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Florida Appellate Updates – May 2019

Scott J Edwards, P.A. provides monthly case updates on Florida appellate court decisions, with a focus on cases relevant to civil litigation matters. This month, we begin with a review of changes at the Florida Supreme Court following the appointment of three new justices in January 2019. Then, our Case of the Week examines a trial court’s jurisdiction following the denial of a motion for rehearing. Next, the case law update includes new decisions on summary judgment evidence, limitations on the accident report “privilege,” orders striking a proposal for settlement, and more. Finally, our “Only in Florida” case examines one of the many unusual cases that arise here in the Sunshine State.

Florida Supreme Court Update

A new era is underway at the Florida Supreme Court. In January, three longtime justices left the court due to the mandatory retirement requirements of the Florida Constitution. Newly-elected Governor Ron DeSantis quickly appointed three successor justices. Due to this extensive change in the court’s composition, the Florida Supreme Court did not issue any substantive opinions for nearly three months.

The court issued its first substantive opinions since the appointments of the new justices in April. Most significantly, the new court revisited two opinions issued before the January retirements of the three prior justices. In Glass v. Nationstar Mortgage, LLC the court recalled the mandate and dismissed the petition for lack of jurisdiction. In doing so, the court withdrew a 4-3 previous opinion on prevailing party attorney’s fees that had found in favor of the petitioner.

Likewise in Orange County v. Singh, the court had originally issued a 4-3 decision upholding a county’s ability to require nonpartisan elections for state constitutional officers. The new court recalled the mandate, and issued a new opinion holding that state election law preempts a county’s ability to require nonpartisan elections for state constitutional officers.

Also notable is the court’s decision in Jackson v. DeSantis, where the unanimous court denied on the merits a petition for a writ of quo warranto by a superintendent of schools suspended by the governor for incompetence. A concurring opinion by newly-appointed Justice Lagoa engaged in a detailed textual analysis of the relevant constitutional provision. Justice Lagoa’s opinion signals that the current court may be more likely to rely upon textualism in reaching its orders.

Case of the Week: A trial court lacks jurisdiction to consider a motion for reconsideration of a final order denying rehearing

Florida Organic Aquaculture, LLC v. Advent Enviro. Systems, LLC (Fla. 5th DCA Apr. 5, 2019):

There are several key distinctions between motions for rehearing and motions for reconsideration, which have significant impacts on the jurisdiction of both trial and appellate courts. A motion for reconsideration is directed only to non-final orders, and may be filed at any time. Importantly, a motion for reconsideration does not toll the time for an appeal. A motion for rehearing is directed only to final orders, and the filing of a timely and authorized motion for rehearing does toll the time period for an appeal until after the court rules on the motion.

In Florida Organic, the trial court denied a plaintiff’s post-trial motion for attorney’s fees. The plaintiff filed a timely motion for rehearing and to stay the case, pending the Florida Supreme Court’s review of another case that would resolve a district conflict dispositive of the denied attorney’s fee motion. The trial court granted the stay. After the Supreme Court decided the conflict case, the trial court issued an order denying the motion for rehearing. The plaintiff then filed a motion for reconsideration of the order denying rehearing, which the trial court ultimately granted several months later.

The Fifth DCA reversed, holding that the trial court lacked jurisdiction to consider the motion for reconsideration once it denied the original motion for rehearing. The order denying the motion for rehearing was a final order that divested the trial court to proceed further on the motion. Trial courts do not have jurisdiction to consider a second motion for rehearing. Likewise, the motion was not a proper motion for reconsideration, as reconsideration is only available for non-final orders. Thus, the plaintiff’s only remedy to challenge the denial of its motion for rehearing would have been to file a timely notice of appeal, which it failed to do.

Other Notable Decisions

Accident Report PrivilegeAnderson v. Mitchell (Fla. 2d DCA Apr. 5, 2019): Florida’s accident report “privilege” prevents the admission at trial of statements made by a motorist for the purpose of creating a crash report. However, the Second DCA held that the “privilege” is a rule of admissibility, rather than a true privilege protecting disclosure of the statements. Therefore, accident report statements are subject to discovery. The appellate court noted that although the statute was substantially amended in 1989 to eliminate language granting a privilege to accident report statements, Florida courts have nonetheless continued to incorrectly refer to the rule as if it were a true privilege.

