COURT REVERSES SUMMARY JUDGMENT ENTERED IN FAVOR OF PSYCHOLOGIST FINDING THERE WAS A DUTY OWED BY A TREATING PSYCHOLOGIST TO PROTECT HER MINOR CLIENTS FROM THE ABUSE OF THEIR MOTHER

Rotell v. Kuehnle, 35 Fla. L. Weekly D1223 (Fla. 2^nd DCA June 2, 2010):

A psychologist was seeing the children of a couple after their contentious divorce and the continued problems they were having over issues of custody and their relationships with the children.  The mother accused the father of sexually abusing the children, and DCF prohibited him from seeing them until it finished its investigation (which was found to be unfounded).  In a tragic turn of events, the mother gave morphine tablets to the two children, and placed them in a van parked inside a garage with the engine running.  One child died, but the other managed to escape and survived. 

The father and the surviving brother sued the psychologist for her failure to in some way stop the abuse or to do something to protect the children.  She moved for summary judgment, arguing there was no duty that required the psychologist to protect the client from the actions of a third party after discovering the potential danger the third party poses.  The trial court granted summary judgment.

The appellate court reversed.  It found that the plaintiffs had met the minimum legal threshold of alleging a duty of care based upon the defendant’s status as the children’s’ treating psychologist which required her to treat them under the prevailing professional standard of care.  Their expert affidavit further created an issue of fact with respect to whether the psychologist knew or should have known that the children were subject to ongoing abuse by their mother such that the professional standard of care required her to warn the father or appropriate authorities of such abuse.  Because a treating psychologist has a special relationship with her patients, it was error to grant summary judgment.

TRIAL COURT ABUSED DISCRETION IN DRASTICALLY REDUCING NUMBER OF HOURS REASONABLE FOR APPEAL IN CONTRAVENTION OF AMOUNT AGREED TO BY BOTH EXPERTS WITHOUT FINDINGS – FURTHER ABUSED DISCRETION IN FAILING TO AWARD EXPERT WITNESS FEE

D’Alusio v. Gould and Lamb LLC, 35 Fla. L. Weekly D1226 (Fla. 2^nd DCA June 2, 2010).

CANNOT FILE §57.105 FEES UNLESS SERVED MOTION 21 DAYS BEFORE FILING IT WITH THE COURT – FACTS DID NOT RISE TO EGREGIOUS LEVEL NECESSARY TO JUSTIFY ASSESSMENT OF ATTORNEY’S FEES BASED ON “INEQUITABLE CONDUCT” DOCTRINE

Nedd v. Gary, 35 Fla. L. Weekly D1235 (Fla. 4^th DCA June 2, 2010):

While I think it is fairly well understood that §57.105 requires the motion served 21 days before the motion is filed with the court, I was not aware of the “inequitable conduct doctrine” as a basis for fees.  The “contours” of that doctrine were articulated in Bitterman v. Bitterman, which talks about the award of fees in extreme cases, where a party acts in bad faith, vexatiously, wantonly or for oppressive reasons. 

While the doctrine requires “extreme” litigation misconduct, it is a nice remedy to have in your back pocket for those who deserve it. 

TRIAL COURT ERRED IN DENYING MOTION TO COMPEL ARBITRATION ON GROUND THAT ARBITRATION AGREEMENT AGAINST PUBLIC POLICY WHEN THAT WAS NEVER RAISED–TRIAL COURT SHOULD HAVE CONDUCTED EVIDENTIARY HEARING ON THE ESTATE’S CLAIM THAT ARBITRATION WAS PROCEDURALLY UNCONSCIONABLE

FL-Carrollwood Care Center v. Jaramillo, 35 Fla. L. Weekly D1262 (Fla. 2^nd DCA June 4, 2010):

The trial court denied a nursing home’s motion to compel arbitration.

The court reversed on that point (public policy was never raised as an issue), but still remanded for an evidentiary hearing on the issue of procedural unconscionability (wife of the nursing home resident said she never signed the agreement).  The court then said in the event there was procedural unconscionability, it will be necessary for the court to consider substantive unconscionability (because to succeed on an unconscionability claim, both kinds must exist).

AN INSURANCE AGENT IS NOT AN “INSURER” LIABLE FOR ATTORNEY’S FEES UNDER §627.428, AND THE AWARD TO THE PREVAILING PLAINTIFF UNDER THAT SECTION WAS ERROR

Underwood Anderson & Associates v. Lillo’s Italian Restaurant, 35 Fla. L. Weekly D1269 (Fla. 1^st DCA June 4, 2010).

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VENUE FOR BAD FAITH CLAIM PROPER IN COUNTY WHERE ESTATE WAS OPENED AND WHERE CLAIM WAS INVESTIGATED

American Vehicle Insurance Co. v. Goheagan, 35 Fla. L. Weekly D1171 (Fla. 4^th DCA May 26, 2010):

The underlying litigation in this bad faith case arose from a car accident in Palm Beach County where a woman was killed.  Her estate was opened in Palm Beach County.  After an excess verdict, the plaintiff filed a bad faith claim, and the insurance company sought to transfer venue to Broward County.  The insurance company asserted that the insurance company did not maintain any offices or captive agents in Palm Beach County and that its office for transaction of customary business was located in Broward. 

