FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 45

CASES FROM THE WEEK OF NOVEMBER 9, 2018

TRIAL COURT ABUSED ITS DISCRETION IN DENYING MOTION FOR 57.105 SANCTIONS--THERE IS NO EXCEPTION FOR AN ATTORNEY WHO FEARS DROPPING A CLAIM WHICH THE ATTORNEY COMES TO UNDERSTAND IS NOT LEGALLY SUPPORTED, SIMPLY BECAUSE THE ATTORNEY HAS NOT HAD AN OPPORTUNITY TO CONSULT WITH THE CLIENT.

Rickard v. Nature's Sleep Factory, 43 Fla. L. Weekly D2438 (Fla. 4th DCA October 31, 2018):

A supplier sued the defendant, Nature’s Sleep Factory, and two other defendants for breach of contract. The defendants filed an answer, affirmative defenses and a counter-claim. At the beginning of the trial, the supplier announced a voluntary dismissal of its claims against the attorney and another defendant.

In light of that dismissal, the defendants served a motion for prevailing party fees and costs. The next business day, the supplier filed a response, and served--without filing--a motion for 57.105 fees, addressing defendants’ failure to timely plead entitlement to fees as required.

Pursuant to section 57.105, the supplier filed a sanctions motion, and a hearing was scheduled. A few days before the hearing and 23 days after the safe harbor period had expired, the defendants withdrew their motion for fees and cost.

The defendants conceded that the attorney’s fees motion was meritless, agreeing they had not been timely pled. The attorney explained that he could not get approval to revoke the motion during the safe harbor period, because his client was out of the country and unreachable.

At the hearing, the trial court observed that the request for fees for 4.65 hours at $450.00 an hour was reasonable, but stated that she hated these motions, and acknowledged that appellate courts look at them strictly. Still, the judge subsequently rendered an order denying the motion for sanctions.

Because the law was clear cut here, and because the 21-day safe harbor period expired (even though defendants withdrew their motion before the sanctions hearing), it was not enough.

Here, the attorney’s unsworn statements about the client’s absence from the country did not constitute evidence (these motions need sworn evidence), and the ability to reach one’s client is not an excuse for the requirement to withdraw a frivolous motion pursuant to section 57.105, because officers of the court have a duty to withdraw admittedly non-meritorious motions with or without a client’s permission.

Because the supplier timely and properly filed a motion in accordance with section 57.105, the trial court lacked the discretion to deny the motion beyond the exceptions noted in 57.105 (3), where the statute clearly states that the court shall award a reasonable fee.

NO DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW IN GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT TO ASSERT A CLAIM FOR PUNITIVE DAMAGES.

Levin v. Pritchard, 43 Fla. L. Weekly D2425 (Fla. 3rd DCA October 31, 2018):

The plaintiff notified his employer of his intention to retire. Plaintiff and the employer then executed a separation agreement. While the plaintiff still worked for the defendant, he was granted units in an equity plan, and upon retirement was awarded over one million dollars for those units.

Two years later, a national beer distributor, approached the employer about an acquisition which the employer had rejected earlier in 2010 and 2012. This time, though, the parties entered into an agreement to enable the employer to be acquired by a much bigger company. When the retiree plaintiff learned of the acquisition, he sued his employer and other corporate defendants because he had not been notified of the acquisition attempts before he retired. He claimed he would not have retired had he known that because his equity plan units would have been worth much more.

The plaintiff filed a motion to amend his complaint to add punitive damages, which the trial court ultimately granted.

The defendants petitioned for certiorari, seeking to quash the trial court’s order alleging the court failed to comply with the requirements of section 768.72. The court explained how its review is limited to whether the trial court complied with the procedural requirements of section 768.72, and further observed that it was not permitted to review the sufficiency of the evidence considered by the trial court. Finally, certiorari relief is only appropriate when the record establishes that the trial court applied the incorrect law; certiorari relief is not available to remedy an incorrect application of the correct law.

Plaintiff’s motion to amend contained a detailed table outlining the record evidence and sworn declarations that provided the basis for his punitive damages claim. The trial court conducted two hearings. The trial court also applied the correct law.

While the court said it might disagree as to whether there was sufficient evidence to provide a reasonable basis for the punitive damages claim, it also said “its narrow standards of review prevented it from quashing the trial court’s order on that basis.”

MOTION FILED MORE THAN 45 DAYS AFTER RENDITION OF OPINION IN WHICH MOVANT PREVAILED WAS UNTIMELY--MOTION FOR REHEARING OF SEPARATE ORDER DENYING MOTION FOR ATTORNEY’S FEES IS A SANCTION

THAT DOES NOT TOLL THE TIME FOR FILING A MOTION TO TAX APPELLATE COSTS IN THE TRIAL COURT.

