The Week In Torts – Cases from April 28, 2023
Love that pic of you and the judge!
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 17
CASES FROM THE WEEK OF APRIL 28, 2023
JUDICIAL FUNDRAISERS AND NOMINAL CAMPAIGN CONTRIBUTIONS ARE USUALLY NOT ENOUGH TO DISQUALIFY A JUDGE.
Sorhegui v. Park East Homeowners Ass’n, 48 Fla. Law Weekly D795 (Fla. 3rd DCA Apr. 19, 2023):
The issue presented in this petition for writ of prohibition was whether the allegation that the opposing counsel’s law firm hosted a judicial fundraiser for the trial judge, coupled with proof of adverse rulings and nominal personal campaign contributions was legally sufficient to warrant disqualification. In the petition, the party seeking disqualification submitted a photograph posted on social media of the judge appearing with the firm’s attorneys at the fundraiser. The court ruled these facts were not enough.
The court explained that if the state continues to select judges by popular election, it must condone to some extent the collection and expenditure of money for campaigns.
A judge’s adverse rulings or factual findings following an evidentiary hearing cannot ordinarily serve as a basis for a party to disqualify a judge, even coupled with evidence of campaign donations and involvement.
AWARD OF 57.105 FRIVOLOUS FEES UPHELD – – HOWEVER, TRIAL COURT ERRED IN FAILING TO MAKE SPECIFIC FACTUAL FINDINGS TO SUPPORT ITS CONCLUSION THAT THE ISSUES WERE SO INEXTRICABLY INTERTWINED THAT AN ALLOCATION OF THE TIME FOR THE SANCTIONABLE LITIGATION WAS NOT POSSIBLE.
Saad v. Abud, 48 Fla. Law Weekly D797 (Fla. 3rd DCA Apr. 19, 2023):
In this breach of contract action, the plaintiff moved for sanctions pursuant to §57.105 seeking fees to be paid by the defendants for the unnecessary time spent preparing and litigating the defendant’s affirmative defense asserting the contract was unenforceable.
The trial court had previously held the contract was enforceable, determining that the defendants knew or should have known that the affirmative defense was not supported by the material facts, or was not supported by the existing law to those facts.
After an evidentiary hearing to determine the amount of fees, the trial court entered a final judgment on the motion for sanctions.
After an evidentiary hearing to determine the amount of fees, the trial court entered judgment and explained that because establishing an enforceable contract was the central issue in the case, and was so inextricably intertwined with the other issues, that the allocation of fees expended in establishing an enforceable contract was not possible, practical, or feasible. The trial court also named the plaintiff’s fee expert who had said the same thing.
The court found that the trial court committed reversible error in failing to include specific factual findings in the final judgment to support the legal conclusion that the issues were so inextricably intertwined, that allocation of time spent solely on the unenforceable contract issue was not possible.
INTERESTING RULINGS ON ATTORNEYS’ FEES AND PROPOSAL FOR SETTLEMENT ARISING OUT OF A SHAREHOLDER’S DERIVATIVE LAWSUIT.
Spanakos v. Hawk Systems, Inc., 48 Fla. Law Weekly D808 (Fla. 4th DCA Apr. 19, 2023):
In this shareholder derivative lawsuit, the plaintiff ended up losing the case and had rejected a $500,000 proposal for settlement. In ruling to enforce the proposal, the Fourth District reminded us that Rule 1.442 “does not demand the impossible”. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision about needing clarification.
It further noted that the proposal for settlement was not invalid simply because the settlement would have required subsequent court approval. The court also ruled the trial court was within its discretion to conclude that the proposal was not made in bad faith. Whether a proposal for settlement was made in good faith is determined with the subjective motivations and beliefs of the pertinent actor. Even nominal offers may be made in good faith if they bear a reasonable relationship to the amount of damages or a realistic assessment of liability.
In ruling on the 1.2 million dollars that the attorneys in the case were awarded by the court, the court observed that while duplicative time charged by multiple attorneys working on a case is generally not compensable, an award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple lawyer litigation. The reduction is warranted only if the attorneys are unreasonably doing the same work.
The court said that time spent in attorney conferences is compensable for each participant and that the “due to the nature and complexity of this high stakes litigation” billing entries objected to as duplicative, were actually appropriate under the circumstances. The expert also gave unrebutted testimony that he did not see unreasonable duplication of work.
The plaintiff also objected to defendant’s “block billing”. The court said that the grouping of multiple tasks into a single billing entry is not per se unreasonable if the court can determine the time entry for the services that were performed. A thorough description of activities performed clarifies the record. Block billing that is insufficiently detailed is improper.
While clerical tasks are not compensable as attorney’s fees, some courts have concluded that attorney time spent on scheduling is not necessarily clerical in nature when it involves contacting opposing counsel and the legal issues in the case.
Some courts have suggested time spent on exhibit preparation is clerical. However, the court observed that a more nuanced view is that it is not clerical to determine the exhibits necessary for trial for purposes of an exhibit list. The time spent scanning, collating, and labeling the exhibits is purely clerical.
Finally, the court stated that the test for awarding fees for attorney/client communications is whether the time spent was reasonably necessary. Work that is done that is not reasonably necessary but performed to indulge “the eccentricities of the client” should more properly be charged to the client rather than the opposing party. However, necessary client/attorney communications are compensable.
A BUSY ROADWAY DOES NOT CONSTITUTE A DANGEROUS TRAP BECAUSE THE SCHOOL BOARD DID NOT CREATE IT – – TRIAL COURT ERRED IN DENYING MOTION TO DISMISS ACTION AGAINST SCHOOL BOARD, BASED ON DEATH OF STUDENT ON THE WAY TO THE BUS STOP.
The School Board of Palm Beach County v. Delhomme, 48 Fla. Law Weekly D815 (Fla. 4th DCA Apr. 19, 2023):
Notwithstanding how tragic these cases are, when a student is killed while crossing a busy street to get to his/her bus stop, there is not an actionable case against The School Board because the busy roadway does not constitute a dangerous trap that was created by the School Board. Therefore, the School Board owes no duty of care to a student while crossing the street.
TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BASED ON DETERMINATION THAT PLAINTIFF’S VICARIOUS LIABILITY CLAIM WAS BARRED BY THE GRAVES AMENDMENT – – GENUINE ISSUES OF MATERIAL FACT EXISTED BARRING THAT FINDING AS A MATTER OF LAW.
Olsen v. First Team Ford, 48 Fla. Law Weekly D831 (Fla. 5th DCA Apr. 21, 2023):
The general manager of a dealership executed a document entitled “Loan Vehicle Agreement” to drive home one of the dealership’s vehicles. On the way home he got in an accident with the plaintiff.
The defendant dealership moved for summary judgment arguing that the claims were barred by the Graves Amendment, which shields the owner of a rented or leased vehicle from damages caused by the vehicle when it is leased or rented.
The dealership asserted it rented the vehicle to the general manager while his vehicle was being serviced and noted that it routinely provides loaner vehicles to customers.
In his deposition, the general manager said that he had brought his vehicle in to have his oil changed but admitted it was never changed and stated that he and his wife were thinking about purchasing an Expedition which is the kind of vehicle he was driving.
Because the facts in the record and the inferences from them demonstrated that the general manager’s purpose could have been to just take the Expedition home for a test drive as opposed to him taking it because he was awaiting service, there was a genuine issue of material fact as to whether there was a rental agreement between the employee and the dealership barring summary judgment.