TRIAL COURT ABUSED DISCRETION IN DISMISSING CASE FOR FAILURE TO SERVE DEFENDANT WITHIN 120 DAYS

Amaran v. Marath, 35 Fla. L. Weekly D764 (Fla. 3^rd DCA April 7, 2010):

The plaintiffs had evidence of trying to locate defendant.  She was told through interrogatories that this particular defendant could be contacted through a South African employment agency, and it was later learned that he maintained a residence in Florida. 

After many wranglings, a deposition, etc., the defendant was finally served.  However, he moved to dismiss the amended complaint for untimely service. 

While the statute of limitations had run, the trial court still dismissed.  It failed to acknowledge that incorrect or misleading information was knowingly provided by one of the defendants to delay service of the co-defendant.  When the trial court dismissed the case under these circumstances, it abused its discretion. 

WHEN A CLAIM IS COMPENSABLE UNDER NICA AS TO SOME PERSONS OR ENTITIES INVOLVED, BUT NOT OTHERS, A CLAIMANT MUST ELECT TO ACCEPT NICA NO FAULT BENEFITS, OR INSTEAD PURSUE A CIVIL ACTION AGAINST THE NON-COVERED PERSONS OR ENTITIES

Pediatrix Medical Group v. Falconer, 35 Fla. L. Weekly D780 (Fla. 4^th DCA April 7, 2010):

In light of a recent supreme court decision, once a claimant accepts NICA benefits for a compensable claim, the claimant then foregoes a civil suit against any person or entity (including non-covered persons or entities) directly involved with the labor, delivery or immediate post-delivery resuscitation (see §766.303(2)).  Because the remedies are mutually exclusive, when a claim is compensable under NICA as to some persons but not others, the claimant must elect to accept the no-fault benefits under NICA, or to pursue a civil action against the non-covered persons instead.

ERROR TO FIND PLAINTIFF ESTOPPED FROM BRINGING A LAWSUIT INCONSISTENT TO HER POSITION IN A PRIOR LAWSUIT, WHERE THE POSITION WAS NOT SUCCESSFULLY MAINTAINED IN THE FIRST LAWSUIT

Batie v. Batie, 35 Fla. L. Weekly D800 (Fla. 1^st DCA April 7, 2010):

This case contains few facts but is reported for the principal of law found therein. 

PRESUMPTION OF NEGLIGENCE ON PART OF REAR DRIVER IS NOT APPLICABLE IN AN ACTION BY A PASSENBER OF THE REAR VEHICLE AGAINST THE DRIVER OF A LEAD VEHICLE – THE ISSUE IS WHETHER THE DEFENDANT WAS NEGLIGENT AS TO THE FORWARD DRIVER

Charron v. Birge, 35 Fla. L. Weekly D805 (Fla. 5^th DCA April 9, 2010):

A motorcyclist was driving his motorcycle, and plaintiff was riding as a passenger.  A car traveling in front of him rounded a curve, and as plaintiff looked down a crossover side road to ensure nobody was coming, he found the car just about “stopped” in front of him.  He said he was unable to avoid hitting it, which caused the motorcycle to flip and come to rest on top of the passenger plaintiff. 

The defendant testified that he and his wife were on their way to the zoo, and that he slowed down as he saw another car approaching the yield sign.  The defendant said he was being cautious to slowly step on the brake at this “hairy” intersection.  He said he pulled ahead, and then passed the truck and heard a thump on the left. 

The driver of the front car said he slowed down when he saw the defendant’s car coming from behind him. 

The defendant filed a motion for summary judgment asserting that presumption of negligence attached to the motorcycle driver as the rear-ending driver, and that the plaintiff passenger failed to overcome the presumption.  The trial judge granted the summary judgment, ruling that Florida law makes the person in the rear responsible for the accident if the person in the front stops. 

The appellate court ruled that the presumption does not apply where a passenger of the following vehicle sues the lead driver for his negligence.  The issue is whether the defendant was negligent as the forward driver, not whether the motorcycle driver’s presumed negligence as the following driver was rebutted.  To the extent that there exists evidence sufficiently demonstrating the defendant was negligent as the forward driver, summary judgment against the rear driver is improper.

