ABUSE OF DISCRETION TO DISMISS COMPLAINT WITH PREJUDICE FOR FRAUD

Gilbert v. Eckerd Corp., 35 Fla. L. Weekly D1060 (Fla. 4^th DCA May 12, 2010):

Plaintiff had a slip and fall case against Eckerd.  As part of her claim, she sought lost wages of over $400,000.  She calculated the amount based upon a disputed two-month employment with a company that sells decorative concrete coatings. 

During her two-month employment, she estimated she earned about $1,600 on a 12% commission.  Her husband testified she had actually never worked for that company, nor had she worked at all since 1999.  A representative of the company testified similarly. 

As a result of the dispute over plaintiff’s employment, Eckerd moved to dismiss for fraud.  After a non-evidentiary hearing, the trial court dismissed the claim with prejudice. 

The court reminded us how the dismissal for fraud is reviewed under a narrowed abuse of discretion standard, and such sanction may be imposed only on a clear showing of fraud, pretense, collusion or similar wrongdoing.  There must be a showing that the plaintiff set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate matters.  The scheme must go to the very core at issue, and there must be false testimony directed related to a central issue in the case. 

The court advised that if the motion for dismissal would not survive summary judgment, it should not be granted (this is a helpful standard to throw out to trial judges considering dismissal).

It was undeniable that the defendant produced evidence that the plaintiff never worked as a salesperson or in any other capacity, but the plaintiff had produced evidence that she worked there, specifically producing two checks made payable to her and a 2003 income tax return.  While the defendant had an explanation for those items (that the check was made out to her for her husband to do them a favor), there was evidence distinguishing this case from those where the fraud is uncontroverted. 

The court also said that while there is no rule, statute or case that requires an evidentiary hearing to be held, it believes the better practice is to have such a hearing to make specific findings. 

Ultimately, because Eckerd did not produce clear and convincing evidence that the plaintiff perpetrated a fraud on the court, the dismissal was reversed.

VERDICT FOR PROPERTY OWNERS IN CITRUS CANKER CASES UPHELD

Department of Agriculture v. Borgoff, 35 Fla. L. Weekly D1062 (Fla. 4^th DCA May 12, 2010):

This class action involved 50,000 owners of healthy citrus trees in Broward County who had their trees cut down and destroyed by the Department of Agriculture as part of its citrus canker eradication program.  The jury awarded just compensation of over 11 million dollars, which after set offs was 8 million.

Ruling on the specifics of the case, the court admonished that courts cannot decide as a matter of law which side evidence–scientific or otherwise–should be accepted and which should be rejected.  Also, unless a threat to the health and welfare of a community is imminently threatened, property may not be destroyed without just compensation.  The court also properly calculated prejudgment interest from the date of the filing of the case.

PROPOSALS FOR SETTLEMENT CONDITIONED UPON THE ACCEPTANCE OF BOTH OFFEREES ARE INVALID AND UNENFORCEABLE

Traynor v. Delmonico, 35 Fla. L. Weekly D1072 (Fla. 4^th DCA May 12, 2010):

A joint offer of settlement that is conditioned on the mutual acceptance of all joint offerees is invalid and unenforceable because the proposal prevents either offeree from independently evaluating and/or settling his or her respective claim (citing, Attorneys Title Insurance Fund v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)).

ERROR TO AWARD ATTORNEY’S FEES TO DEFENDANT BASED ON A PROPOSAL FOR SETTLEMENT WHERE PLAINTIFF VOLUNTARILY DISMISSED ACTION WITHOUT PREJUDICE

Smith v. Loews Miami Beach, 35 Fla. L. Weekly D1074 (Fla. 3^rd DCA May 12, 2010):

In the face of a motion for summary judgment regarding the impact rule, the plaintiff voluntarily dismissed her action without prejudice.  The hotel filed its motion seeking an award of attorney’s fees and costs based on its proposal for settlement. 

Pursuant to Rule 1.420(a)(1), a party has an absolute right to dismiss his/her entire action once without a court order by serving the notice of dismissal at any time before a hearing on a motion for summary judgment.  While an involuntary dismissal, a dismissal with prejudice, or a second voluntary dismissal would all serve as adjudications on the merits, according to MX Investments v. Crawford, when a plaintiff for the first time voluntarily dismisses her complaint without prejudice, the dismissal does not operate as an adjudication on the merits.

ERROR TO DISMISS COMPLAINT ON BASIS OF FRAUD

Hair v. Morton, 35 Fla. L. Weekly D1076 (Fla. 3^rd DCA May 12, 2010):

During discovery responses, the plaintiff denied any problems with her low back, but admitted she had HIV before the accident.  However, the record showed she had also had some low back problems before the accident. 

While the plaintiff’s discovery responses might preclude some of her claimed damages regarding her lower back, they did not address the issue of liability, or all of her claimed damages to justify dismissal of the action.  Accordingly, the court reversed the dismissal for fraud.

TRIAL COURT IS NOT FREE TO DISREGARD SUPREME COURT PRECEDENT AS BEING WRONGLY DECIDED – TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT SUBCONTRACTOR ON THE BASIS OF WORKER’S COMPENSATION IMMUNITY, DURING THE PERIOD OF TIME WHERE SUBCONTRACTORS WERE NOT IMMUNE FROM LIABILITY FOR INJURIES SUFFERED BY THE CONTRACTOR’S EMPLOYEE (WHICH AGAIN IS THE LAW)

Ramcharitar v. Erzulie Derosins, 35 Fla. L. Weekly D1082 (Fla. 3^rd DCA May 12, 2010).

IN ORDER TO STATE CAUSE OF ACTION UNDER INTENTIONAL TORTS EXCEPTION TO WORK COMP. IMMUNITY, MUST BE INTENTIONAL TORT ALLEGED; SIMILARLY, MUST ALLEGE NEGLIGENCE OF A CO-EMPLOYEE FOR UNRELATED WORKS EXCEPTION TO APPLY

Hunt v. Corrections Corp. of America, 35 Fla. L. Weekly D1102 (Fla. 1^st DCA May 14, 2010):

Plaintiff nurses sued the Corrections Corporation of America for injuries they sustained as nurses in the Bay County jail.  They sued under intentional tort and the unrelated workers’ exceptions to work comp. immunity. 

In the complaint, the plaintiffs failed to allege facts for intentional tort, making their claim based on negligence allegations only. 

The unrelated works exception could also not apply because plaintiffs failed to allege any specific negligence against a co-employee which is required.  The court affirmed the summary judgment entered against the plaintiffs. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

This entry was posted on Thursday, June 3rd, 2010 at 10:16 am and is filed under The Week in Torts. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.