Plaintiff asserted that both the insured and the victim were Palm Beach County residents, that the accident occurred here, the estate was opened here, and all communications concerning adjustment of the claim occurred in Palm Beach County. 

The Fourth District reminded us that the plaintiff has the prerogative to choose the venue, and as long as it is proper as provided by statute, the court will not disturb the selection. 

While the defendant properly filed an affidavit supporting a venue change to Broward County, the plaintiff met her burden by filing an affidavit showing that most of the underlying events occurred in Palm Beach.  When a contract is one for the performance of services, a cause of action for failure to perform them accrues where it is alleged that the agreed services were supposed to be performed.  Although the physical location of the adjuster was in Broward County, the totality of the circumstances supported venue being proper in Palm Beach County.

ERROR TO ENTER SUMMARY JUDGMENT ON CLAIMS OF NEGLIGENT DESIGN AND INSTALLATION

Clark v. ODV Holding, 35 Fla. L. Weekly D1181 (Fla. 4^th DCA May 26, 2010):

Plaintiffs sued defendants for negligent design of hurricane shutters and their storage system, negligent installation of the system and failure to warn regarding the use of it.  There were disputed issues of fact as to whether the hurricane shutter storage system was negligently designed and installed, and therefore summary judgment was reversed.

However, the court affirmed summary judgment on the negligence claims based on negligent design of the shutters and negligent failure to provide adequate warnings on the storage system.  The trial court correctly concluded that the danger presented by the sharp-edge shutters was open and obvious.  The court also properly entered summary judgment on negligent warning claims, because the undisputed facts showed that the plaintiff did not read the safety warning provided, and could not establish that the alleged failure to warn proximately caused their injuries.

TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FAILURE TO RELATE BACK

Florez v. Riscomp Industries, 35 Fla. L. Weekly D1190 (Fla. 3^rd DCA May 26, 2010):

Plaintiff alleged that she slipped and fell at a Miami Airport terminal bathroom where defendant was hired to provide janitorial services, and filed her complaint three days before the statute ran.  Although she knew before she filed the complaint that the defendant had subcontracted its janitorial responsibilities to a different entity, plaintiff did not sue or seek to add either that entity or the employee as a defendant.  Still, she amended her complaint three times after the initial filing. 

To survive a motion to dismiss, the complaint must relate back by the claim arising out of the same conduct, transaction or occurrence.  The doctrine is to be liberally applied to achieve its ends.  The question is whether the original pleading “gives fair notice of the general fact situation out of which the claim or defense arises.”

The court said on de novo review while it found that plaintiff had changed her legal theories of breach (amended the claims to state causes of action for non-delegable duty, violation of contractual duty and negligent selection, supervision and retention), the plaintiff’s ultimate conclusion did not alter the general fact situation from which the claim arose.

The court reversed the dismissal.

DEFENDANT NOT ENTITLED TO AWARD OF PREVAILING PARTY ATTORNEY’S FEES UPON PLAINTIFF’S VOLUNTARY DISMISSAL OF DECEPTIVE AND UNFAIR TRADE PRACTICES CLAIM BECAUSE JUDGMENT WAS NOT ENTERED FOLLOWING VOLUNTARY DISMISSAL – DEFENDANT WAS ENTITLED TO AWARD BASED UPON VOLUNTARY DISMISSAL OF MISLEADING ADVERTISING CLAIM

Black Diamond Properties v. Haines, 35 Fla. L. Weekly D1197 (Fla. 5^th DCA May 28, 2010):

Section 501.2105(1) requires a final judgment and an exhaustion of appeals before a party may get prevailing party attorney’s fees.  However, fees are appropriate after voluntary dismissals in general, when there is nothing specifically stating that a judgment needs to be entered as a condition precedent.

TRIAL COURT PROPERLY DISMISSED COMPLAINT FOR NEGLIGENT HIRING AND RETENTION WHEN PLAINTIFF FAILED TO ALLEGE SUFFICIENT NEXUS BETWEEN EMPLOYMENT AND PLAINTIFF, TO SUPPORT A DUTY OWED

McGill v. Bartlett Towing, 35 Fla. L. Weekly D1200 (Fla. 5^th DCA May 28, 2010):

Plaintiff alleged that she suffered personal injury when a towing company employee violently pushed her to the ground immediately before stealing her car.  At the time of the attack, though, the plaintiff was not seeking any towing services.  The complaint did not allege that the attack occurred on the towing company’s premises, nor did the employee meet the plaintiff as a direct consequence of his employment.  Further, there was no allegation that the company would have received a benefit from the meeting of the employee and the plaintiff had the wrongful act not occurred.  The employee had not been dispatched to the plaintiff’s location nor was she in need of tow truck service.

Because the amended complaint failed to allege a sufficient nexus between the offending employee and the plaintiff to support a legal duty owed to hire and retain non-dangerous employees, the trial court properly dismissed the complaint.  Without a legal duty to a particular plaintiff to exercise reasonable care in hiring and retaining safe and competent employees, a plaintiff cannot state a cause of action. 