Supria v. Goshen Mortgage, 43 Fla. L. Weekly D2447 (Fla. 4th DCA October 31, 2018):

Under 9.400 (a), costs shall be taxed by the lower tribunal on a motion served no later than 45 days after the rendition of the court’s order. An order is a “decision, order, judgment, decree, or rule of a lower tribunal,” meaning that the motion to tax costs must be filed no later than 45 days after the rendition of an opinion. Only a rehearing authorized under rule 9.330 stays the rendition of the order.

In this case, the party did not seek rehearing of the opinion in which she prevailed; only of a separate order denying her motion for attorney’s fees as a sanction. Thus, the motion for rehearing stayed rendition, but only of the order to which it was directed, and not to the opinion in the case. As such, the time for filing the motion for costs had run by the time the motion was filed.

JUDGE’S ATTEMPT TO REFUTE CHARGES AGAINST PARTIALITY WHEN DENYING STATE’S MOTION TO DISQUALIFY, CREATED AN INDEPENDENT BASIS FOR DISQUALIFICATION.

State v. Scharlepp, 43 Fla L. Weekly D2459 (Fla. 1st DCA October 31, 2018).

FIFTH DISTRICT RULES THAT WHEN CALCULATING THE AMOUNT OF PIP BENEFITS, THE DEDUCTIBLE IS TO BE SUBTRACTED FROM THE TOTAL MEDICAL CHARGES BEFORE APPLYING THE STATUTORY REIMBURSEMENT LIMITATIONS PROVIDED IN FLORIDA SECTION 627.736 (5)(a)1.b.--CONFLICT CERTIFIED.

Progressive Select v. Florida Hospital Medical Center, 43 Fla L. Weekly D2463 (Fla 5th DCA October 2, 2018):

Progressive sought certiorari because the circuit court affirmed that the insured’s PIP deductible should be applied to 100% of the hospital’s total medical charges before reducing the amount paid by the insurance company, pursuant to the statutory reimbursement limitations provided 627.736 (5)(a)1.b.

The Fifth District observed that after issuing two other similar opinions, the Fourth District reached a contrary result, holding that the deductible is not to be applied to 100% of the expense and losses. Thus, this court also certified conflict.

TRIAL COURT ERRED IN DIMISSING COMPLAINT BASED ON PLAINTIFF’S FAILURE TO TIMELY SUBSTITUTE ESTATE AS PARTY DEFENDANT AND COURT SHOULD HAVE ABATED RATHER THAN DISMISSING--THE PLAINTIFF’S FAILURE TO OPEN AN ESTATE WAS NOT WILLFUL, THERE WAS CONFUSION AS TO WHICH PARTY WAS SUPPOSED TO OPEN THE ESTATE, AND THE ATTORNEY AD LITEM HAD FILED AN ANSWER AND AFFIRMATIVE DEFENSE ON BEHALF OF THE ESTATE.

Mattick v. Lisch, 43 Fla L. Weekly D2467 (Fla. 2nd DCA November 2, 2018):

Plaintiff sued the defendant, and while attempting to serve process learned that the defendant had died. Plaintiff obtained an order for an attorney ad litem, for the purpose of serving the estate.

The defense then filed a motion to dismiss for failure to name the estate as the proper party. Plaintiff responded by filing a suggestion of death, and the motion to substitute the estate as a party. The parties later filed a stipulation for substitution of attorney ad litem for the estate.

The attorney filed an answer and affirmative defenses on behalf of the estate. Over two years later, the attorney filed a motion to dismiss for failure to substitute the estate as a defendant.

At that time, the attorney claimed she had been under the mistaken impression that the plaintiff had opened an estate before filing the motion to substitute. The attorney argued that the trial court never obtained jurisdiction over the estate because the estate had never been opened.

At the hearing on the motion, plaintiff’s attorney said that he thought that the attorney ad litem was going to open the estate. The plaintiff’s attorney also said he begun the process of opening the estate and expected to be completed by the end of the week. Still, the trial court granted the motion to dismiss.

While the trial court has authority to dismiss the complaint as a sanction for dilatory conduct under Rule 1.420 (b), the record did not support a finding that plaintiff’s failure to open an estate under these circumstances was willful or deliberate. Since there was confusion on both sides, and the attorney ad litem had filed an answer and affirmative defenses, the court should have abated the action instead of dismissing it.