FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 27

CASES FROM THE WEEK OF JULY 8, 2016

PARTY CAN GO BACK AND STRIKE A PROSPECTIVE JUROR BUT CANNOT “UNSTRIKE” AN ALREADY STRICKEN ONE.

McCray v. State, 41 Fla. L. Weekly D1514 (Fla. 4th DCA June 29, 2016):

In this criminal case, the defendant had already used his last peremptory strike when the State accepted the panel. Once the State accepted the panel, the defendant then asked to “unstrike” one of the jurors he had stricken, wanting then to strike a different juror.

The court explained that when a party has peremptory strikes remaining, the party does have the right to retract his acceptance and object to a juror at any time before the jury is sworn. However, there is no authority holding that a party who has exhausted his or her peremptory strikes has the right to retract a peremptory strike in order to use it on another juror after the other party has revealed the party’s jury selection strategy but before the jury is sworn.

Because there was possible conflict with a Third District case suggesting the ability to “unstrike” a juror, the Fourth District certified conflict.

TRIAL COURT DOES NOT ABUSE ITS DISCRETION IN ORDERING A PARTY TO PAY ATTORNEY’S FEES PURSUANT TO SECTION 57.105(1) ON THE COURT’S OWN INITIATIVE, EVEN WHEN THE PARTY FILED A MOTION BUT FAILED TO COMPLY WITH THE SAFE HARBOR REQUIREMENTS OF THE RULE.

Watson v. Stewart Tilghman Fox & Bianchi, 41 Fla. L. Weekly D1523 (Fla. 4th DCA June 29, 2016):

In this case, both the trial court and the appellate court agreed that the plaintiff had filed a completely frivolous and sham action against the defendants. The defendants had filed a motion for section 57.105 fees, but had not fully complied with the safe harbor provisions found in section 57.105(4).

The trial court still granted the defendant’s motion for attorney’s fees. The judge explained that she was not simply adopting a failed 57.105 attempt by the defendant, and instead was finding explicitly that the plaintiff and her lawyer should have known under the existing law that it was clear the plaintiff had no case.

The plaintiff argued though, that the trial court had assisted the defendant in circumventing the procedural requirements by adopting a deficient section 57.105 motion (because it had failed to comply with the safe harbor provision).

The Fourth District made clear that it is important for trial courts to have the ability to impose sanctions, especially when they are clearly warranted, even if there is not proper compliance with the safe harbor provision. The court also found that case law has implicitly established the boundaries within which the trial court may award attorney’s fees upon its own initiative pursuant to section 57.105, and expressly held that a trial court does not abuse its discretion in ordering a party to pay attorney’s fees pursuant to section 57.105(1) on its own initiative. As long as it is clear that the trial court is not simply adopting the moving party’s motion, the court may award frivolous fees despite non-compliance with the safe harbor provision.

Here, before the motion was filed, the trial court had expressly indicated its belief that attorney’s fees were warranted, because the plaintiff’s pleading was a sham. Thus, the trial court had clearly indicated it had formed an impression regarding the frivolous nature of the pleading, even prior to the motion for fees having been filed, which gave record support for the conclusion that the trial court was not just simply “adopting” the defendant’s motion in the case. Instead, the record showed the court imposed them on its own initiative.

IT IS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO ALLOW PLAINTIFFS TO PLEAD PUNITIVE DAMAGES WITHOUT FIRST DETERMINING WHETHER THEIR PROFFER ESTABLISHED A REASONABLE BASIS FOR RECOVERY PURSUANT TO SECTION 760.72(3).

HCA Health Services of Florida, Inc. v. Byers-McPheeters, 41 Fla. L. Weekly D1531 (Fla. 4th DCA June 29, 2016).

ERROR TO AWARD COSTS FOR FOUR EXPERT WITNESSES WHERE THE ONLY EVIDENCE REGARDING REASONABLENESS CAME FROM THE ATTORNEY WITNESS WHO WAS NOT A QUALIFIED EXPERT IN THOSE SAME FIELDS.

Hall v. Clay County Auto Parts, 41 Fla. L. Weekly D1546 (Fla. 1st DCA June 30, 2016):

The losing plaintiff successfully asserted that costs awarded to the defendant for the use of six experts had to be reversed, because the only evidence regarding the reasonableness of those costs came from an attorney witness who was not qualified as an expert in those fields.

On remand, the court directed the trial judge to strike the expert witness costs except for those where agreement had been reached.

ERROR TO COMPEL ARBITRATION OF NEGLIGENCE CLAIMS BASED ON ARBITRATION PROVISION IN RESIDENT ADMISSION AND FINANCIAL AGREEMENT SIGNED BY A NURSING HOME RESIDENT’S WIFE, WHERE THE EVIDENCE ESTABLISHED THAT THE WIFE WAS NOT AUTHORIZED TO SIGN THE AGREEMENT ON HER HUSBAND’S BEHALF.

Sovereign Healthcare v. Schmitt, 41 Fla. L. Weekly D1549 (Fla. 2nd DCA July 1, 2016):

Without detailing what the evidence was, the court explained that it established that the widow personal representative was not authorized to sign the admission and financial agreement on behalf of her husband. Thus, the arbitration provision in the original agreement was unenforceable against the husband’s estate (he had not signed it either).