Did the contract say you were charging that much?

FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 49

CASES FROM THE WEEK OF DECEMBER 12, 2025

ATTORNEY CHARGING LIENS; FIFTH DISTRICT REVERSES LIEN AMOUNT WHERE TRIAL COURT IMPROPERLY ANCHORED THE LIEN TO A PRIOR FEE JUDGMENT AND “REASONABLE RATE” FINDINGS, RATHER THAN THE ATTORNEY CLIENT CONTRACT; REMANDED FOR CORRECTED JUDGMENT BASED ON CONTRACT TERMS

Baldwin v. Douglas R. Beam, P.A., 50 Fla. L. Weekly D2593 (Fla. 5th DCA Dec. 5, 2025):

The Fifth District reversed a charging lien judgment because the trial court erred in how it calculated the lien amount. The court reiterated that a charging lien is an attorney’s equitable right to recover fees and costs for services rendered in a lawsuit that produces a recovery, and it has four elements: (1) a valid contract, (2) an understanding that payment depends on recovery, (3) an attempt to avoid payment or a dispute over the amount owed, and (4) timely notice.

Because a charging lien enforces the attorney-client contract, the lien must be consistent with that contract and cannot be based on an amount determined by the trial court that contradicts the contract terms.

Here, the trial court used a prior fee judgment against an opposing party as the “starting point” for the lien calculation. But that prior judgment was based on judicial findings regarding reasonable hourly rates and time under a Rowe-type analysis, not on the fee agreement between the plaintiff and the attorney.

The opinion notes, for example, that the prior fee judgment treated $600 per hour as a reasonable rate, yet the attorney conceded that neither the written retainer agreement nor the billing records reflected a $600 rate, and the plaintiff never testified to endorsing that rate or the total fee award.

Because there was no basis to anchor the lien to the prior fee judgment rather than the contract, the Fifth District reversed and remanded for the trial court to determine what the plaintiff owed under the contract, including whether additional evidence would be needed.

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BASED ONLY ON PORTIONS OF THE PLAINTIFF’S DEPOSITION, WHERE OTHER EVIDENCE CREATED A GENUINE ISSUE OF MATERIAL FACT

Dunlap v. Needle Rush Point Owners’ Association, 50 Fla. L. Weekly D2545 (Fla. 1st DCA Dec. 3, 2025):

In this slip and fall case, the trial court granted summary judgment based on the plaintiff’s deposition testimony that her foot “gave up and collapsed.” The trial court overlooked, however, the plaintiff’s interrogatory responses where she stated that it was rotten wood, and green slippery moss-like substance on the boardwalk that caused her to fall.

The plaintiff also testified in her deposition that the condition of the wood caused her to fall, and she presented photographs of the boardwalk that were taken shortly after the incident along with the shoes she wore, which were marked with the same green substance from the boardwalk.

This evidence created a genuine issue of material fact, requiring reversal of the summary judgment.

NO ERROR IN DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND TO ADD A CLAIM FOR PUNITIVE DAMAGES IN A NURSING HOME CASE

Jones v. MG Bradenton Subtenant LLC, 50 Fla. L. Weekly D2569 (Fla. 2d DCA Dec. 3, 2025):

The plaintiff’s mother was an elderly, terminally ill woman in hospice care who resided in the memory care unit of the defendant’s assisted living facility for nearly two years. On the night of her death, a medical technician found her unresponsive.

The decedent was discovered approximately two hours after she had been helped into bed. She was on her knees, with her head lodged between the mattress and the bed rail.

The plaintiff’s expert opined that when the decedent’s head became lodged between the mattress and the bed rail, it caused a fracture to her cervical spine, which substantially contributed to her death.

In seeking leave to amend the complaint to add punitive damages, the plaintiff asserted that his mother had a history of multiple falls, yet was kept in a broken bed with unsafe bed rails, even though hospice had placed a safer bed without rails in her room. He also argued that the facility recognized it lacked the ability to properly care for his mother, but management instructed concerned staff that the facility could provide appropriate care. The plaintiff further asserted that the facility never updated the decedent’s care plan to address her risk of falling from bed or to implement additional interventions.

At the hearing, the plaintiff relied on affidavits from two experts and the deposition testimony of several witnesses. The evidence addressed staffing, training, the decedent’s falls, the care provided, and communications among facility personnel.

In denying leave to amend, the trial court determined that the key issue was staffing and whether the defendant entities had sufficient staff on duty the night the decedent died. The court concluded there was adequate staffing, that staff checked on the decedent a reasonable number of times, and that there was no reliable or credible evidence the facility was understaffed or that the defendant had actual knowledge of dangerous conditions that were consciously disregarded such that punitive damages were warranted.

Punitive damages are an extraordinary remedy, reserved for acts or omissions so egregious that they threaten not only the plaintiff but the public as a whole, such that punishment—rather than compensation—is required to deter similar conduct.

