FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 49

CASES FROM THE WEEK OF DECEMBER 7, 2018

THE ABOLITION OF JOINT AND SEVERAL LIABILITY WAS MADE RETROACTIVE BY AMENDMENT IN 2011--PLAINTIFF’S EXPECTATION FOR COLLECTING AN UNDETERMINED AMOUNT OF DAMAGES FROM A DEFENDANT UNDER A THEORY OF JOINT AND SEVERAL LIABILITY WAS NOT A VESTED RIGHT.

Brown & Brown, Inc. v. Gelsomino, 43 Fla. L. Weekly D2642 (Fla. 4th DCA November 28, 2018):

The Florida Legislature prospectively eliminated joint and several liability in 2006. The legislature then passed another law in 2011, making the elimination of joint and several liability retroactive.

The plaintiff was injured in 2002. The verdict was reached in 2014. The trial court applied joint and several liability, and the question was which version of section 768.81 applied: the statute passed in 2002, 2006, or 2011?

The court found that when the legislature passed the law in 2011, it included language that made the abolition of joint and several liability retroactive. That made the 2011 version the operative statute when the case went to trial. Consequently, the trial court erred in applying joint and several liability, inasmuch as the legislature abolished it retroactively in 2011.

The court observed that a statute operates retrospectively when it attaches new legal consequences to events completed before its enactment. Whether a statute may be applied retroactively is subject to a two-step test. First, the court must ascertain whether the legislature intended for the statute to apply retroactively and second, if such an attempt is clearly expressed, the court must determine whether retroactive application would violate constitutional principles.

In this case, the court had to determine whether the legislature intended the statute enacted in 2011 to apply retroactively, and if so, whether it would violate the Constitution.

In 2006, the Florida Legislature clearly abrogated the doctrine of joint and several liability. Nowhere in the text of that statute is there a provision for retroactive application. A law is presumed to apply prospectively unless there is a clear legislative intent that the law be applied retroactively.

However, in 2011, the legislature amended section 768.81 to include new statutory language that related in part to products liability and to legislatively overrule the D’Amario case. The 2011 Legislative Act added two provisions that stated the statute would be applied retroactively. The legislation also said that the legislature found retroactive application did not unconstitutionally impair vested rights only affecting remedies.

The operative law passed by the legislature meant for retroactive application of the law. Because it did not violate any vested rights, the court reversed for the trial judge to enforce the bar to joint and several liability as required by operative law.

BEFORE DISMISSAL WITH PREJUDICE MAY OCCUR, A TRIAL COURT MUST MAKE FINDINGS OF FACT WITH RESPECT TO EACH KOZEL FACTOR.

Deutsche Bank National Trust Co. v. Sombrero Beach Road., 43 Fla. L. Weekly D2621 (Fla. 3rd DCA November 28, 2018):

In this foreclosure action, the trial court dismissed the action with prejudice as a sanction for failing to comply with multiple court orders. As this is the most severe of all sanctions, and should only be employed in extreme circumstances, it is necessary for a trial court to apply the six-factor test articulated by the Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993). The test asks (1) whether the attorney’s disobedience was willful, deliberate or contumacious rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through the undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for non-compliance; and (6) whether the delay created significant problems with judicial administration.

The plaintiff argued that a Kozel analysis was not necessary because Deutsche Bank itself, rather than Deutsche Bank’s trial counsel, was guilty of the misconduct. The appellate court disagreed and found that because the trial court dismissed the action without conducting the required Kozel analysis, the final order needed to be vacated to allow consideration of the Kozel factors.

ORDER DENYING SUMMARY JUDGMENT ON SOVEREIGN IMMUNITY GROUNDS IS NOT APPEALABLE WHERE TRIAL COURT DID NOT EXPRESSLY PROVIDE THAT IT WAS DETERMINING AS A MATTER OF LAW THAT PARTY WAS NOT ENTITLED TO IMMUNITY.

State of Florida v. Feliciano, 43 Fla. L. Weekly D2625 (Fla. 3rd DCA November 28, 2018):

The order in this case denied the motion to dismiss without including the grounds. However, DCF argued that the record demonstrated that sovereign immunity was the single basis presented for dismissal, and as such, had to be why the trial court ruled as it did.

Following its own precedent, the Third District ruled that dismissal of the appeal was required. However, it noted that the First District has addressed a case brought by the Florida Highway Patrol and certified a question of great public importance, asking whether rule 9.130 permits an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law, but the trial court does not explicitly preclude it as a defense.

The Third District stood by its prior precedent and dismissed the appeal notwithstanding the First District’s certification to the Florida Supreme Court.

