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Rambo-Style Attorney Arguments Cause Reversal of $70 Million Verdict (Florida Litigation Appellate Opinions)

Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.

 Click here to learn more about Scott Edwards’ appellate law services.

Multi-Million Dollar Tobacco Verdict Reversed Due To Improper Plaintiff Attorney Argument R.J. Reynolds v. Calloway (Fla. 4th DCA Sept. 23, 2016) (en banc) In this Engle tobacco liability case, a 70 million dollar verdict was reversed due to plaintiff counsel’s repeated improper arguments. The Fourth DCA summarized the nature of plaintiff’s counsel’s arguments as follows:

[T]he plaintiff’s counsel’s opening statement was overly argumentative and included comments chastising the tobacco companies for their failure to apologize. The closing argument included inflammatory remarks; statements evoking sympathy from the jury; inappropriate religious references; comments about the defendants not taking responsibility; attacks for electing to defend the case; and insinuations regarding the failure of the defendants’ corporate representatives to attend the trial. Taking into account all of the preserved objections to the improper comments in plaintiff’s counsel’s opening and closing as referenced above, the cumulative impact of these errors created an atmosphere of “win at all costs.”

In reversing the judgment, the Fourth DCA held that it is improper for counsel to argue that a defendant should be punished for contesting damages at trial, or that defending a claim in court is improper. Such arguments are designed to inflame the emotions of the jury, rather than prompt a logical analysis of the evidence in light of the applicable law. The number of improper comments and arguments showed that their use was a deliberate part of plaintiff’s trial strategy. Therefore, the totality of all the improper argument was pervasive enough to raise doubts as to the overall fairness of the trial. The Fourth DCA’s opinion explicitly put attorneys on notice that such behavior in the future will risk reversal of cases on appeal.

Moreover, the trial court’s failure to admonish plaintiff’s counsel despite repeated improper arguments caused the prejudice to accumulate. The lawyer’s improper arguments, the 4th DCA concluded, should not be swept away as mere “harmless error.” Trial courts should discourage “Rambo litigators” intent on engaging in no-holds-barred tactics at trial.

Three judges dissented from the majority en banc opinion. The dissent argued that the trial court acted within its discretion by sustaining defense objections to the improper argument, and giving curative instructions. Moreover, punitive damages were at issue in the phase of the trial where the arguments were made. Therefore, issues of whether the defendants failed to take responsibility were relevant.

Arbitration Clause Signed By Nursing Home Patient’s Son Does Not Bind Patient Mendez v. Hampton Court Nursing Center, LLC (Fla. Sept. 22, 2016) Resolving a split among the DCAs, the Florida Supreme Court held that a nursing home could not enforce an arbitration agreement signed by the patient’s son when the patient was admitted to the nursing home. The supreme court rejected precedent from the First and Third Districts that held that a nursing home patient is bound by an arbitration agreement as an intended third party beneficiary of the contract. Significantly, there was no evidence in this case that the son had the legal authority to act as his father’s agent or guardian.

Error to Deny Motion for Leave To Amend Answer Morgan v. Bank of New York Mellon (Fla. 1st DCA Sept. 19, 2016) In a foreclosure case, the trial court improperly denied the defendant’s motion for leave to amend her answer to raise affirmative defenses. Although the motion was filed a month before trial, the defendant had not abused the right to amend, and the plaintiff would not have been prejudiced by the amendment. Florida has a broad policy of allowing liberal amendment of pleadings so that cases may be tried on the merits.

Summary Judgment Motion Should Have Been Continued Due to Pending Discovery Kjellander v. Abbott (Fla. 1st DCA Sept. 19, 2016) If good faith discovery is still in progress, the trial court should not grant a motion for summary judgment. A motion to continue summary judgment should be denied only where the non-moving party did not act diligently in completing discovery, or is using discovery methods to thwart or delay the summary judgment hearing.

Additional Reading

Joint Proposals for Settlement: Saterbo v. Markuson (Fla. 2d DCA Sept. 21, 2016)

Removal to Federal Court: Cole v. Wells Fargo (Fla. 5th DCA Sept. 23, 2016)

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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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Liability for A Biting Horse, Prejudgment Interest, and Dismissals for Fraud (Florida Litigation Appellate Opinions, July 11-22, 2016)

Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, 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 July 11-22, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Prejudgment Interest, Breach of Contract Arizona Chemical Co. v. Mohawk Industries (Fla. 1st DCA July 18, 2016): Florida courts follow the “loss theory” in calculating prejudgment interest. Under the loss theory, the purpose of awarding prejudgment interest is to make the plaintiff whole; thus, prejudgment interest cannot be used as a tool to grant a windfall to a plaintiff, or for the court to penalize a defendant. A party is entitled to prejudgment interest at the statutory rate when a verdict liquidates a plaintiff’s monetary losses and the date of the loss can be ascertained from the evidence. In most breach of contract cases, interest begins to accrue on the date of the breach, or on the date when payment was due under the contract. However, in some cases, the monetary loss caused by a breach of contract does not occur until sometime later.

