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 November 16-20, 2015. Click here to learn more about Scott Edwards’ appellate law services.
Bank Has No Liability for Customer’s Suicide Surloff v. Regions Bank (Fla. 4th DCA Nov. 18, 2015): A bank has no duty or “special relationship” to its client that can result in the bank being liable for a client’s suicide. In this case, a bank’s customer suffered from numerous mental impairments, including severe anxiety about financial matters and inability to deal with complex information. The customer’s family requested, due to the customer’s mental illness, that the bank never communicate with the customer except on routine matters. The bank knew of the customer’s mental health problems and agreed to the family’s terms. However, a letter was mistakenly sent to the customer which stated that his loan was denied. Furthermore, a bank employee continued to speak with the customer, despite being told not to on multiple occasions. The employee nonetheless told the customer that his loan was denied. The customer left the bank after this conversation, and committed suicide later that day.
The customer’s family sued for wrongful death, claiming that the bank voluntarily assumed the duty to handle the loan without contacting the customer, and that the bank knew or should have known that informing the customer that the loan was denied would cause him severe emotional trauma and distress. The Fourth DCA affirmed the trial court’s dismissal of the complaint for failure to state a claim. Under Florida law, no liability exists for another’s suicide in the absence of a specific duty of care. A duty to prevent suicide only exists if a party has custody or control over the person committing suicide (such as a hospital, psychological institution, or school) or if the suicide is proximately caused by a mental health professional’s negligent treatment of the suicide victim. An individual or company is not liable for a suicide merely because it is foreseeable that the communication of negative information will distress the victim. Therefore, the bank did not owe the customer a duty to prevent him from committing suicide because the bank did not have custody or control over the customer.
Dismissal for Fraud on the Court Jimenez v. Ortega (Fla. 5th DCA Nov. 20, 2015): In this automobile negligence case, the plaintiff sought damages for the total loss of his vehicle, medical costs, lost wages, and past and future pain and suffering. The defendant admitted liability, and did not dispute the costs for the loss of the vehicle or the plaintiff’s medical treatment. The defendant only contested damages for lost wages and pain and suffering. The plaintiff was deposed three times, giving false or misleading answers at each deposition about the extent of his pain and his ability to work. After the first deposition, the defendant hired an investigator to take surveillance video of the plaintiff. The video showed the plaintiff performing numerous physical feats that he claimed he could not perform in his deposition testimony. The plaintiff continued to give false testimony in the subsequent depositions. The plaintiff also filed an extensive errata sheet following his third deposition, offering “clarifications” containing significant differences from the facts given during the plaintiff’s deposition. During his trial testimony, the plaintiff admitted that he gave untrue deposition testimony on over 20 different issues.
The defendant moved to dismiss the case for the plaintiff’s fraud on the court, arguing that the plaintiff’s admissions at trial were clear and convincing evidence that he lied. The trial court denied the motion to dismiss, and the jury awarded the plaintiff over $300,000 in damages for lost wages and pain and suffering. The Fifth DCA held that the plaintiff’s claims for lost wages and pain and suffering should have been dismissed as a sanction for fraud on the court. Dismissal for fraud on the court is proper when clear and convincing evidence shows that a party intentionally interferes with the fairness of a trial by improperly influencing the trier of fact, or unfairly hampering the presentation of the opposing party’s claim or defense. Dismissal is proper when a party gives false testimony, in order to protect the integrity of the civil litigation process. Here, the plaintiff’s lies were pervasive and significant, and were maintained over seven years during three depositions. The plaintiff continued to perjure himself even when confronted with video showing him performing tasks he claimed he could not do. Truthful testimony about pain and suffering and the ability to work is especially important because the claims are subjective and difficult to defend against. Therefore, the dismissal of the plaintiff’s pain and suffering and wage loss claims was required as a sanction for the plaintiff’s false testimony, and in order to protect the integrity of the judicial system.
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Dismissal as a Sanction; Record on Appeal HSBC Bank v. Cook (Fla. 1st DCA Nov. 19, 2015): The trial court properly dismissed a bank’s foreclosure action as a sanction for multiple unexplained delays and continuances in prosecuting the action. The bank failed to present evidence at the dismissal hearing, and failed to have a court reporter present. Without a hearing transcript, the record on appeal was not sufficient to demonstrate reversible error. Furthermore, although the trial court did not specifically cite the dismissal factors required under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), the trial court’s detailed order showed that the trial court considered the totality of the circumstances before dismissing the action.
