FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 10
CASES FROM THE WEEK OF MAR. 7, 2014

NO FLORIDA BAR LICENSE FOR UNDOCUMENTED IMMIGRANT WHO WAS A SELF-MADE SUPERSTAR AND WOULD BE A CREDIT TO OUR PROFESSION

Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants Are Eligible For Admission to the Florida Bar, 39 Fla. L. Weekly S97 (Fla. 4th DCA March 6, 2014):

This case receiving national attention, involved a young man who graduated from an accredited Florida law school, and passed the Florida Bar, but was denied admission into the Bar because he is an unauthorized immigrant.

When he was nine, the applicant entered the United States from Mexico with his family, who had passports and valid tourist visas. Through no fault of his own, his family overstayed their visas and opted not to return to Mexico. Although he only spoke Spanish at first, this boy successfully integrated into American society by learning English, becoming an Eagle scout, graduating from a Tampa High School as valedictorian, graduating from New College, and graduating from the Florida State College of Law with several book awards. He disclosed his immigration status honestly, but was still denied admission.

In a 7-0 decision reluctantly reached by the Florida Supreme Court, the court concluded that based on the Supreme Court’s decision in Arizona v. United States, the government of the United States has broad power over the subject of immigration and the status of aliens. Immigration policy is dictated by federal power, and therefore a license issued by a state cannot permit an unauthorized alien to perform work, if such conduct is prohibited by federal law.

While the applicant and several amici argued about a memorandum supporting that individuals who have been present since childhood in the United States should be given different treatment, and while they discussed a law called Deferred Action for Childhood Arrivals (DACA), unfortunately, the Florida Supreme Court stated it does not have the right to disregard the law as currently enacted by Congress. The Court ruled it lacked the authority to admit unauthorized immigrants into the Florida Bar for membership.

ORDER PROPERLY DENIED MOTION FOR LEAVE TO AMEND PLEADINGS TO ADD NEW COUNT TO COMPLAINT FILED WITH A MOTION FOR REHEARING – MOTION FOR REHEARING INCLUDING MOTION FOR LEAVE TO AMEND WAS ABANDONED WHEN PARTY FILED NOTICE OF APPEAL BEFORE TRIAL COURT RULED ON MOTION

King v. Blue Cross and Blue Shield, 39 Fla. L. Weekly D442 (Fla. 1st DCA February 26, 2014):

When a party files a notice of appeal before the filing of a signed written order disposing of all timely post-trial motions, the party is deemed to have abandoned any motions for rehearing.

In this case, the plaintiff had filed a motion for rehearing seeking leave to amend her pleadings to add a count based on promissory estoppel after the trial judge granted the defendant’s motion for summary judgment. Unfortunately, when she filed her notice of appeal before the trial court ruled on her motions, she abandoned the right to have the trial court consider them.

CANNOT COMPLAIN ON APPEAL WHEN YOUR OWN VERDICT FORM CREATES COLLATERAL ESTOPPEL, AND BARS REVIEW

Provident Life and Accident Insurance Co. v. Genovese, 39 Fla. L. Weekly D442 (Fla. February 26, 2014):

This case arose out of a disability insurance trial. Under the policy, if the physician plaintiff suffered a disability before his 60th birthday, he would be entitled to disability benefits for the rest of his life. However, if it arose after his 60th birthday, the benefits would be paid only until he was 65.

In the original trial, the jury was given an interrogatory verdict form, and found that the plaintiff’s disability occurred after his 60th birthday. Subsequently, the plaintiff filed a breach of contract action related to the insurer’s termination of his benefits at age 65.

The insurer then raised collateral estoppel as an affirmative defense based on the jury’s finding in the first case about the onset of the plaintiff’s disability. In the second case, though, the jury found that the disability occurred before the man’s 60th birthday.

Plaintiffs argued there was not collateral estoppel because the issue itself was not part of the prior determination. The issue in the first case was actually whether the plaintiff was totally disabled, but the judge felt there needed to be a finding about the date of disability (if the jury found there were a disability). Still, though, the jury’s determination of the factual issue of the date of disability did become binding on the parties.

Plaintiff argued he could not appeal from the judgment entered in the first case because he was the prevailing party, and the onset date was not specifically included in the judgment. However, the judgment signed by the court in the first case was proposed by the plaintiff and not the insurance company. Thus, the plaintiff could not complain about any error in the ruling.