In this case, a chemical company delivered defective resin to a carpet manufacturer, which caused the manufacturer’s carpets to fail prematurely. The defective resin resulted in an increase in warranty claims from the manufacturer’s customers, caused the manufacturer to sell off some of the defective carpet at discounted prices, and required the manufacturer to simply throw away some carpet. (I discussed the First DCA’s earlier opinion on the merits of the case in this article). The trial court incorrectly ruled that prejudgment interest in this case should be calculated from the dates that the manufacturer applied the resin to each roll of carpet. The First DCA held that the trial court should have calculated prejudgment interest from the dates that manufacturer suffered actual loss: i.e., the dates that warranty claims were paid, or that defective carpet was sold at a discount or thrown away.

Equine Liability, The Horse Gets Away With It Germer v. Churchill Downs Management (Fla. 3d DCA July 13, 2016): A man visiting a stable to see a friend’s horse had the misfortune of crossing paths with “Forever Happy,” an ironically named homicidal horse who escaped his stall and bit the man in the chest. The man sued Forever Happy’s owner, who defended the case based on Florida’s Equine Immunity statute. Under the law, an equine activity sponsor or professional is not liable for injuries resulting from the inherent risks of participating in equine activities. The 3rd DCA agreed with Forever Happy’s owner that a person visiting a stable participates in an equine activity, therefore triggering the protections of the Equine Immunity statute.

E-Filing is Mandatory United Bank v. Estate of Frazee (Fla. 4th DCA July 13, 2016): Under Florida Rule of Judicial Administration 2.516, electronic filing of court documents is mandatory except under certain limited circumstances. In this case, a party’s attorney attempted to file paper documents with the clerk of court by mail on the date of the deadline. The clerk rejected the documents due to the rule mandating e-filing, and the party’s subsequent e-filing was not timely. Because the error was caused by the attorney’s lack of knowledge or negligence, justice did not require the trial court to deem the filing as timely.

Discovery, Privacy of Financial Information Inglis v. Casselberry (Fla. 2d DCA July 15, 2016): A trial court departed from the essential requirements of the law by compelling non-parties to disclose personal financial information. Florida’s constitutional right to privacy protects personal finances, as they are private matters kept secret by most people. Non-party personal financial information discovery should only be granted following an evidentiary hearing establishing that the relevance of the evidence outweighs the strong public policy favoring the constitutional protection of private financial information.

Medicaid Liens, Wrongful Death Goheagan v. Perkins (Fla. 4th DCA July 20, 2016): The Federal Medicaid anti-lien statute applies only to claims brought by living patients. In a wrongful death action, Medicaid can seek reimbursement of its lien from the entire amount of the judgment, rather than only the portion of the judgment attributable to medical expenses.

Dismissal as a Sanction, Part One Cal v. Forward Air Solutions (Fla. 3d DCA July 20, 2016): A trial court acted within its discretion by dismissing a personal injury plaintiff’s complaint as a sanction for numerous discovery violations. The plaintiff violated a court order compelling her attendance at a compulsory medical examination, and gave false testimony on numerous occasions about a previous injury.

Dismissal as a Sanction, Part Two Diaz v. Home Depot USA, Inc. (Fla. 3d DCA July 13, 2016): Dismissal for fraud on the court was proper where the plaintiff denied previous injuries or accidents, but medical records revealed that she had indeed been involved in a motor vehicle accident and a slip and fall accident in the year before her accident at Home Depot, and suffered injuries to the same body parts as were at issue in this case. The trial court conducted an evidentiary hearing, and made specific findings that the plaintiff gave false testimony with a flagrant disregard for the integrity of the civil justice system.

Please complete the form below to join Scott J. Edwards, P.A.’s email list. Members of the email list receive my Florida Litigation Appellate Opinion articles, as well as news and updates on Florida law.


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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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What happens to the record if the court reporter dies? (Florida Litigation Appellate Opinions, June 20-July 1, 2016)

Scott J. Edwards, P.A. brings you this summary of selected recent opinions issued by Florida’s appellate courts, 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 June 20-July 1, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Record on Appeal, Appellate Procedure Jackson v. Jackson (Fla. 3d DCA June 22, 2016) Hearing transcripts were not preserved for appeal in this case because the court reporter died shortly after the notice of appeal was filed. The court reporting company and appellant’s counsel searched the court reporter’s files and equipment, but were unable to locate the transcription. The parties attempted to reconstruct the record pursuant to Florida Rule of Appellate Procedure 9.200; however, the parties and the trial court were unable to reconcile the differing recollections of the facts.

Given the unique circumstances of this case, the Third DCA ruled that the case should be remanded for a new trial. Although an appellant may not file a brief without record support, the absence of a record in this case was not due to the fault of the parties. The appellant had obtained a court reporter for the hearings, and promptly requested a transcript. Good faith efforts to reconstruct the record were unsuccessful. Thus, it is within an appellate court’s authority to order a new trial where essential records were unavailable through no fault of the parties.

Sinkhole Insurance Claims Citizens v. Nunez (Fla. 2d DCA June 24, 2016) In this case, the Second DCA provides a good overview of the statutory procedures for resolving a sinkhole insurance claim. Here, the insurance company and the insureds disputed the best method to repair a home’s sinkhole damages, with a jury trial finding in favor of the insureds. Most notably, the Second DCA held that the insurance company could withhold payment of the judgment until the insureds entered into a contract for subsurface repairs. This holding implements the legislature’s intent that sinkhole damages be repaired to protect public health and safety.

