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 January 4-8, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Cyber Stalking Injunction David v. Textor (Fla. 4th DCA Jan. 6, 2015): Two businessmen, David and Textor, were involved in a dispute about the use of a hologram of Michael Jackson in a music performance. Textor obtained a cyberstalking temporary injunction against David, claiming that David engaged in several acts of cyberstalking. Textor claimed that David sent threatening communications arising from pending litigation between the men’s companies. Textor further complained that David posted embarrassing information about Textor on social media, and that David stated in an interview that he “would have killed Textor if he could.” The Fourth DCA reversed, as the acts complained of did not violate Florida’s cyberstalking laws. The behavior did not cause substantial emotional distress, and served the legitimate purpose of attempting to pursuade Textor to drop his company’s lawsuit. Moreover, social media posts to be read by others are not directed to a particular person under anti-stalking laws. Finally, the trial court’s injunction violated the First Amendment as a prior restraint on speech.

Tobacco, Improper Closing Argument, Jury Instructions, Detrimental Reliance, Comparative Fault, Punitive Damages R. J. Reynolds Tobacco Co. v. Calloway (Fla. 4th DCA Jan. 6, 2016) In this Engle progeny tobacco case, Plaintiff was awarded a multimillion-dollar verdict. The Fourth DCA reversed the judgment in part, touching on numerous topics:

  • Improper Closing Argument: It is improper for counsel to suggest in closing argument that a defendant should be punished for contesting damages at trial or failing to take responsibility for their acts. During closing argument, Plaintiff’s counsel made numerous improper arguments regarding the tobacco companies’ failure to accept responsibility for their behavior. Although Plaintiff’s counsel’s improper arguments throughout the case pushed the envelope and nearly caused reversal, the Fourth DCA nonetheless ruled that the trial court did not commit reversible error by sustaining the objections, but not granting a mistrial.
  • Jury Instructions on Fraudulent Concealment: The Fourth DCA held that the trial court did not properly instruct the jury on Plaintiff’s fraudulent concealment claim. The trial court erred by rejecting Defendants’ proposed jury instruction that stated the required elements of a reliance on a fraudulent concealment claim. A trial court abuses its discretion if prejudice results from the failure to give a proposed jury instruction that accurately states the law, is supported by the facts, is necessary for the jury’s proper resolution of the issue, and is not redundant. Numerous Florida tobacco opinions have discussed the requirement to prove the element of detrimental reliance on a fraudulent concealment claim. Note that in Engle progeny tobacco cases, a plaintiff alleging fraudulent concealment must only prove that he or she detrimentally relied on the tobacco company’s misinformation.
  • Punitive Damages: Because the award of punitive damages was based in part on the reversed award for the fraudulent concealment damages, a new trial is required on the entitlement to and amount of punitive damages.
  • Comparative Fault In tobacco cases, comparative fault applies regardless of whether a plaintiff alleges that the tobacco industry’s behavior was negligent or intentional.

Tobacco, Federal Preemption, Certified Question R.J. Reynolds v. Marotta (Fla. 4th DCA Jan. 6, 2016): In another Engle tobacco case, the Fourth DCA rejected R.J. Reynolds’ argument that Federal law preempts state law tort claims based on the sale of cigarettes. RJR argued that because Congress has expressly allowed the sale of cigarettes, and because the Engle case establishes that all cigarettes are inherently dangerous and defective, strict liability and negligence claims are implicitly preempted by Federal laws allowing the sale of cigarettes. The Federal appeals court for the 11th Circuit in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir. 2015) recently agreed with this argument in reversing a Florida tobacco verdict. The Fourth DCA expressed its disagreement with the Graham opinion, arguing that Federal law regulates the manufacture, labeling and advertising of cigarettes, but does not prohibit a state from banning the sale of cigarettes. Thus, tobacco tort cases are not preempted by Federal law.

The Fourth DCA certified this issue as a question of great public importance given the contrary state and Federal opinions on the issue. This issue appears destined to be ultimately resolved by the U.S. Supreme Court.

