The Week In Torts – Cases from December 3, 2021
More than a feeling
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 48
CASES FROM THE WEEK DECEMBER 3, 2021
TRIAL COURT ERRED IN REDUCING PLAINTIFF’S ATTORNEY’S HOURLY RATES AND EXPERT’S RATES WITHOUT MAKING SPECIFIC FINDINGS OR EVIDENCE – TRIAL COURT ERRED IN MAKING INTERNALLY INCONSISTENT FINDINGS THAT SUPPORTED APPLICATION OF A CONTINGENCY FEE MULTIPLIER, BUT THEN FAILED TO APPLY IT
El Brazo Fuerte Bakery II v. 24 Hour Air Service, Inc., 46 Fla. L. Weekly D2539 (Fla. 4th DCA Nov. 24, 2021):
The plaintiff filed a breach of contract claim and prevailed. It then entered an order awarding the plaintiff entitlement to attorney’s fees.
The plaintiff’s attorney testified that plaintiff had retained the two-attorney law firm to pursue its claim. The retainer was partially contingent (whereby the plaintiff agreed to pay the firm a flat $2,000 attorney’s fee and also agreed that the firm could seek the balance from the court, along with a multiplier). The two attorneys ultimately spend 121.2 hours on the litigation, and substantiated the testimony with detailed time records.
The plaintiff’s attorney testified how the work performed satisfied the factors in Rowe, as modified by Quanstrom, and further testified that the firm would not have taken the case on a partial contingency fee basis without the possibility of a multiplier. The plaintiff’s attorney testified that both he and his partner had been practicing for about a year and a half, and charged $350 per hour.
On cross-examination, the defense attorney questioned counsel regarding the entries but not the hourly rate. The plaintiff’s expert testified that he was a 25-year former judge and charged $600 per hour, opining that while 7.5 hours should be deducted after a review of the records and bills, that $350 was a reasonable hourly rate. He also opined that the relevant market required a contingency fee multiplier to obtain competent counsel for which he believed a 2.5 multiplier was warranted. The expert testified he spent 11 hours preparing for the hearing.
Defense counsel acted as the defense expert (by proffer) and testified that the market rate for an attorney with less than two years of experience was $225 per hour, and that the claim did not justify a multiplier.
The court then revised the plaintiff’s proposed order, not reducing any of the hours, but reducing the plaintiff’s hourly rate to $175 (1/2 of what the expert opined was reasonable). The trial court also found that the plaintiff’s expert was entitled to only 8.8 hours at the $225 hourly rate (less than the 11 hours at $600 per hour that had been testified to).
Using abuse of discretion as the standard of review, the judgment reduced the reasonable hourly rates and hours without any elucidation for the reduction. The defendant did not present any expert or other evidence to refute the plaintiff’s expert opinion, and the judge did not indicate that her determination of reasonable hourly rates was rooted in her experience as a lawyer. Even with defense counsel’s proffer, the hourly rate was $225 per hour, $50 more than the $175 the judge awarded.
Additionally, the trial court erred in making internally inconsistent findings supporting the application of a multiplier, but then not applying the multiplier. The court included the proposed judgment’s Quanstrom multiplier findings, which were supported by the plaintiff’s expert, but then gave zero for the multiplier amount which was also an abuse of discretion.
Finally, the county court erred in not awarding prejudgment interest from the date on which the county court found that plaintiff was entitled to attorney’s fees (a matter reviewed de novo).
TRIAL COURT’S COMMENTS WERE ABOUT “THE CASE,” AND DID NOT REFLECT BIAS WARRANTING DISQUALIFICATION
Schmelzer v. Frankel, 46 Fla. L. Weekly D2517 (Fla. 3rd DCA Nov. 24, 2021):
The petitioner challenged the trial judge, asserting that he pre-tried the case/defense, based on comments made regarding a motion in limine, and the expert being a conduit for hearsay. The trial judge had also expressed concern over the line of questioning regarding spoliation introduced through an engineering expert, and then questioned the ruling on the expert.
In looking at the transcript, the court found the trial judge expressly allowed cross-examination of the fact witness on the very issues that the petitioner sought to introduce through expert testimony, observing that the party had a chance to explore the expert’s purported untruthfulness during cross-examination.
The issue was whether the petitioner could have an “objectively reasonable fear that he could not get a fair trial,” based on the trial judge’s rulings limiting certain expert witness testimony, while at the same time allowing cross-examination on the same issue.
Because the court concluded that the trial court confined its remarks to the issue pending, any argument regarding possible bias or prejudice was unfounded.
TRIAL COURT COMPLIED WITH PROCEDURAL REQUIREMENTS OF PUNITIVE DAMAGES STATUTE WHEN GRANTING PLAINTIFF LEAVE TO AMEND, ELIMINATING CERTIORARI REVIEW
Bank of America v. Colugo Colombo, 46 Fla. L. Weekly D2518 (Fla. 3rd DCA Nov. 24, 2021):
Compliance with the procedural requirements results in a denial for the petition for writ of certiorari. Certiorari review is not available to review the sufficiency of the plaintiff’s evidentiary proffer.