The court said that the issue properly framed is not whether any presumption of the motorcycle driver’s negligence was rebutted, but whether there was record evidence that the defendant was negligent as the forward driver, and solely caused or in connection with the motorcyclist, caused the injuries to the passenger plaintiff.  The evidence could support a verdict.  The negligence on part of the defendant was that he “suddenly stopped” in the middle of the street, and did so unnecessarily under the mistaken belief that another vehicle had the right to proceed.

ERROR TO GRANT COUNTY’S MOTION FOR DIRECTED VERDICT ON GENERAL NEGLIGENCE CLAIM WHEN THERE WAS EVIDENCE THAT JURY COULD FIND DEFENDANT BREACHED ITS DUTY OF CARE

Soltwisch v. Pasco County, 35 Fla. L. Weekly D812 (Fla. 2^nd DCA April 9, 2010):

Standard of review on a ruling for a motion for directed verdict is de novo.  In considering the merits of such a motion, the court must review the evidence in a light most favorable to the non-moving party.  Motions for directed verdict should only be granted where no view of the evidence or inferences made therefrom could support the verdict for the non-moving party. 

When looking at the evidence that way, 75 year-old decedent was at a wound-care clinic with his wife receiving a hyperbaric oxygen therapy to relieve pressure sores on his left foot.  He experienced some mild tremors according to one of his doctors during that process, and there were no signs that he had suffered a stroke at that time.  Still, the staff of that facility called 911.

A Pasco County Fire Rescue ambulance arrived at the clinic to take the man to the hospital.  The paramedic indicated the initial vital signs were normal, and the man was semi-responsive.  However, by the time he arrived at the hospital, he was complaining of pain from his hip.  There was also an indication that his blood pressure sharply increased when he got to the emergency room.  An x-ray showed a neck fracture.  The man underwent surgery to repair the fracture, acquired an infection, and then died from it.

The decedent’s wife testified she heard a loud bang when the paramedics put the man in the ambulance, and the estate presented several experts who testified that his fracture occurred as a result of transport by the paramedics, not from a seizure or osteoporosis.  There was evidence adduced that the man somehow obtained a fracture while he was in Pasco County’s exclusive control.  The court found those facts sufficient to overcome the directed verdict, and it was error for the trial court to enter it. 

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING DEFENDANT NURSING HOME TO PROVIDE PLAINTIFF THE NAMES, BIRTH DATE, SOCIAL SECURITY NUMBER, AND FORWARDING CONTACT PERSONS OF A FORMER NURSING HOME RESIDENT WHO PLAINTIFF SOUGHT TO LOCATE AS A MATERIAL WITNESS – THE ORDER WAS NARROWLY TAILORED AND THE COURT PROPERLY BALANCED THE INDIVIDUAL’S FORMER RESIDENTS’ PRIVACY CONSIDERATIONS AGAINST THE PLAINTIFF’S NEED FOR THE INFORMATION ALREADY POSSESSED BY THE NURSING HOME

Delta Health Group v. Estate of Collins, 35 Fla. L. Weekly D814 (Fla. 1^st DCA April 9, 2010).

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WHERE INSURER ISSUED POLICY TO FLORIDA RESIDENTS COVERING VEHICLES PRINCIPALLY GARAGED AND REGISTERED IN FLORIDA, AND ALSO DELIVERED A DELAWARE POLICY COVERING THE VEHICLE REGISTERED AND PRINCIPALLY GARAGED THERE, DELAWARE POLICY COULD NOT BE ENFORCED WHERE INSURER DID NOT OBTAIN INFORMED CONSENT UNDER FLORIDA LAW

Rando v. Government Employee’s Insurance Co., 35 Fla. L. Weekly S201 (Fla. April 8, 2010):

A plaintiff sustained life-altering injuries in an accident caused by an underinsured driver.  At the time, the plaintiff and his wife were named insureds on two policies issued by GEICO.  One was a Florida policy covering two vehicles registered and principally garaged in Florida.  The other, a Delaware policy, covered a vehicle registered and principally garaged in Delaware where the plaintiffs’ daughter resided.  The Delaware policy was executed and delivered in Florida (the plaintiffs moved in 2004).  There was no express choice of law provision in that policy.

