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The Week in Torts – Cases from the Week of July 12, 2019
We Hate Technicalities!
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 28
CASES FROM THE WEEK OF JULY 12, 2019
AS DECISIONAL LAW PROVIDES A BASIS FOR ALLOWING MOTIONS FOR SUBSTITUTION TO BE FILED AFTER THE 90-DAY PERIOD FOR SUBSTITUTING A PERSONAL REPRESENTATIVE, TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING DEFENDANTS’ MOTION TO DISMISS.
R.J. Reynolds Tobacco Co. v. Lacey, 44 Fla. L. Weekly D1718 (Fla. 3rd DCA July 3, 2019):
Plaintiff sued RJR and six other tobacco companies in 2008. In 2018, his law firm sought to withdraw, and the motion was granted.
During the hearing, counsel for the plaintiff advised the trial court, and counsel for the defendants said he understood that the plaintiff had passed away, but that no suggestion of death had been filed. Counsel advised he did not intend his announcement to actually be a “suggestion of death,” and that the defendants had the surviving spouse’s address on file.
The order allowing withdrawal gave the plaintiff 35 days to retain new counsel, or to file a notice of intent of pro se representation. Shortly after the hearing, the tobacco companies filed a suggestion of the plaintiff’s death, pursuant to Rule 1.260 (a).
Three months later the tobacco companies moved to dismiss the case with prejudice based on probate Rule 5.030(a), which requires a personal representative to be represented by a Florida-licensed attorney, based on the plaintiff’s estate failure to obtain successor counsel within the number of days directed in the order, and based on the estate’s failure to move for a substitution within 90 days of the suggestion of death.
In response, the plaintiff’s widow wrote the trial judge a typed, signed letter requesting more time to obtain a new lawyer. She recounted that following her husband’s death she was in the hospital twice for surgery and had lost other family members and that it had been her late husband who had taken the reins on the case.
The trial court denied the defendants’ motion to dismiss without prejudice, giving the widow additional time to retain counsel. Two days after that period expired, plaintiff still had not retained counsel, and the defendants’ moved to dismiss again.
Three weeks after that, an attorney filed a notice of appearance and a motion to substitute the widow as the personal representative. The trial court once again denied defendants’ motion to dismiss.
The court observed that Rule 1.260 had been liberally interpreted to permit substitution beyond the 90 day time period to dispel rigidity, create flexibility, and give a liberal effect. The rule does not welcome technical defaults.
While the court concluded that the tobacco company defendants could not be faulted for their zealous advocacy and seeking dismissal of the circuit court lawsuit, it also said that the trial court should not be faulted for allowing the widow and her successor counsel additional time given their difficult, excusable and distracting personal circumstances. The court found the record failed to establish the prerequisites for certiorari review.
PREJUDGMENT INTEREST ON ATTORNEY’S FEES MAY NOT BE CALCULATED FROM A DATE EARLIER THAN THE DATE ENTITLEMENT IS DETERMINED.
The Burton Family Partnership v. Plaza, 44 Fla. L. Weekly D1720 (Fla. 3rd DCA July 03, 2019):
Entitlement to prejudgment interest in Florida is governed by the “loss theory” as described in the Florida Supreme Court decision and Argonaut Insurance Co. v. May Plumbing. Prejudgment interest is awarded as a penalty for a defendant’s wrongful act of disputing a claim found to be just and owing.
Prejudgment interest is awardable only if there is an appropriate basis for awarding the interest, and accordingly, interest accrues from the date the entitlement to the attorney’s fees is fixed through agreement, arbitration award, or court determination. An award of prejudgment interest is not an opportunity for the plaintiff to obtain a windfall, or for the court to penalize the defendant by calculating prejudgment interest from a date earlier than the date entitlement was determined. In this particular case, the entry of the amended final judgment is what triggered the date from which prejudgment interest would be calculated.
TRIAL COURT ABUSED DISCRETION BY DENYING LEAVE TO FILE THIRD AMENDED COMPLAINT, WHERE THERE WAS NO SHOWING THAT GRANTING LEAVE TO AMEND WOULD PREJUDICE THE DEFENDANT OR THAT THE AMENDMENT WOULD BE FUTILE.
Pangea Produce Distributors v. Franco’s Produce, 44 Fla. L. Weekly D1723 (Fla. 3rd DCA July 03, 2019):
(No further summary.)