A proposed order is just that.. not gospel

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 15

CASES FROM THE WEEK OF APRIL 14, 2023

COURT REVERSED FINAL SUMMARY JUDGMENT ENTERED IN FAVOR OF DEFENDANT LAW FIRM IN A LEGAL MALPRACTICE CASE – – THE TRIAL COURT’S ADOPTION OF THE DEFENDANT’S 40 PAGE PROPOSED ORDER DID NOT REFLECT AN INDEPENDENT JUDICIAL ANALYSIS, AS THE TRIAL COURT ADOPTED THE PROPOSED ORDER WORD FOR WORD WITHOUT ALLOWING AN OBJECTION BY PLAINTIFF’S COUNSEL, AND MADE NO FACTUAL FINDINGS OR LEGAL CONCLUSIONS THAT COULD FORM THE BASIS FOR THE PROPOSED ORDER.  

King v. Farrah & Farrah, P.A., 48 FLW D713 (Fla. 5th DCA Apr. 6, 2023):

The trial court entered a 40-page final summary judgment that was lengthy and factually detailed.  The court observed that adoption of such a detailed order by itself does not mandate reversal.

However, because the trial court took over six months from the summary judgment hearing to enter and file the judgment for disposition, allowing more than adequate time for review, reflection and modifications, but made no changes whatsoever (even though it had been submitted in editable format), the court found that this suggested the lack of an independent review.  

The court also based its conclusion on the fact that the order cited the wrong standard for summary judgment, and contained language that could be interpreted as “overly harsh and injudicious.”  

The court admonished that such submissions cannot substitute for a thoughtful and independent analysis of the facts, issues and law by the trial judge. Because the judge adopted the law firm’s proposed order word for word without even allowing an objection by the plaintiff’s counsel, and made no factual findings or legal conclusions to guide the parties in preparing their orders, the court concluded that the court had not used independent judgment in ruling as the law requires.  

ANOTHER COURT FINDS SPECIFIC JURISDICTION OVER A FOREIGN CORPORATION WITH MINIMUM CONTACTS TO FLORIDA

Concordia Lutheran Ministries v. Wills, 48 Fla. W. Weekly D675 (Fla. 2nd DCA Apr. 14, 2023):

In this case against a nursing home, the estate alleged that the defendant committed tortious acts against the decedent in Florida.  In one count, the estate alleged that the defendant breached fiduciary duties that it owed to the decedent, aiding and abetting the Florida corporation by improperly transferring funds that adversely impacted the level of care and services.  

The court found that the affidavit submitted had not sufficiently refuted the allegation that the foreign corporation had committed such a tortious act in Florida and failed to set forth any facts refuting the aiding and abetting claim.

Additionally, the foreign corporation acknowledged that it had an ownership interest in the Florida corporation and was an “indirect parent company” of it.  

With respect to minimum contacts, the Florida Supreme Court has held that by committing a tort in Florida, a non-resident defendant establishes minimum contacts with the State to justify the acquisition of personal jurisdiction over it.  Without the defendant’s refuting that it had not perform the acts alleged in Florida, it failed to fully refute the jurisdictional allegations, thus justifying personal jurisdiction through minimum contacts.  

ANOTHER COURT STRIKES DOWN A TRIAL COURT’S DECISION ALLOWING THE PLAINTIFF TO AMEND TO ADD A CLAIM FOR PUNITIVE DAMAGE.

Marder v. Mueller, 48 Fla. Law Weekly D698 (Fla. 4th DCA Apr. 5, 2023):

The plaintiff filed a medical malpractice lawsuit in connection with a doctor’s treatment of a lesion on her hand.  Another physician had diagnosed the lesion as squamous cell carcinoma following a biopsy, then made a referral to the defendant for treatment.  The plaintiff disputes whether the diagnosis was correct.  

After the doctor discussed various treatment options with her, the plaintiff opted for radiation.  As part of obtaining her informed consent, the doctor told her that while surgery was an option, it would likely impact her ability to maintain her current lifestyle as an avid golfer.  The patient agreed to the treatment plan offered by the doctor, which called for radiation twice daily with treatments as little as 45 minutes apart.  

The plaintiff moved to amend to add a claim for punitive damages asserting that by using a radiation protocol that was not recognized as acceptable in the medical community, the defendant doctor unnecessarily subjected her to an increased risk of cancer in her lifetime, and did so for financial gain.  She maintained that the doctor’s actions were more than negligent and constituted culpable behavior reflecting a conscious disregard for her life and safety.

Section 768.72 allows a defendant to be held liable for punitive damages, only if the trier of fact based on clear and convincing evidence, finds the defendant both personally guilty of intentional misconduct or gross negligence.  The court observed that punitive damages are reserved for “truly culpable behavior and are intended to express society’s collective outrage.”  

Here, the plaintiff did not proffer anything to suggest that the defendant knew his treatment plan was unnecessary or likely to cause serious injury to convert her allegations into a claim for punitive damages.  She did not allege or proffer evidence suggesting that defendant knew the diagnosis was incorrect, but still proceeded with the treatment plan in order to commit fraud in obtaining informed consent.  The mere allegation of the doctor’s recommendation for financial gain was also not sufficient to support the claim, and the court reversed the trial court’s ruling allowing the amendment.