Person Holding Globe In Field Of Grass

Personal Jurisdiction Arising From Internet Torts

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In today’s connected society, many relationships and transactions cross state and national boundaries. Thus, the question of whether Florida courts have jurisdiction over an action can frequently be unclear, especially in instances where conduct occurs over the internet. This article examines the extent to which out-of-state torts committed via the internet can confer personal jurisdiction in Florida state courts under the long arm statute.

Florida’s Long Arm Statute

Florida’s long arm statute allows the exercise of personal jurisdiction over an out-of-state defendant if the defendant commits a tortious act within Florida. Fla. Stat. § 48.193(1)(a)(2). A defendant’s physical presence in Florida is not required to commit a tortious act in Florida. Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002). Thus, jurisdiction can be conferred by a nonresident defendant’s telephonic, electronic, or written communications into Florida if the cause of action arises from the communications. Id.

Significantly, jurisdiction exists only when a communication is made into Florida. Metnick & Levy, P.A. v. Seuling, 123 So. 3d 639, 645 (Fla. 4th DCA 2013). Mere injury in Florida resulting from a tort committed elsewhere cannot support personal jurisdiction over non-resident defendants. Consul Energy v. Strumor, 920 So. 2d 829, 832 (Fla. 4th DCA 2006). Likewise, personal jurisdiction in Florida does not exist based upon the mere fact that an out-of-state defendant interacts with Florida residents. Erie Ins. Exch. v. Larose, 202 So. 3d 148 (Fla. 2d DCA 2016).

Jurisdiction Arising From Online Communications

In Prince v. Kronenberger 24 So. 3d 775 (Fla. 5th DCA 2009), the parties were members of the Korean War Veteran’s Association. The defendant was expelled from the association, and thereafter took to the association’s email distribution list to express his displeasure with his expulsion. The defendant sent an email to the list that was distributed to the group’s members, claiming that the plaintiff (who was responsible for the expulsion) earned his law degree from a “correspondence school” not accredited by the American Bar Association. The distribution list sent emails to association members nationwide, including some members who were Florida residents.

The defendant moved to dismiss Plaintiff’s defamation action for lack of personal jurisdiction, claiming that he did not specifically target Florida residents when sending his email to the distribution list. The appellate court held that personal jurisdiction existed over the case, because the email was actually published in Florida. Jurisdiction was proper despite the defendant not specifically intending to send his email to Florida residents.

Similarly, in Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003), a Florida doctor accused the moderator of an internet chat room of defamation. The moderator posted numerous defamatory statements about the doctor in the chat room. The evidence showed that the chat room’s participants included Florida residents, as well as individuals likely to seek medical treatment in Florida. Thus, jurisdiction was held to be proper over the moderator because the communications were directed, in part, into Florida.

Jurisdiction Over Web Sites

Although the maintenance of a web site, in a sense, establishes a continuous presence everywhere in the world, personal jurisdiction cannot be based simply on the existence of a website. Caiazzo v. American Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011).

The Florida Supreme Court established a test for personal jurisdiction related to web sites in Internet Solutions v. Marshall 39 So. 3d 1201 (Fla. 2010). In that case, an employment recruiting agency accused a “consumer advocacy” website of defamation. The website published a post accusing the agency of selling customer information to spammers and phishers. In assessing personal jurisdiction, the Florida Supreme Court first noted that websites are different from nearly any other form of communication, as they are not directed to reach specific recipients in a specific forum. Rather, a posting on a web site is not sent anywhere in particular, but can be accessed from anywhere in the world.

The Florida Supreme Court held that posting allegedly defamatory material about a Florida resident onto a web site accessible in Florida constitutes an electronic communication into Florida, subjecting the publisher to personal jurisdiction in Florida. The publisher of a defamatory statement on a web site intentionally makes the material instantly available everywhere the web site is accessible. By posting defamatory statements on the web about a Florida resident, the poster has directed the communication about a Florida resident to readers worldwide. The statement is thus published in Florida when it is accessed by a third party in Florida.

Conclusion

There is surprisingly little case law addressing personal jurisdiction for acts committed via the internet. Indeed, no published opinions have yet addressed personal jurisdiction over conduct performed on Facebook or any other social media platform. However, the courts appear to be focused on identifying the specific communication at issue, and determining whether the communication is directed into Florida.

Scott J. Edwards, Esq. is a director of the South Palm Beach County Bar Association Young Lawyers Section. His law firm, Scott J. Edwards, P.A., is located in Boca Raton, and provides clients with assistance in appeals, litigation & trial support, and complex motion practice. He can be reached at EdwardsAppeals.com, scott@scottjedwards.com, and 561-609-0760.

A version of this article originally appeared in the Winter 2017-2018 edition of The Advocate, the publication of the South Palm Beach County Bar Association.