Insurance Claim File DiscoveryJiminez v. Granada Ins. Co.(Fla. 3d DCA Apr. 10, 2019) – A claim file is an insurer’s work product. However, the privilege belongs to the insurer only. Thus, an insured lacks standing to raise a work product objection if the insurer does not object to discovery of the claim file.

Insurer’s Duty to Defend, Summary Judgment EvidenceAdvanced Systems, Inc. v. Gotham Ins. Co. (Fla. 3d DCA Apr. 17, 2019) In this case, an insurer improperly refused to defend its insured for a lawsuit arising from a covered loss, claiming that an exclusion for pollutants excluded coverage. The underlying complaint against the insured did not mention any pollutants; rather, the insurer claimed that the substance causing the loss was a pollutant based on a document downloaded from the internet.

An insurer’s duty to defend its insured is separate and distinct from its duty to indemnify, and is determined only by the allegations contained in a complaint filed by a third party against an insured. A narrow exception to this rule allows an insurer to rely on evidence external to the third party’s complaint if the evidence is uncontroverted or manifestly obvious. Thus, it was improper for the insurer to rely upon external evidence to refuse the defense because it was hotly disputed whether the loss was caused by a “pollutant.”

Moreover, because summary judgment evidence must be in the form of evidence that would be admissible at trial, it was error for the trial court to rely upon the unauthenticated document from the internet in granting its summary judgment motion.

Summary Judgment Evidence, Part 2Edelman v. Citizens Prop. Ins. Co. (Fla. 4th DCA Apr. 24, 2019) Summary judgment for an insurer was reversed because the summary judgment evidence was not properly authenticated under Florida Rule of Civil Procedure 1.510(c).

Third Party Duty to Preserve EvidenceShamrock-Shamrock, Inc. v. Remark (Fla. 5th DCA Apr. 26, 2019) A third party who is not a party to a law suit does not have a duty to preserve evidence merely based on the knowledge or foreseeability of litigation.

Order Striking a Proposal for SettlementFlorida Peninsula Ins. Co. v. Deporter (Fla. 4th DCA Apr. 10, 2019) – An order striking a party’s proposal for settlement before trial is a non-final order, and cannot be immediately appealed. Likewise, the striking of a proposal for settlement does not justify certiorari jurisdiction, because such an order does not create irreparable harm that cannot be cured on a final appeal.

Proposals for Settlement in Maritime CasesMarco Marine Const., Inc. v. Kopras (Fla. 2d DCA Apr. 17, 2019) Proposals for settlement are unenforceable in maritime cases, because maritime cases are governed by Federal law. Federal maritime law preempts state laws allowing attorney fee shifting. This en banc decision receded from previous Second DCA precedent suggesting that proposals for settlement were enforceable in maritime actions.

Waiver of PrivilegeAmerican Airlines, Inc v. Cimino (Fla. 3d DCA Apr. 17, 2019). Before compelling disclosure of privileged documents for which the privilege has been allegedly waived, a trial court must first conduct an in camera inspection of the documents, and delineate the scope of the waiver.

Failure to Object to Improper Closing ArgumentCEC Entertainment, Inc. v. Zaldivar (Fla. 3d DCA Apr. 24, 2019) A trial court improperly granted a new trial due to an attorney’s improper closing arguments. Although the arguments were improper, opposing counsel failed to preserve the issue because they failed to make a contemporaneous objection to the argument.

Prior Similar Incidents, Preservation of ErrorCarnahan v. Norvell (Fla. 4th DCA Apr. 24, 2019) A plaintiff alleged that a landowner was negligent for allowing his cows to escape their enclosure and wander onto a public road. The trial court properly excluded evidence of a prior incident of the cows escaping, because the facts of the prior incident were not substantially similar to the facts of this case.