After the accident, the plaintiffs were paid the full amounts under the Florida UM policy.  However, they were denied benefits under the Delaware policy because of a provision prohibiting the combining or stacking of UM benefits from separate GEICO policies. 

Guided by the principle of lex loci contractus, the court looked to the law of the state where the insurance contract was executed as the one governing the rights and liabilities of the parties.  Because this Delaware policy was executed and delivered in Florida, Florida law governed. 

While Florida also has an anti-stacking law, it requires insurers to inform the named insured that non-stacking is alternative coverage.  Florida law requires informed consent by the insured.

The supreme court concluded that §627.727(9) applied because the plaintiffs’ car was principally garaged and registered in Florida, and ruled that informed consent was required by Florida law in order to validate the anti-stacking provision contained in the Delaware policy.  Because GEICO did not obtain the plaintiffs’ informed consent before the Delaware policy was executed in Florida, the anti-stacking provision was not enforceable under Florida law.

IN AN EN BANC DECISION OF THE FIRST DISTRICT, A MARRIAGE LICENSE NOT RETURNED TO THE CLERK OR MADE PART OF THE OFFICIAL RECORDS OF THE COUNTY, RENDERS THE MARRIAGE INVALID

Hall v. Maal, 35 Fla. L. Weekly D709 (Fla. 1^st DCA March 30, 2010):

The parties were engaged to be married.  The week before they were to get their marriage license, the man called the woman and told her they were not going to be able to get it because they had not agreed to a pre-nup.  The woman was upset because all of the arrangements had been made and the guests were arriving.  The man persuaded her to go ahead with the ceremony reassuring her that everything would be all right, and they participated in a full wedding ceremony performed by a minister at a church.  They did this fully knowing they had never applied or received a marriage license.

The couple then had two children, obtained a mortgage as husband and wife, and a year after the ceremony, appeared to get a marriage license.  However, the license was never solemnized nor returned to the clerk to be part of the official records. 

The court ruled there was no valid marriage.  The court said if it allowed one (a marriage ceremony without a license, a couple living together and acting married), it would recreate a species of common law marriage in violation of §741.211 which banned such marriages.  The court did not discuss the “fallout” from its ruling.

COURT RULES THAT STATUTE CAPPING NON-ECONOMIC DAMAGES IN MED MAL ARBITRATION CASES IS CONSTITUTIONAL – HOWEVER, COURT CERTIFIED THE QUESTION OF WHETHER THE $350,000 LIMITATION OR CAP ON LIABILITY FOR NON-ECONOMIC DAMAGES ESTABLISHED IN 1988 CAN STILL BE CONSTITUTIONAL EVEN THOUGH IT HAS NEVER BEEN ADJUSTED TO ACCOUNT FOR INFLATION AND THE LEGISLATURE HAS NEVER BEEN REQUIRED TO RECONFIRM THE CONTINUED EXISTENCE OF AN OVERPOWERING PUBLIC NECESSITY

Parham v. Florida Health Sciences Center, 35 Fla. L. Weekly D722 (Fla. 2^nd DCA March 31, 2010):

The case involved the death of a premature newborn.  The primary dispute centered on the fact that the hospital did not have a pediatric surgeon on staff to handle emergencies in its neonatal unit. 

Defendant denied plaintiff’s arbitration request, and the jury returned a verdict for $12,000,000.  As a result of post-trial motions, the trial court reduced the mother’s award from $8,000,000 to $350,000 based on the limitation of liability cap for non-economic damages contained in §766.209(4) (the arbitration statute). 