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WHEN CASES INVOLVE ONLY PURELY ECONOMIC CONSEQUENCES AND SLIGHT INDIVIDUAL FINANCIAL HARM, PUNITIVE DAMAGE AWARD IS SUBJECT TO A THREE-PART “DUE PROCESS” ANALYSIS ACCORDING TO THE U.S. SUPREME COURT AND THE FOURTH DISTRICT

James Crystal Licenses, LLC v. Infinity Radio, 35 Fla. L. Weekly D1111 (Fla. 4^th DCA May 19, 2010):

In this case involving the ongoing saga between Jennifer Ross, WRMF, and WEAT, where the court reversed the judgments entered against Jennifer Ross and WRMF for damages allegedly caused by her violation of a covenant not to compete with WEAT.  The case is profiled due to its extensive analysis regarding punitive damages. 

The court held that punitive damages for fraud cannot stand absent proof of nominal damages, because a fraud claim, by necessity, requires proof of actual loss or injury due to acting in reliance on a false representation. 

The court then reminded us of the three-part analysis articulated by the United States Supreme Court in State Farm v. BMW which requires analysis of (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized and imposed in comparable cases.

In this tortious interference claim, the court found after applying the test, that the punitive damage award exceeded the boundaries of due process, and reversed.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING NON-PARTY TREATING ORAL SURGEON TO HAVE EX PARTE PRE-DEPOSITION CONFERENCE WITH HER OWN ATTORNEY, EXCLUDING DISCUSSIONS REGARDING PLAINTIFF’S CARE AND TREAMENT

Hasan v. Garvar, 35 Fla. L. Weekly D1115 (Fla. 4^th DCA May 19, 2010):

The trial judge entered an order allowing a non-party treating physician to have an ex parte pre-deposition conference with her own attorney, excluding any discussions regarding the plaintiff’s care and treatment.  The oral surgeon–a non-party–was insured by the same carrier who insured the named defendants. 

Because the attorney simply wanted to discuss deposition techniques, etc., with the physician, the Fourth District found the order did not depart from the essential requirements of law.  This was not a situation where the non-party treating physician would have had an ex parte conference with the defendants’ attorneys.  This only allowed the non-party treater to have an ex parte conference with her own attorney. 

The court noted that it did not believe the temptation to violate a court ordered prohibition is as strong in situations involving non-party treating physicians and their own attorneys.  It explicitly stated that while it is not “naive,” it is not “so cynical” to accept the plaintiff’s assumption that the prohibition will be disobeyed simply because the same insurer has provided the attorneys. 

APPELLATE COURT REVERSED SUCCESSOR JUDGE’S DENIAL OF MOTION FOR NEW TRIAL AFTER DEFENSE DISQUALIFIED ORIGINAL JUDGE

Sullivan v. Kanarek, 35 Fla. L. Weekly D1143 (Fla. 2^nd DCA May 21, 2010):

In this extremely contentious medical malpractice case, the original trial judge commented on the record at the motion for new trial, that in her 20 years on the bench, she had not observed a trial that caused her so much concern on its fairness based upon the behavior of defendant’s counsel.  Based on those comments, the defense attorney moved to disqualify the judge.  Finding the motion legally sufficient, she granted it. 

The case was then re-assigned to a successor judge, and then assigned once again to a second judge.  The second successor noted how difficult it was to assess what went on at trial, especially since so much was contained off the record in non-verbal conduct.  In any event, he acknowledged the difficult position he was in, and ruled to deny the motion for new trial. 

The court reminded us that in civil cases when there are unusual circumstances (such as death or involuntary recusal), a successor judge is supposed to review the entire trial court record, and rule to the best of his or her ability.  If after reviewing the record, the successor judge determines that a particular credibility issue exists which prevents the trial court from adequately ruling on the merits, the successor judge may grant the motion and explain in a written order the specific circumstances justifying the new trial without ruling on the merits.

In this case, the successor judge acknowledged that the original judge was in the best position to make this decision, and his concern was underscored by the fact that the presiding judge had expressed grave concern for the fairness of the trial. 

The ruling of a successor judge on a motion for new trial is afforded less deference.  In any event, the court found that this case was the “extraordinary” type case where a successor judge can rule on a new trial, even in light of the credibility issues.  The court reversed and remanded for a new trial.

WHERE THERE WAS A SUBSTANTIAL ISSUE CONCERNING THE RESIDENT’S CAPACITY TO ENTER INTO A CONTRACT AT THE TIME HE SIGNED THE ADMISSIONS AGREEMENT WHICH INCLUDED AN ARBITRATION CLAUSE, IT WAS ERROR TO DENY DEFENDANT’S MOTION TO COMPEL ARBITRATION WITHOUT CONDUCTING AN EVIDENTIARY HEARING

F. L. Carroll Woods Care Center LLC v. Gordon, 35 Fla. L. Weekly D1148 (Fla. 2^nd DCA May 21, 2010).

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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. 

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