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The Latest Proposal for Settlement Trap – District Split on Email Service

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Proposals for settlement in Florida are notorious for their numerous procedural traps. The drafters of the proposal for settlement rules intended them as a procedural device to encourage parties to settle claims without going to trial. Aspen v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990). In practice, however, the rules have significantly increased litigation, spawning countless trial court controversies and many appellate opinions. Campbell v. Goldman, 959 So. 2d 223, 227 (Fla. 2007) (Pariente, J., specially concurring). Because proposals for settlement are in derogation of the common law, they are strictly constructed, and failure to strictly comply with the procedural requirements will render a proposal invalid. Id. at 226. Thus, even minor procedural or linguistic defects in a proposal for settlement can invalidate a proposal for settlement.

The latest controversy involves the service of proposals for settlement by email. Because Florida Rule of Civil Procedure 1.442 and Section 768.79, Florida Statutes, require that proposals for settlement be served by a party, but not filed, they are not served via the Florida E-Filing Portal. Thus, there is controversy as to whether a proposal for settlement is invalid if it is not served in strict compliance with the rules for email service codified in Florida Rule of Judicial Administration 2.516.

In Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA 2017), the Third District Court of Appeal held that a proposal for settlement was invalid because the email serving the proposal did not strictly comply with the procedural requirements for serving case documents by email. Pursuant to Florida Rule of Judicial Administration 2.516(b), there are numerous formatting and content requirements for serving documents by email, such as including the case number in the email’s subject line.

In Wheaton, it was undisputed that the proposal, served by email, did not comply with Rule 2.516(b). The trial court rejected Appellant’s motion for attorney’s fees for failure to strictly comply with Rule 2.516(b).

On appeal, Appellant argued that Rule 2.516(b) did not apply, because a proposal for settlement is neither a “pleading” nor a “document filed in a court proceeding.” The Third DCA rejected this argument, holding that Rule 2.516 requires all documents served on another party to be served by email. Thus, the trial court’s order denying attorney’s fees was affirmed.

Three other district court of appeal opinions have been announced since Wheaton, all of which reject the Third DCA’s analysis.

In Boatright v. Philip Morris USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), Appellants served their proposals for settlements by certified mail, and did not serve them by email. The trial court refused to enforce the proposals, concluding that they were invalid because they were not served by email following the procedures of Rule 2.516.

The Second DCA reversed the trial court’s order. It held that both Section 768.79 and Rule 1.442 do not provide for any specific method for serving proposals for settlement. Moreover, the statute and rule both explicitly state that proposals must not be filed at the time they are initially served.

In holding that service by email is not the exclusive method for serving a proposal for settlement, the Second DCA performed a detailed textual analysis of Section 768.79, Florida Rules of Civil Procedure 1.080 and 1.442, and Florida Rule of Judicial Administration 2.516. In analyzing the interplay of the statute and the rules, the court concluded that service by mail is a permissible method of service, and that Rule 2.516 does not apply to case documents that are not filed in the action.

In reversing, the Second DCA certified conflict with Wheaton, and distinguished its opinion from several other cases that implied that service of court documents by email was mandatory.

The Fourth District Court of Appeal followed Boatright in the case of McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827 (Fla. 4th DCA 2017). Appellants in this case also served proposals for settlement via certified mail, and not by email. The Fourth DCA held that where a party has actual notice of an otherwise valid proposal for settlement, the denial of recovery because the offer was not emailed would “allow the procedural tail of the law to wag the substantive dog.”

In Oldcastle Southern Group v. Railworks Track Systems, 43 Fla. L. Weekly D 22 (Fla. 1st DCA Dec. 21, 2017), the First District Court of Appeal also rejected the Wheaton opinion. The Oldcastle court held that a proposal for settlement was valid despite being served by email, but not strictly complying with Rule 2.516.

The Florida Supreme Court has accepted jurisdiction on Wheaton. Thus, we can expect that a decision resolving the district court split will be forthcoming. Until the supreme court reaches a decision, the safest method for serving proposals for settlement is to serve them by email in strict compliance with Rule 2.516. Proposals served in this manner will be valid under all of the opinions addressing this issue.

Finally, as a practice pointer, we have seen in the cases above that proposals for settlement can be invalidated due to a mere improperly-formatted email. A trial court order holding a proposal unenforceable could cause a client to lose out on a potentially large attorney’s fee award. Therefore, service of proposals for settlement should only be performed by the attorney responsible for the matter, or highly experienced staff specifically trained in the requirements of Rule 2.516. All attorneys should likewise carefully review the email serving a proposal for settlement, and immediately serve a corrected proposal if any defects are discovered.

Scott J. Edwards is an appellate and litigation support attorney in Boca Raton. He is a member of the South Palm Beach County Bar Association Young Lawyers Section Board of Directors.

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WHEREAS It Is Compulsory That Attorneys Shall Cease And Desist Forthwith From Using Said Legalese Found Herein

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How To Improve Your Legal Writing By Eliminating Archaic Phrasing

Many lawyers are guilty of using excessive legalese in their legal writing. Words and phrases that have long fallen out of fashion in everyday usage nonetheless remain common in the law. There are many reasons for this: some writers think legalese sounds more “lawyerly” or formal, while others simply continue to regurgitate outdated terms learned from law school case books, supervising attorneys, and decades-old forms.