Libel, Internet Reviews, Appellate Procedure Blake v. Ann-Marie Giustibelli PA (Fla. 4th DCA Jan. 6, 2016): The Fourth DCA affirmed a verdict for libel and breach of contract (including punitive damages for libel) in a suit by an attorney against her former client and the client’s husband. The attorney represented the wife in a dissolution of marriage proceeding. However, after the attorney-client relationship broke down, the client and the husband both posted defamatory reviews of the attorney on various internet sites. The reviews falsely claimed that the attorney lied about her fee and that she falsified a contract. Because these reviews contained false allegations of fact, the attorney was entitled to recover in a libel action. The Fourth DCA rejected Defendant’s first amendment  free speech claims, holding that a cause of action for libel per se remains valid against non-media defendants.

An interesting appellate procedure note: the Fourth DCA rejected one of the party’s notice of settlement and attempted withdrawal of the appeal. An appellate court has the discretion to retain jurisdiction over an appeal that has been voluntarily dismissed if the case presents a question of public importance, and substantial judicial labor has already been expended.

Voluntary Dismissal, Mistake Cottrell v. Taylor, Bean & Whitaker Mortg. Corp. (Fla. 2d DCA Jan. 8, 2016): In this foreclosure case, the holder of the mortgage voluntarily dismissed its complaint because its law firm advised that the claim was potentially barred by the statute of limitations. Plaintiff later moved to vacate the dismissal for mistake, alleging that it mistakenly dismissed the action before knowing that the limitations period was tolled by the defendant’s military service. The Second DCA ruled that the trial court should not have granted the motion to vacate. Judgmental or tactical errors are not “mistakes” that can relieve a party from a voluntary dismissal under Rule 1.540. Rather, relief is only available from a voluntary dismissal if there is a mistake in execution of a party or lawyer’s decision regarding voluntary dismissal (for example, a lawyer’s staff accidentally titles the dismissal notice as “with prejudice”).

Offers of Judgment, Hearsay, Expert Testimony Mootry v. Bethune-Cookman University (Fla. 5th DCA Jan. 8, 2016). In this employment law case, a tenured professor challenged his termination from the university due to sexual harassment allegations. The Fifth DCA held that the trial court committed reversible error in admitting a hearsay report containing statements from students accusing the professor of sexual harassment. Furthermore, the trial court erred in allowing the university’s attorney to testify as an expert. The attorney testified to her opinions that the university had cause to terminate the professor, and that the university gave the professor due process. The attorney’s expert testimony should have been excluded because it only told the jury how to decide the case, and did not help the jury determine what occurred.

The 5th DCA also made two rulings based upon multiple offers of judgment served in the case. First, it upheld the trial court’s ruling that several $100 proposals for settlement made by the university were invalid because they were not made in good faith. The trial court was within its discretion to rule that the offer did not bear a reasonable relationship to the amount of damages suffered and a realistic assessment of liability. Second, a later offer of judgment by the university for $140,000 was upheld. Under the holding in Mathis v. Cook, 140 So. 3d 654 (Fla. 5th DCA 2014), an offer of judgment is not ambiguous if it requires release of other entities besides the party serving the offer.

Premises Liability Christakis v. Tivoli Terrace, LLC (Fla. 4th DCA Jan. 6, 2016): The trial court improperly granted a judgment not withstanding the verdict in this premises liability case. Although the evidence showed that the steps Plaintiff fell on were in disrepair, Plaintiff testified that she did not know what exactly caused her fall. Because expert testimony and photographs showed the steps in a damaged condition, the jury was entitled to find that Plaintiff’s fall was caused by the steps’ defective condition.

Judicial Disqualification State v. Oliu (Fla. 3d DCA Jan. 6, 2016): The Third DCA denied a petition for writ of prohibition seeking the disqualification of a trial judge. Although the State properly alleged facts justifying recusal, the petition was denied because the recusal motion was not filed within 10 days of discovering the grounds for recusal.
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, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.


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