Proposals For Settlement Nunez v. Allen (Fla. 5th DCA June 24, 2016) Once again, a party’s attorney fee claim fails because a small linguistic error on a proposal for settlement created an ambiguity that rendered the proposal unenforceable. In this auto property damage case, the owner of the damaged vehicle served separate proposals for settlements on the driver and the owner of the tortfeasor car. However, the proposals each stated “This proposal for Settlement is inclusive of all damages claimed by Plaintiff . . . .” The Fifth DCA held that this language was ambiguous because it was unclear whether a defendant’s acceptance of the proposal would settle the plaintiff’s entire claim, or if the proposal would only settle the claim against the defendant named in the proposal.

Attorney-Client Privilege Coffey-Garcia v. South Miami Hospital (Fla. 3d DCA June 22, 2016) In a medical malpractice case, a defendant hospital was allowed to ask the plaintiff when she first sought legal counsel, and the names of the attorneys whom she consulted with. These questions are not protected by the attorney-client privilege, as they merely addressed whether consultations occurred. However, the Third DCA quashed the trial court order to the extent it required the plaintiff to answer questions related to the reasons why she first sought counsel. Such questions would improperly require the plaintiff to disclose privileged legal advice from the consulted lawyers.

Amendment of Pleadings Morgan v. Bank of New York Mellon (Fla. 1st DCA June 28, 2016). Absent exceptional circumstances, motions for leave to amend should be granted, and refusal to do so constitutes an abuse of discretion. In this foreclosure case, the homeowner’s original counsel abandoned the case after filing motions directed at the complaint, but never filing an answer. The homeowner later filed several pro se answers. The homeowner finally retained new counsel shortly before trial, who moved for leave to amend the answer to raise affirmative defenses. The First DCA reversed the trial court’s denial of the homeowner’s motion for leave to amend. The homeowner had not abused the privilege to amend, and the bank could not show that it would be prejudiced by the new affirmative defenses.

“Stand Your Ground” Defense in Civil Cases Patel v. Kumar (Fla. 2d DCA June 29, 2016) The Second DCA holds that if an individual is granted immunity after a hearing in a criminal case under Florida’s “Stand Your Ground” law, the individual need not prove an entitlement to immunity again in a later civil suit. Florida’s “Stand Your Ground” law provides immunity from both criminal prosecution and civil action to individuals who lawfully use force in self-defense. Thus, the Second DCA reasons, the law does not allow an individual to be immune in the criminal action, but not immune in the civil action. The Second DCA certified conflict with the Third DCA case of Professional Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524, which held that a defendant must prove entitlement to immunity in a civil action even if he previously was granted immunity in a criminal action.

Summary Judgment, Amendment of Pleadings, Affidavit Contradicting Deposition Testimony Faber v. Karl of Pasco, Inc. (Fla. 2d DCA June 29, 2016) A party has a liberal right to amend a complaint in light of a summary judgment motion, so long as the privilege to amend has not been abused or the amendment would not be futile. However, a party may not avoid summary judgment by filing an affidavit that directly contradicts the party’s earlier sworn testimony. Nonetheless, a party’s affidavit may explain prior testimony if the explanation is credible and not inconsistent with the previous testimony. In this case, the plaintiff should have been granted leave to amend her complaint: even though the plaintiff’s deposition testimony and affidavit differ, her affidavit appropriately explained or clarified her prior deposition testimony.

Jury Selection McCray v. State (Fla. 4th DCA June 29, 2016) If a party has exhausted all of its preemptory strikes, the party cannot withdraw a preemptory strike used on one juror to instead use the strike on a different juror.

Please complete the form below to join Scott J. Edwards, P.A.’s email list. Members of the email list receive my Florida Litigation Appellate Opinion articles, as well as news and updates on Florida law.


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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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All About Experts – Florida Litigation Appellate Opinions, May 23-June 3, 2016

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 May 23-June 3, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Expert Opinions, Sequestration of Witnesses, New Trial Dismex Food, Inc. v. Harris (Fla. 3d DCA June 1, 2016) In this personal injury case, the key issue was whether differences in two post-incident MRIs, taken several months apart, revealed that a new injury occurred between the time the two MRIs were taken. At trial, the plaintiff’s doctor testified for the first time that the earlier MRI could not be relied upon due to its poor diagnostic quality. The next day, the defendant’s expert testified that the earlier MRI was indeed of diagnostic quality, and concluded that his comparison of the two MRIs showed that an intervening injury must have happened at some time after the first MRI.

The trial court granted plaintiff’s motion for new trial. The trial court ruled that the defense expert’s testimony constituted a new opinion not contained in his report, in violation of a motion in limine. Also, the trial court ruled that defense counsel violated an order for sequestration of witnesses by sharing the plaintiff doctor’s opinion on the quality of the first MRI with the defense expert. The rule of sequestration is intended to prevent a witness’s testimony from being influenced by other witness’s testimony. If a witness’s testimony does not substantially differ from what it would have been absent a violation of the sequestration rule, there is no grounds for a new trial or mistrial.