However, legalese can be a significant barrier to clarity and comprehension in legal writing. Moreover, research by legal writing professors shows that judges strongly prefer documents written in plain English, and perceive writing heavy in legalese as poorly worded, unscholarly, and unpersuasive. The following categories of legalese words and phrases should be avoided to improve the clarity and persuasiveness of a legal document.

Words from Dead Languages

Many legalese terms are relics from Old English vocabularies that survive today almost exclusively in legal documents. For example, “whereas” is a near-meaningless preliminary statement that frequently appears in contracts, settlement agreements, and court orders. According to Bryan Garner, “whereas” clauses typically have no legal effect, but rather are only preliminary statements that provide introductory background information before the binding language. Because “whereas” has no purpose in contracts or any other legal documents, such phrasing can be safely removed in favor of plain English without impacting the legal meaning of the document.

For another example, the Third District Court of Appeal in Ball v. Genesis Outsourcing Solutions, 174 So. 3d 498 (Fla. 3d DCA 2015) recently discussed the phrase “go hence without day,” frequently found in final judgments: “Before permanent county courthouses were built and staffed, the judge, clerk, and lawyers traveled a circuit together in a cavalcade of horses and mules carrying court records and portable legal libraries from county seat to county seat.” Thus, summonses would require defendants to appear from day to day until their case was heard. If the defendant won, the judgment discharged the defendant from the summons with the traditional phrase “go hence without day,” derived from the Latin legal maxim “quod eat sine day.” While an interesting historical footnote, the justification for the phrase has disappeared in modern legal practice. Indeed, The Ball court explained that this archaic phrase is no longer necessary. Rather, the judgment should simply state that final judgment is entered for one party against the other party.

In many instances, legal writing can be clarified by replacing an outdated word or phrase from Old English with a modern English synonym, while still preserving the writer’s intended meaning. Archaic terms such as “henceforth,” “hereinunder,” and “forthwith” are likely to confuse many readers; however, phrases such as “from now on,” “below,” and “immediately” convey the same meaning while greatly improving comprehension.

Lawyers are also frequently guilty of overusing Latin terms. Why say “supra” when “above” conveys the same meaning in a much clearer manner? That being said, there are numerous Latin terms that remain useful to lawyers and do not easily translate to modern English: for example, phrases such as “certiorari,” “res ipsa loquitur,” and “respondiat superior” sum up complex legal doctrines in a way understood by most legal readers.

Double Trouble

Beginning in the Middle Ages, legal language began a transition from Latin to French to English. Thus, legal writers long ago began the habit of drafting phrases such as “cease and desist:” a word each from English and French or Latin that explains the same idea. Known as “legal doublets,” these phrases may have once been useful in ensuring that a reader understood the meaning of important terms. However, many of these phrases have long outlived their original purpose, and can usually be shortened to one word to reduce redundancy. Some common examples include:

  • Aid and abet
  • Cease and desist
  • Covenant and agree
  • Due and payable
  • Free and clear
  • Have and hold
  • Heirs and successors
  • Indemnify and hold harmless
  • Null and void
  • Sole and exclusive
  • Terms and conditions
  • True and correct

Said Too Many Times

As stated by legal writing professors Anne Enquist and Laurel Currie Oates, “if you were a stand-up comic trying to make fun of the way lawyers write, all you would have to do is put ‘said’ or ‘such’ before almost every noun.” Indeed, only a lawyer could write the following: “I heard the new restaurant across the street in excellent. Let’s have lunch at said restaurant on Friday!” According to another legal writing professor, some lawyers incorrectly believe that “said” is more precise than more ordinary words. However, there no difference in precision between the phrases “said conspiracy” and “this conspiracy.” Thus, the word “said” should never be an adjective: instead, use “the,” “that,” “this,” or “those.”

The Final Test

When choosing words for a legal document, the test should be whether the potential use of “legalese” will improve or diminish the communication between the reader and the writer. Ancient words are not necessarily superior.

Scott J. Edwards is an appellate and litigation support attorney in Boca Raton. He is a member of the South Palm Beach County Bar Association Young Lawyers Section Board of Directors. Scott’s appellate law blog is at www.florida-appellate-lawyer.com

This article was originally published in the Fall 2016 issue of The Advocate, published by the South Palm Beach County Bar Association.

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Rambo-Style Attorney Arguments Cause Reversal of $70 Million Verdict (Florida Litigation Appellate Opinions)

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Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.

 Click here to learn more about Scott Edwards’ appellate law services.