Only in Florida: No worker’s compensation coverage for a work-from-home employee who tripped over her dog

In Segdwick CMS v. Valcourt-Williams (Fla. 1st DCA Apr. 5, 2019), an employee authorized to work at home injured herself after tripping and falling over her dog while reaching for a coffee cup. The employee argued that she was entitled to worker’s compensation benefits because the fall occurred during working hours, and was granted benefits by the judge of compensation claims. The First DCA reversed, holding that the employee’s risk of injury from her dog did not arise from her employment. In other words, the injury must have an “occupational causation,” arising from a risk that does not exist in the employee’s non-employment life. Ironically, the employee worked as a worker’s compensation claims adjuster for Segdwick, one of the nation’s largest worker’s compensation insurers.

About Scott J. Edwards, Esq.

EDWARDS-SMALL_002511

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

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Scott J. Edwards, P.A. Wins Appeal: Homeowner’s Association Improperly Excluded Clients’ Personal Trainer From The Community’s Fitness Center

Is a personal trainer in a fitness center like a call girl sitting at a clubhouse bar? This was the trial court’s analogy, rejected by a unanimous panel of the Fourth District Court of Appeal on case brought by Scott J. Edwards, P.A. and co-counsel Sajdera Kim, PLLC.

Our clients are homeowners in a residential community governed by a homeowner’s association. The community’s amenities include a fitness center, which under the Association’s declarations may be used by owners, family members, guests, invitees, and tenants.

On several occasions, our clients paid and authorized their friend, a personal trainer, to accompany them to the fitness center. The trainer was only present when invited by our clients, and did not conduct any other business in the fitness center or attempt to solicit business from any other homeowner.

However, the Association later entered into a contract granting a third party vendor the right to be the exclusive provider of fitness services in the Association’s fitness center. Pursuant to this contract, the Association enacted a rule forbidding any other private trainers or instructors from working in the fitness center. Under this new rule, our clients were forbidden from working out at the fitness center with their own personal trainer.

Our clients sued the Association, claiming that the Association’s new rule violated the Association’s declaration, which granted homeowners (including their guests and invitees) a permanent easement for use of the fitness center and other community amenities. The Association vigorously opposed the lawsuit. It argued that because the trainer was being paid, his status was not as an “invitee,” but rather was as a “licensee” who was properly excluded.

The trial court judge agreed with the Association, concluding at a summary judgment hearing that the trainer was a licensee because he was paid for his personal training services. The trial judge commented:

If [the personal trainer] is getting a dime for training [our clients], at any time, which you have basically said he is, then he is carrying on a business, and you’re going to the Fourth DCA if you have a problem with my ruling.

As soon as [the personal trainer] starts getting paid for his services is the difference between the girlfriend sitting at the clubhouse bar and the call girl. One is getting paid, they’re a licensee; the other one is an invitee. Invitees are welcome, businesses are not.

On appeal, our clients successfully argued that their trainer should be considered an invitee, and that the rule excluding personal trainers exceeded the Association’s rulemaking authority.

First, the opinion discussed Florida law regarding the three categories of visitors who enter private property: invitees, uninvited licensees, and trespassers. It notes that Florida law now follows the “invitation test” to determine whether an individual should be treated as an invitee. Thus an “invitee” is defined as an individual present on the premises for a purpose for which the land is held open to the public, for a purpose connected with the business operated on the premises, or anyone present via the express or reasonably implied invitation of the property owners.

The opinion confirms that Florida has moved away from the prior common law “economic benefit test,” which considered individuals to be invitees only if there was a mutually beneficial relationship between the owner and the visitor.

Thus, an uninvited licensee is neither an invitee nor a trespasser. Rather, a “licensee” is a legal status between the two whose presence is neither sought nor forbidden, but merely tolerated by the land owner.

Because the definition of an “invitee” is broad under Florida law, only a narrow category of visitors can be properly defined as “licensees.” Florida’s courts have only held that visitors were licensees when present on the premises solely for their own convenience. Examples of licensees under Florida law include individuals taking a late night shortcut across a shopping center’s property, individuals entering private property to allow a dog to relieve itself, and individuals entering an office building to use the building’s private telephone.

In this case, the Fourth DCA held that the evidence established that the personal trainer was an invitee, because he was expressly invited by our clients to use the fitness center for permissible recreational purposes. Importantly, the trainer was never at the fitness center without our clients, and did not attempt to gain business from other residents.