The Third DCA reversed, holding that the defense expert’s testimony about the quality of the first MRI was consistent with his expert report. The defense expert’s report discussed the MRI’s findings in detail, discussing numerous specific findings. Thus, it defies logic and common sense to argue that the defense expert’s testimony that the first MRI was of diagnostic quality was an undisclosed opinion. Likewise, any information purportedly shared by defense counsel with the expert witness did not materially alter the witness’s testimony.

Daubert is Still Not Dead Bunin v. Matrixx Initiatives (Fla. 4th DCA June 1, 2016) The Fourth DCA holds that the trial court did not err in applying the Daubert standard to expert testimony, even though the case was filed before the effective date of the Daubert statute. Daubert is a purely procedural statute because it only relates to the admission of evidence. Therefore, the statute can be applied retroactively.

Parental Consent for Medical Treatment, Medical Provider Battery Angeli v. Kluka (Fla. 1st DCA May 25, 2016): Under Florida law, there is no cause of action for battery against a medical provider if one parent consents to a child’s medical procedure, but the other objects. In reaching its decision, the First DCA analyzed the limited statutory and case law regarding parental or guardian consent for medical treatment, and found that these sources uniformly authorized a singular parent or guardian to provide consent for treatment. The First DCA further concluded that a rule requiring both parents’ consent would place the health care provider in the untenable position of resolving parental disputes.

Lay Opinion Testimony, Daubert R.C. v. State (Fla. 2d DCA May 25, 2016): Florida’s adoption of the Daubert test has not changed long-standing Florida law that lay persons can identify marijuana based upon their personal experience and knowledge. Such testimony is not based on scientific expertise, but rather a laymen’s training and experience. The Second DCA noted that Federal courts have long allowed lay testimony to identify marijuana and other illegal drugs even after their adoption of Daubert.

Continuances Daher v. Pacha NYC (Fla. 3d DCA May 25, 2016) The trial court abused its discretion by dismissing a plaintiff’s case for failure to appear at trial. Plaintiff, a Brazilian citizen, was unable to travel to Florida in time for the trial because approval of his visa was delayed. The trial court refused to continue the case because it had been pending for over three years. Although a trial court has wide discretion on whether to grant or deny a continuance, such discretion is not unlimited. Here, the initial multiyear delay was caused by the defendant’s requested stay. The continuance would not have prejudiced the opposing party, and the delay in visa approval was unexpected and not due to any dilatory actions by plaintiff.

Dismissal Without Prejudice, Kozel Factors FNMA v. Linner (Fla. 2d DCA June 3, 2016) A trial court did not err in dismissing a party’s case without prejudice for failure to appear at a case management conference. The dismissed party argued that the trial court should have applied the factors from the case of Kozel v. Ostendorf, 629 So. 2d 814 (Fla. 1993) before dismissing its case. However, a trial court is only required to engage in a Kozel analysis if the dismissal is with prejudice. Because the case here was dismissed without prejudice, the party may still have its day in court if it chooses to refile the case.

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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

 

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Multimillion Dollar Claim for Lost Profits Affirmed (Florida Litigation Appellate Opinions, May 16-20, 2016)

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 week of May 16-20, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Commercial Litigation, Causation, Lost Profits Arizona Chemical Co. v. Mohawk Industries, Inc. (Fla. 1st DCA May 20, 2016) Mohawk, a carpet manufacturer, experienced a significant increase in warranty claims on one of its carpet lines. Mohawk eventually traced the problems to defective resin manufacturer by its supplier, Arizona . Mohawk alleged that the defective resin caused sales of the carpet line to fall dramatically, and also damaged the company’s reputation, leading to $95 million in lost profits. Mohawk successfully obtained a $70.1 million verdict at trial, which was affirmed on appeal.

Arizona  first argued on appeal that the trial court erred by excluding evidence that Mohawk’s warranty claims spiked on other lines of carpet at the same time. Thus, Arizona claimed it was prevented from arguing its theory that the increase in warranty claims was caused by quality control problems at Mohawk’s plant, rather than by defects in Arizona’s resin. The trial court, however, properly excluded this evidence because Arizona’s experts failed to properly link the spike in claims on other carpet lines to Arizona’s alleged lack of quality control at the plant. Moreover, Mohawk provided extensive scientific evidence that the carpet line’s problems were caused by chemical defects with Arizona’s resin.

Finally, Mohawk met its burden at trial to show that Arizona’s defective resin was a “substantial factor” in causing its lost profits, and established the amount of lost profits with reasonable certainty.

Appellate Procedure, Notice of Appeal Filed in Wrong Court Bennett v. State (Fla. 1st DCA May 20, 2016) Filing a notice of appeal in the wrong court is not a jurisdictional defect. Thus, the First DCA allowed the appeal in this case to go forward despite timely notice being filed in the wrong court.

Proposals For Settlement Ochoa v. Koppel (Fla. 2d DCA May 20, 2016) A motion to enlarge time to accept a proposal for settlement does not toll the thirty-day deadline to accept the proposal. Rule 1.442, governing proposals for settlement, contains a hard deadline of 30 days to accept a proposal. Furthermore, Rule 1.090, governing enlargement of time periods, does not contain any provision for tolling time periods while a motion for enlargement of time is pending. The Second DCA reasoned that allowing the mere filing of a motion for enlargement of time to automatically toll the acceptance period would frustrate the proposal for settlement rule’s purpose of encouraging timely settlement of claims. The Second DCA certified conflict with the 5th DCA opinion of Goldy v. Corbett Cranes Services, Inc., which allowed the tolling of a deadline to accept a proposal for settlement if a motion for enlargement of time is filed.

