Keeping the Florida Bar busy

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 33

CASES FROM THE WEEK OF AUGUST 21, 2026

COURT REFERS LAWYER TO THE FLORIDA BAR AFTER AI-DRAFTED CERTIORARI PETITION CONTAINED A NONEXISTENT CASE AND FALSE CITATIONS—CLAIM THAT COUNSEL ACCIDENTALLY FILED THE WRONG DRAFT DID NOT EXCUSE FAILURE TO VERIFY THE AUTHORITIES OR DISCLOSE CONTROLLING ADVERSE LAW

JMOR Properties, LLC v. Artist Alley Townhomes, LLC, 51 Fla. L. Weekly D1649 (Fla. 4th DCA Aug. 12, 2026):

The appellate court dismissed JMOR’s certiorari petition that sought review of an order vacating a clerk’s default. The court explained that such an order does not create the irreparable harm required for certiorari jurisdiction.

Adding insult to proverbial injury, the court then ordered JMOR’s attorney to show cause as to why he should not be sanctioned for filing a petition riddled with false citations and arguments, including a nonexistent Fourth District case and actual cases that did not support the propositions for which counsel cited them.

Counsel acknowledged the false citations and even identified additional ones. He explained that his ordinary practice was to use artificial-intelligence software to research and prepare an initial draft, then verify the citations and revise the filing. Counsel asserted that he had completed that review but accidentally filed the AI-generated draft rather than the corrected version.

The court found the explanation insufficient. An attorney’s certification of a filing includes a duty to verify all cited authority, and accidentally submitting the wrong draft does not excuse filing fictitious cases or citing cases for false propositions. Worse, the purportedly corrected petition still failed to disclose controlling adverse authority establishing—since at least 1979—that certiorari is unavailable to review an order vacating a clerk’s default before judgment.

The court concluded that the filing violated counsel’s duties of competence and candor and referred the matter to The Florida Bar for consideration of disciplinary proceedings.

ORDER ALLOWING PUNITIVE-DAMAGES CLAIM REVERSED WHERE COUNSEL’S DESCRIPTION OF THE DEPOSITION TESTIMONY WAS NOT SUPPORTED BY THE RECORD—COURT REFERS PLAINTIFF’S TRIAL COUNSEL TO THE FLORIDA BAR FOR REPEATED MISREPRESENTATIONS

Estancia US Limited Partnership v. Aji-Dawkins, 51 Fla. L. Weekly D1675 (Fla. 6th DCA Aug. 14, 2026):

The plaintiff sued a hotel after she fell from its second-story walkway when a PVC railing collapsed. Hurricane Ian had destroyed part of the walkway, and the hotel’s maintenance workers installed the PVC railing to close the opening.

The plaintiff sought punitive damages, asserting that the hotel’s owner knew the railing was a dangerous ‘breakaway’ product and knew a similar railing had previously collapsed when a child leaned against it.

At the hearing, the plaintiff’s attorney repeatedly told the court that the maintenance workers had warned the owner that the railing was unsafe for second-story use, that the owner nevertheless instructed them to install it, and that the owner had been told about the earlier incident involving a child. The trial court relied on those representations and entered an order—prepared by plaintiff’s counsel—allowing the punitive-damages amendment.

Unfortunately, the actual deposition testimony did not bear out the factual representations the attorney made to the court. One maintenance worker testified that he did not tell the owner the railing was inappropriate until after the plaintiff’s fall and never said he had told the owner about the incident involving the child. The other worker testified that no one expressed safety concerns, that he properly secured and vigorously tested the railing, and that it appeared safe. The product packaging described the railing as code-approved, strong, and durable.

The Sixth District reversed. Even viewing the evidence in the plaintiff’s favor under the pleading-stage standard clarified in Perlmutter, the actual record itself did not provide a reasonable evidentiary basis for a finding of gross negligence. The factual predicates on which the trial court relied were counsel’s representations, not evidence.

The court emphasized that lawyers must tell the truth even when it does not help their case, and that trial judges cannot be expected to verify every factual assertion made at a hearing. Finding that trial counsel had violated basic duties of candor and competence, the court directed the clerk to send the opinion to The Florida Bar for further investigation.