At the pleading stage, a plaintiff is not required to prove entitlement to punitive damages by clear and convincing evidence. Instead, the plaintiff must make an evidentiary showing that provides a reasonable basis for recovery of punitive damages under section 429.2971.

The appellate court agreed that the plaintiff’s evidence did not establish intentional misconduct or gross negligence sufficient to impose direct or vicarious punitive liability against the defendant entities. As the trial court found, the evidence fell far short of the stringent statutory burden imposed for punitive damages against corporate defendants.

Even if the facility had been understaffed, the court found no evidence that staffing contributed to the injury or death. Two employees were assigned to the memory care unit that evening, where there were fifteen residents, and there was no evidence that having more staff was required by any rule applicable to the facility.

The plaintiff’s argument that keeping the decedent in a broken bed with unsafe rails warranted punitive damages also failed. There was no evidence that a managing agent of the management company knew about the broken bed or that the defendant entities had that information.

Although an employee testified that she complained multiple times to her supervisor about the broken bed, her supervisor was the memory care director. The memory care director reported to the resident care director, who in turn reported to the executive director.

Even if the memory care director knew about the broken bed and failed to move the decedent into the new bed, the appellate court agreed that this did not support direct or vicarious punitive liability for the management company or the defendant entities because he was, at most, a manager or mid-level employee.

Finally, the plaintiff’s assertion that the facility failed to update the care plan was not borne out by the evidence. The chart noted in multiple places that the resident was confused and disoriented and at high risk for falls.

Although the facility may have been negligent in not implementing a new care plan, the appellate court could not agree that this demonstrated a conscious disregard or indifference to the life, safety, or rights of the decedent. The denial of leave to add punitive damages was affirmed.

UNDER THE 2018 STATUTE APPLICABLE TO THE CASE, A PROPOSAL FOR SETTLEMENT REQUESTING A RELEASE WAS NOT ENFORCEABLE WHERE THE PROPOSAL DID NOT ATTACH OR SUMMARIZE THE TERMS OF THE RELEASE

Schmelzer v. Frankel, 50 Fla. L. Weekly D2575 (Fla. 3d DCA Dec. 3, 2025):

Because the 2018 version of section 768.79(2) required that a proposed release be attached to the proposal, or that its terms be summarized, the proposal here was unenforceable where it did neither. The trial court therefore erred in awarding attorneys’ fees pursuant to that proposal.

THIRD DISTRICT AFFIRMS VERDICT FOR TENANT SHOT DURING ROBBERY ATTEMPT– FORESEEABILITY AND NOTICE EVIDENCE SUPPORTED SUBMISSION TO JURY; NO REVERSIBLE ERROR FROM NOTE PASSING BY ALTERNATE JUROR OR TRIAL COURT’S REFUSAL TO ALLOW IN CAMERA REVIEW OF JUROR NOTEBOOKS

Dama Holding LLC v. Guelmes, 50 Fla. L. Weekly D2585 (Fla. 3d DCA Dec. 3, 2025):

After a jury trial, the trial court entered an amended final judgment in favor of the plaintiff tenant, Juan Guelmes, and the Third District affirmed.

The defendant landlord, Dama Holding LLC, owned several homes in a Homestead cul de sac and leased one to the plaintiff On August 29, 2014, while the plaintiff was outside cleaning his car, an unknown assailant attempted to take the chain around his neck; when he did not comply, the assailant shot him, and during the ensuing struggle shot him multiple additional times. The plaintiff sued for negligent failure to maintain the premises in a reasonably safe condition and negligent failure to warn, alleging the defendant knew or should have known the premises and surrounding area were high crime and that similar criminal acts had occurred such that an attack was reasonably foreseeable absent proper security. The jury found the defendant negligent and the sole legal cause of the plaintiff’s damages, and awarded $4 million dollars.

On duty and foreseeability, the Third District held the trial court properly denied the motion for directed verdict when the evidence is viewed in the light most favorable to the plaintiff. While landowners generally owe no duty to protect against unforeseeable criminal misconduct, a landlord-tenant relationship creates a duty to protect and warn against reasonably foreseeable criminal conduct. Foreseeability is classically a jury question where the underlying facts and notice evidence are disputed.

The opinion details the plaintiff’s expert’s testimony that, within the five-year period before the shooting, 351 crimes occurred within the relevant geographic grid (described as a very high crime area), including robberies, burglaries, thefts, aggravated batteries, and aggravated assaults with weapons, and it also details prior crimes on defendant’s cul-de-sac properties and in the rented home, along with opinion testimony that crime was foreseeable and tenants should have been warned.

The defendant also sought a new trial based on juror misconduct, after defense counsel observed jurors passing notes during trial and the court questioned jurors individually. The alternate juror admitted passing a note about testimony (including scars and disfigurement), and other jurors described what they saw. The court denied a mistrial, re-instructed the jury about not discussing the case until deliberations, and later denied a new trial, finding no reasonable possibility the incident affected the verdict and that any presumption of prejudice was rebutted.