Due Process, Notice of Hearing Bank of America v. Fogel (Fla. 4th DCA May 18, 2016) A party’s due process is violated if it receives a notice of hearing on a Friday for a hearing scheduled for the following Monday.

Summary Judgment Burden of Proof Wells Fargo v. Bilecki (Fla. 4th DCA May 18, 2016) In this foreclosure case, the trial court erred by shifting the burden of proof to the bank to oppose the borrowers’ motion for summary judgment. Summary judgment should not have been entered because the borrowers did not meet their initial burden to prove that they did not receive the bank’s demand letter.
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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Broken Arm X-Ray

Florida Supreme Court Declares Worker’s Compensation Attorney Fee Caps Unconstitutional

In the long-awaited opinion in Castellanos v. Next Door Co. (Fla. Apr. 28, 2016),EDWARDS-SMALL_002511 the Florida Supreme Court held in a 5-2 decision that Florida’s Worker’s Compensation Statutes, which set a mandatory fee schedule for claimants’ attorneys, are facially unconstitutional.

Most recently amended in 2009, Florida’s Worker’s Compensation statutes mandate a sliding scale for fee awards to a claimant’s attorney: 20% of the first $5,000 of benefits secured, 15% of the next $5,000 of benefits secured, 10% of the remaining amount of benefits secured within 10 years of the claim, and 5% of benefits secured after 10 years. The statute forbade, under penalty of criminal prosecution, a claimant’s lawyer from receiving any compensation for his or her services other than that awarded under the mandatory sliding scale.

The 2009 amendments replaced long-standing statutory language allowing a Judge of Compensation Claims (JCC) to award a “reasonable fee” to a prevailing claimant. Thus, in the Castellanos case, although the claim was complex and vigorously opposed by the employer and its insurance carrier, the amount of benefits secured was only $822.70. The claimant’s attorney was awarded a fee of only $164.54 under the mandatory fee scale, despite reasonably spending 107.2 hours on the defense of the case. The claimant attorney’s fee award was a mere $1.53 per hour worked. The JCC and the First District Court of Appeal both expressed concern about the inadequacy of the fee award, but were bound by precedent to uphold the award.

In declaring the mandatory fee scale unconstitutional, the Florida Supreme Court began its analysis by noting the historical purpose of the worker’s compensation system to provide “simple, expedious” relief to the injured worker in exchange for surrendering the right to bring tort lawsuits for workplace injuries. However, the supreme court has found that in the eighty years since the first worker’s compensation statutes, worker’s compensation laws have become so complex that it is nearly impossible for a claimant to successfully litigate a claim without attorney assistance.

Although the method for calculating fees has changed frequently as the statutes were amended over the years, Florida’s worker’s compensation laws had long allowed the award of reasonable attorneys fees to successful claimants. The 2009 amendments to the worker’s compensation statutes eliminated language allowing a claimant to recover a reasonable fee, thus only allowing fee awards as mandated by the statutory sliding scale.

The Florida Supreme Court held that removing the ability to award a claimant a reasonable attorney’s fee violated the due process requirements of the Florida and United States constitutions. The statute prevents courts from altering a claimant’s fee award, even if there is a finding that the attorney’s fee award is either grossly inadequate or grossly excessive. Thus, the supreme court reasoned, the statute improperly created a conclusive and irrebuttable presumption that attorney’s fees awarded under the statute were reasonable, regardless of the facts of an individual case.

The legislature’s concern about excessive attorney’s fee awards was held to not be a reasonable basis to justify the mandatory fee scale. Rather, the supreme court held that Rule Regulating the Florida Bar 4-1.5(b)(1)(A) provided adequate protection against excessive attorney’s fees. Furthermore, the mandatory fee scale did not protect against excessive fees, because excessive fees could easily result in cases with large recovery amounts. Finally, the fee scale did not provide any penalty to the employer or insurance carrier for wrongfully delaying or denying benefits to injured workers.

Because the supreme court declared the attorney fee provisions in the 2009 amendments to the worker’s compensation statutes unconstitutional, the supreme court revived the previous version of the statute. Thus, although the statutory fee schedule remains the starting point for awarding a claimant’s fee award, a claimant may now present evidence that the application of the fee schedule will result in an unreasonable award. Therefore, a claimant can be awarded fees that deviate from the scale only if the claimant can first prove that the scale results in an unreasonable fee.

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.  Click here to learn more about Scott Edwards’ appellate law services.

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Rise of The Procedural Decisions: Florida Litigation Appellate Opinions (February 8-19, 2016)

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 February 8-19, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Lack of Prosecution Zuppardo v. Dunlap & Moran (Fla. 2d DCA Feb. 12, 2016): The trial court issued a sua sponte notice of lack of prosecution in this case after more than two years of inactivity. The notice stated that the case would be dismissed if no record activity occurred within 60 days. Plaintiff filed several documents before the deadline, but the documents suffered various technical deficiencies. The trial court dismissed the case for lack of prosecution, agreeing with Defendant’s arguments that the technical deficiencies caused the filings to not constitute sufficient record activity.