Multi-Million Dollar Tobacco Verdict Reversed Due To Improper Plaintiff Attorney Argument R.J. Reynolds v. Calloway (Fla. 4th DCA Sept. 23, 2016) (en banc) In this Engle tobacco liability case, a 70 million dollar verdict was reversed due to plaintiff counsel’s repeated improper arguments. The Fourth DCA summarized the nature of plaintiff’s counsel’s arguments as follows:

[T]he plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize. The closing argument included inflammatory remarks; statements evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial. Taking into account all of the preserved objections to the improper comments in plaintiff’s counsel’s opening and closing as referenced above, the cumulative impact of these errors created an atmosphere of “win at all costs.”

In reversing the judgment, the Fourth DCA held that it is improper for counsel to argue that a defendant should be punished for contesting damages at trial, or that defending a claim in court is improper. Such arguments are designed to inflame the emotions of the jury, rather than prompt a logical analysis of the evidence in light of the applicable law. The number of improper comments and arguments showed that their use was a deliberate part of plaintiff’s trial strategy. Therefore, the totality of all the improper argument was pervasive enough to raise doubts as to the overall fairness of the trial. The Fourth DCA’s opinion explicitly put attorneys on notice that such behavior in the future will risk reversal of cases on appeal.

Moreover, the trial court’s failure to admonish plaintiff’s counsel despite repeated improper arguments caused the prejudice to accumulate. The lawyer’s improper arguments, the 4th DCA concluded, should not be swept away as mere “harmless error.” Trial courts should discourage “Rambo litigators” intent on engaging in no-holds-barred tactics at trial.

Three judges dissented from the majority en banc opinion. The dissent argued that the trial court acted within its discretion by sustaining defense objections to the improper argument, and giving curative instructions. Moreover, punitive damages were at issue in the phase of the trial where the arguments were made. Therefore, issues of whether the defendants failed to take responsibility were relevant.

Arbitration Clause Signed By Nursing Home Patient’s Son Does Not Bind Patient Mendez v. Hampton Court Nursing Center, LLC (Fla. Sept. 22, 2016) Resolving a split among the DCAs, the Florida Supreme Court held that a nursing home could not enforce an arbitration agreement signed by the patient’s son when the patient was admitted to the nursing home. The supreme court rejected precedent from the First and Third Districts that held that a nursing home patient is bound by an arbitration agreement as an intended third party beneficiary of the contract. Significantly, there was no evidence in this case that the son had the legal authority to act as his father’s agent or guardian.

Error to Deny Motion for Leave To Amend Answer Morgan v. Bank of New York Mellon (Fla. 1st DCA Sept. 19, 2016) In a foreclosure case, the trial court improperly denied the defendant’s motion for leave to amend her answer to raise affirmative defenses. Although the motion was filed a month before trial, the defendant had not abused the right to amend, and the plaintiff would not have been prejudiced by the amendment. Florida has a broad policy of allowing liberal amendment of pleadings so that cases may be tried on the merits.

Summary Judgment Motion Should Have Been Continued Due to Pending Discovery Kjellander v. Abbott (Fla. 1st DCA Sept. 19, 2016) If good faith discovery is still in progress, the trial court should not grant a motion for summary judgment. A motion to continue summary judgment should be denied only where the non-moving party did not act diligently in completing discovery, or is using discovery methods to thwart or delay the summary judgment hearing.

Additional Reading

Joint Proposals for Settlement: Saterbo v. Markuson (Fla. 2d DCA Sept. 21, 2016)

Removal to Federal Court: Cole v. Wells Fargo (Fla. 5th DCA Sept. 23, 2016)

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EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Liability for A Biting Horse, Prejudgment Interest, and Dismissals for Fraud (Florida Litigation Appellate Opinions, July 11-22, 2016)

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Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the weeks of July 11-22, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Prejudgment Interest, Breach of Contract Arizona Chemical Co. v. Mohawk Industries (Fla. 1st DCA July 18, 2016): Florida courts follow the “loss theory” in calculating prejudgment interest. Under the loss theory, the purpose of awarding prejudgment interest is to make the plaintiff whole; thus, prejudgment interest cannot be used as a tool to grant a windfall to a plaintiff, or for the court to penalize a defendant. A party is entitled to prejudgment interest at the statutory rate when a verdict liquidates a plaintiff’s monetary losses and the date of the loss can be ascertained from the evidence. In most breach of contract cases, interest begins to accrue on the date of the breach, or on the date when payment was due under the contract. However, in some cases, the monetary loss caused by a breach of contract does not occur until sometime later.

In this case, a chemical company delivered defective resin to a carpet manufacturer, which caused the manufacturer’s carpets to fail prematurely. The defective resin resulted in an increase in warranty claims from the manufacturer’s customers, caused the manufacturer to sell off some of the defective carpet at discounted prices, and required the manufacturer to simply throw away some carpet. (I discussed the First DCA’s earlier opinion on the merits of the case in this article). The trial court incorrectly ruled that prejudgment interest in this case should be calculated from the dates that the manufacturer applied the resin to each roll of carpet. The First DCA held that the trial court should have calculated prejudgment interest from the dates that manufacturer suffered actual loss: i.e., the dates that warranty claims were paid, or that defective carpet was sold at a discount or thrown away.