The Fourth DCA further held that the trial court incorrectly focused on the fact that the trainer was paid, and thus improperly applied the old “economic benefit” test in classifying the trainer as a “licensee.” It rejected the trial court’s “call girl” analogy, stating that because the trainer was invited, he could not be compared to an “uninvited licensee ‘call girl’ soliciting her services to provide a ‘girlfriend experience’ for paying customers.”

In light of the court’s conclusion that the trainer was an invitee, the opinion next held that the rule excluding personal trainers was invalid because it exceeded the authority granted by the Association’s declarations, which specifically permitted member’s invitees to use the fitness center. The declaration is an association’s “constitution,” thus an association’s board may not enact rules that contravene the declaration.

This opinion establishes important precedent in the areas of homeowner’s and condominium association law, as no prior Florida appellate opinion had specifically applied the definitions of “invitee” and “licensee” in the association law context. Furthermore, this opinion reaffirms that an association’s declarations are its constitution: thus, rules enacted by the association’s board of directors cannot violate the terms of the declarations.

The opinion can be found at Charterhouse Associaties, Ltd. v. Valencia Reserve Homeowner’s Association, Inc., 4D17-2640 (Fla. 4th DCA Nov. 28, 2018).

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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Breaking News: Florida Supreme Court Vacancies To Be Appointed By Incoming Governor

In a one-page order issued today, the Florida Supreme Court has ruled that three vacancies that will occur on the court in January will be filled by the incoming governor elected in November.

The Florida constitution requires mandatory retirement for justices after they attain the age of seventy years, with the exception that justices over the age seventy can finish their term if at least half of the term has been served. At midnight on January 8, 2019, the terms of Justices Barbara Pariente, Peggy Quince, and Fred Lewis end due to mandatory retirement. The governor’s term likewise ends at midnight on January 8th. However, due to vagueness in the Constitution as to when the new governor’s term will begin, it had been unclear whether the outgoing or incoming governor has the authority to appoint the replacement justices.

In granting a writ of quo warranto against the governor filed by the League of Women Voters of Florida, the Florida Supreme Court has ruled that the incoming governor has the sole authority to fill the upcoming vacancies. The order leaves open the question of when the Supreme Court Judicial Nominating Commission can certify its nominations. This issue will be decided after the election, following oral argument on November 8th. Likewise, the short order issued by the clerk does not contain any analysis as to how the court reached its decision, nor does it show if any justices dissented to the order.

This issue last arose in 1998, when outgoing governor Lawton Chiles and incoming governor Jeb Bush both claimed the authority to fill a supreme court vacancy that coincided with the expiration of the governor’s term of office. The incoming and outgoing governors avoided a constitutional crisis by jointly agreeing to the appointment of Justice Peggy Quince.

A proposed constitutional amendment was placed on the ballot in 2016, with the goal of resolving the ambiguity in the constitution. Had the amendment passed, the outgoing governor would have been granted the explicit authority to appoint replacements where the expiration of judicial and gubernatorial terms coincided. The proposed amendment failed to get enough votes to be adopted.Share This Page:
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Florida Supreme Court Strikes Fresh Blow Against Nitpicking Proposals For Settlement

In a recent opinion, the Florida Supreme Court held that proposals for settlement were not ambiguous despite failing to address separate claims brought against codefendants. With its holding, the majority opinion reiterated its policy of discouraging the “nitpicking” of proposals for settlement, and expressed the court’s continued frustration that proposals for settlement seem to create more judicial labor, rather than encouraging settlement.

In Allen v. Nunez (Fla. Oct. 4, 2018), a plaintiff in a motor vehicle negligence case sued Gabriel Nunez, the driver of the car, as well as Jairo Nunez, the driver’s father who owned the car. The proposal to Gabriel stated that it was made by the plaintiff to Gabriel, and was for the purposes of settling all claims made by the plaintiff to Gabriel. The plaintiff served an identical proposal for settlement to Jairo. However, each proposal also stated that the proposal was “inclusive of all damages claimed by Plaintiff . . . .” In moving to strike the proposals for settlement, the defendants claimed that this provision was ambiguous as to whether one defendant’s acceptance of the proposal would have resolved the case against both defendants, or only against the individual defendant that accepted the proposal.

