FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 10

Where parties had entered into a settlement agreement and filed a joint stipulation of voluntary dismissal with prejudice, the trial court did not have jurisdiction to entertain a subsequent motion to enforce the agreement and to award attorneys’ fees.

Dandar v. Church of Scientology, 41 Fla. Law Weekly D534 (Fla. 2nd DCA March 2, 2016):

Once a case is voluntarily dismissed, it is an act of finality that deprives the court of jurisdiction over the case.

There is an exception when the parties present their settlement to the trial court, and the court incorporates or relies upon the settlement agreement and enters an order dismissing the case based on the parties’ agreement. In that scenario, the parties may later file a motion in the dismissed case seeking enforcement of the settlement agreement, and the trial court will still have jurisdiction to rule on the motion because it has inherent and continuing power to enforce its own orders.

Importantly, there is a difference between presenting a settlement to the trial court for approval prior to dismissal of an action and a case where the parties voluntarily dismiss the action without an order of the court. If the trial court is presented with a settlement agreement for approval, and the trial court enters an order of dismissal predicated upon the parties’ settlement agreement, the court then retains jurisdiction.

Needless to say, this case presents an important issue demonstrating the need to incorporate settlement agreements into orders of dismissal, in the event there could be any issue regarding enforcement later on.

CITY PROVIDED SUFFICIENT INFORMATION TO PUT SCHOOL BOARD AND DEPARTMENT OF FINANCIAL SERVICES ON NOTICE OF ACCIDENT.

School Board of Broward County v. City of Coral Springs, 41 Fla. Law Weekly D531 (Fla. 4th DCA March 2, 2016):

A police officer for Coral Springs was operating a motorcycle in the course of his employment when he had an accident caused by a school bus owned by the Broward County School Board. The City paid the worker’s compensation benefits and the officer assigned his claims to the City.

The assignment provided that the City would recover from any judgment or settlement with the School Board and other defendants, reimbursement for worker’s compensation benefits previously paid. Once the reimbursement was satisfied, any remaining judgment would inure to the officer. In exchange for the assignment, the City and the worker’s compensation carrier agreed to sue the School Board and the individual defendant on the officer’s behalf.

The City sued the School Board, after it sent a letter to the School Board and the Florida Department of Financial Services, advising them of the claim “as subrogee” of the officer. The School Board challenged the sufficiency of the notice pursuant to §768.28(6).

While notice is statutorily required, its form and content are not specified in the statute, as the court explained, and the trial court did not err in concluding that the City provided sufficient notice by putting the School Board on notice of the accident, the time, the location, and the injuries suffered.

ERROR IN ENTERING JUDGMENT IN FAVOR OF THE PLAINTIFF IN TRIP AND FALL CASE, WHERE THERE WAS NO EVIDENCE THAT THE CITY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE SIDEWALK DEFECT.

City of Miami v. Navarro, 41 Fla. Law Weekly D554 (Fla. 3rd DCA March 2, 2016):

A woman tripped on a raise brick paver on a sidewalk. She presented no evidence that the City had actual notice of the raised brick, and the photographs introduced in an attempt to prove constructive notice were legally insufficient to raise an inference as to the length of time the raised brick had existed.

In order to maintain a prima facie case of negligence, the plaintiff had to prove either that the City had actual or constructive knowledge of the sidewalk defect. There was no evidence of either. The plaintiff had relied on a color photograph, but there was no evidence as to the length of time it would take for a brick paver to raise up in the manner plaintiff claimed the photograph demonstrated.

The court held that the trial judge should have directed a verdict in favor of the City and remanded for judgment and an order of attorneys’ fees (based on a Proposal for Settlement) for the City.

AN AMENDED FINAL JUDGMENT HAS NO IMPACT ON THE FINALITY OF THE ORIGINAL FINAL JUDGMENT WHERE THERE IS NO MATERIAL CHANGE--COURT IS WITHOUT JURISDICTION TO CONSIDER AN APPEAL WHERE THE NOTICE WAS FILED MORE THAN 30 DAYS AFTER THE RENDITION OF THE ORIGINAL FINAL JUDGMENT.

Gold King Apartments v. Dumornay, 41 Fla. Law Weekly D556 (Fla. 3rd DCA March 2, 2016):

The trial court had entered an amended final judgment, but it simply restated the amount of sanctions and things set forth in the final judgment, making no material changes. Thus, the notice of appeal from the date of the amended final judgment--outside the 30 days from the entry of the original final judgment--was untimely.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR JNOV, WHERE GROCERY STORE SPILL WAS CLEANED UP IN NINE SECONDS.

Dominguez v. Publix, 41 Fla. Law Weekly D558 (Fla. 3rd DCA March 2, 2016):

As captured on the store’s surveillance camera, the plaintiff slipped on a patch of laundry detergent that had spilled from the top of a bottle that had fallen from a shelf. The video recording of the aisle shows that in the eight minutes preceding the incident, someone had reached up and the bottle fell and spilled.

