FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 1

CASES FROM THE WEEK OF JANUARY 5, 2018

NO ABUSE OF DISCRETION IN TRIAL JUDGE DISMISSING PLAINTIFF’S CASE FOR FRAUD ON THE COURT.

Willie-Koonce v. Miami Sunshine Transfer, 43 Fla. L. Weekly D6 (Fla. 3rd DCA December 20, 2017):

A woman hired Miami Sunshine to drive her and her luggage to a cruise ship in Miami. As she was removing her luggage from the trailer, the vehicle and trailer began backing up, running over her and pinning her under the axle.

There is no dispute that she sustained serious injuries including a 10-day hospital stay for treatment of a fractured femur. The treatment included implanting a titanium rod and several screws to repair the bone. This was followed by extensive physical therapy.

In the plaintiff’s answers to interrogatories and deposition testimony she testified she now has a permanent limp, and that she needs a cane to get around and when she walks even few steps to her car without it she limps. She testified that she could not walk without the cane, could not carry large boxes, had not tried to carry heavier bulky items, and had to use a handrail to walk up steps.

Prior to her testimony, the defendant had been surveilling the plaintiff for seven hours. She was videotaped moving into a townhome in North Carolina, and the video shows her walking continuously up and down the steps without using a cane or the handrail and carrying large and bulky items (of indeterminate weight).

In response to the motion to dismiss her claim, the plaintiff could not explain how the video could be consistent with her claims and prior testimony.

The court then found that this clearly injured plaintiff repeatedly lied under oath in both her deposition and the evidentiary hearing, and that her deception was intended to interfere with the judicial system’s ability to impartially adjudicate the case.

The court rejected the plaintiff’s argument that the surveillance only went to limitations on her damages. The court said that the record presented precisely the egregious misconduct that warrants dismissal, and that the existence of the video provided clear and convincing evidence of an intention to deceive the court.

In conclusion, the court stated that although the result “may seem rough justice” courts must deal firmly and publicly with a litigant’s fraud on the very judicial system the litigant is asking to render justice. The court then quoted a statement in Latin of Roman law “That punishment may come to a few, the fear of it should affect all.”

EVIDENCE DID NOT SUPPORT DISMISSAL OF THE PLAINTIFF’S CLAIM FOR FRAUD ON THE COURT--ADDITIONALLY APPELLATE COURT DOES NOT HAVE JURISDICTION OVER THE TRIAL JUDGE’S DECISION TO REFER THE PLAINTIFF TO THE STATE ATTORNEY’S OFFICE FOR AN INVESTIGATION OF PERJURY, OR TO REFER THE PLAINTIFF’S ATTORNEY TO THE FLORIDA BAR.

Niehaus v. Dixon, 43 Fla. L. Weekly D81 (Fla. 5th DCA December 29, 2017):

Plaintiff sued the defendant for allegedly striking him in the head with the wing of the airplane the defendant was operating. Defendant denied the allegations, asserting that as he was attempting to taxi the plane off the runway, the plaintiff ran toward the aircraft slamming his fists into the right wing of the plane, and then fell to the ground exclaiming that he had been struck by the aircraft.

After three years of contentious litigation, defendant moved to dismiss the plaintiff’s complaint for fraud based on plaintiff’s (1) failing to disclose that he had been in an automobile accident resulting in injuries ten months earlier; (2) repeatedly lying during his deposition and (3) intentionally concealing pertinent medical history from his retained expert.

The court reminded us that fraud on the court is where a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter, by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

The court reminded us that dismissal for fraud is an extreme remedy that sounds the death knell of a lawsuit, and trial courts must use the power of dismissal cautiously and sparingly and only where a party’s conduct is egregious.

Here, the trial court found that if the plaintiff had only made one of the false statements alleged of the eight defendant asserted, that the dismissal would be warranted. However, the court disagreed and remanded for the trial court to consider all of the asserted bases which cumulatively could or could not support dismissal, but was a decision best left up to the trial judge.

Additionally, the court dismissed for lack of jurisdiction the part of the appeal challenging the trial court’s decision to refer the plaintiff to the state attorney’s office to investigate a perjury claim, and also to refer plaintiff’s attorney to the ethics committee of the Florida Bar. The appellate court has no authority over such actions by the trial judge

DEFAULT UPHELD ON LIABILITY--NEW TRIAL ON DAMAGES WHERE NO EVIDENCE THAT DEFENDANTS WERE GIVEN NOTICE OF THE DAMAGES TRIAL.

Rodriguez v. Thompson, 43 Fla. L. Weekly D15 (2nd DCA December 20, 2017).

SANCTION AGAINST PARTY’S FORMER COUNSEL FOR BAD FAITH CONDUCT--FAILURE TO MAKE EXPRESS FINDING OF BAD FAITH OR SPECIFIC DETAILED FINDINGS OF THE CONDUCT THAT RESULTED IN UNNECESSARILY INCURRES FEES REQUIRES REMAND.