Equine Liability, The Horse Gets Away With It Germer v. Churchill Downs Management (Fla. 3d DCA July 13, 2016): A man visiting a stable to see a friend’s horse had the misfortune of crossing paths with “Forever Happy,” an ironically named homicidal horse who escaped his stall and bit the man in the chest. The man sued Forever Happy’s owner, who defended the case based on Florida’s Equine Immunity statute. Under the law, an equine activity sponsor or professional is not liable for injuries resulting from the inherent risks of participating in equine activities. The 3rd DCA agreed with Forever Happy’s owner that a person visiting a stable participates in an equine activity, therefore triggering the protections of the Equine Immunity statute.

E-Filing is Mandatory United Bank v. Estate of Frazee (Fla. 4th DCA July 13, 2016): Under Florida Rule of Judicial Administration 2.516, electronic filing of court documents is mandatory except under certain limited circumstances. In this case, a party’s attorney attempted to file paper documents with the clerk of court by mail on the date of the deadline. The clerk rejected the documents due to the rule mandating e-filing, and the party’s subsequent e-filing was not timely. Because the error was caused by the attorney’s lack of knowledge or negligence, justice did not require the trial court to deem the filing as timely.

Discovery, Privacy of Financial Information Inglis v. Casselberry (Fla. 2d DCA July 15, 2016): A trial court departed from the essential requirements of the law by compelling non-parties to disclose personal financial information. Florida’s constitutional right to privacy protects personal finances, as they are private matters kept secret by most people. Non-party personal financial information discovery should only be granted following an evidentiary hearing establishing that the relevance of the evidence outweighs the strong public policy favoring the constitutional protection of private financial information.

Medicaid Liens, Wrongful Death Goheagan v. Perkins (Fla. 4th DCA July 20, 2016): The Federal Medicaid anti-lien statute applies only to claims brought by living patients. In a wrongful death action, Medicaid can seek reimbursement of its lien from the entire amount of the judgment, rather than only the portion of the judgment attributable to medical expenses.

Dismissal as a Sanction, Part One Cal v. Forward Air Solutions (Fla. 3d DCA July 20, 2016): A trial court acted within its discretion by dismissing a personal injury plaintiff’s complaint as a sanction for numerous discovery violations. The plaintiff violated a court order compelling her attendance at a compulsory medical examination, and gave false testimony on numerous occasions about a previous injury.

Dismissal as a Sanction, Part Two Diaz v. Home Depot USA, Inc. (Fla. 3d DCA July 13, 2016): Dismissal for fraud on the court was proper where the plaintiff denied previous injuries or accidents, but medical records revealed that she had indeed been involved in a motor vehicle accident and a slip and fall accident in the year before her accident at Home Depot, and suffered injuries to the same body parts as were at issue in this case. The trial court conducted an evidentiary hearing, and made specific findings that the plaintiff gave false testimony with a flagrant disregard for the integrity of the civil justice system.

Please complete the form below to join Scott J. Edwards, P.A.’s email list. Members of the email list receive my Florida Litigation Appellate Opinion articles, as well as news and updates on Florida law.


EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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What happens to the record if the court reporter dies? (Florida Litigation Appellate Opinions, June 20-July 1, 2016)

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Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the weeks of June 20-July 1, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Record on Appeal, Appellate Procedure Jackson v. Jackson (Fla. 3d DCA June 22, 2016) Hearing transcripts were not preserved for appeal in this case because the court reporter died shortly after the notice of appeal was filed. The court reporting company and appellant’s counsel searched the court reporter’s files and equipment, but were unable to locate the transcription. The parties attempted to reconstruct the record pursuant to Florida Rule of Appellate Procedure 9.200; however, the parties and the trial court were unable to reconcile the differing recollections of the facts.

Given the unique circumstances of this case, the Third DCA ruled that the case should be remanded for a new trial. Although an appellant may not file a brief without record support, the absence of a record in this case was not due to the fault of the parties. The appellant had obtained a court reporter for the hearings, and promptly requested a transcript. Good faith efforts to reconstruct the record were unsuccessful. Thus, it is within an appellate court’s authority to order a new trial where essential records were unavailable through no fault of the parties.

Sinkhole Insurance Claims Citizens v. Nunez (Fla. 2d DCA June 24, 2016) In this case, the Second DCA provides a good overview of the statutory procedures for resolving a sinkhole insurance claim. Here, the insurance company and the insureds disputed the best method to repair a home’s sinkhole damages, with a jury trial finding in favor of the insureds. Most notably, the Second DCA held that the insurance company could withhold payment of the judgment until the insureds entered into a contract for subsurface repairs. This holding implements the legislature’s intent that sinkhole damages be repaired to protect public health and safety.

