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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, with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, and personal injury litigation.  This article covers the week of October 5-9, 2015.

In Camera Review For Work Product Materials City of Port St. Lucie v. Follano (4th DCA Oct. 7, 2015): A trial court must conduct an in camera inspection of all materials claimed to be protected by the work product before ordering production of the materials. An in camera inspection is required so that the trial court can make factual determinations about the material’s evidentiary value, and assess whether substantially equivalent evidence can be obtained without undue hardship. Orders compelling production of work product material are reviewable by certiorari because once a litigant is compelled to produce work product, “the cat is out of the bag and the harm is done.”

Certiorari for Orders Denying Discovery CBQ 2010, LLC v. Bank of N.Y. Mellon (1st DCA Oct. 6, 2015): Certiorari is only appropriate to challenge a discovery order if the order departs from the essential requirements of the law, and causes a material injury to a party’s case that cannot be adequately remedied on appeal. Otherwise, an appellate court does not have jurisdiction to hear a petition for certiorari. Certiorari relief for an order denying discovery should be extremely rare because, under most circumstances, any harm resulting from the denial of discovery can be remedied on appeal. Thus, a court has jurisdiction on a petition for certiorari to review an order denying discovery only where the denial eviscerates a party’s claim or defense.

Joinder of Insurance Company New Hampshire Indemnity Co. v. Gray (1st DCA Oct. 8, 2015): In this auto negligence case, the jury found the defendant driver liable for the plaintiff’s injuries. The trial court granted the plaintiff’s motion to join the defendant’s insurer in the judgment, and holding the insurer jointly and severally liable for the cost judgment. The First DCA rejected the insurer’s procedural and substantive challenges to the trial court’s order. The insurer’s argument that the judgment did not contain sufficient findings to support the insurer’s joinder was not preserved: if an error first appears on the face of a judgment, a party must first move for rehearing in the trial court in order to preserve the error for appellate review. The insurer’s argument that it was not timely served with the joinder motion was also rejected, because the insurer filed an opposition to the motion before the hearing, and did not seek a continuance of the hearing or otherwise argue that more time was needed to prepare its opposition. Finally, on the merits, the First DCA held that the insurer could be held liable for the costs judgment under a policy provision stating that the insurer would pay reasonable litigation expenses incurred at the insurer’s request.

Interpleader Red Beryl v. Sarasota Vault Depository (2d DCA Oct. 9, 2015): Pursuant to Florida Rule of Civil Procedure 1.240, the only requirement to state a claim for interpleader is that the stakeholder is or may be exposed to multiple liability for competing claims to a single fund. The Second DCA noted that litigants and courts frequently mistakenly cite to the outdated common law elements for interpleader. Thus, in this case, the owner of a vault where disputed gemstones are being stored could state a claim for interpleader despite another party’s claim that the vault owner did not have proper control of the gemstones.

Summary Judgment Phoenix Asset Management v. GCCFC (3d DCA Oct. 7, 2015): The plaintiff filed its affidavit in opposition to the defendant’s motion for summary judgment only two days before the hearing, even though the motion had been filed  four months earlier. The plaintiff’s affidavit also directly contradicted the allegations of plaintiff’s complaint, and was also found by the appellate court to be “not the model of clarity.” Nonetheless, the affidavit created a sufficient issue of fact to prevent the entry of summary judgment.

Bifurcation of Trial Fortin v. T & M Lawn Care (4th DCA Oct. 7, 2015): An order granting a motion to bifurcate trial is reviewable by certiorari. A case should not be bifurcated if the claims at issue are inextricably interwoven. Bifurcation of interrelated claims does not simplify the trial, but rather provides inconvenience and prejudice to the parties in presentation of their case.

Service of Process Davidian v. JP Morgan Chase Bank (4th DCA Oct. 7, 2015): If the return of service of process is regular on its face, service is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence. The 4th DCA expressed its concern that a number of recent appeals have raised meritless challenges to service of process.

Motions to Dismiss Kowallek v. Rhem (4th DCA Oct. 7, 2015): A motion to dismiss cannot be granted on an affirmative defense if the grounds for the affirmative defense do not appear within the four corners of the complaint.

Appellate Jurisdiction Tower Hill Prime Insurance v. Torralbas (3d DCA Oct. 7, 2015): An order that grants entitlement to attorney’s fees, but does not set the amount of fees to be awarded, is not a final order and cannot be appealed until the amount of fees is awarded.

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, and insurance law.  He can be reached at scott@scottjedwards.com or 561-331-0779. 

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