The Second DCA reversed the dismissal because the filing of any document whatsoever during the 60-day grace period triggered by a notice of lack of prosecution is sufficient to prevent dismissal. As a reminder, the requirement that a filing must affirmatively move the case forward to avoid dismissal has long been abandoned by Florida courts.

Dismissal as a Sanction Jenkins v. Allstate (Fla. 2d DCA Feb. 10, 2016) After numerous instances of Plaintiff’s counsel acting with a lack of diligence, the trial court dismissed this case when Plaintiff’s counsel failed to attend a status conference. The Second DCA reversed because the order of dismissal failed to make specific findings that counsel’s failure to attend was willful, flagrant, persistent, or otherwise aggravated. The case was remanded to allow the trial court an opportunity to make findings as to whether counsel’s behavior justified dismissal.

Final Orders, Counterclaims Morris v. Garcia (Fla. 3d DCA Feb. 10, 2016) A court order dismissing a counterclaim is not an appealable final order of dismissal if the issues in the main claim are interrelated with the issues in the counterclaim.

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Post-Judgment Interest Shoemaker v. Sliger (Fla. 5th DCA Feb. 12, 2016) In jury trial cases where the court enters a money judgment, post-judgment interest begins to accrue on the date the judgment is entered. However, if a jury trial concludes without the entry of a money judgment, and an appeal later results in a remand for entry of a money judgment, post-trial interest is deemed to accrue from the date of the jury’s verdict.

Attorney-Client Privilege, 57.105 Motion Tedrow v. Cannon (Fla. 2d DCA Feb. 19, 2016) A party may not compel disclosure of attorney-client privilege or opinion work product in support of a motion for Section 57.105 sanctions.

Medicaid Liens, Wrongful Death Estate of Hernandez v. Agency for Health Care Admin. (Fla. 3d DCA Feb. 17, 2016) Under Florida’s Medicaid Third Party Liability Act, Medicaid is a payer of last resort. Thus, its liens have priority over any other claims to funds received from judgments or settlements. In a wrongful death action, a Medicaid lien must be satisfied before allocating a settlement between the estate and the survivors. This is true even though wrongful death damages recovered by the estate and the survivors are distinct.

Daubert Hearings Rojas v. Rodriguez (Fla. 3d DCA Feb. 17, 2016) A party challenging the scientific basis of an expert’s opinion has the burden of requesting a Daubert hearing before the conclusion of a trial. Thus, in this case, the Third DCA reversed a granting of a new trial where no Daubert objection was made until after trial.

Attorney’s Fees Petrovsky v. HSBC Bank (Fla. 4th DCA Feb. 17, 2016)  Because awards of attorney’s fees is typically are not liquidated damages, an evidentiary hearing must be held to establish an amount of reasonable attorney’s fees.

Request for Admissions Chelminsky v. Branch Banking & Trust Co. (Fla. 4th DCA Feb. 17, 2016) In this foreclosure case, the bank failed to respond to the homeowner’s requests for admissions. The homeowner obtained a ruling deeming the admissions to be admitted, and the bank’s motions seeking relief from the order were all denied. However, at the trial years later, a successor judge denied the homeowner’s motion in limine to enforce the admissions, and entered a judgment of foreclosure. The Fourth DCA reversed, holding that although the original judge likely committed reversible error by not granting relief from the admissions, the successor judge also erred in failing to grant the motion in limine before trial. The homeowner was entitled to rely on the admissions, and was prejudiced by the successor judge reversing the original judge’s orders at the last minute. According to the Fourth DCA, the homeowner relied on the admissions in conducting discovery and preparing for trial, and thus should have had more notice before the admissions were vacated.
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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Sheriff Not Liable For Damages Due to Failure to Corral Horse (Florida Litigation Appellate Opinions (February 1-5, 2016)

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 week of February 1-5, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Police Officer Duty, Responsibility for Escaped Animals Manfre v. Shinkle (Fla. 5th DCA Feb. 5, 2016) In this case, Plaintiff was injured when her vehicle crashed after striking a dead horse on a public roadway. Earlier that evening, a sheriff’s deputy responded to a call that horses were roaming free on the road. When the deputy arrived on the scene, the horses were spooked by the lights on the deputy’s vehicle and returned to their pasture. The deputy made no effort to contact the owner of the horses or otherwise ensure that the horses were secure in their pasture. One of the horses later returned to the road, and was killed by another motorist before Plaintiff’s crash.

The Fifth DCA held that the Sheriff owed no duty to protect Plaintiff from the hazard caused by the escaped horses. Under the public duty doctrine, any tort duty owed by the government to an individual must be specific and beyond the general duty the governmental entity owes to the public as a whole. Therefore, because a sheriff’s duties to enforce the law and protect citizens apply to the public as a whole, a sheriff does not owe a duty to an individual who is injured by the sheriff’s failure to enforce the law or generally protect the public. Also, the deputy’s actions in this case did not create a foreseeable zone of risk, nor did his acts create liability under the undertaker’s doctrine. Indeed, the deputy’s response to the call reduced the risk of injury because he caused the horses to return to their pasture.