ERROR TO AWARD ATTORNEY’S FEES UNDER SECTION 57.105 WITHOUT RECEIVING ANY TESTIMONY OR EVIDENCE, AND BASING THE AMOUNT EXCLUSIVELY ON THE ARGUMENT OF COUNSEL.

Pansky v. Pansky, 43 Fla. L. Weekly D2639 (Fla. 4th DCA November 28, 2018):

The court determined the amount of sanctions under section 57.105 based exclusively on the argument of counsel. Although counsel provided a copy of certain billing records, the records were not admitted into evidence and as a result, were not competent evidence to support a court’s determination of the amount of sanctions.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING DEFENDANT’S MOTION FOR MISTRIAL AFTER COUNSEL TWICE VIOLATED ORDER IN LIMINE.

Citizens Property Insurance Co. v. Ballester, 43 Fla. L. Weekly D2657 (Fla. 3rd DCA November 29, 2018):

Before trial in this case involving a property damage insurance claim arising from a marijuana grow house explosion, the plaintiffs filed a motion in limine seeking to admit a 2012 letter written by an adjuster with the adjuster’s deposition testimony. The letter was sent to the neighbors of the grow house after the explosion, and denied liability for any property damage caused by it.

The letter stated that the damage to the neighboring properties was the result of third-parties who were renting the house at the time of the explosion, and not due to the negligence of the Citizens-insured homeowner. The plaintiffs argued that the letter was an admission that the explosion caused damage. The court denied the plaintiffs’ motion, and pursuant to rule 90.403 precluded them from introducing the letter.

Despite the order, plaintiffs’ counsel directly referenced the letter in front of the jury. Following an immediate objection, the plaintiffs’ counsel requested that the question be read back to the jury a second time before the objection was sustained. The insurance company subsequently filed a motion for mistrial. During a hearing on that motion, plaintiffs’ counsel admitted to willfully asking the question, arguing that the question was fair game since the letter itself was not coming in as substantive evidence. The trial court denied the motion for mistrial.

The court affirmed the denial of the motion for mistrial finding the error did not require a new trial. It did say it was troubled, however, by the plaintiffs’ counsel’s blatant disregard of a court order and admonished the lawyer to demonstrate respect for the legal system and for those who serve by upholding the legal process.

ARBITRATION PROVISION IN NURSING HOME CONTRACT APPLYING ALABAMA RULES OF EVIDENCE WAS UNENFORCEABLE--CASE WAS REMANDED WITH INSTRUCTIONS TO SEVER PROVISION FROM THE AGREEMENT.

Estate of Ramsey v. Northport Health Services, 43 Fla. L. Weekly D2673 (Fla. 5th DCA November 30, 2018).

TRIAL COURT ABUSED DISCRETION BY REFUSING TO GIVE REQUESTED JURY INSTRUCTION BASED ON STATUTE PROHIBITING OPERATION ON A LIMITED ACCESS ROADWAY A VEHICLE WHICH BY ITS DESIGN OR CONDITION IS INCOMPATIBLE WITH SAFE AND EXPEDIENT MOVEMENT OF TRAFFIC--REQUESTED INSTRUCTION CONSTITUTED CORRECT STATEMENT OF LAW, WAS SUPPORTED BY EVIDENCE, AND ADDRESSED DEFENDANT’S THEORY OF CASE.

Araj v. Renfro, 43 Fla. L. Weekly D2674 (Fla. 5th DCA November 30, 2018):

A man was injured while driving a scooter on the Pineda Causeway in Brevard County. The evidence at trial established that the causeway was a limited access roadway with a posted speed limit of 55 mph. According to the FHP, normal flow of traffic was 55 to 65 mph.

The scooter was equipped with a 1.8 horsepower motor and had a top speed of 31.7 mph. It could not reach that top speed when ascending inclines, as it was at the time of the accident. The injured victim was traveling 28.7 mph at the time of the accident.

The defendants requested jury instructions based on section 316.003(34) and 316.091(2) addressing the operation of scooters on limited access facilities.

Plaintiff objected to the instruction which was sustained.

The court found the denial of the requested instruction was an abuse of discretion. It contained an accurate statement of law, the facts supported giving the instruction and the instruction was necessary for the proper resolution of the issues in the case. At the time of the accident, the victim was not lawfully driving because the Pineda Causeway was a limited access facility, and the scooter was incompatible with the safe and expedient movement of traffic.

The court further rejected that the jury’s allocation of 25% of responsibility to the victim rendered the error harmless. The court said it could not conclude the degree of fault allocated by the jury for driving too slowly would have been the same if the jury found that the victim had been driving on a road where he was not legally prohibited to ride his scooter.