The Fourth District stated that the plaintiff’s perceived inability to appeal from the first final judgment due to the omission was a foreseeable potential outcome of the strategy in drafting the form of the judgment, and not a result of any error by the trial court. Therefore, the court affirmed the directed verdict on the collateral estoppel defense for the insurance company.

THE TRIAL COURT SHOULD NOT HAVE ENTERED AN ORDER COMPELLING NON-RESIDENT DEFENDANTS TO TRAVEL TO FLORIDA FOR DEPOSITIONS WHERE DEFENDANTS WERE NOT SEEKING AFFIRMATIVE RELIEF AND PLAINTIFFS FAILED TO DEMONSTRATE EXISTENCE OF EXTRAORDINARY CIRCUMSTANCES REQUIRING DEFENDANTS’ APPEARANCE IN FLORIDA FOR A DEPOSITION

Polselli v. Wicker Smith, 39 Fla. L. Weekly D445 (Fla. 4th DCA February 26, 2014):

TRIAL COURT ERRED IN ENTERING DEFAULT AND DEFAULT FINAL JUDGMENT AGAINST PLAINTIFF AFTER SHE FAILED TO ATTEND CASE MANAGEMENT CONFERENCE WITHOUT INCLUDING REQUISITE WRITTEN FINDINGS THAT CONDUCT UPON WHICH DEFAULT WAS BASED WAS WILLFUL

Schneider v. Spaeth, 39 Fla. L. Weekly D445 (Fla. 4th DCA February 26, 2014):

FOURTH DISTRICT REFUSES TO APPLY 2010 SLIP AND FALL LAW RETROACTIVELY CONTRARY TO THE THIRD DISTRICT – STATES THERE WAS A PRIMA FACIE BASIS TO GRANT POST-TRIAL JUROR INTERVIEWS–LIABILITY MAY BE IMPOSED AGAINST MALL OWNER FOR NEGLIGENCE ATTRIBUTED TO SERVICE COMPANY EVEN IF THEY BOTH APPEAR ON THE VERDICT FORM

Pembroke Lakes Mall v. McGruder, 39 Fla. L. Weekly D445 (Fla. 4th DCA February 26, 2014):

The plaintiff was awarded almost $300,000 as a result of a slip and fall at the Pembroke Lakes Mall. The trial court refused to apply §768.0755, Florida Statutes (2010), retroactively. In a case decided shortly before, the Third District did rule it should be applied retroactively. The Fourth District certified conflict with that decision.

In a nutshell, before 2001, Florida law required those who slipped and fell on transitory foreign substances to prove that the premise’s owner had “actual or constructive” knowledge of the dangerous condition before successfully asserting a cause of action against the owner. In Owens, the Florida Supreme Court in 2001 noted how difficult it was to require the plaintiff to prove the owner’s knowledge and then held that once a plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of the evidence that it exercised reasonable care in maintaining the premises under the circumstances.

In response to Owens, the Florida Legislature enacted §768.0710, Florida Statutes (2002), where the legislature removed the burden-shifting aspects of the Owensdecision. It returned to “pre-Owens,” providing that the plaintiff had the burden to prove the premise’s owner was negligent. However, the legislature kept the Florida Supreme Court’s decision to remove the owner’s actual or constructive knowledge as a required element of proof to the claim.

In 2010, however, the legislature went for the jugular. It repealed that section, and replaced it with §768.0755, Florida Statutes (2010). The new law provided that as of July 1, 2010, the plaintiff once again had to prove that the business establishment had actual or constructive knowledge of the dangerous condition. The new statute also did not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning or mode of operation.

While the Third District in Kenz v. Miami Dade County, 116 So. 3d 461 (Fla. 3rd DCA 2013) ruled that the statute did apply retroactively because it was “procedural,” the Fourth District refused to so find. Finding the 2010 statute substantive, it would not allow the statute to affect this plaintiff’s claim.

Subsequent to the trial, the defense presented evidence from Westlaw and the clerk’s website demonstrating that several jurors failed to disclose prior litigation matters in response to a direct questionnaire. The court reminded us that while post-verdict juror interviews are disfavored, when there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.

Finding the prior litigation potentially material to the slip and fall, and that the undisclosed litigation occurred within four years of trial, the court found the discovered information supported an interview, especially because the jurors categorically answered they had not been involved in a prior litigation, and there could not be a question that the defendant failed to use due diligence.

Finally, on cross-appeal, the Fourth District further found that the trial court erred by refusing to hold the mall responsible for the negligence attributed to the co-defendant maintenance company. The court found that §768.0710 does impose a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees. It explained that the plaintiff properly alleged a non-delegable duty, by making allegations against the owner and the independent contractor.

