapted form, or if Plaintiff had intended to take final judgment by dismissing the remaining claims.

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Florida Statutory Interest Rate to Increase in October

As reported by the Florida Bar News, Florida’s statutory interest rate is set to increase in October to a rate of 6.89 percent per annum. This is a slight increase over last quarter’s interest rate of 6.77 percent per annum.

Pursuant to Section 55.03(1), Florida Statutes, Florida’s Chief Financial Officer is responsible for calculating the statutory interest rate applicable to judgments and decrees on a quarterly basis. The statutory interest rate is determined by adding 400 basis points to the previous twelve month average federal discount rate of the Federal Reserve Bank of New York.

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Plaintiff’s Counsel Allowed to Take Third Deposition of Witness, Because Plaintiff was not a Party to Prior Law Suit

In Clarke v. Coca-Cola Refreshments USA, Inc. (Fla. 3d DCA Sept. 4, 2019), the Third District Court of Appeal held that a Plaintiff was entitled to take a witness’s deposition, even though Plaintiff’s counsel had already taken two lengthy depositions of the witness in a previous action brought by other plaintiffs.

In this case, a Coca-Cola delivery truck was involved in an accident which caused the truck to crash into a home where Plaintiff lived. Plaintiff sued Coca-Cola, seeking damages for lost personal property and displacement from the home. In a prior action, other members of Plaintiff’s family had brought similar claims arising from the same incident. The same attorney represented the plaintiffs in both actions. The plaintiffs’ attorney took two lengthy depositions of the truck driver in the prior action. The prior action was voluntarily dismissed on the eve of trial.

In the second action, Coca-Cola obtained a protective order blocking Plaintiff’s counsel from taking a third deposition of the truck driver. The Third DCA reversed, holding that the protective order violated Plaintiff’s due process rights.

The Third DCA acknowledged the trial court’s goal of judicial efficiency and its intention to prevent hardship to the truck driver, whom was being asked to sit for a third deposition before the same attorney who had questioned him twice already. However, the trial court’s ruling did not balance Plaintiff’s due process right to full discovery. Because Plaintiff was not a party to the earlier case, she had the right have her counsel conduct an independent deposition of the witness. Importantly, it was improper for the trial court to presume that Plaintiff’s counsel could not propound a new or different line of questioning in the third deposition.

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Florida Supreme Court Denies Motions For Rehearing on Daubert Adoption

Earlier this year, the Florida Supreme Court issued a surprise decision adopting the Daubert evidentiary standard for the admission of expert witness testimony.

Although the legislature had passed legislation adopting the Daubert standard, the Florida Supreme Court as previously composed rejected the legislation to the extent it was procedural, and later ruled that the Daubert standard was unconstitutional.

This year’s decision to adopt Daubert, following three new justices joining the supreme court, surprised many because it was issued sua sponte under the court’s inherent rulemaking authority. Usually, Florida Supreme Court rules cases follow a formal process involving Florida Bar committee review and comment from members of the bar.

The Florida Bar’s Code and Rules of Evidence Committee filed a motion for rehearing of the court’s decision, as did two members of the bar. The motions for rehearing raised concerns about the court not following the traditional rulemaking process, as well as substantive concerns about the implementation of Daubert.

A 6-1 majority of the court denied the motions for rehearing, without writing an opinion. Only Justice Labarga dissented. Thus, it is clear that the court intends to enforce the Daubert standard going forward, and that any future challenges are likely to be futile.

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A New Order That Is Materially The Same As A Prior Order Does Not Open A New Window To File An Appeal

In Arch Insurance Co. v. Lender Processing Services, Inc. (Fla. 1st DCA Aug. 29, 2019), the First District Court of Appeal rejected a party’s attempt to appeal a previously-rendered order by obtaining a new order on the same motion.

In 2016, the trial court entered an order ruling that there was no valid settlement agreement between the parties. Under the 2016 rules of appellate procedure, the court’s order was nonfinal and not appealable.

However, Florida Rule of Appellate Procedure 9.130 was amended in January of 2019, adding a new provision authorizing appeals of nonfinal orders determining that, as a matter of law, a settlement agreement is unenforceable, set aside, or never existed.

In an attempt to bring an appeal under the new rule, the appellant filed new motions raising the same issues on the same facts, resulting in the court rendering a partial summary judgment in 2019 that repeated the same rulings from 2016.

The First DCA dismissed the appellant’s appeal of the 2019 order. It held that the 2019 order was a mere republication of the trial court’s 2016 ruling, and did not provide a new opportunity to file an interlocutory appeal under the new appellate rule. Under Florida law, the rendition of a new order materially the same as a prior order that was not appealed does not open a new appeal window.

The opinion also notes that a party can seek review of nonfinal orders in the plenary appeal following a final judgment.

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