FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 16

CASES FROM THE WEEK OF APRIL 22, 2016

TRIAL COURT PROPERLY AWARDED ATTORNEY’S FEES AGAINST THE DEFENDANT AS A SANCTION FOR MISCONDUCT FOR HAVING CONVERSATIONS WITH A WITNESS WHICH COULD OBVIOUSLY BE OVERHEARD BY JURORS--WHERE THE DEFENDANT’S MISCONDUCT RESULTED IN A MISTRIAL, IT WAS PROPER TO AWARD FEES FOR PREPARATION FOR AND CONDUCT OF THAT TRIAL, BUT IMPROPER TO AWARD FEES FOR THE PREPARATION AND CONDUCT OF THE SUBSEQUENT TRIALS WHICH DID NOT DIRECTLY RELATE TO THE MISCONDUCT.

Public Health Trust of Miami Dade v. Denson, 41 Fla. Law Weekly D929 (Fla. 3rd DCA April 13, 2016):

In this medical malpractice case, the defendant doctor chose to have conversations with witnesses within earshot of jurors on two separate occasions (one conversation included defense counsel). Ultimately, the trial court granted the motion for mistrial.

The plaintiff then moved for sanctions seeking $49,000 in attorney’s fees representing the time preparing for the first trial. The trial court denied the motion without prejudice.

The second trial resulted in a mistrial due to the shortage of potential jurors. A year later, the third trial went forward to conclusion.

The plaintiff then renewed her motion for sanctions seeking $238,000 for time spent in preparation of all three trials. The trial court awarded $208,000 in fees, finding plaintiff was not entitled to recover fees for the second trial but she was allowed for the first and third. The court specifically found that the defendant had engaged in a pattern of behavior that reflected a total disregard for and disrespect to the court, and that such misconduct was supported by the record.

The Third District upheld the decision to award sanctions, stemming from the trial court’s inherent power to sanction conduct separate from any statute or rule. However, it found it was an abuse of discretion to award attorney’s fees beyond that necessary to compensate the plaintiff for the preparation and conduct of the first trial. An attorney’s fee award must directly relate to the attorney’s fees and costs that the opposing party incurred as a result of the specific bad faith. Here, the time spent preparing for the second and third trials did not directly relate to the defendant’s misconduct.

AMENDED JURY INSTRUCTION ON EMERGENCY MEDICAL TREATMENT CLAIMS.

In Re: Standard Jury Instructions in Civil Cases – Report No. 15-02, 41 Fla. Law Weekly S160 (Fla. April 21, 2016):

The supreme court adopted an amendment to instruction 402.16 on emergency medical treatment claims. The instruction addresses the provisions of F.S. 768.13(2)(b) and applies to cases described in that statute or to cases where there is a jury issue as to the applicability of the statute.

The instruction does not apply to cases involving patients capable of receiving treatment as non-emergency patients, even if treated in an emergency room. The instruction can be found at appendix E on the supreme court’s website where the Florida Standard Jury Instructions are contained.

AMENDMENT TO THE MEDICAL MALPRACTICE JURY INSTRUCTIONS.

In Re: Standard Jury Instructions in Civil Cases – Report No. 15-01, 41 Fla. Law Weekly S164 (Fla. April 21, 2016):

The supreme court adopted a new jury instruction 301.11 (failure to maintain evidence or keep a record in a medical malpractice case--i.e., adverse inference/rebuttable presumption), as well as amendments to 402.4, 501.5, 501.7 and 502.7.

The instruction on failing to maintain evidence addresses both an adverse inference, as well as a burden shifting presumption, and explains what is necessary to get those instructions. The amendments also modify the definition of medical negligence, as well as the instruction on other contributing causes of damages and reduction to present value in medical malpractice cases.

OFFER OF JUDGMENT STATUTE APPLIED EVEN THOUGH PLAINTIFF SOUGHT BOTH DAMAGES AND EQUITABLE RELIEF--BECAUSE THE OFFER ITSELF WAS SPECIFICALLY LIMITED TO MONEY DAMAGES MAKING CLEAR THAT THE INJUNCTIVE CLAIMS WOULD REMAIN PENDING, IT WAS VALID.