Proposals For Settlement Nunez v. Allen (Fla. 5th DCA June 24, 2016) Once again, a party’s attorney fee claim fails because a small linguistic error on a proposal for settlement created an ambiguity that rendered the proposal unenforceable. In this auto property damage case, the owner of the damaged vehicle served separate proposals for settlements on the driver and the owner of the tortfeasor car. However, the proposals each stated “This proposal for Settlement is inclusive of all damages claimed by Plaintiff . . . .” The Fifth DCA held that this language was ambiguous because it was unclear whether a defendant’s acceptance of the proposal would settle the plaintiff’s entire claim, or if the proposal would only settle the claim against the defendant named in the proposal.

Attorney-Client Privilege Coffey-Garcia v. South Miami Hospital (Fla. 3d DCA June 22, 2016) In a medical malpractice case, a defendant hospital was allowed to ask the plaintiff when she first sought legal counsel, and the names of the attorneys whom she consulted with. These questions are not protected by the attorney-client privilege, as they merely addressed whether consultations occurred. However, the Third DCA quashed the trial court order to the extent it required the plaintiff to answer questions related to the reasons why she first sought counsel. Such questions would improperly require the plaintiff to disclose privileged legal advice from the consulted lawyers.

Amendment of Pleadings Morgan v. Bank of New York Mellon (Fla. 1st DCA June 28, 2016). Absent exceptional circumstances, motions for leave to amend should be granted, and refusal to do so constitutes an abuse of discretion. In this foreclosure case, the homeowner’s original counsel abandoned the case after filing motions directed at the complaint, but never filing an answer. The homeowner later filed several pro se answers. The homeowner finally retained new counsel shortly before trial, who moved for leave to amend the answer to raise affirmative defenses. The First DCA reversed the trial court’s denial of the homeowner’s motion for leave to amend. The homeowner had not abused the privilege to amend, and the bank could not show that it would be prejudiced by the new affirmative defenses.

“Stand Your Ground” Defense in Civil Cases Patel v. Kumar (Fla. 2d DCA June 29, 2016) The Second DCA holds that if an individual is granted immunity after a hearing in a criminal case under Florida’s “Stand Your Ground” law, the individual need not prove an entitlement to immunity again in a later civil suit. Florida’s “Stand Your Ground” law provides immunity from both criminal prosecution and civil action to individuals who lawfully use force in self-defense. Thus, the Second DCA reasons, the law does not allow an individual to be immune in the criminal action, but not immune in the civil action. The Second DCA certified conflict with the Third DCA case of Professional Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524, which held that a defendant must prove entitlement to immunity in a civil action even if he previously was granted immunity in a criminal action.

Summary Judgment, Amendment of Pleadings, Affidavit Contradicting Deposition Testimony Faber v. Karl of Pasco, Inc. (Fla. 2d DCA June 29, 2016) A party has a liberal right to amend a complaint in light of a summary judgment motion, so long as the privilege to amend has not been abused or the amendment would not be futile. However, a party may not avoid summary judgment by filing an affidavit that directly contradicts the party’s earlier sworn testimony. Nonetheless, a party’s affidavit may explain prior testimony if the explanation is credible and not inconsistent with the previous testimony. In this case, the plaintiff should have been granted leave to amend her complaint: even though the plaintiff’s deposition testimony and affidavit differ, her affidavit appropriately explained or clarified her prior deposition testimony.

Jury Selection McCray v. State (Fla. 4th DCA June 29, 2016) If a party has exhausted all of its preemptory strikes, the party cannot withdraw a preemptory strike used on one juror to instead use the strike on a different juror.

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EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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All About Experts – Florida Litigation Appellate Opinions, May 23-June 3, 2016

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Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the weeks of May 23-June 3, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Expert Opinions, Sequestration of Witnesses, New Trial Dismex Food, Inc. v. Harris (Fla. 3d DCA June 1, 2016) In this personal injury case, the key issue was whether differences in two post-incident MRIs, taken several months apart, revealed that a new injury occurred between the time the two MRIs were taken. At trial, the plaintiff’s doctor testified for the first time that the earlier MRI could not be relied upon due to its poor diagnostic quality. The next day, the defendant’s expert testified that the earlier MRI was indeed of diagnostic quality, and concluded that his comparison of the two MRIs showed that an intervening injury must have happened at some time after the first MRI.

The trial court granted plaintiff’s motion for new trial. The trial court ruled that the defense expert’s testimony constituted a new opinion not contained in his report, in violation of a motion in limine. Also, the trial court ruled that defense counsel violated an order for sequestration of witnesses by sharing the plaintiff doctor’s opinion on the quality of the first MRI with the defense expert. The rule of sequestration is intended to prevent a witness’s testimony from being influenced by other witness’s testimony. If a witness’s testimony does not substantially differ from what it would have been absent a violation of the sequestration rule, there is no grounds for a new trial or mistrial.