The court ultimately found that §766.209(4) is constitutional.  However, the court questioned whether financial limitations established in 1988 can still be constitutional when they have never been increased.  Inflation alone has substantially increased, and the limitation prescribed by this statute and has substantially reduced the “reasonable alternative,” essential to upholding the statute against a charge that it denies access to courts.  The court certified that question to the supreme court, and further questioned that court as to whether the legislature should have some obligation to re-assess conditions occasionally to confirm the continued existence of an overpowering public necessity as first articulated in that law when passed in 1988.

INSURER NOT REQUIRED TO INCLUDE INFORMATION ABOUT UM COVERAGE OPTIONS IN SIX MONTH POLICY RENEWAL NOTICE – TRIAL COURT CORRECTLY INTERPRETED PLAIN LANGUAGE OF STATUTE AS REQUIRING ONLY ANNUAL NOTICE EVEN WHERE POLICY RENEWS EVERY SIX MONTHS

Wolf v. Progressive American Insurance, 35 Fla. L. Weekly D732 (Fla. 1^st DCA March 31, 2010):

The insured had rejected UM.  Before the policy period expired, Progressive sent him a renewal reminder due to continue the policy for another six months.  The renewal notice did not include information regarding the coverage options, and the insured did not elect such coverage for the renewal policy period. 

Because the statute states that notice need only be sent “at least annually,” Progressive was not required to include it in its six month renewal notice. 

THIRD DISTRICT GOES OUT OF ITS WAY TO AFFIRM DEFENSE VERDICT

Griffin v. Ellis Aluminum, 35 Fla. L. Weekly D733 (Fla. 3^rd DCA March 31, 2010):

Defendant had installed a handrail along the stairway at the plaintiffs’ home.  Between the installation and the day of the incident, there were no complaints about the railing.  Ten months after the installation, the plaintiff and his wife went kayaking and during lunch he consumed three to four alcoholic drinks.

Plaintiffs then invited the bartender at the restaurant and her husband to their home.  They arrived around 4:00, and sat in the hot tub into the evening, drinking margaritas.  Sometime between 7:30 and 9:00, plaintiff’s wife went to bed, and the bartender and her husband went home.  Plaintiff testified that he grabbed the four tumblers from which they had been drinking, left the hot tub, and proceeded up the stairs.  He testified on the last step he grabbed the handrail which detached from the snap plate, causing him to fall and suffer extensive injuries. 

The court found the trial court did not err in allowing the defendant to present evidence of a subsequent fall by the plaintiff at another location.  The defense argued that the court correctly allowed the evidence in because it was presented to show that plaintiff was able to return to his pre-accident activities, and that there may have been another cause for some of his injuries he sustained. 

The plaintiff also argued that the trial court erred in allowing the defendant to disclose the fact that the manufacturer of the aluminum used by the defendant had been involved in the lawsuit, suggesting settlement.  The mention of the manufacturer occurred during the defendant’s cross examination of the plaintiff.  Counsel had brought forward two sets of interrogatories, one propounded by the manufacturer and prior co-defendant.  In both answers, plaintiff stated he had only had 1.5 ounces of alcohol to drink that night.  The court rejected plaintiffs’ argument that this mention impermissibly suggested a settlement entitling plaintiffs to a new trial.

The plaintiff also asserted the trial court committed reversible error in permitting defendant to comment on the plaintiff’s failure to call his wife at trial.  According to the court, any error was harmless.

The plaintiff then argued that the trial court erred in allowing defendant’s counsel to comment in opening that defendant had never been sued.  The court said counsel had merely stated that defendant had installed the railing ten months prior to the incident, and there had never been any complaints from the plaintiffs.  A few minutes later, counsel told the jury, plaintiffs were suing the respected businessman, Bill Ellis and his wife, Joyce, whose railing “never had a failure of this nature except for this claim.”

The Third District said although the comment was susceptible of the interpretation that Ellis has never been sued for a railing failure, it could have been interpreted to mean that there were no complaints from the plaintiffs.  Again, the court found the error harmless.

The Third District refused to even reverse based on a sleeping juror, which it found was not prejudicial under the circumstances.

