The Week In Torts – Cases from February 11, 2022
We keep protecting the king…
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 6
CASES FROM THE WEEK FEBRUARY 11, 2022
TRIAL COURT ERRED IN DENYING THE COUNTY’S MOTION TO DISMISS BASED ON SOVEREIGN IMMUNITY, WHERE THE COMPLAINT ALLEGED THE COUNTY WAS NEGLIGENT IN DISCRETIONARY PLANNING LEVEL FUNCTIONS, BUT DID NOT ALLEGE THAT THE COUNTY CREATED THE ALLEGED KNOWN DANGEROUS CONDITION WHICH WAS THE SUBJECT OF THE ACTION – DECISIONS NOT TO REDIRECT TRAFFIC OR REQUIRE TRAFFIC CONTROL DEVICES ARE PLANNING LEVEL
Broward County v. Manarite, 47 Fla. L. Weekly D334 (Fla. 4th DCA Feb. 2, 2022):
The plaintiff’s child was riding a bike on a path along a major street in Davie, when the child approached a work site being maintained by a water control district. A waste company’s dumpsters had been placed in the bike path which was on the work site, causing the child to leave the bike path and travel on the street. The child was then struck by a vehicle driving down the street and suffered permanent and severe injuries.
The plaintiff’s complaint asserted that the county was responsible for monitoring work sites and boundaries, and for making sure that safety measures were taken. Plaintiff asserted that the county negligently failed to assure that safety guidelines were put into place to protect citizens, alleging that the county negligently failed to ensure that the traffic was re-directed due to a blockage of the pedestrian walkway, should have use of travel control devices, and should have insured that additional workers were on site to spot or direct traffic and pedestrians.
The court found that all of these functions were planning level functions from which the county was immune. Nowhere in the amended complaint did the plaintiff allege that the county had created the alleged known dangerous condition which was the subject of the plaintiff’s action, and that is the only way that the county would have lost its sovereign immunity. Thus, the court reversed for entry of final summary judgment in favor of the county.
DEFENDANT MUST CHALLENGE PERSONAL JURISDICTION AS THE FIRST STEP IN THE CASE, OR WAIVES THE DEFENSE.
Allstate Mortgage Solutions v. Bank of America, 47 Fla. L. Weekly D322 (Fla. 3rd DCA Feb. 2, 2022):
The initial complaint named a number of parties as defendants in a foreclosure action, including an entity with a similar name to the defendant. After the defendant identified itself as the proper entity, the plaintiff moved for leave to amend the complaint to name it, providing a copy of the motion and proposed copy of the amended complaint to defendant on the same date. Defense counsel failed to timely appear to oppose the motion when it was set for hearing, and the court issued an order granting the amendment.
Defendant then moved for reconsideration on the grounds that the amended complaint failed to include an indispensable party in the case. While the motion was labeled “special appearance motion”, it did not object to the court’s jurisdiction due to a lack of service of process, nor did it dispute personal jurisdiction. The court denied the motion again.
After asking for additional time to respond to the amended complaint, Defendant moved “via special appearance” to quash service on the basis of it being served on someone other than the registered agent, asserting there was no personal jurisdiction over it as a result.
A court’s jurisdiction over a defendant is ordinarily established by service of process. When a defendant wishes to challenge personal jurisdiction, it must do so as the first step, or the defense will be deemed waived and the court will be deemed as having acquired jurisdiction over the defendant.
In this case, Defendant moved for reconsideration as to its “first filing” in the case, but did not assert any challenge to service of process at that time. Even though it titled its motion as a “special appearance,” that did not change the outcome, and waived the issue regarding service of process.
TRIAL COURT ERRED IN DENYING RULE 1.540 MOTION TO SET ASIDE DEFAULT JUDGMENT WHERE MOTION MADE VIABLE CLAIM OF EXCUSABLE NEGLECT DUE TO A CALENDARING ERROR, ESTABLISHED A MERITORIOUS DEFENSE AND SHOWED DUE DILIGENCE.