Property Insurance, Assignment of Benefits Bioscience West, Inc. v. Gulfstream Prop. & Cas. Co. (Fla. 1st DCA Feb. 5, 2016) In this first party property insurance case, the Second DCA held that an insurance company cannot prohibit its insured from assigning post-loss benefit under an insurance policy to a third party. The homeowners insurance policy at issue in this case contain a provision limiting the assignment of the policy without the insurer’s with written consent. The homeowner, after suffering water damage, hired a water mitigation service. The homeowner executed assignment of insurance benefits form authorizing the water mitigation company to directly bill and receive payment from the insurance company for the mitigation services. The insurance company denied the claim, leading to the the water mitigation company suing the insurer for wrongful denial of coverage.

The Second DCA held that the policy’s language only prohibits the assignment of an entire policy, and does not prohibit the assignment of specific post-loss benefits. The court rejected the insurer’s argument that the assignment of the claim violated Florida’s public adjusting statutes. The water mitigation company only performed emergency services; it did not adjust the claim and did not determine the amount due under the policy. Finally, Florida over 100 years of Florida case law has held that an insurance company cannot prohibit post-loss assignments of benefits.

Construction Defect, Damages Gray v. Mark Hall Homes, Inc. (Fla. 2d DCA Feb. 5, 2016) In this construction defect case, the contractor constructed a single-family house without flashing connecting the roof to the walls, causing extensive water intrusion damage. Indeed, the damage to the home was so bad that numerous witnesses testified that the home was worthless, was among the worst that they had ever seen, was uninsurable, that no bank would allow a mortgage on the property, and that the owner was better off bulldozing the property and starting anew. At trial, the jury awarded the owner damages equal to the entire amount of the construction contract.

Nonetheless, the trial judge reduced Plaintiff’s award $16,000, reasoning that the only evidence of damage was testimony of a general contractor who testified that a balcony was replaced for $16,000. The Second DCA reversed, holding that the jury’s verdict should be reinstated.  Under Florida law, there are two valid ways to measure breach of contract damages for defective construction. First, a jury can award the reasonable cost of construction to complete the work as described in the contract. Alternatively, a jury can award the difference between the value of the product described in the contract, and the value of the defective product actually delivered by the contractor. The purpose of  money damages is to put the injured party in as good a position as if full performance had occurred. Therefore, it was proper for the jury to award damages by concluding that the house contractor built was worthless.

Objections, Preservation of Error Aris v. Applebaum (Fla. 3d DCA Feb. 3, 2016): A party objected to a clearly improper question asked by opposing counsel during trial. The court sustained the objection, the question was stricken, and the jury was instructed to ignore the question. However, the party failed to preserve its objection to the question for a motion for new trial or appellate review because it did not make a contemporaneous motion for mistrial. The Third DCA noted that in this situation, a party may move for mistrial, but can also request that the trial court reserve ruling on the motion for mistrial until after the verdict is returned.

Class Certification, Delay Osborne v. Emmer (Fla. 4th DCA Feb. 3, 2016) Florida Rule of Civil Procedure 1.220(d)(1) requires that class representation be pursued as soon as practicable after a pleading alleges a class action. Here, the trial court did not err by denying class certification when more than five years had passed without Plaintiff attempting to certify the class.

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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Expert Witness Can’t Change Testimony to Avoid Summary Judgment, and Fabre Defense Dirty Tricks (Florida Litigation Appellate Opinions, January 24-29, 2016)

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 week of January 24-29, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Products Liability, Expert Witnesses, Summary Judgment Lesnik v. Duval Ford (Fla. 1st DCA Jan. 28, 2016) In this products liability case, Plaintiff was injured in a single-vehicle rollover accident. Plaintiff owned a used pickup truck whose original owner had installed an aftermarket lift kit and modified the suspension system. However, Plaintiff also made numerous repairs and aftermarket modifications to the truck. Plaintiff sued the dealership that sold the truck, alleging that the dealer was liable for selling the truck in a defective condition by installing the suspension system. Plaintiff also sued the dealer who sold the used truck to Plaintiff, claiming that the used truck dealer was negligent for failing to inspect the truck and warn of the danger of lifted vehicles.

Plaintiff’s expert witness, however, testified at deposition that he did not have any opinions that the conduct of either dealership caused Plaintiff’s accident. The dealerships moved for summary judgment because the expert’s admission caused there to be no evidence of liability against them. However, Plaintiff filed an affidavit by the expert in response to the summary judgment motions in an attempt to allege new opinions of liability against the used truck dealer. The trial court struck the affidavit, and entered summary judgment in favor of the dealerships.

The First DCA affirmed the striking of the expert’s affidavit, and affirmed the summary judgments. The expert’s affidavit impermissibly contradicted the expert’s deposition testimony without explanation. A litigant confronted with an adverse motion for summary judgment may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony. Thus, given the expert’s original deposition testimony, there was no evidence that the lift kit was defective or improperly installed, nor was there any evidence that the used truck dealer breached any duty to inspect or warn Plaintiff of the truck’s condition.

