FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 16

CASES FROM THE WEEK OF APRIL 21, 2017

THE SECOND DISTRICT FINDS THAT PROPOSALS FOR SETTLEMENT ARE VALID EVEN IF NOT SERVED BY EMAIL--CONFLICT CERTIFIED WITH THE THIRD DISTRICT THAT FOUND OTHERWISE.

Boatright v. Phillip Morris, 42 Fla. L. Weekly D842 (Fla. 2nd DCA April 12, 2017):

The discrete issue before the court was whether section 768.79 and rule 1.442 mandate email as the exclusive method for service of pretrial proposals for settlement.

As has been stated numerous times, because section 768.79 and rule 1.442 depart from common law, they demand strict compliance and strict construction. Section 768.79 does not provide for any particular method of service (merely stating it “shall be served” upon the party to whom it’s made) and rule 1.442(d) states that a proposal shall be served on the party or parties to whom it is made, but shall not be filed unless it is necessary to enforce the provisions.

The defendants in the case, relied on rule 2.516(f) which identifies a form of a certificate of service to which rule 1.442(c)(2)G refers. That states that email, hand-delivery, mail, and fax are all permissible methods of service.

Rule 2.516(b)(1) also states that all documents required or permitted to be served on another party must be served by email unless the parties otherwise stipulate or the rule otherwise provides. The thrust of the rule, therefore, is to mandate that email be the exclusive service method for a certain category of documents (“every pleading subsequent to the initial pleading” and “every other document filed in any court proceeding”).

The defendants then construed the phrase “all documents” to encompass any document which may be served upon an opposing party including proposals for settlement. The Second District disagreed. It stated that the defendant’s expansive reading of the rule would render subsection (a) of the rule meaningless, and that reading only prevails if the court impermissibly reads rule 2.516(b)(1) in isolation. The Second District said that reading the rule together, documents in subsection (b)(1) mean documents filed in any court proceeding. However, proposals for settlement only get “filed” when they are attached to motions for acceptance or enforcement.

The Second District therefore ruled there was no mandatory email service requirement that applied to the proposal for settlement. It also further certified conflict with the Third District that ruled to the contrary.

TRIAL COURT REVERSIBLY ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO QUESTION PROSPECTIVE JURORS REGARDING THEIR ATTITUDES ON INTERRACIAL CRIME IN THE CONTEXT OF A TRIAL OF AN AFRICAN-AMERICAN DEFENDANT FOR THE ALLEGED MURDER OF A WHITE VICTIM.

Jones v. State, 42 Fla. L. Weekly D813 (Fla. 4th DCA April 12, 2017):

In this criminal case, the court began its analysis with Florida Rule of Criminal Procedure 3.300(b), which states that a defendant has a basic right to examine prospective jurors, but does not set forth any bright line rules to determine the limits that the trial court may impose on voir dire.

Needless to say, the purpose of voir dire is to obtain a fair and impartial jury of people whose minds are free of all interests, bias or prejudice. As such, the court stated, a court “may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case.”

While this case obviously applies more precisely to criminal cases (capital defendants accused of interracial crimes are entitled to have prospective jurors informed of the race of the victim in question on the issue of racial bias (as stated in Turner v. Murray, 476 U.S. 28 (1986)), this case can also potentially be used to support voir dire in civil cases where potential racial issues may be raised.

TRIAL COURT ABUSED DISCRETION BY DISMISSING COMPLAINT AND DENYING PLAINTIFF’S ORE TENUS MOTION FOR LEAVE TO AMEND, WHERE THE COMPLAINT HAD ONLY BEEN AMENDED ONE OTHER TIME.

Annex Industrial Park v. City of Hialeah, 42 Fla. L. Weekly D840 (Fla. 3rd DCA April 12, 2017):

It is well settled that rule 1.190(a) states that leave of court to amend a pleading shall be given freely when justice so requires. While there is no magic number as to the number of amendments that should be allowed, leave to amend should not be denied unless the privilege has been abused in cases where the complaint is clearly not amendable. Here, the complaint had only been amended once so the trial court abused its discretion in dismissing.

NO ERROR IN AWARDING ATTORNEY’S FEES FOR LITIGATING THE AMOUNT OF FEES AND COSTS PURSUANT TO THE FEE-SHIFTING PROVISION IN THE CONSULTING AGREEMENT ENTERED BETWEEN THE PARTIES.

Trial Practices, Inc. v. Hahn Loeser & Parks, 42 Fla. L. Weekly D848 (Fla. 2nd DCA April 12, 2017):

When a party is seeking attorney’s fees pursuant to a statute, that party is not necessarily entitled to recover attorney’s fees for litigating the amount of fees. However, in this particular case, the attorney’s fees and costs were not awarded pursuant to a statute, but instead pursuant to a fee-shifting provision in a consulting agreement. Because the language of the agreement was broad enough to encompass the award of fees and costs for litigating the amount of attorney’s fees, litigation of the amount of fees was compensable in this case.

TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT’S MOTION FOR POST-TRIAL INTERVIEW OF AN “EAGER TO SERVE” JUROR, WHO MISREPRESENTED THAT SHE HAD NOT BEEN INVOLVED IN ANY PAST CIVIL OR CRIMINAL LITIGATION WHEN THE POST-TRIAL INVESTIGATION REVEALED THAT SHE CERTAINLY HAD BEEN.

Westgate Palace v. Parr, 42 Fla. L. Weekly D858 (Fla. 5th DCA April 13, 2017):

During voir dire, the juror was asked whether she or any member of her immediate family had been party to any lawsuit, or whether she or any of her family had been accused, a complainant, or a witness in a criminal case. She answered no to both questions. This particular juror then also expressed that she was “excited” about receiving her jury duty notice, and wanted to serve and do her civic duty.

After a verdict for the plaintiff in this slip and fall case, the defendant moved to interview the juror, noting that their post-trial investigation revealed an extensive legal history for her, which included 20 felony and misdemeanor charges for various drug possession and theft offenses, a civil traffic infraction, and a tax warrant. She had also filed for bankruptcy, was involved in a divorce case, and not been truthful about how long she had lived in Orlando prior to the case.

Based on this information, the court ruled the trial judge should have allowed an interview. It rejected the argument that the defendant had failed to exercise diligence during voir dire by using imprecise questions, and found that the woman’s alleged concealment of her past combined with her enthusiasm to serve as a juror deprived the defendant of an opportunity to make an informed judgment about its use of peremptory challenge against her.

ERROR TO DISMISS CLAIM BASED ON CONSTRUCTION DEFECTS DUE TO THE TEN YEAR STATUTE OF REPOSE WHERE COMPLAINT FAILED TO CONCLUSIVELY ESTABLISH THAT IT HAD EXPIRED PRIOR TO THE FILING OF THE COMPLAINT.

Busch v. Lennar Homes, 42 Fla. L. Weekly D863 (Fla. 5th DCA April 13, 2017).