There is no need to find agency to impose liability for non-delegable duty. Vicarious liability is a form of indirect liability in which a party who may have not been negligent can be held liable for the acts of another party. Conversely, a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.

Regardless of whether the owner contracts with a party to clean and maintain the business premises, the owner is still directly liable to an injured invitee if reasonable efforts are not made to maintain the premises in a safe condition.

Finally, while it was proper for the jury to be asked to apportion negligence between the mall and the maintenance company (because while the mall would be directly liable to the plaintiff for the negligence attributed to the maintenance company, the maintenance company would not necessarily be liable to the plaintiff for the negligence attributed to the mall, and therefore they are not jointly and severally liable), it was still proper for the judge to enter judgment against the owner mall, for the negligence attributed to the independent contractor maintenance company.

DEFAULT OVERTURNED WHEN SERVICE DID NOT COMPLY WITH SUBSTITUTED SERVICE REQUIREMENTS

Crystal Springs Partners v. Michael R. Band P.A., 39 Fla. L. Weekly D454 (Fla. 3rd DCA February 26, 2014):

The court denied the defendant’s emergency motion to quash process and to set aside a default. In looking at the compliance with substituted service §48.161(1), the court found plaintiff failed to comply.

Under the statute, when the Secretary of State is given notice, a copy of the process itself is required to be sent by registered or certified mail to the defendant “forthwith.” The plaintiff here only sent it 42 days after the Secretary of State was served, which is not “forthwith” as has been interpreted by the term.

The plaintiff also sent a certified mail to an empty condo owned by defendant on Fisher Island. The return receipt was returned and marked unclaimed. While the plaintiff had additional contact information for the former client, he did not attempt to mail the return of service and copy of the process or email it to the defendant. Thus, the default was overturned.

INSURER’S PAYMENT OF A CLAIM TO A VEHICLE LIENHOLDER (DUE TO A STOLEN VEHICLE) AFTER PLAINTIFF FILED SUIT, WAS THE FUNCTIONAL EQUIVALENT OF A CONFESSION OF JUDGMENT IN FAVOR OF THE PLAINTIFF, AND THE COURT SHOULD HAVE AWARDED ATTORNEY’S FEES

Do v. GEICO General Insurance Co., 39 Fla. L. Weekly D455 (Fla. 3rd DCA February 26, 2014).

WHEN DAUGHTER POSTED INFORMATION ABOUT A CONFIDENTIAL SETTLEMENT ON HER FACEBOOK PAGE, THE DEFENDANT PROPERLY WITHDREW THE AGREED-UPON SETTLEMENT

Gulliver Schools v. Snay, 39 Fla. L. Weekly D457 (Fla. 3rd DCA February 26, 2104):

The headmaster of Gulliver Schools settled an age discrimination suit with the school for $90,000 and $60,000 in attorney’s fees. The agreement contained a confidentiality provision stating that the plaintiff could not directly or indirectly disclose, discuss or communicate to any other person except his attorneys or professional advisors or spouse, any information regarding the existence or terms of the agreement.

Four days after the agreement was signed, Gulliver notified the man that his college-age daughter had posted that her parents had won their case against Gulliver, and Gulliver would now officially be paying for their vacation to Europe this summer. The settlement agreement expressly accorded the plaintiff the unilateral right to revoke the agreement within seven days of its execution. Still, the plaintiff took no action to revoke it despite the notification of breach.

Thereafter, Gulliver sent a letter to the plaintiff’s counsel stating it was tendering the attorney’s fees but not the plaintiff’s portion of the settlement because he had breached the confidentiality provision. The letter included a joint stipulation for dismissal, which reconfirmed that parties had settled the action and the plaintiff signed off on it. The action was dismissed with a reservation of jurisdiction for enforcement of the settlement agreement.

The plaintiff moved to enforce the agreement arguing that his statement to his daughter and her comment on Facebook did not constitute a breach. The court disagreed. It found the unambiguous meaning of the confidentiality provision had been breached. The daughter’s breach of the confidentiality agreement advertised to the Gulliver community (she had 1200 friends, many of whom were Gulliver people) that the plaintiff had been successful in his age discrimination suit. The court reversed the order granting the plaintiff’s motion to enforce the agreement based on the clear and unambiguous language of the settlement agreement.

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

Best Regards,

Julie Littky-Rubin