ERROR DISMISS ACTION SUA SPONTE WITH PREJUDICE FOR LACK OF PROSECUTION, WHERE THE DOCKET REFLECTED A NOTICE OF UNAVAILABILITY FILED SEVEN MONTHS BEFORE ENTRY OF THE ORDER
Mote Wellness & Rehab v. State Farm Mut. Auto. Ins. Co., 46 Fla. L. Weekly D2536 (Fla. 4th DCA Nov. 24, 2021):
Not only was there record activity in the form of a notice of unavailability filed seven months before the dismissal order was entered, but the court also failed to provide notice of record inactivity to the plaintiff pursuant to Rule 1.420(e), before dismissing the action for failure to prosecute. That Rule provides that in all actions in which it appears on the face of the record that there has been no activity for a period of ten months, the court or the clerk must serve notice to all parties about the inactivity.
In this case, there was no notice to the plaintiff of the court’s intent to consider dismissing the case for failure to prosecute. To further compound the error, the trial court incorrectly applied the Small Claims Rules rather than the Florida Rules of Civil Procedure in determining the timeframe in which record activity had to occur (6 months vs. 10 months). As such, the court reversed the dismissal.
TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT IN FAVOR OF FHP AFTER IT CLOSED A HIGHWAY BECAUSE OF REDUCED VISIBILITY, AND THEN REOPENED IT AFTER WHICH AN ACCIDENT HAPPENED, BECAUSE FHP HAD NO CONTACT WITH THE DECEDENT AND NO SPECIAL DUTY WAS CREATED
Jackson v. Florida Highway Patrol, 46 Fla. L. Weekly 2543 (Fla. 1st DCA Nov. 24, 2021):
Florida Highway Patrol had responded to reports of reduced visibility on I-75 due to a nearby fire. The troopers placed fog and smoke signs out, and closed the highway. The closure began after midnight and went into the early morning hours of the next day. After approximately three hours, the troopers determined the highway was safe to reopen.
Thirty minutes after reopening, a trooper observed solid smoke and fog while driving the highway, and heard accidents occurring behind him. They shut down I-75 again. One of the accidents caused the death of the decedent.
In government tort suits, the plaintiff must prove that the defendant breached a common law or statutory duty owed to the plaintiff individually and not just a general tort duty owed to the public generally.
Here, the Florida Highway Patrol had no contact with the decedent whatsoever, and therefore no special duty was created. Additionally, the low visibility incident was not caused, created or exacerbated by Florida Highway Patrol.
In these circumstances, Florida Highway Patrol had no duty to the decedent aside from the general duty to the public, thereby necessitating affirmance of the summary judgment.
TRIAL COURT ERRED IN DENYING MOTION TO DISMISS ON SOVEREIGN IMMUNITY IN NEGLIGENT HIRING AND RETENTION CASE AGAINST THE OFFICE OF FINANCIAL REGULATION – DISCRETIONARY DECISION TO APPOINT OR REMOVE A COMMISSIONER IS NOT SUBJECT TO JUDICIAL REVIEW
Florida Office of Financial Regulation v. Grippa, 46 Fla. L. Weekly D2543 (Fla. 1st DCA Nov. 24, 2021):
The plaintiff sued the Office of Financial Regulation, the Financial Services Commission and the Department of Financial Services alleging claims for gender discrimination, common law negligence, common law negligent hiring and retention, and common law negligent supervision.
Defendants filed a motion to dismiss asserting that the negligent hiring, retention and supervision of the Commissioner of Financial Regulation was a discretionary executive function that was entitled to sovereign immunity.
Plaintiff responded by asserting that the motion to dismiss was premature, in so far as the defense of sovereign immunity could not be determined as a matter of law from the face of the complaint. The trial court denied the motion to dismiss.
The court reversed. It looked to the plaintiff’s complaint which alleged that the defendant’s hiring retention and supervision of the Commissioner of Financial Regulation (who is the head of the Office of Financial Regulation, which is a unit of the Financial Services Commission) and responsible for all actions of the Financial Services Commission, related to the regulation of banks, credit unions and other financial institutions. The Financial Services Commission is composed of the Governor, Attorney General, Chief Financial Officer and Commissioner of Agriculture, who are empowered to appoint or remove the Commissioner by a majority vote. The Commissioner was the head of the State Agency with important policy making functions, and served at the pleasure of the highest elected officials of the executive branch.
As such, the discretionary decision to appoint or remove him was not subject to judicial review.
BECAUSE THERE WAS ADMISSIBLE EVIDENCE THAT THE DEFENDANT WAS NOT THE SOLE CAUSE OF THE REAR-END ACCIDENT, THE PRESUMPTION SHOULD HAVE VANISHED
Crime v. Looney, 46 Fla. L. Weekly D2548 (Fla. 1st DCA Nov. 24, 2021):
The trial court erred in interpreting the judicially created rear-end presumption in vehicle collision cases to defeat the defendant’s claim of comparative fault. Here, there was admissible evidence that the defendant was not the sole cause of the accident. That evidence should have eliminated the presumption, and its legal effect.
The court explained that the presumption is not an alternative means of tort recovery in derogation of comparative negligence, and found that the trial court also erred in finding that a comparative fault defense was unavailable to the defendant because she could not specifically identify the non-party she sought to allocate fault to.
§768.81(3)(a)1 states that a defendant need only describe the non-party as “specifically as practicable” when the non-party’s identity is unknown. The cases relied on by the trial court in this case reaching a different conclusion, had been decided before that language was added to §768.81.
Finally, the appellate court agreed that there had to be a new trial on both liability and damages because unlike in Nash v. Wells Fargo, where the court said a reversal precipitated by a comparative fault error did not affect the determination of damages, in this case, the parties had not put on their entire case before the trial court denied the motion to include the non-party on the verdict form, meaning that the decision at the beginning of the proceeding, affected it in its entirety.