Appellate Procedure Horton v. Horton (Fla. 1st DCA Nov. 16, 2015): An appellate court only has jurisdiction to rule on appeals of the categories non-final orders listed in Florida Rule of Appellate Procedure 9.130. Therefore, when an order contains a ruling that can be appealed as a non-final order, other rulings contained in the same order may not “tag along” to be reviewed on appeal. Also, an appellate court must affirm an erroneous award of attorney’s fees if the appellant fails to preserve the issue by objecting to the award at the trial court level.
Admiralty Jurisdiction for Personal Injuries at Port Newell v. Carnival Cruise Lines (Fla. 3d DCA Nov. 18, 2015): Federal admiralty jurisdiction for tort cases exists if two tests are satisfied: First, the “location test” requires that the injury occur on navigable waters or be caused by a vessel on navigable water. Second, the “connectivity test” requires both that the incident had “a potentially disruptive impact on maritime commerce” and that the incident have “a substantial relationship to traditional maritime activity.” In this case, the plaintiff alleges that, after her cruise ship returned to port at the end of the cruise, she exited the ship, and tripped and fell in a restricted area of the cruise ship terminal before the customs station. Plaintiff’s tort claim met both tests for arising under Federal admiralty jurisdiction. The claim met the location test because the unloading of a ship’s passengers has a proximate connection to a vessel on navigable water. The claim also met the connectivity test because the unsafe unloading of passengers from a cruise ship is disruptive to maritime commerce, and is related to traditional maritime activity.
Settlement E Qualcom Corp. v. Global Commerce Center Ass’n (Fla. 4th DCA Nov. 18, 2015): In this case, parties to a commercial real estate dispute entered into a “flurry” of settlement agreements on the weekend before trial. Although the attorney for one party said in an email: “yes, we are settled” and agreed to the cancellation of the trial, the emails showed that there was not mutual agreement on many key terms of the settlement agreement. Also, the appellate record did not demonstrate whether the party’s attorney had authority to settle the case. Therefore, although the cancellation of the trial may be proper grounds for sanctions, a purported settlement cannot be enforced if the evidence does demonstrate the existence of a settlement agreement. Although both attorneys desired settlement of this case, “their desire never bore fruit.”
Insurance Attorney’s Fees, Confession of Judgment State Farm v. Lime Bay Condominium (Fla. 4th DCA Nov. 18, 2015) In this property insurance case, an issue of fact existed as to whether the insurer knew that its insured disputed the amount of loss. This issue of disputed fact made it erroneous for the trial court to hold that the insurer’s successful appraisal award constituted a confession of error entitling the insured to an attorney’s fee award.
Insurance Attorney’s Fees, Lodestar and Multipliers Federated National Insurance v. Joyce (Fla. 5th DCA Nov. 20, 2015) An insurance company denied coverage for a claim due to the insured’s alleged failure to disclose previous insurance claims when they applied for insurance. However, discovery revealed that the insureds had indeed disclosed the claims on their application. The insurer acknowledged the error, and a settlement was reached, exclusive of attorney’s fees. The trial court awarded the insureds over $38,000 in attorneys fees under the “lodestar” method, which multiplies the hours their attorneys worked by a reasonable hourly rate. However, the trial court also awarded the insureds a 2.0 multiplier on their attorney’s fees. The Fifth DCA reversed the award of a multiplier. Under Florida law, there is a strong presumption that the lodestar represents a reasonable attorney’s fee. A multiplier is only available under rare and exceptional circumstances not present here. There were no complex legal or factual issues present in the case, nor was there evidence that the insureds had any difficulty obtaining counsel to handle the litigation.
Appellate Attorney’s Fees Santiago v. Sunset Cove (Fla. 2d DCA Nov. 20, 2015): A motion for appellate attorney’s fees must be filed with the appellate court. Absent the appellate court’s authorization, a circuit court has no authority to award appellate attorney’s fees, even as a sanction.
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 firstname.lastname@example.org or 561-331-0779.
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