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 7-11, 2015.

Judge’s Robes Must Be Black In Re New Rule of Judicial Administration 2.340, Florida Supreme Court September 10, 2015: The Florida Supreme Court enacted new Rule of Judicial Administration 2.340, requiring that during any judicial proceeding, robes worn by a judge must be solid black with no embellishment.  The rule follows reports that a judge in Union County, near Gainesville, wore a robe with a camouflage pattern.

No Alternate Jurors in Deliberations Boblitt v. State, 1st DCA September 9,2015: An alternate juror was mistakenly sent into deliberations, while a principal juror was accidentally dismissed.  The error was discovered quickly, but the jury had already began its deliberations.  The trial court denied the defendant’s motion for mistrial.  The First DCA reversed, holding that the presence of an alternate juror in the jury room during deliberations is per se reversible error even if the alternate does not participate in deliberations. The presence of an alternate juror during deliberations violates the sanctity and secrecy of the jury room.  An alternate juror’s presence in the jury room can only be harmless if the jury has merely engaged in pre-deliberation organizational activity, and without actual deliberations having begun.

Non-Joinder of Insurance Company Geico v. Lepine, 2nd DCA September 9, 2015: A plaintiff brought an auto negligence case against the driver of the other vehicle involved in a crash.  The plaintiff’s complaint included a count against the other driver’s insurance company, alleging that the insurance company agreed to pay its policy limits, but then later refused to make payments.  Under Florida’s non-joinder statute, an injured third party cannot sue a liability insurer for a cause of action covered by the liability insurance policy until a settlement or verdict is obtained against the insured party.  In this case, the trial court denied the insurer’s motion to dismiss due to the plaintiff’s allegation that a settlement had been reached with the insurer.  The Second DCA reversed, holding that allowing the action against the insurer would violate a key purpose of the non-joinder statute, creating a risk that the jury’s verdict could be tainted by its knowledge that insurance proceeds are available to cover the loss.

Trial By Consent Troyts Auto v. Vitelli, 2nd DCA September 11, 2015: A plaintiff’s complaint alleged one count of civil theft and two counts of fraudulent misrepresentation against the defendants.  Following a nonjury trial, the trial court ruled that the plaintiff failed to meet his burden of proof on the causes of action raised in the complaint.  However, the trial court further ruled that the defendants were liable to the plaintiff for the tort of conversion.  The Second DCA reversed the trial court, holding that the issue of conversion was not raised in the pleadings, nor was it tried by consent during the bench trial.

Certiorari When Party Denied Right to Depose Key Witness Publix v. Hernandez, 3rd DCA September 9, 2015: Generally, a trial court’s denial of discovery is not grounds for a petition for certiorari.  However, a limited exception allows certiorari review where a trial court prevents a party from taking the deposition of a key witness.  In this case, the defendant’s discovery revealed conflicting hospital invoices for the same care.  However, the trial court prevented the defendant from deposing the treating physician’s billing records custodian in order to determine the cause of the discrepancy.  The plaintiff’s objection was only that the deposition was not reasonably calculated to lead to the discovery of admissible evidence.  The Third DCA granted certiorari, holding that the deposition should be allowed because it sought discovery about key evidence related to an essential element of the plaintiff’s claim, and that prior discovery had cast a “shadow of fraud” over the hospital bills.

Malicious Prosecution & Litigation Privilege Rivernider v. Meyer, 4th DCA September 9, 2015: The litigation privilege does not apply in a malicious prosecution action so long as all of the elements of a malicious prosecution action are satisfied.  However, a heightened standard applies to actions alleging malicious prosecution against an attorney.  A key element of an action for malicious prosecution is the absence of probable cause for the prosecution.  Because attorneys owe a duty to their clients of zealous representation, there is probable cause for a prosecution so long as an attorney reasonably believes that the client has a tenable cause of action.

Expert Bias Discovery Grabel v. Roura, 4th DCA September 9, 2015: Mere inconsistencies between a party’s responses to expert interrogatories and the expert’s deposition testimony do not constitute “the most unusual or compelling circumstances” that would allow discovery of the expert’s financial or business records.

Notice Bailey v. Bailey, 4th DCA September 9, 2015: Certiorari was granted to quash an order when a notice of hearing the motion was served on the same day as the hearing.  A hearing notice served 24 hours or less before a hearing does not provide adequate notice.

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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