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 or 561-609-0760.