The trial court enforced the proposals for settlement. However, the Fifth DCA reversed, holding that the disputed provision was ambiguous because it could be reasonably interpreted to mean that the acceptance of the proposal by one of the defendants resolved the plaintiff’s entire claim against both defendants.

The Florida Supreme Court rejected the Fifth DCA’s analysis. The majority opinion first noted that a proposal for settlement need not be free of every possible ambiguity. Rather, only reasonable ambiguities should render a proposal for settlement unenforceable. Because proposals for settlement are intended to reduce judicial labor, courts are thus discouraged from “nitpicking” proposals for settlement in search of ambiguities. The majority opinion then analyzed several other opinions, reaching the conclusion that a proposal for settlement from one offeror to one offeree is enforceable even if the proposal does not address separate pending claims of other parties to the litigation. The majority reasoned that this rule is in furtherance of the contractual principle that the parties’ intentions must be determined from examining the entire contract, rather than separate phrases or paragraphs in isolation.

In a concurring opinion, Justice Pariente lamented the “exorbitant amount of litigation” that continues to be spawned by proposals for settlement. She reiterated that it is impossible to eliminate all ambiguity from a proposal for settlement. Thus, she urged courts to refrain from “nitpicking,” and encouraged courts to find a proposal unenforceable only if there is a reasonable ambiguity to its meaning.

Justice Canady wrote a dissent, joined by Justices Polston and Lawson. The dissenting opinion argued that the supreme court lacked jurisdiction to hear the case because the 5th DCA’s opinion did not expressly and directly conflict with the cases discussed in the petitioner’s jurisdictional brief.Share This Page:
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Insurance Law: Fourth DCA Reverses Verdict For Improper Injection of Bad Faith Allegations Into Jury Instructions

The Fourth District Court of Appeal reversed a jury verdict for an insured in an action on a homeowner’s insurance policy in Citizens Prop. Ins. Co. v. Mendoza (Fla. 4th DCA Jul. 5, 2018). The insured sued his insurer for breach of contract arising from a water heater leak. The insurer denied the claim, arguing that coverage was excluded under an exclusion for constant or repeated seepage or leakage of water.

The trial court erred by improperly instructing the jury about the insurer’s duty to adjust the claim. This instruction improperly “transformed the case into a referendum on the quality of the adjuster’s performance,” instead of requiring the jury to decide the factual issue of whether the loss was excluded under the policy.

The jury instructions and closing arguments focused on whether the insurance adjuster properly investigated the loss, rather than the facts of the loss. Thus, the jury could have decided the case against the insurer because it felt the adjuster did not “do a good job” adjusting the loss, regardless of whether the incident fell within the policy exclusion.

Such arguments are improper in a breach of contract case, where the jury’s focus must be on whether the facts of the loss required payment from the insurer under the language of the policy. Allegations that the insurance company failed to properly adjust a claim must be made in a separate action for bad faith. In a breach of contract action, an insured can criticize an adjuster’s conclusions, but cannot argue that the adjuster breached a duty or obligation to them. Thus, even “if an adjuster makes a mockery of the code of ethics, but the insurance company correctly denies a claim, there is no action for breach of contract.”

The Fourth DCA therefore ordered a new trial on the breach of contract action.

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Personal Jurisdiction Arising From Internet Torts

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.Share This Page:
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The Latest Proposal for Settlement Trap – District Split on Email Service

Update: In 2019, the Florida Supreme Court issued its opinion in Wheaton v. Wheaton, resolving the district split discussed in this article. The Florida Supreme Court held that a proposal for settlement is not invalid for failure to strictly comply with the Florida Rules of Judicial Administration governing service by email. 

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.Share This Page:
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WHEREAS It Is Compulsory That Attorneys Shall Cease And Desist Forthwith From Using Said Legalese Found Herein

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.Share This Page:
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Rambo-Style Attorney Arguments Cause Reversal of $70 Million Verdict (Florida Litigation Appellate Opinions)

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.Share This Page:
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