The Third DCA reversed, holding that the defense expert’s testimony about the quality of the first MRI was consistent with his expert report. The defense expert’s report discussed the MRI’s findings in detail, discussing numerous specific findings. Thus, it defies logic and common sense to argue that the defense expert’s testimony that the first MRI was of diagnostic quality was an undisclosed opinion. Likewise, any information purportedly shared by defense counsel with the expert witness did not materially alter the witness’s testimony.

Daubert is Still Not Dead Bunin v. Matrixx Initiatives (Fla. 4th DCA June 1, 2016) The Fourth DCA holds that the trial court did not err in applying the Daubert standard to expert testimony, even though the case was filed before the effective date of the Daubert statute. Daubert is a purely procedural statute because it only relates to the admission of evidence. Therefore, the statute can be applied retroactively.

Parental Consent for Medical Treatment, Medical Provider Battery Angeli v. Kluka (Fla. 1st DCA May 25, 2016): Under Florida law, there is no cause of action for battery against a medical provider if one parent consents to a child’s medical procedure, but the other objects. In reaching its decision, the First DCA analyzed the limited statutory and case law regarding parental or guardian consent for medical treatment, and found that these sources uniformly authorized a singular parent or guardian to provide consent for treatment. The First DCA further concluded that a rule requiring both parents’ consent would place the health care provider in the untenable position of resolving parental disputes.

Lay Opinion Testimony, Daubert R.C. v. State (Fla. 2d DCA May 25, 2016): Florida’s adoption of the Daubert test has not changed long-standing Florida law that lay persons can identify marijuana based upon their personal experience and knowledge. Such testimony is not based on scientific expertise, but rather a laymen’s training and experience. The Second DCA noted that Federal courts have long allowed lay testimony to identify marijuana and other illegal drugs even after their adoption of Daubert.

Continuances Daher v. Pacha NYC (Fla. 3d DCA May 25, 2016) The trial court abused its discretion by dismissing a plaintiff’s case for failure to appear at trial. Plaintiff, a Brazilian citizen, was unable to travel to Florida in time for the trial because approval of his visa was delayed. The trial court refused to continue the case because it had been pending for over three years. Although a trial court has wide discretion on whether to grant or deny a continuance, such discretion is not unlimited. Here, the initial multiyear delay was caused by the defendant’s requested stay. The continuance would not have prejudiced the opposing party, and the delay in visa approval was unexpected and not due to any dilatory actions by plaintiff.

Dismissal Without Prejudice, Kozel Factors FNMA v. Linner (Fla. 2d DCA June 3, 2016) A trial court did not err in dismissing a party’s case without prejudice for failure to appear at a case management conference. The dismissed party argued that the trial court should have applied the factors from the case of Kozel v. Ostendorf, 629 So. 2d 814 (Fla. 1993) before dismissing its case. However, a trial court is only required to engage in a Kozel analysis if the dismissal is with prejudice. Because the case here was dismissed without prejudice, the party may still have its day in court if it chooses to refile the case.

EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

 

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Multimillion Dollar Claim for Lost Profits Affirmed (Florida Litigation Appellate Opinions, May 16-20, 2016)

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Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the week of May 16-20, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Commercial Litigation, Causation, Lost Profits Arizona Chemical Co. v. Mohawk Industries, Inc. (Fla. 1st DCA May 20, 2016) Mohawk, a carpet manufacturer, experienced a significant increase in warranty claims on one of its carpet lines. Mohawk eventually traced the problems to defective resin manufacturer by its supplier, Arizona . Mohawk alleged that the defective resin caused sales of the carpet line to fall dramatically, and also damaged the company’s reputation, leading to $95 million in lost profits. Mohawk successfully obtained a $70.1 million verdict at trial, which was affirmed on appeal.

Arizona  first argued on appeal that the trial court erred by excluding evidence that Mohawk’s warranty claims spiked on other lines of carpet at the same time. Thus, Arizona claimed it was prevented from arguing its theory that the increase in warranty claims was caused by quality control problems at Mohawk’s plant, rather than by defects in Arizona’s resin. The trial court, however, properly excluded this evidence because Arizona’s experts failed to properly link the spike in claims on other carpet lines to Arizona’s alleged lack of quality control at the plant. Moreover, Mohawk provided extensive scientific evidence that the carpet line’s problems were caused by chemical defects with Arizona’s resin.

Finally, Mohawk met its burden at trial to show that Arizona’s defective resin was a “substantial factor” in causing its lost profits, and established the amount of lost profits with reasonable certainty.

Appellate Procedure, Notice of Appeal Filed in Wrong Court Bennett v. State (Fla. 1st DCA May 20, 2016) Filing a notice of appeal in the wrong court is not a jurisdictional defect. Thus, the First DCA allowed the appeal in this case to go forward despite timely notice being filed in the wrong court.