MYD Marine Distributor, Inc. v. International Paint Ltd., 41 Fla. Law Weekly D911 (Fla. 4th DCA April 13, 2016).

THIRD DISTRICT SUGGESTS THAT AN ORDER ON ATTORNEY’S FEES MAY BE REVIEWED DE NOVO IF ARISING OUT OF A QUESTION OF LAW.

Wells v. Halmac Development, 41 Fla. Law Weekly D924 (Fla. 3rd DCA April 13, 2016):

In this case involving an award of 57.105 fees, where the trial judge found that the attorney had brought a colorable claim on behalf of his client, the Third District observed that orders on attorney’s fees are generally reviewed for an abuse of discretion. However to the extent that the trial court’s determination on a motion for fees is based on an issue of law, the standard of review is de novo.

The court then ruled that the trial court’s determination that the plaintiff’s counsel raised a colorable claim was erroneous as a matter of law and thus, its decision to deny the defendants their entitlement to fees was an abuse of discretion. The court reversed and remanded for an award of fees in this case brought as a result of shoddy construction, and the homeowners’ failure to pay for it.

TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW IN ORDERING THE PETITIONER TO REVEAL INFORMATION REGARDING HER CELL PHONE--ORDER VIOLATED HER FIFTH AMENDMENT RIGHTS WHILE HER CRIMINAL CASE WAS STILL PENDING.

Restrepo v. Carrera, 41 Fla. Law Weekly D926 (Fla. 3rd DCA April 13, 2016):

While the criminal case was still pending, the court held it was error to require the defendant driver to provide all of the cell phone numbers used during a six-hour period before and after a crash. The court found that while the criminal case was pending, such an order would violate the defendant’s Fifth Amendment rights. However, the court did not express any opinion on the state of the petitioner’s Fifth Amendment rights to protect this information once the criminal case ends.

TRIAL COURT PROPERLY ENTERED ORDER SUBSTITUTING FIGA FOR INSOLVENT INSURER IN FIRST PARTY LAWSUIT THAT WAS PENDING AT THE TIME THE INSURER WAS DECLARED INSOLVENT.

Florida Insurance Guarantee Association v. Mendoza, 41 Fla. Law Weekly D927 (Fla. 3rd DCA April 13, 2016):

FIGA tried to argue that because it was not made a party to the plaintiff’s lawsuit within the applicable statute of limitations, that the trial court erred in entering the substitution order because the trial court lacked jurisdiction over it. However, as the Third District noted, the trial court correctly concluded that pursuant to the statutory scheme governing insolvent insurers, and the role of FIGA in that scheme, it is not necessary for an insured to obtain separate service of process on FIGA within the limitations period as described in section 631.68. Therefore, jurisdiction was proper.

TRIAL COURT ERRED IN DISMISSING COMPLAINT AFTER RULING THAT PLAINTIFF FAILED TO COMPLY WITH NOTICE REQUIREMENTS BEFORE FILING ACTION AGAINST COUNTY.

Nelson v. Hillsborough County, 41 Fla. Law Weekly D953 (Fla. 2nd DCA April 15, 2016):

In this case, the complaint alleged that plaintiff had notified the defendant as requested by section 768.28 on three occasions, and also alleged that the Department of Insurance was notified.

The County argued in its motion to dismiss that the complaint failed to allege compliance with the requirements to notify the Department of Financial Services, and that the plaintiff did not attach to the complaint any documentation to prove compliance.

At the hearing on the motion to dismiss, the court asked the plaintiff’s attorney if she had any proof that timely notice was sent. Plaintiff’s counsel said she had properly pleaded compliance and therefore was not required to produce such proof. In response to repeated questioning she still was unable to produce a copy of the letter. The trial court then dismissed the case with prejudice and entered final judgment for the County.

Because a ruling on a motion to dismiss must be confined to the four corners of the complaint, accepting the allegations of the complaint as true, the court erred in looking outside the four corners and pressing counsel as to what evidence of notice plaintiff would be able to produce in ruling on the motion to dismiss. That was a factual issue not properly before the court on a motion to dismiss. Thus, the court reversed the dismissal.