At the time of the spill, the assistant grocery manager happened to be examining shelves on the opposite end of the aisle. Upon hearing the crash he ran to the spot of the spill within nine seconds. However, four seconds after the spill, the plaintiff rounded the aisle and fell in the detergent.

The court said the issue was not whether Publix failed to warn the plaintiff of the spill, but rather whether the store used ordinary care to maintain its premises in a reasonably safe condition. In transitory foreign substance cases, the court looks to the length of the time the condition existed before the accident occurred.

While Publix had internal operating procedures that called for the assistant manager to immediately block off the aisle where the detergent existed, those policies do not themselves establish the standard of care. If what the assistant manager did under the circumstances and within the five seconds that he was allotted by fate was reasonable and demonstrated ordinary care, the fact that he did not abide by Publix’s internal operating procedure did not create a heightened duty. The court found defendant’s actions reasonable as a matter of law, and affirmed the directed verdict and the attorneys’ fees as awarded pursuant to a proposal for settlement.

THE CLAIM OF AN EMERGENCY SERVICES PROVIDER IS ALSO APPLIED TO THE PIP DEDUCTIBLE.

Progressive American v. Emergency Physicians of Central Florida, 41 Fla. Law Weekly D564 (Fla. 5th DCA March 4, 2016):

The plain language of §627.739(2) sets out that the deductible amount must be applied to 100% of the expenses and losses as described in §627.736.

In this case, the circuit court had held that the benefits to be paid from the $5,000 reserve imposed by §627.736(4)(c) for emergency providers, were not subject to the otherwise applicable deductible. However, the court found such an interpretation ran afoul with the plain language of §627.739(2), and granted Progressive’s petition for writ of certiorari, quashing the circuit court’s order.

TRIAL JUDGE ALLOWED TO ASSESS ATTORNEYS’ FEES FOR REFUSING TO ANSWER DEPOSITION QUESTIONS WITHOUT MAKING KOZEL FINDINGS.

Griffith v. Ramsey’s A Plus, Inc., 41 Fla. Law Weekly D566 (Fla. 5th DCA March 4, 2016):

The plaintiff--on her attorney’s advice--had refused to answer a deposition question asserting that the question was irrelevant and an improper hypothetical. The trial court sanctioned both the attorney and the client under rule 1.380(a)(4), but did so without making Kozel findings.

The Fifth District held that Kozel only applies when a trial court dismisses a case or a claim, enters a default or strikes pleadings as a sanction. It does not apply when sanctions are imposed under rule 1.380(a)(4).

ARBITRATION ACTION IN MEDICAL MALPRACTICE VIOLATES PUBLIC POLICY-- CONFLICT CERTIFIED.

A.K. v. Orlando Health, 41 Fla. Law Weekly D567 (Fla. 5th DCA March 4, 2016):

The court noted that the arbitration provision was substantially similar to the one addressed in Crespo v. Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014) (compelling arbitration of a medical malpractice claim pursuant to an arbitration provision in the financial agreement between the patient and the medical practice).

It then held that the arbitration agreement violated public policy as pronounced by the legislature in the Medical Malpractice Act, by failing to adopt the necessary statutory provisions. The court certified conflict with the decision of the Second District.

WHERE TRIAL COURT GRANTS AN ADDITUR OR A NEW TRIAL, AND IT IS REFUSED, THE ONLY ISSUE BEFORE THE APPELLATE COURT IS THE PROPRIETY OF THE ORDER GRANTING IT--NOT THE PROPRIETY OF THE ADDITUR ITSELF.

Emmons v. Akers, 41 Fla. Law Weekly D591 (Fla. 1st DCA March 8, 2016):

Finding the amount awarded by the jury in this personal injury action to be inadequate, the court granted the plaintiff’s motion for additur. When the defendant refused to agree to it, the court ordered a new trial on the issue of the disputed damages, as required by the statute. The defendant argued that the jury’s award was supported by the evidence, and that the trial judge erred by disturbing the verdict.

The court noted that while the trial judge must give substantial deference to the jury’s verdict in determining whether to grant an additur, other precedent requires appellate courts to give deference to trial court’s orders granting new trials.

In this case, the jury returned a verdict for approximately $20,000. The plaintiffs moved for an additur, arguing that the awards for future medical expenses, past and future pain and suffering, and past and future loss of consortium were inadequate in light of the unrebutted evidence, and were against the manifest weight of the evidence.

The defendant responded that the additur would be improper since there was conflicting evidence and the jury could have reached its verdict in the manner consistent with the evidence.

The trial judge entered an order granting an additur or a new trial, and the amount of the additur was $195,000 for future medical expenses, $100,000 for past and future suffering, and $100,000 for past and future loss of consortium, acknowledging that the alternative would be a new trial if the additur was rejected.

Needless to say, the defendant rejected the additur. However, the only issue before the appellate court was the “propriety” of the order granting the new trial (rather than the propriety of the additur itself). Thus, even if the court agreed with the defendant that the evidence had supported the jury’s awards, that fact alone would not provide a basis for reversal.

Therefore, the appellate court affirmed the trial court’s order, and remanded for a new trial on the damages at issue.