After reading this case, it certainly seems that this trial was far less than fair.  The Third District, however, certainly went out of its way to affirm the defense verdict.  The lesson learned is try not to get hurt in Miami!

LAW FIRM MAY NOT ASSERT A RETAINING LIEN FOR FEES OWED IN A CONTINGENCY FEE CASE UNTIL THE CONTINGENCY HAS OCCURRED

Brickell Place Condo v. Ganguzza, 35 Fla. L. Weekly D738 (Fla. 3^rd DCA March 31, 2010):

A retaining lien differs from a charging lien.  A charging lien is placed on any monetary recovery due the client at the conclusion of a lawsuit.  On the other hand, a retaining lien is a passive lien resting entirely on the right of an attorney to retain possession of his client’s papers, money, securities and files as security for payment of the fees and costs earned by the law firm to that point.  When the fee is contingent, however, there cannot be a retaining lien until the contingency occurs.  All the law firm can do is file a charging lien, and seek the reasonable value of its services on the basis of quantum meruit (limited by the contract flat fee the parties agreed to).

CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY REQUIRING PLAINTIFF’S ATTORNEY TO PRODUCE IN COURT FOR IN CAMERA INSPECTION HIS CASE FILE FROM AN UNRELATED AUTOMOBILE ACCIDENT, TO ENABLE DEFENDANTS TO DETERMINE WHETHER THERE WERE DOCUMENTS IN THE FILE RELAVANT TO THE SLIP AND FALL CASE AND FURTHER THERE WAS DEMONSTRATION THAT DEFENDANTS WERE UNABLE WITHOUT UNDUE HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT OF THESE MATERIALS BY OTHER MEANS

Toledo v. Publix, 35 Fla. L. Weekly D747 (Fla. 4^th DCA March 31, 2010).

ERROR TO DISMISS EXCESS INSURER’S COMPLAINT FOR BAD FAITH AGAINST PRIMARY INSURER, BECAUSE INJURED PARTY HAD RELEASED THE INSURED AND EXCESS INSURER DID NOT RECEIVE AN ASSIGNMENT FROM THE INSURED OF ANY BAD FAITH CLAIM – EXCESS INSURER COULD BRING BAD FAITH CLAIM BASED UPON SETTLEMENT EXECUTED BY THE EXCESS CARRIER, AND WAS NOT REQUIRED TO SUFFER AN EXCESS JUDGMENT

Vigilant Insurance Co. v. Continental Casualty Co., 35 Fla. L. Weekly D750 (Fla. 4^th DCA March 31, 2010):

A man was injured while using a wood chipper.  The manufacturer had a primary policy in the amount of $1,000,000 subject to a $500,000 self-insured retention.  The manufacturer also had excess coverage for $25,000,000.

Plaintiff sued the manufacturer.  The excess carrier alleged that the underlying carrier’s limit was $1,000,000 and that there was self-insured retention.  The primary carrier informed the excess carrier that the claim was within its limit of liability, and advised the excess carrier, it could close its file. 

After protracted litigation, the primary carrier (that never paid plaintiff) advised the excess carrier after three years, that plaintiff was demanding amounts in excess of the primary policy.  The plaintiff’s claim was finally settled with the excess carrier paying over $1,200,000.  The manufacturer did not pay the self-insured retention.  The excess carrier did not obtain an assignment of the bad faith claim the manufacturer may have had before the release was executed. 

The excess carrier then sued the primary carrier for bad faith and promissory estoppel.  The primary carrier moved for summary judgment, stating that the plaintiff had released the insured as to all claims in the underlying litigation, without any assignment of bad faith to the excess carrier, therefore, prohibiting the excess carrier from bringing a bad faith claim.  The court noted that the excess insurer steps into the shoes of the insured with respect to the bad faith claim against the primary company.

In this case, only the plaintiff had released the insured.  While that release would prevent the plaintiff from suing the carriers for bad faith, the manufacturer did not release any potential claim it had for such action.  Only if the manufacturer had released the primary carrier as to any claims, might the release have affected the excess carrier’s ability to make a claim against the primary carrier. 