Ochalek v. Rivera, 43 Fla. L. Weekly D21 (Fla. 4th DCA December 20, 2017):

After being sanctioned for attorney’s fees, the attorney appealed arguing that he was not given notice and an opportunity to be heard, and that the court failed to make a bad faith finding and to articulate the grounds for the sanction.

There is an inherent authority by a judge to assess attorney’s fees for attorney misconduct as set forth in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). It’s known as the inequitable conduct doctrine. It’s reserved for those extreme cases where a party acts in bad faith, vexatiously, wantonly or for oppressive reasons.

The inherent authority of the court carries with it the obligation of restrained use and due process. However, if the court exercises its inherent authority to assess attorney’s fees against an attorney, it must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorney’s fees.

A finding of bad faith conduct must be predicated upon a high degree of specificity in the factual finding. Such sanction is only appropriate after proper notice and an opportunity to be heard.

NO ERROR IN FINDING THAT SERVICE REQUIREMENTS OF RULE 2.516 DO NOT APPLY TO A PROPOSAL FOR SETTLEMENT.

Old Castle Southern Group v. Rail Works Track Systems, 43 Fla. L. Weekly D22 (Fla. 1st DCA December 21, 2017):

Certifying conflict with the case that ruled that a proposal for settlement must be served according to the terms of Rule 2.516(a) (i.e., that since proposals for settlement are not to be filed when served, the proposal is included in the clause “every other document filed in any court proceeding” set forth in Rule 2.516(a)). This case disagreed. Currently, the Third District holds to the contrary while the Fourth, Second and now First hold this way.

EVIDENCE OF “REASONABLY CERTAIN NEED FOR AND THE COST OF PLAINTIFF’S PALLIATIVE CARE” WAS SUFFICIENT TO SUPPORT AWARD OF FUTURE MEDICAL EXPENSES--EVIDENCE NOT SUFFICIENT, HOWEVER, TO SUPPORT FUTURE EARNING CAPACITY AWARD.

Vickers v. Thomas, 43 Fla. L. Weekly D28 (Fla. 5th DCA December 22, 2017):

Plaintiff’s pain management doctor testified that her reasonably certain costs for continued palliative care would be between $525,000 and $850,000. Her orthopaedic surgeon also testified that while her condition was stable, cervical surgery would be appropriate to increase her functional capacity and quality of life.

He testified that if it was successful, there might then be a need for follow-up lumbar surgery, but that her disability and quality of life have still persisted despite the cervical surgery and conservative care.

The doctor testified that cervical surgery would cost between $90,000 and $120,000 and lumbar surgery between $60,000 and $90,000. Based on this analysis, the court upheld the $353,100 award the jury made for future medical expenses (defendant argued it was a speculative amount).

As to plaintiff’s future earning capacity, the plaintiff presented evidence that revolved around her fear of losing her job, rather than on any diminished capacity to continue her employment. That fear, the court held, was speculative and not a proper basis for those damages. The court reversed the award for future loss of earning capacity and remanded either for remittitur or a new trial on loss of earning capacity (the case does not say how much the award was).

The court then called out the plaintiff’s lawyer (apparently it had done so in an earlier opinion) for attacking defendant’s counsel’s decision to hire a doctor as an expert based upon his specialization in shoulder injuries. Counsel so agreed despite a successful motion in limine on the withdrawn shoulder injury claim. The attack on defendant’s counsel for electing to hire this doctor was disingenuous and improper, however, the court notably did not find the comments so highly prejudicial and inflammatory as to deny defendant a fair trial.

CONFLICTING EVIDENCE PRECLUDED ENTRY OF DIRECTED VERDICT FOR THE PLAINTIFF.

21st Century Centennial v. Thynge, 43 Fla. L. Weekly D29 (Fla. 1st DCA December 22, 2017):

Determinations about permanency are generally made by juries. However, Wald v. Granger allows for a directed verdict on permanent injury based on expert testimony except when (1) it is rebutted by another expert, (2) the testimony is impeached, or (3) other conflicting evidence is presented.

In this case, a physician who had performed a two-level fusion on the plaintiff opined that the accident led to an aggravation of her pre-existing neck problems caused by degenerative disc disease. He also rendered the “far from conclusive” opinion regarding permanency, finding it was possible she would require future surgery and probably has a 15-20% risk of degenerative change based on the fusion.

The court noted the plaintiff gave an incomplete medical history to the physician. Thus, the doctor’s opinions regarding causation and permanency were called into question, and the jury could properly reject them. The CME doctor also provided testimony which prevented directed verdict.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT WHEN THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT EXERCISED POSSESSION AND CONTROL OVER PREMISES--TRIAL COURT FURTHER ERRED IN GIVING AN ADVERSE INFERENCE JURY INSTRUCTION AS A SANCTION.

Bechtel Corp. v. Batchelor, 43 Fla. L. Weekly D40 (Fla. 3rd DCA December 27, 2017):

The plaintiff and his wife sued for his mesothelioma, allegedly contracted based on his exposure to asbestos at FPL’s Turkey Point power plant. At that time, defendant Bechtel was a large contractor for FPL providing services to the power plant.

The complaint alleged that defendant was in control of the operations and maintenance of the plant. Because of the plaintiff’s medical condition, the case was set for an expedited trial.

