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 2-6, 2015. Click here to learn more about Scott Edwards’ appellate law services.

Contempt & Sanctions, Discovery, Clerk’s Notes Menke v. Wendell (Fla. 2d DCA Nov. 6, 2015): A motion to compel discovery was heard by the trial court; however, the hearing was not transcribed and a written order was never issued. The only record of the proceedings were the clerk’s notes to the court docket, stating that the defendant would produce two categories of documents within two weeks. Later, a successor judge granted the plaintiff’s motion for civil contempt and sanctions against the defendant for failure to produce the documents. The Second DCA quashed the civil contempt and sanctions order. As to contempt, there can be no contempt in the absence of a written and executed court order, and clerk’s notes do not constitute a court order. Likewise, discovery sanctions were inappropriate in this case because there was no underlying order compelling production, no opportunity for the defendant to avoid sanctions by producing documents, and no evidence supporting the amount of the fine or the defendant’s ability to pay. The Second DCA has held that discovery sanctions are not penal, but rather are to be used with the goal of obtaining compliance with discovery orders.

Personal Injury, Evidence of Subsequent Accident Maniglia v. Carpenter (Fla. 3d DCA Nov. 4, 2015): The plaintiff sued for injuries following an automobile crash. A month after the crash, the plaintiff became intoxicated at a golf tournament. He stole a golf cart, drove it on a public road, ran a red light, and collided with a car. At impact, the plaintiff fell from the golf cart and onto the street. Next, the plaintiff fought with the police who responded to the incident, and was wrestled to the ground. The plaintiff’s motion in limine excluding most of the evidence about the subsequent golf cart incident was granted before trial. Thus, the jury did not learn that the plaintiff had crashed the golf cart into an automobile and fell on the pavement, or that he engaged in a violent struggle with the police. The jury also did not hear testimony that the plaintiff failed to tell his treating chiropractor about the golf cart incident.

The Third DCA reversed the jury’s verdict for the plaintiff. Evidence of the golf cart incident should not have been excluded because the incident was relevant to the plaintiff’s credibility and his proof of causation of his injury. The plaintiff did not meet his burden to show that the exclusion of the evidence was harmless error that did not contribute to the verdict.


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Ambiguous Orders Markwood Investments v. Latam Investments (Fla. 3d DCA Nov. 4, 2015): “Many things in the law are difficult. Writing a clear and unambiguous order of dismissal is not one of them.” A trial court granted a motion to dismiss a complaint without prejudice, but went on to claim that the action was dismissed because the plaintiff’s claim was barred by collateral estoppel. The order is ambiguous because, on the one hand, it only dismissed the complaint (and not the case), and was only granted without prejudice. On the other hand, by ruling that the claim was barred by collateral estoppel, the ability to amend the complaint would be futile, indicating that the order is final. Because the order in this case dismissed the complaint in a way that could not be remedied with an amended complaint, the Third DCA ruled that the order was sufficiently final to be reviewed on appeal.

Punitive Damages, Comparative Fault, Engle Tobacco Cases R.J. Reynolds v. Schoeff (Fla. 4th DCA 2015) The estate of a smoker who died of cancer obtained a verdict against R.J. Reynolds for compensatory and punitive damages. The estate’s lawyer asked the jury for a punitive damages verdict of no more than $25 million. Previous Engle progeny tobacco cases had held that punitive damages awards of $25 million were not excessive, but that an award of $40 million was excessive. Nonetheless, the jury awarded the estate $30 million in punitive damages. The Fourth DCA held that remittitur should have been granted both because the award was excessively large, and because the estate’s counsel begged the jury to award no more that $25 million.

The Fourth DCA also found that the trial court properly reduced the compensatory damages verdict due to comparative fault. First, the estate’s counsel argued throughout voir dire, opening statements, and closing arguments that the decedent accepted some responsibility for his tobacco use. By making these arguments, the estate waived its ability to avoid a reduction in the verdict due to comparative fault. This ruling avoids allowing the estate to “have it both ways” by currying favor with the jury by admitting some fault, but then completely avoiding comparative fault after the verdict. Also, the comparative fault statute applies even to intentional tort claims raised in Engle tobacco cases because such suits are based in products liability.

