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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 September 14-18, 2015.

Voidable Default Judgments Bank of N.Y. Mellon v. Condominium Ass’n of La Mer Estates (Fla. Sept. 17, 2015):  Resolving a split of authorities between the First, Third, and Fourth Districts, the Florida Supreme Court held that a judgment based upon a complaint that fails to state a cause of action is voidable, rather than void. The distinction matters because a void judgment can be challenged at any time, while a voidable judgment can only be challenged up to one year after the entry of judgment. The supreme court’s opinion reasoned that  a judgment is generally not void if the court entering the judgment has subject matter jurisdiction and the parties are given an opportunity to be heard. Moreover, failure to state a cause of action is a defense that must be raised in the answer, and is waived under Fla. R. Civ. P. 1.140 if not raised in a defendant’s answer. Finally, the supreme court noted that judgments should only be deemed void under narrow circumstances in order to promote the finality of judgments and the stability of property titles. In this case, a bank with superior title interest to a condominium unit failed to respond to the condo association’s complaint despite proper service and notice throughout the proceedings.

Florida Bar Rules on Fees & Retainers In Re Rule Regulating the Florida Bar 4-1.5 (Fla. Sept. 17, 2015): Effective October 1, Rule 4-1.5(e) is amended to clearly define the distinctions between a “retainer” (money paid to guarantee a lawyer’s future availability, not payment for past or future services), a “flat fee” (a sum of money paid to a lawyer for all legal services to be provided in the representation, which can be termed non-refundable),  and an “advance fee” (money paid to the lawyer against which the lawyer will bill the client as legal services are provided).

Investigative Photos Protected By Work Product Privilege Seaboard Marine v. Clark (3d DCA Sept. 16, 2015): Immediately following a serious injury incident on its premises, a defendant’s attorney and other representatives took numerous photographs of the scene of the incident. The defendant objected to the plaintiff’s request for production of the photos, claiming protection under the work product and attorney-client privileges. The Third DCA granted a petition for certiorari in favor of the defendant, holding that the trial court erred in compelling the production of the photos. Under Florida Rule of Civil Procedure 1.280(b)(4), production of materials protected by the work product privilege may only be compelled if the other party shows a need for the materials, as well as an inability to obtain the substantial equivalent of the materials by other means.  Here, although the photographs were clearly relevant, the plaintiff did not show that it made any effort to obtain substantially equivalent materials: the plaintiff did not depose any witnesses, nor did it attempt obtain other non-privileged photos of the scene.  Mere relevancy is not enough to compel production of work product materials.

Property Insurance Attorney’s Fees State Farm v. Alvarez (3d DCA Sept. 16, 2015): The Third DCA reversed in part an attorney’s fee award in favor of an insured.  The insured’s first party property insurance cause of action was straightforward and of no precedential value.  Thus, the 200 hours billed by 11 separate attorneys for the insureds were excessive.  The record showed numerous instances of duplicative work by multiple attorneys, excessive time for drafting of form pleadings and motions, and extensive time spent on motions that were never set for hearing.  The Third DCA also reversed the multiplier awarded by the trial court because the insured did not present evidence of the difficulty of obtaining competent counsel, the risk of nonpayment, or the novelty or difficulty of the issues involved in the litigation.

Remittitur Arnold v. Security Nat’l Ins. Co. (4th DCA Sept. 16, 2015): In a personal injury action alleging spinal injuries, the plaintiff obtained a jury verdict of approximately $1.5 million. The trial court granted the defendant’s motion for remittitur, reducing the amount of the verdict by nearly one million dollars. The 4th DCA reversed and remanded, ruling that the trial court’s order failed to make sufficient evidentiary findings to justify reducing the jury’s verdict. The opinion cautioned that a personal injury verdict is subject to the jury’s discretion. Thus, a verdict should only be reduced if the verdict is clearly arbitrary or contrary to the law, and amount of the excessive verdict clearly appears on the record.

Evidence of Insurance & Future Medical Damages Vazquez v. Martinez (5th DCA Sept. 18, 2015): In a personal injury action, the trial court did not abuse its discretion by allowing evidence that the defendant’s expert witness had received $700,000 in payments from “the defense or its agents” in the previous three years. The evidence was admissible as impeachment under Rule 1.280, and did not improperly imply the existence of insurance. However, the 5th DCA reversed the jury’s award of future medical damages where each party’s expert witness opined that the plaintiff did not need future medical treatment. A plaintiff can only recover future medical expenses that are reasonably certain to be incurred in the future.

Products Liability Statute of Repose Dominguez v. Hayward Industries (3d DCA Sept. 16, 2015): A pool filter is a product, and is not an improvement to real estate. Therefore, the twelve-year statute of repose barred a plaintiff’s personal injury claim arising from the explosion of the filter.

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 or 561-331-0779.

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