Immediately after the depositions of the defendant’s corporate representatives were taken, the plaintiff moved for sanctions, arguing that the defendant failed to adequately search for documents and information that might have been provided by retired former employees. Plaintiff asked for an instruction permitting the jury to infer that such evidence would have been unfavorable to defendant.

The defendant argued that it had no obligation to seek out former employees from 36-42 years earlier, and that attempts to locate past employees in similar lawsuits proved fruitless to the passage of time. The trial court indicated that the defendant could have mailed postcards to the last known addresses of the employees. While the trial court never issued an order compelling the defendant to mail postcards, or to otherwise contact past employees, it still granted the motion for adverse inference.

The judge instructed the jury, that if it found that the failure to produce persons employed at that plant between 1974 and 1980 to testify regarding his work was unreasonable, and their testimony would have been relevant to the plaintiff’s work, the jury could infer that the evidence would have been unfavorable to the defendant.

“Adverse inference is a strong medicine” because it can invade the province of the jury. They are reserved for circumstances where the normal discovery procedures have gone “seriously awry.” The court cited Golden Yachts as a good example for when that occurred.

In the absence of an order compelling the defendant to undertake such an extraordinary effort on the eve of trial which involved so little promise of results, the trial court erred in imposing the sanction of an adverse jury instruction.

Finally, because premises liability is not predicated on “ownership” of the property, but instead on a “duty to protect” others from injury resulting from the dangerous condition resting on the right to control access to the property, the court also concluded the evidence at trial was not sufficient to support a jury finding that defendant possessed or controlled the premises. As such, the trial court should have granted a directed verdict.

A PROPERTY OWNER WHO LOBBIED FOR A CUT IN THE MEDIAN OWED NO DUTY TO MOTORISTS WHO MAY HAVE BEEN INSURED IN AN ACCIDENT--ERROR TO DISMISS CLAIM, HOWEVER, WHERE DEFENDANT HAD PAINTED DRIVEWAY MARKING TO ENCOURAGE DRIVERS TO TURN LEFT OUT OF ITS PROPERTY WHEN IT KNEW IT WAS DANGEROUS TO DO SO.

Sewell v. Racetrac Petroleum, 43 Fla. L. Weekly D47 (Fla. 3rd DCA December 27, 2017):

The plaintiff was injured in an accident which was caused when a motorist leaving a Racetrac gas station, went through a cut in the median and made a left into her lane. As a result of that action, the plaintiff lost control of her vehicle, hit a palm tree and suffered injuries. She did not allege that either car’s view was obscured or obstructed.

The plaintiff sued on two bases: First, she argued that Racetrac’s application to obtain the cut in the concrete median was tortious because it knew or should have known that allowing full access to the road going east, would pose an undue risk of harm. The second claim was that Racetrac painted driveway markings to encourage customers to turn left out of the property, when it knew or should have known that such turns presented an unreasonable danger.

The touchstone for determining whether a duty exists is foreseeability. Where a person’s conduct is such that it creates a foreseeable zone of risk posing a general threat of harm to others, a legal duty is recognized to ensure that the underlying threatening conduct is carried out reasonably.

The determination of the duty of care may depend on the nature of the relationship between the parties.

In this case, the decision of whether or not to improve the roadway or to upgrade traffic control devices, often pits the interests of some users against the interests of others. By petitioning the county to obtain the cut in the median, Racetrac essentially entered into the planning process, which is part of a judgmental level decision, made by political branches of government. Such decisions are not actionable.

The court also found that a person who petitions the government for road improvement outside of his or her property, has no legal duty to guard against the government making a decision that will create an allegedly unreasonable dangerous road condition.

However, an owner can be liable if the actions it takes or fails to take on its own property cause vehicles to exit in a manner that the owner knows or should have known would create an unreasonable danger. As such, as to the parking lot markings, it was error to dismiss the claim against the defendant.

TRIAL COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN IT RESCINDED A PRIOR ORDER ALLOWING A DEFENDANT TO SUBSTITUTE A NEW EXPERT IN THE SECOND TRIAL AS A SANCTION FOR ABUSE OF DISCOVERY TACTICS BY THE DEFENDANT’S ATTORNEY.

R.J. Reynolds v. Morales, 43 Fla. L. Weekly D63 (Fla. 3rd DCA December 27, 2017).

The sanction was for conduct including continuous speaking objections during the expert’s deposition, on the record coaching of the witness, and improper instructions to the witness not to answer.

TRIAL COURT ERRED IN FAILING TO CONSIDER KOZEL FACTORS PRIOR TO DISMISSING AN ACTION AS A SANCTION FOR FAILURE TO ABIDE BY COURT ORDER.

Collins Asset Group v. Asset Management, 43 Fla. L. Weekly D67 (Fla. 1st December 27, 2017):

Before a party’s cause of action may be dismissed as a sanction for the party’s failure to abide by a court’s order, a trial court must consider the factors articulated in Kozel v. Ostendorf. The failure to consider those factors is, in and of itself, a basis for remand for application of the correct standard.