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 October 12-16, 2015. Click here to learn more about Scott Edwards’ appellate law services.

Collateral Source Rule Joerg v. State Farm (Fla. Oct. 15, 2015): The Florida Supreme Court ruled that evidence of future medical benefits payable under government programs such as Medicare and Medicaid is inadmissible under the collateral source rule. Previous appellate decisions, along with changes in statutory law, had led to arguments that evidence of future medical expenses that could be paid by government or charitable programs was admissible at trial to prevent an injured party from recovering windfall damages.

Unauthorized Practice of Law Scharrer v. Fundamental Administrative Services (Fla. Oct. 15, 2015): Although Florida recognizes the tort of unlicensed/unauthorized practice of law, a party does not have a cause of action unless the Florida Supreme Court has ruled that the specified conduct at issue constitutes unlicensed or unauthorized practice of law.  This rule protects the supreme court’s exclusive authority to determine what conduct constitutes unlicensed or unauthorized practice of law. A party can request an advisory opinion from the Florida Bar Standing Committee on the Unlicensed Practice of Law in order to initiate the supreme court’s review of alleged unlicensed activity.

Sovereign & Qualified Immunity; Certiorari Florida Fish & Wildlife Conservation Comm’n v. Jeffrey (Fla. 1st DCA Oct. 15, 2015): The mistaken denial of a motion for summary judgment asserting qualified immunity is reviewable on certiorari because the right to be immune from suit is irreparably lost if a case is erroneously allowed to go to trial. However, on claims in which the state has waived sovereign immunity, certiorari review is not available because the waiver of immunity only limits damages available from a government agency, but does not provide the agency immunity from the suit itself. In this case, the arresting police officer was entitled to qualified immunity against the plaintiff’s false arrest claim because the officer had probable cause to make the arrest.

Appellate Procedure: Deadline to Appeal B.R. v. DCF (Fla. 1st DCA Oct. 12, 2015):  The amendment of an order or judgment does not reset the thirty day deadline to file a notice of appeal if the amendment makes immaterial changes to the order or judgment. Furthermore, even if the amendment creates substantial or material modifications to the order or judgment at issue, the deadline is not reset if the issues to be appealed remain unchanged.


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Appellate Procedure: Waiver of Issues on Appeal; Medical Negligence Doe v. Baptist Primary Care (Fla. 1st DCA Oct. 12, 2015): On the appellate procedure issue, an appellate court will not consider issues not raised by the parties in the brief. On a separate substantive issue that was properly preserved, the First DCA held that a claim for negligent training and supervision against a medical provider arising from a claim that the medical provider’s employee negligently disclosed information about a patient’s HIV status did not raise an issue of medical negligence. Therefore, the trial court erred in dismissing the plaintiff’s complaint for failure to comply with the medical negligence presuit requirements.

Judicial Disqualification Greenwood v. State (Fla. 2d DCA Oct. 14, 2015) It is improper for a judge to comment on the truth of the facts alleged by a party in a motion to disqualify a judge. In this case, although the trial court’s written order did not address the truth of the facts alleged in the disqualification motion, the trial judge nonetheless attempted to refute the allegations during the hearing on the motion. When a judge looks beyond the legal sufficiency of a motion to disqualify and attempts to refute charges of partiality, an independent basis for disqualification is created.

Motion For Rehearing; Writ of Mandamus Matamoros v. Infinity Auto Ins. Co. (Fla. 3d DCA Oct. 14, 2015): The plaintiff’s motion for summary judgment was denied, but the trial court invited the plaintiff to move for rehearing once a key witness’s deposition took place. After the deposition occurred, the plaintiff moved for rehearing as contemplated by the court’s original order. The trial court granted the plaintiff’s motion for rehearing, but also sua sponte dismissed the plaintiff’s complaint for ripeness. The plaintiff filed a motion for rehearing of the dismissal order, but the motion was denied as an unauthorized second motion for rehearing. The Third DCA granted the plaintiff’s petition for writ of mandamus because the trial court’s second order changed the entire basis of the ruling. Therefore, the plaintiff was entitled to rehearing of the court’s new ruling.

Insurance Litigation Attorney’s Fees Citizens v. Bascuas (Fla. 3d DCA Oct. 14, 2015): In a first party property insurance action, the jury found in favor of the insurer on the breach of contract count, but found in favor of the insured on the insurer’s counterclaim for unjust enrichment. The Third DCA held that the trial court properly granted attorney’s fees to the insured for its successful defense against the insured’s unjust enrichment counterclaim. An insured is entitled to its attorney’s fees whenever it obtains a judgment in its favor, even if the insured does not obtain a money judgment. Furthermore, the argument that the jury’s verdict was inconsistent was not properly preserved because there was no objection to the verdicts before the jury was discharged.

Discovery Sanctions Sukonik v. Wallack (Fla. 3d DCA Oct. 14, 2015): The Third DCA affirmed a trial court order dismissing and striking a party’s pleadings for failure to comply with discovery requests and for disobeying court orders. After the party’s counsel withdrew, the party acting pro se failed to respond to discovery requests and refused to allow her deposition to be scheduled. The party then ignored the trial court’s orders compelling her deposition and her attendance at mediation.

Sovereign Immunity City of Ft. Lauderdale v. Israel (4th DCA Oct. 14, 2015): A municipality waives the protection of sovereign immunity in a breach of contract action only when it enters into an express, written contract. Therefore in this case, the City of Fort Lauderdale was immune from a suit by the Broward County Sheriff that was based on an implied contract theory.

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.