AMENDED DRAM-SHOP CLAIMS IDENTIFYING A DIFFERENT DRIVER DID NOT RELATE BACK TO THE ORIGINAL COMPLAINT WHERE THEY RESTED ON A NEW FACTUAL NARRATIVE—TRIAL COURT ALSO CORRECTLY FOUND THAT THE EIGHT-YEAR DELAY UNFAIRLY PREJUDICED DEFENDANTS AFTER EVIDENCE WAS LOST AND A KEY WITNESS DIED

Sillaway v. Brandon Crossroads Bowl, Inc., 51 Fla. L. Weekly D1632 (Fla. 2d DCA Aug. 12, 2026):

This dram-shop case from claims that three men were overserved at a bowling alley before they crashed into another vehicle, killing one and injuring another. The only occupant of the truck found at the scene was Jesus Ronduelas, a cognitively and physically impaired twenty-seven-year-old who later pleaded guilty to DUI manslaughter and received a sentence exceeding ten years.

The plaintiffs filed suit in 2016, alleging that Ronduelas had driven the truck and that the bowling alley had continued serving him despite knowing he was habitually addicted to alcohol. Notably, Ronduelas testified that it had been his first visit to the bowling alley, that he had passed out in the truck bed, and that he was not driving. He said he pleaded guilty only to avoid risking a much longer prison sentence. Later depositions suggested that one of the other drivers may have been driving and fled the scene, leaving Ronduelas behind to take the blame.

In 2022—eight years after the crash, almost six years after filing suit, and four years after Ronduelas’s deposition—the plaintiffs amended their complaint to allege that either of the other two men had been driving and that the bowling alley knew each was habitually addicted to alcohol. By then, critical evidence had been lost, and one of the men had died without ever being deposed.

The appellate court affirmed the dismissal of the amended complaint. It concluded that the new allegations did more than merely substitute the name of a tortfeasor; they changed the core facts necessary to establish liability under section 768.125.

The original case depended on proof that the bowling alley knowingly served Ronduelas as a habitual alcoholic, while the amended case required entirely different proof regarding the two other men. The new claims therefore did not arise from the same conduct, transaction, or occurrence and did not relate back.

Even if the claims had related back, the appellate court wrote that the trial court properly found unfair prejudice. The plaintiffs waited years after learning that Ronduelas denied being the driver, and by the time they changed their factual theory, evidence was gone and a central witness was dead. The court affirmed the summary judgment for the Defendants.

SECOND NOTICE SENT PURSUANT TO THE SECTION 57.105 SAFE-HARBOR PROVISION BASED ON THE SAME GROUNDS AS THE FIRST NOTICE, GAVE THE PLAINTIFFS A NEW 21-DAY PERIOD TO AVOID SANCTIONS—THEREFORE, THE VOLUNTARY DISMISSAL ON DAY 16 OF THE SECOND NOTICE PERIOD DEFEATED THE EARLIER-FILED SANCTIONS MOTION

Citizens Property Insurance Corp. v. Oppenheimer, 51 Fla. L. Weekly D1638 (Fla. 3d DCA Aug. 12, 2026):

The insureds sued Citizens over Hurricane Irma damage and later attempted to enforce proposals for settlement that Citizens said contained mistaken amounts. After the trial court found there had been no meeting of the minds, and the Third District affirmed that ruling forcing the plaintiffs to accept the lesser proposal amounts, the insureds filed a second action seeking to enforce the alleged settlements. They eventually replaced their breach-of-contract claims with unjust-enrichment claims while seeking the same $142,500 in damages.

Citizens served a section 57.105 safe-harbor notice directed to the second amended complaint and filed its sanctions motion after the insureds failed to withdraw the pleading within 21 days. After the insureds withdrew that complaint and sought leave to amend again, Citizens served a second safe-harbor notice on the same grounds. This time, the insureds did voluntarily dismiss the action timely (on day 16 of the second safe-harbor period).

The court addressed this as an issue of first impression as to whether the timely voluntary dismissal in response to the later notice precluded sanctions under Citizens’ earlier-filed motion.

The appellate court held that it did. By serving a second motion raising the same grounds, Citizens effectively gave the insureds another 21-day opportunity to withdraw or correct the challenged claims.

Because the insureds took that opportunity and dismissed the lawsuit before the second safe-harbor period expired, the trial court properly denied Citizens’ motion for sanctions.