Withdrawal of Fabre Defense, New Trial Edwards v. Rosen (Fla. 2d DCA Jan. 29, 2016): In this medical malpractice wrongful death case, the Second DCA reversed a judgment in favor of a doctor due to gamesmanship caused by the doctor’s withdrawal of his Fabre defenses at trial. Plaintiff’s complaint alleged that the patient’s death was caused by the negligence of several doctors. All but one of the doctors were either granted summary judgment or settled with Plaintiff. Shortly before trial, the doctor’s motion to assert a Fabre defense as to the settling doctors was granted over Plaintiff’s objection. At trial, Plaintiff presented evidence of the party doctor’s negligence, as well as the negligence of the Fabre doctors. However, during his case, the doctor withdrew the Fabre defense. The jury’s verdict was in favor of the doctor.

The Second DCA held that Plaintiff’s motions for mistrial and motion for new trial should have been granted. A Fabre defense must be raised before trial because the defense may affect both the presentation of the case and the trial court’s ruling on evidentiary issues. Thus, the cumulative effect of the last minute amendment to add a Fabre defense, the withdrawal of the defense at trial, and the trial court’s failure to give a curative instruction to the jury generated prejudice that Plaintiff could not cure. The doctor’s tactics here constituted gamesmanship because they allowed him to gain the benefit of having evidence of the other doctor’s negligence introduced at trial, but without the cost of having fault apportioned between himself and the other doctors.

Forum Non Conveniens Abeid-Saba v. Carnival Corp. (Fla. 3d DCA Jan. 27, 2016) The Third DCA upheld orders dismissing lawsuits arising from the Costa Condordia wreck under the doctrine of Forum Non ConveniensItaly is an available and adequate forum for Plaintiffs’ claims, even though it lacks procedural benefits such as class actions. Private factors weigh in favor of litigation in Italy because the vast majority of evidence and witnesses are in Italy. Public interest factors also weigh in favor of Italy over Florida, as most of the Plaintiffs were not United States residents, and virtually all of the allegedly negligent conduct occurred in Italy.

Appellate Sanctions HSBC Bank v. Biscayne Point Condo. Ass’n (Fla. 3d DCA Jan. 27, 2016): Yes, you can get sanctioned as the appellee. In this case, the appellee caused a judgment to be entered at the trial court based on an “indefensible” position. The appellee failed to appear in the appeal, failed to file a brief, and failed to concede error on appeal.

Appellate Procedure Young v. State (Fla. 1st DCA Jan. 25, 2016): A party cannot seek relief on appeal for an error committed by the party.
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, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Florida Litigation Appellate Opinions: First Amendment Victory for Florida Newspaper, and Strict Compliance Required For Proposals for Settlement (January 11-22, 2016)

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 11-22, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

First Amendment, Privacy Rights for Jailhouse Conversations Palm Beach Newspapers v. State (Fla. 4th DCA Jan 21, 2016) In a criminal case, a jailhouse snitch was accused of receiving numerous benefits from his jailers in exchange for testifying at trial against numerous accused criminals. The trial court improperly entered an order sealing transcripts of the snitch’s telephone calls, prohibiting their publication, and ordering a newspaper to remove the transcripts and an article about the issue from its web site. The Fourth DCA quashed the trial court’s order, holding that inmates have no expectation of privacy in their telephone conversations. Furthermore, the order violated the newspaper’s first amendment rights because it improperly prohibited the publication of lawfully obtained, truthful information that was clearly a matter of public concern.

Proposal For Settlement Colvin v. Clements & Ashmore, P.A. (Fla. 1st DCA Jan. 15, 2016) Because the rules governing proposals for settlement and offers of judgment must be strictly complied with, the First DCA affirmed that a proposal for settlement was unenforceable because it failed to state that attorney’s fees and punitive damages were part of the claim. The proposal was unenforceable even though Plaintiff’s complaint did not seek attorney’s fees or punitive damages.

Slip and Fall, Summary Judgment Perez-Rios v. Graham Cos. (Fla. 3d DCA Jan. 20, 2016) The trial court properly entered summary judgment in favor of the property owner in this slip and fall case. Plaintiff alleged that she tripped on a step leading into a building owned by Defendant. The step was plainly visible, and there was no evidence of a foreign object, disrepair, inadequate lighting, slippery conditions, or any other defect. Thus, the step was not a defective condition, and was open an obvious to Plaintiff.

Dismissal as a Sanction Prater v. Comprehensive Health Center (Fla. 3d DCA Jan. 20, 2016): The trial court erred by striking a party’s pleadings for the late disclosure of evidence during jury selection for a trial. The striking of pleadings for a discovery violation is a severe sanction that should only be employed in extreme circumstances. There was no finding in the trial court record that the late disclosure of evidence was deliberate. Thus, the trial court should have employed a lesser remedy such as excluding the document from evidence, or by awarding attorney’s fees and costs caused by the late disclosure.

Clerk’s Default Stuart-Findlay v. Bank of America (Fla. 4th DCA Jan. 20, 2016): Once a defendant files a paper in an action, the clerk no longer may enter a default against the defendant, regardless of whether the defendant files a timely response to the complaint.

Condominium & Planned Development Law Certification In re: Fla. Bar Rules (Fla. Jan. 21, 2016): The Florida Supreme Court approved new board certification in the area of condominium & planned development law.

Foreclosure, Civil Procedure In re: Fla. R. Civ. P. (Fla. Jan. 14, 2016) Amending the rules of civil procedure on pleading requirements in foreclosure cases.
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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