FLORIDA LAW WEEKLY
VOLUME 38, NUMBER 51
CASES FROM THE WEEK OF DEC. 20, 2013

COURT ERRED IN STRIKING DEFENDANT’S STATUTE OF REPOSE DEFENSE TO A FRAUDULENT CONCEALMENT CLAIM IN A TOBACCO CASE–PUNITIVE DAMAGE AWARD TO BE REINSTATED IN THE EVENT THE JURY REJECTS THE DEFENSE

R.J. Reynolds v. Buonomo, 38 Fla. L. Weekly D2609 (Fla. 4th DCA December 11, 2013).

SERVICE OF PROCESS ON PERSON RESIDING OUTSIDE STATE SHOULD BE EVIDENCED BY A SWORN AND NOTARIZED DOCUMENT STATING TIME, PLACE AND MANNER OF SERVICE

Cigurupati v. Progressive American, 38 Fla. L. Weekly D2613 (Fla. 4th DCA December 11, 2013):

Progressive sued the at-fault, out-of-state driver for the amounts it paid to its own insured. It served the defendant via individual and substituted service at his home in Ohio. The process server filled out, signed, and filed a verified return of service outlining the time, manner and place of service. However, he did not notarize the return. Progressive later moved for a default because defendants never filed anything.

The trial court denied the defendant’s motion to quash service and vacate the default. The Fourth District found that to be error, because the return of service was not sworn to or notarized and thus was improper under §48.194. Although Progressive later filed an amended verification which was properly sworn and notarized, it was not until after the clerk entered the default.

When there is an error or omission in the return of service, personal jurisdiction is suspended, and it lies dormant until proper proof of valid service is submitted. The trial court should have vacated the default entered.

IN A LEGAL MALPRACTICE CASE WHERE THE JURY FOUND THE ATTORNEY NEGLIGENT, BUT WAS UNABLE TO MAKE ANY ARGUMENT REGARDING DAMAGES, IT WAS ERROR FOR THE TRIAL COURT TO GRANT THE PLAINTIFFS’ MOTION FOR NEW TRIAL ON DAMAGES, BECAUSE THE PLAINTIFFS OBJECTED TO NOMINAL DAMAGES AWARDED AS AN ADDITUR

Bluth v. Blake, 38 Fla. L. Weekly D2614 (Fla. 4th DCA December 11, 2013):

In this legal malpractice case which arose out of a lawsuit between developers and investors, the jury did find there was an attorney client relationship between the developers and the attorney, and further found that the attorney was negligent. However, the jury found there were no damages. The plaintiffs then moved for an additur as to the damages and requested that the court award at least nominal damages.

While the trial judge noted that the developer/plaintiffs failed to offer damage evidence specifically resulting from the attorney’s negligence, and the developers did not make any damage argument during their closing, the judge still granted the motion for additur, finding nominal damages should be awarded because the jury found the plaintiff was aggrieved by the attorney’s conduct. This award of a ten dollar additur/judgment had the effect of allowing the plaintiffs to reject the additur and get a new trial.

The court reversed. Applying §768.74(5), it found that there was no reference in the record to support that the verdict was inadequate, and further observed that the jury could have reached its verdict in a manner consistent with the evidence, without justifying an additur. Additionally, the court questioned whether nominal damages could be recoverable in a legal malpractice claim, because the claim does not accrue until a redressable harm exists. Even if nominal damages were available for such a claim, the plaintiffs waived entitlement because they did not request a jury instruction on that issue. Additionally, the trial court noted there were as no damage evidence.

Rejecting that the developer plaintiffs were entitled to a second bite at the apple, and finding no legal basis existed for an additur, the court remanded with directions to reinstate the jury verdict for the defendant lawyer.

ANY PARTY “ADVERSELY AFFECTED” BY A REMITTITUR UNDER §768.74(4) IS THEREFORE ENTITLED TO A NEW TRIAL ON DAMAGES–TRIAL COURT ERRED IN CONFERRING ONLY ON PLAINTIFF THE RIGHT TO CHOOSE BETWEEN ACCEPTING THE REMITTITUR OR PROCEEDING WITH THE NEW TRIAL

R.J. Reynolds v. Webb, 38 Fla. L. Weekly D2637 (Fla. 1st DCA December 17, 2013):

After a tobacco verdict in the amount of $4 million dollars in compensatory damages and $25 million dollars in punitive damages (on the second trial), R.J. Reynolds responded with a renewed motion for remittitur seeking $250,000 or less in compensatory damages and $250,000 or less in punitives. The court entered a remittitur (not as much as defendant asked for) and then conferred the authority to consent or object on the plaintiff.

Pursuant to §768.74, only the party “adversely affected” by a remittitur or additur who does not agree gets a new trial on damages only. The court advised that it is not only a party who receives less in damages that can be affected by the remittitur, or the party who has to pay more in damages that can be affected by an additur.

To the contrary, a defendant who has a jury award and an excessive amount of damages against the defendant can be a party “adversely affected” by a trial judge’s remittitur that is “too little” to cure the excessiveness (and a plaintiff similarly can be adversely affected if the additur is too little to cure the inadequacy).

In this case, the court concluded that R.J. Reynolds was the party adversely affected because it objected to the trial court’s remittitur and thus was entitled to the new trial on damages.

ERROR TO GRANT HOSPITAL’S MOTION TO DISMISS BASED ON DOCUMENTS OUTSIDE OF THE FOUR CORNERS OF THE COMPLAINT

Andrew v. Shands, 38 Fla. L. Weekly D2643 (Fla. 1st DCA December 17, 2013):

Plaintiffs sued Shands for the alleged negligence of the radiologist who provided care to their son at Shands’ facility. The plaintiffs alleged in part that the radiologist was a Shands employee, servant or apparent agent, or an independent contractor who acted within the course and scope of his employment through the joint venture between Shands and the University of Florida Board of Trustees. Plaintiffs attached to their sixth amended complaint–among other documents–Shands’ certification and authorization form, which contained a notice provision stating that the patient acknowledged he may receive care from radiologists who were not employees or agents of the hospital.

Shands moved to dismiss on the ground that the notice provision refuted the plaintiffs’ claims and precluded their suit. The trial court granted the motion with prejudice.

The court reversed. Finding that a purpose of a motion to dismiss is to test the legal sufficiency of the complaint, and not to determine issues of fact, the court said that its review of the allegations found the complaint did state a cause of action. Courts may not look at attached documents to speculate as to what the true facts may be or what will ultimately be proved in the trial case. Motions to dismiss are evaluated according to the four corners of the complaint.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY REQUIRING DISCLOSURE OF PERSONAL IDENTIFICATION INFORMATION OF INDIVIDUALS WHO HAD EITHER WITNESSED, OR HAD AN OPPORTUNITY TO WITNESS, THE CARE OF THE DECEDENT BY THE NURSING FACILITY PRIOR TO HIS DEATH

Sovereign Healthcare Port St. Lucie v. Fernandes, 38 Fla. L. Weekly D2651 (Fla. 4th DCA December 18, 2013):

Trial court compelled production of names and contact information of individuals who either witnessed or had the opportunity to witness the circumstances relevant to the case. The trial court ordered that the disclosure would be protected and remain confidential for any purpose other than the preparation and prosecution of the lawsuit.

The nursing home alleged irreparable harm. However, it failed to show the basis for asserting privacy of these non-parties, and also failed to show that discovery from witnesses asserted to have knowledge was somehow not relevant.

Please feel free to contact me with any questions about appellate issues you may have.