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.

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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 or 561-609-0760.

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