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.