Directed Verdicts, Engle Tobacco Cases Evers v. R.J. Reynolds (Fla. 2d DCA Nov. 6, 2015): In this tobacco liability case, the trial court incorrectly directed a verdict in favor of the tobacco companies on the estate’s claims of fraud by concealment. The trial court reasoned that the estate failed to present evidence that the decedent heard or read any statement by the tobacco companies that omitted information about the dangers of smoking. However, previous tobacco cases have held that a plaintiff or estate’s reliance on the tobacco company’s incomplete statements on the dangers of smoking can be inferred from the tobacco industry’s “pervasive” cigarette advertising and the false controversy created by the tobacco industry denying the dangers of smoking. Therefore in this case, the Second DCA reinstated the jury’s verdict holding the tobacco companies liable for fraud by concealment.

Class Actions, Florida Deceptive & Unfair Trade Practices Act Ahearn v. Mayo Clinic (Fla. 1st DCA Nov. 6, 2015): In contrast to Federal law, in a Florida class action  a defendant can render a class action moot before class certification by “picking off” the class representative by paying the representative’s claim in full. Thus, in this case, the defendants successfully rendered moot the class representative’s contractual, declaratory, and injunctive claims by agreeing to pay the entire amount of his claimed damages. However, under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), a party can still have standing if it is “aggrieved” by the defendant’s actions, even though the party has not suffered actual monetary damages. Therefore, the First DCA remanded this case to for the trial court to determine whether the class representative had standing as an “aggrieved” party under FDUTPA.

Insurance Attorney’s Fees, Confession of Judgment Explorer Ins. Co. v. Cajusma (Fla. 5th DCA Nov. 6, 2015): Under Florida Statutes § 627.428, an insured is entitled to attorney’s fees where the insurer settles or pays a disputed claim before rendition of judgment. Referred to as the “confession of judgment” doctrine, this principle holds that an insurance company must pay attorney’s fees if it wrongfully withholds payment under the policy, or engages in some other wrongful behavior that forces the insured to sue. The confession of judgment doctrine is based on public policy to discourage insurers from contesting valid claims, and to reimburse insureds for attorney’s fees when they must sue to receive benefits under their insurance policy.

In this case arising from an automobile crash, the insurance company filed a declaratory judgment action against its insured driver, a passenger in the insured vehicle, and other parties with various claims arising from the crash. The insurance company argued that coverage and a defense should be denied to its insured driver because of the insured’s material misrepresentations made during the claims process. However, the insurance company ultimately settled the claims brought by the driver and voluntarily dismissed its declaratory judgment action. The Fifth DCA held that the insured driver was entitled to attorney’s fees in the declaratory judgment action because, as a the result of the litigation, the insured driver successfully obtained coverage and a defense from the insurance company. However, the passenger was not entitled to attorney’s fees following the dismissal of the declaratory judgment action because the dismissal did not result in any benefits conferred onto the passenger.

Post-Trial Juror Interviews Penalver v. Masomere (Fla. 3d DCA Nov. 4, 2015) Florida judicial policy strongly disfavors post-trial juror interviews, allowing them only in rare instances. Thus, a motion seeking juror interviews should only be granted if the party seeking the juror interview makes sworn allegations that, if true, would require a trial court to order a new trial. A juror’s concealment of information during voir dire is only grounds for dismissal if 1) the information is relevant and material to jury service in the case; 2) the juror concealed information during questioning; 3) the juror’s failure to disclose the information was not attributable to the complaining party’s lack of diligence. In this case, several jurors did not fully disclose their previous litigation histories. However, the juror’s prior litigation histories were immaterial to the issues in this case, and too remote in time to justify a post-trial juror interview.

Statute of Limitations, Motion to Dismiss Nationstar Mortgage v. Sunderman (Fla. 3d DCA Nov. 4, 2015) A motion to dismiss on a statute of limitations defense can be granted only if the defense appears on the face of the complaint. A trial court can not consider pleadings from prior actions attached to the motion to dismiss.

Personal Jurisdiction McLane v. Automotive Resource Network Holdings (Fla. 4th DCA Nov. 4, 2015) There was no personal jurisdiction over an individual defendant where there was no showing that the defendant committed a tort in Florida or that he failed to perform a contractual obligation that he was required to perform in Florida. Furthermore, a party opposing a motion to dismiss for lack of personal jurisdiction must submit evidence opposing the motion to dismiss beyond mere repetition of the factual allegations of the complaint.

Motions to Dismiss Bank of America v. Perry (Fla. 1st DCA Nov. 3, 2015): If a court grants a motion to dismiss, but is silent as to whether the dismissal is with prejudice, a plaintiff has the right to file an amended complaint. An order merely granting a motion to dismiss is not a final order.

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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