PLAINTIFF FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS FOR PERFECTING SUBSTITUTED SERVICE, WHERE PLAINTIFF FILED UNSIGNED RETURN RECEIPT FOR CERTIFIED MAIL AND RECORD DOES NOT SHOW THAT FAILURE TO DELIVER WAS RESULT OF DEFENDANT ACTIVELY REFUSING OR REJECTING

Hernandez v. State Farm, 35 Fla. L. Weekly D753 (Fla. 4^th DCA March 31, 2010):

Where plaintiff resorts to substituted service, strict compliance with the statutes governing the service is essential to obtaining valid personal jurisdiction over the defendant.  In this case, plaintiff failed to strictly adhere to proper pleading and notice requirements necessary to perfect substitute service upon him.  When using substituted service under §48.171, a plaintiff must meet two requirements.  First, the complaint must allege the ultimate facts bringing the defendant within the purview of the statute (i.e., if defendant is a non-resident, the resident is concealing whereabouts or resident subsequently became a non-resident).  Second, the service must strictly comply with §48.161 which sets forth the method of substituted service. 

The fact that State Farm filed an unsigned return receipt was not sufficient to comply with the statute.

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JOINT PROPOSALS FOR SETTLEMENT CONDITIONED ON MUTUAL ACCEPTANCE ARE INVALID AND UNENFORCEABLE BECAUSE THEY PREVENT AN INDEPENDENT EVALUATION BY THE OFFEREE

Attorneys’ Title Insurance Fund v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010):

The defendant served a proposal for settlement offering payment of $12,500.00 to each party in full settlement of a case involving a property dispute.  The offer was conditioned upon being accepted by both offerees.

Following Second District precedent, the supreme court ruled the offer was invalid and unenforceable, because it was conditioned in such a way that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.  The conditional nature of the offer divested each party of independent control of the decision to settle. 

The three dissenting judges found that the plain language of Rule 1.442 allows offers of settlement to be conditioned upon a joint acceptance, and therefore ruled the proposal should have been enforceable.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL AS TO TWO DEFENDANTS AND GRANTING IT AS TO A THIRD

Pena v. Vectour of Florida, 35 Fla. L. Weekly D677 (Fla. 1^st DCA March 25, 2010):

Plaintiff was a passenger on a bus that was rear ended.  She sued the owner and driver of the bus, as well as the driver who rear ended her.  The jury found no negligence on the part of any of the defendants, and plaintiff moved for a new trial based on the verdict being against the manifest weight of the evidence.  The trial judge granted the motion as to the rear-ending driver, but denied it as to the bus driver and bus owner.

The court explained that the trial court determines whether a jury’s verdict is supported by the manifest weight of the evidence, and the appellate court is limited to the question of whether the lower court abused its discretion in denying a new trial.  In reaching that conclusion the evidence must be clear and obvious and not conflicting. 

Here, the jury weighed evidence and concluded that the bus driver and company were not negligent.  The court observed that the plaintiff simply disagreed with the trial court’s order and was seeking a more favorable outcome.  The court admonished that it is one “of review,” and not simply another forum “to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome.” 

TRIAL COURT ERRED IN FAILING TO DETERMINE WHETHER STATE’S PURPORTED RACE NEUTRAL REASONS FOR STRIKING TWO JURORS WERE GENUINE OR PRETEXTUAL – NEW TRIAL REQUIRED

Bellamy v. Crosby, 35 Fla. L. Weekly D680 (Fla. 1^st DCA March 25, 2010):

While the trial court found that the state had race neutral reasons for striking certain jurors, the court’s failure to engage in a “genuineness” determination was erroneous.  A court may not simply determine that an articulated reason is “race neutral,” without doing an inquiry into the genuineness of the reason. 

COURT SUA SPONTE AWARDS §57.105 FEES TO SANCTION APPELLANT FOR FILING A MOTION FOR REHEARING AND REHEARNG EN BANC ON A PCA

Unifirst Corp. v. City of Jacksonville, 35 Fla. L. Weekly D689 (Fla. March 25, 2010):

After the appellant filed motions for rehearing, clarification, written opinion and rehearing en banc, the appellee filed a motion for §57.105 fees, acknowledging that it had to do so early (in less than 21 days because the appellate rules required a response in ten).  Even though the motion was filed improperly, the appellate court on its own initiative awarded attorney’s fees. 

