New Release by Attorney Don Fountain: Advocating for Consumer Safety.

NO RECOVERY NO FEES

New Release by Attorney Don Fountain: Advocating for Consumer Safety.

Purchase Now
Thu 15th May | 2025

The Week In Torts – Cases from April 25 2025

General BY

90 days or bust

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 16

CASES FROM THE WEEK OF APRIL 25, 2025

TRIAL COURT DID NOT ERR BY DISMISSING PLAINTIFFS’ CASE AFTER THEY FAILED TO TIMELY SUBSTITUTE A PARTY FOR THE DEFENDANT WHO HAD DIED—WITHOUT A MOTION TO SUBSTITUTE PARTY FILED WITHIN 90 DAYS OF SUGGESTION OF DEATH, RULE 1.260 MANDATES DISMISSAL

Hamza v. McLemore, 50 Fla. L. Weekly D892 (Fla. 5th DCA Apr. 17, 2025):

The plaintiffs filed a complaint for damages they allegedly sustained in a car accident. Thereafter, their counsel was permitted to withdraw. After failing to retain new counsel, they proceeded pro se.

Counsel for the defendant filed and served a suggestion of death advising that the defendant had died. The suggestion identified the survivor.

A month later, counsel emailed the plaintiff to advise that an estate had been set up but no personal representative had been appointed. Counsel advised the Plaintiff that he could appoint a personal representative of his choosing and substitute the defendant’s estate into the lawsuit.

The plaintiffs took no action and after the 90 days expired, counsel for the deceased filed a motion to dismiss for failing to substitute party, citing Rule 1.260.

The court affirmed, noting that a substitution of a party must be filed and served within 90 days of a suggestion of death, or according to the plain language of the rule, the case gets dismissed.

The fact that the plaintiffs were representing themselves in no way relaxed the clear requirements of that rule (as they asserted), and as a result of the plain language of Rule 1.260(a)(1), dismissal was proper.

Week In Torts Button

COURT AFFIRMS TRIAL COURT’S REFUSAL TO TRANSFER VENUE

Santoro v. PJT Holdings, LLC, 50 Fla. L. Weekly D870 (Fla. 3rd DCA Apr. 16, 2025):

The majority concluded that the defendant failed to establish that the trial court abused its discretion in denying the motion to transfer venue, but the opinion does not provide any facts. It does, however, cite to a case stating that a plaintiff’s forum selection is presumptively correct, and one stating that the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.

One judge specially concurred with the result, but wrote separately to admonish that section 47.122, Florida Statutes, only states that venue can be changed in the consideration of three factors: (1) the convenience of the parties; (2) the convenience of the witnesses; or (3) the interest of justice.

The judge then further admonished that precedent from case law has evolved to require that a defendant show more than those three prongs of the statute, i.e. “substantial inconvenience or undue expense.” She traced the origin of that standard in the common law, urging the court to reexamine its precedent and return to the plain text of the statute.

TRIAL COURT ERRED BY DENYING THE PLAINTIFF’S RULE 1.530 MOTION WITHOUT AN EVIDENTIARY HEARING—PLAINTIFF’S MOTION SET FORTH A COLORABLE ENTITLEMENT TO EXCUSABLE NEGLECT RELIEF, AS THE MOTION ALLEGED THAT PLAINTIFF WAS UNABLE TO ATTEND VIDEO HEARING ON MOTION TO DISMISS BECAUSE OF TECHNICAL DIFFICULTIES

Noble v. Wexford Health Sources, Inc., 50 Fla. L. Weekly D879 (Fla. 4th DCA Apr. 16, 2025):

After the plaintiff’s attorney withdrew, the plaintiff continued pro se with his lawsuit for medical negligence. The defendant moved to dismiss for failure to comply with medical malpractice presuit notice requirements. However, the plaintiff failed to attend the scheduled Zoom video hearing on the motion to dismiss.

The plaintiff timely filed a motion for rehearing pursuant to Rule 1.530 but accompanied by an affidavit. The motion alleged he was unable to attend the hearing due to his inability to access the Zoom meeting.

The plaintiff stated he made several attempts to contact court personnel when he discovered that he could not join the hearing, and that the technical reasons amounted to excusable neglect and/or inadvertence. He further alleged that before the hearing, he had attempted to contact court personnel because he is a disabled litigant but received no response concerning his request for assistance.

The defendant argued that the plaintiff’s motion was controlled by Rule 1.540 rather than Rule 1.530 and that his general statements did not substantiate his claim for excusable neglect because they lacked any factual basis. The plaintiff then amended his motion, citing both rules and going into further detail about leaving the judicial assistant a voicemail, attaching the call log to reflect his attempts to contact the court, etc.

Florida Rule of Civil Procedure 1.540(b) authorizes a trial court to grant a party relief from a final judgment for excusable neglect. Additionally, Rule 1.530 also authorizes the trial court to grant the party such relief. A claim that the failure to appear was caused by technological difficulties is a type of “system gone awry” that may constitute excusable neglect.

When a motion sets forth a colorable entitlement to relief from a judgment based on excusable neglect as this one did, the trial court should conduct an evidentiary hearing on the motion.

The defendant also tried to advance a “tipsy coachman” argument for affirmance because the record established that the amended complaint failed to comply with the presuit notice requirements.

The court rejected that argument for two reasons. First, the defendant did not argue the failure to comply with the presuit notice when it responded to the plaintiff’s motions for rehearing, and second, the trial court’s denial of relief was based on the plaintiff’s motions and the party’s submissions. The record showed that the dismissal was entered solely because the plaintiff failed to appear.

Additionally, when a defendant files a section 766.206, Florida Statutes motion, the trial court is required to make an express finding as to the plaintiff’s compliance with the presuit requirements. Here there was no such express finding on compliance or noncompliance, further undermining the “tipsy coachman” argument.

COURT LACKED JURISDICTION TO REVIEW AN ORDER APPROVING THE GENERAL MAGISTRATE’S RECOMMENDED ORDER DENYING MOTION TO ENFORCE SETTLEMENT, BECAUSE NO TIMELY APPEAL WAS FILED

Rhiner v. Lawnwood Regional Medical Center, 50 Fla. L. Weekly D886 (Fla. 4th DCA Apr. 16, 2025):

The plaintiff sued Lawnwood for medical malpractice. The parties reached an oral settlement agreement, but due to difficulties communicating with the plaintiff who was incarcerated at the time, Lawnwood filed a motion to compel a settlement. Lawnwood explained that it needed an address for which to send the settlement check and needed the plaintiff to execute and return a general release.

The trial court granted Lawnwood’s motion to compel the settlement and entered an order reflecting that a settlement existed, and the defendant was awaiting the signed release so it could send the proceeds to the plaintiff.

The plaintiff did not appeal the order granting the motion to compel settlement.

Instead, three months later, the plaintiff filed a motion to enforce the settlement agreement, asserting that the draft settlement agreement documents prepared by Lawnwood did not properly memorialize their agreement.

The matter proceeded to a hearing before a general magistrate who entered a written report recommending the denial of the plaintiff’s motion. The general magistrate reasoned that there was a settlement and that the order granting the motion to compel the settlement was never appealed.

Because an untimely appeal cannot be a vehicle for challenging an order, the plaintiff failed to preserve the issue because he failed to take an appeal of the first order entered more than 30 days before, leaving the court with no jurisdiction to hear the current appeal.