Proposals For Settlement Ochoa v. Koppel (Fla. 2d DCA May 20, 2016) A motion to enlarge time to accept a proposal for settlement does not toll the thirty-day deadline to accept the proposal. Rule 1.442, governing proposals for settlement, contains a hard deadline of 30 days to accept a proposal. Furthermore, Rule 1.090, governing enlargement of time periods, does not contain any provision for tolling time periods while a motion for enlargement of time is pending. The Second DCA reasoned that allowing the mere filing of a motion for enlargement of time to automatically toll the acceptance period would frustrate the proposal for settlement rule’s purpose of encouraging timely settlement of claims. The Second DCA certified conflict with the 5th DCA opinion of Goldy v. Corbett Cranes Services, Inc., which allowed the tolling of a deadline to accept a proposal for settlement if a motion for enlargement of time is filed.

Due Process, Notice of Hearing Bank of America v. Fogel (Fla. 4th DCA May 18, 2016) A party’s due process is violated if it receives a notice of hearing on a Friday for a hearing scheduled for the following Monday.

Summary Judgment Burden of Proof Wells Fargo v. Bilecki (Fla. 4th DCA May 18, 2016) In this foreclosure case, the trial court erred by shifting the burden of proof to the bank to oppose the borrowers’ motion for summary judgment. Summary judgment should not have been entered because the borrowers did not meet their initial burden to prove that they did not receive the bank’s demand letter.
EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Broken Arm X-Ray

Florida Supreme Court Declares Worker’s Compensation Attorney Fee Caps Unconstitutional

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In the long-awaited opinion in Castellanos v. Next Door Co. (Fla. Apr. 28, 2016),EDWARDS-SMALL_002511 the Florida Supreme Court held in a 5-2 decision that Florida’s Worker’s Compensation Statutes, which set a mandatory fee schedule for claimants’ attorneys, are facially unconstitutional.

Most recently amended in 2009, Florida’s Worker’s Compensation statutes mandate a sliding scale for fee awards to a claimant’s attorney: 20% of the first $5,000 of benefits secured, 15% of the next $5,000 of benefits secured, 10% of the remaining amount of benefits secured within 10 years of the claim, and 5% of benefits secured after 10 years. The statute forbade, under penalty of criminal prosecution, a claimant’s lawyer from receiving any compensation for his or her services other than that awarded under the mandatory sliding scale.

The 2009 amendments replaced long-standing statutory language allowing a Judge of Compensation Claims (JCC) to award a “reasonable fee” to a prevailing claimant. Thus, in the Castellanos case, although the claim was complex and vigorously opposed by the employer and its insurance carrier, the amount of benefits secured was only $822.70. The claimant’s attorney was awarded a fee of only $164.54 under the mandatory fee scale, despite reasonably spending 107.2 hours on the defense of the case. The claimant attorney’s fee award was a mere $1.53 per hour worked. The JCC and the First District Court of Appeal both expressed concern about the inadequacy of the fee award, but were bound by precedent to uphold the award.

In declaring the mandatory fee scale unconstitutional, the Florida Supreme Court began its analysis by noting the historical purpose of the worker’s compensation system to provide “simple, expedious” relief to the injured worker in exchange for surrendering the right to bring tort lawsuits for workplace injuries. However, the supreme court has found that in the eighty years since the first worker’s compensation statutes, worker’s compensation laws have become so complex that it is nearly impossible for a claimant to successfully litigate a claim without attorney assistance.

Although the method for calculating fees has changed frequently as the statutes were amended over the years, Florida’s worker’s compensation laws had long allowed the award of reasonable attorneys fees to successful claimants. The 2009 amendments to the worker’s compensation statutes eliminated language allowing a claimant to recover a reasonable fee, thus only allowing fee awards as mandated by the statutory sliding scale.

The Florida Supreme Court held that removing the ability to award a claimant a reasonable attorney’s fee violated the due process requirements of the Florida and United States constitutions. The statute prevents courts from altering a claimant’s fee award, even if there is a finding that the attorney’s fee award is either grossly inadequate or grossly excessive. Thus, the supreme court reasoned, the statute improperly created a conclusive and irrebuttable presumption that attorney’s fees awarded under the statute were reasonable, regardless of the facts of an individual case.

The legislature’s concern about excessive attorney’s fee awards was held to not be a reasonable basis to justify the mandatory fee scale. Rather, the supreme court held that Rule Regulating the Florida Bar 4-1.5(b)(1)(A) provided adequate protection against excessive attorney’s fees. Furthermore, the mandatory fee scale did not protect against excessive fees, because excessive fees could easily result in cases with large recovery amounts. Finally, the fee scale did not provide any penalty to the employer or insurance carrier for wrongfully delaying or denying benefits to injured workers.

Because the supreme court declared the attorney fee provisions in the 2009 amendments to the worker’s compensation statutes unconstitutional, the supreme court revived the previous version of the statute. Thus, although the statutory fee schedule remains the starting point for awarding a claimant’s fee award, a claimant may now present evidence that the application of the fee schedule will result in an unreasonable award. Therefore, a claimant can be awarded fees that deviate from the scale only if the claimant can first prove that the scale results in an unreasonable fee.

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.  Click here to learn more about Scott Edwards’ appellate law services.

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