The court successfully made its point that a motion for rehearing is not meant to re-argue the merits of a court’s order.  It cited a case stating that it is not an open invitation for an unhappy litigant or attorney to re-argue the same points previously presented.  It is also not designed to address issues already addressed in briefs and at oral argument like was the case here. 

One rather troubling aspect of the opinion, was the court’s acknowledgment that appellant requested a written opinion because it believed that the PCA conflicted with an opinion by another district court.  Rejecting that argument (and in turn, the rule which allows litigants to file such motions), the court stated “it is meritless to argue that an opinion which says nothing more than ‘affirmed’ conflicts with a written opinion issued by another district court.”

I would imagine this decision will have chilling effect on the filing of motions for rehearing and even on those seeking a written opinion (designed to allow ultimate supreme court review based on a conflict).  While it may very well be a reaction to the lack of funding the courts are receiving, and their overloaded dockets, it still will chill legitimate motions.

TRIAL COURT ABUSED DISCRETION IN DISMISSING COMPLAINT FOR FAILURE TO COMPLY WITH ORDERS COMPELLING DISCOVERY WITHOUT MAKING THE REQUISITE FINDINGS OF FACT PURSUANT TO KOZEL V. OSTENDORF

Sanders v. Gussin, 35 Fla. L. Weekly D693 (Fla. 5^th DCA March 26, 2010).

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ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT WHERE THE AMOUNT OF JUDGMENT WAS NOT 25% GREATER THAN THE AMOUNT OF THE PROPOSAL – IN DETERMINING WHETHER TOTAL JUDGMENT MEETS THRESHOLD FOR AWARD OF ATTORNEY’S FEES, IT IS IMPROPER TO INCLUDE COSTS INCURRED AFTER THE PROPOSAL WAS TENDERED

Nilo v. Fugate, 35 Fla. L. Weekly D592 (Fla. 1^st DCA March 17, 2010):

Only costs incurred “pre-demand” may be considered in determining whether the total judgment meets the statutory threshold when a court evaluates attorney’s fees under a proposal for settlement. 

TRIAL COURT DID NOT ABUSE DISCRETION IN ADMITTING TESTIMONY OF UNDISCLOSED WITNESS WHERE DEFENDANTS COULD NOT HAVE BEEN SURPRISED – NO ABUSE IN DENYING MISTRIAL FOR COMMENTS MADE IN CLOSING ARGUMENT

Philippon v. Shreffler, 35 Fla. L. Weekly D606 (Fla. 4^th DCA March 17, 2010):

In this negligent credentialing case, the patient sought to introduce eyewitness testimony of a surgical technician who had been present during an ill-fated operation.  During discovery, the patient had repeatedly requested contact information regarding the technician, and despite court order defendants never provided it.  The patient’s counsel did not locate the witness until he did an Internet search during the trial.  The patient maintained there was no prejudice to the defendants because they clearly knew of this tech, her name was in the hospital records, and she was listed in their answers to interrogatories. 

Defendants argued they would be prejudiced by her testimony, because had they known she was going to testify, they would have tailored their opening statements, their cross examinations, and handled their entire defense differently.  They would have also researched her background for cross examination. 

Because the court found the patient had attempted to obtain the witness’s information, and both sides knew the name and of her presence in the operating room, the court found there was no “surprise,” and she was allowed to testify.  While the court did not find any evidence of willful non-disclosure or bad faith, it ruled that allowing the witness’s deposition to be taken cured any prejudice towards the hospital, and felt this was not an abuse of discretion under these circumstances. 

Despite plaintiff’s closing regarding evidence that counsel never moved into evidence, and the reference to a “cocksure attorney,” the Fourth ruled the trial court did not abuse its discretion in refusing to grant a mistrial. 

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