NYC Construction Group v. Jerome, 47 Fla. L. Weekly D331 (Fla. 4th DCA February 2, 2022):
A defendant was given 45-days to retain new counsel after its counsel withdrew. The plaintiff moved for a default judgment and sought damages against both the defendant and the qualifying agent, and the matter was set for hearing which the defendant did not attend.
Before the written judgment was entered, the defendant filed a verified Rule 1.540(b) motion to vacate the judgment arguing that failure to appear was due to a calendaring mistake. It also itemized the due diligence it went through to fix the problem, along with showing a meritorious defense.
The court reversed the trial judge’s refusal to vacate the judgment where the trial court found there was no evidence to rebut the calendaring mistake.
To the extent that the plaintiff asserted that the trial court properly denied the motion as a sanction, the court also rejected that argument because the record did not indicate that the motion was denied as a sanction. In any event, the trial court could not deny the motion without first providing the defendant with notice of its intent to consider imposing sanctions, which the judge failed to do.
A PURE BILL OF DISCOVERY IS VIABLE TO OBTAIN THE DISCLOSURE OF FACTS WITHIN THE DEFENDANT’S KNOWLEDGE, OR TO WRITINGS OR OTHER THINGS IN HIS CUSTODY IN AID OF THE PROSECUTION OR DEFENSE OF AN ACTION; HOWEVER, IT MAY NOT BE USED AS A FISHING EXPEDITION TO SEE IF A CAUSE OF ACTION EXISTS
RAV Bahamas, Ltd. v. Marlin Three, LLC, 47 Fla. L. Weekly D337 (Fla. 3rd DCA Feb. 2, 2022):
In the absence of an adequate legal remedy, equity authorizes a pure bill of discovery as an appropriate remedy to obtain information such as the identity of a proper party defendant or the appropriate legal theory for relief. It may also may be used to obtain information necessary for meeting a condition precedent to filing suit.
However, a pure bill of discovery does not lie to substantiate one’s suspected causes of action. Neither is it available to obtain a preview of discovery obtainable once suit is filed.
The plaintiff argued it was entitled to a pure bill of discovery because the documents they sought were in Miami-Dade County, and were an essential determination about whether to bring an action against the defendants in a Bahamian court.
In the complaint for pure bill, the plaintiff sought to confirm the identities of the proper defendants and the appropriate legal theories of relief. They also argued that they sought information which could subsequently be used to prosecute breach of contract and business tort claims, acknowledging that if the pure bill did not support the cause of action then that would be the end of the case.
Because the plaintiff’s complaint did not meet the narrow and limited circumstances under which a pure bill of discovery is justified, the court concluded that the trial judge erred in entering a final order granting the pure bill.
ORDER COMPELLING MENTAL HEALTH RECORDS DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WITH NO PROVISION FOR IN-CAMERA REVIEW BEFORE PRODUCTION.
Lowitz v. South Alabama Brick, Co. 47 Fla. L. Weekly D343 (Fla. 1st DCA Feb. 2, 2022):
The defendant sought plaintiff’s mental health records in this wrongful death action. The trial court granted the motion over the plaintiff’s objection. However, the order did not state that the trial court would conduct an in-camera review of the records.
While the plaintiff’s mental health records were relevant and discoverable in this case because they related to the plaintiff’s alleged damages, the order departed from the essential requirements of law for failing to compel an in-camera review to ensure relevance, before allowing defendants to have access to all of the records.
TRIAL COURT CANNOT DISMISS A COMPLAINT WITH PREJUDICE WHERE THE COMPLAINT HAS NEVER BEEN AMENDED AND THE DEFENDANTS HAVE NOT FILED A RESPONSIVE PLEADING
Sadoff v. Board of County Commissioners of Brevard County, 47 Fla. L. Weekly D345 (Fla. 5th DCA Feb. 4, 2022):