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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 1

CASES FROM THE WEEK OF JANUARY 5, 2024

TRIAL COURT ERRED IN COMPELLING ARBITRATION IN A LEGAL MALPRACTICE CASE, BASED ON A PROVISION IN THE PARTIES’ FEE AGREEMENT PROVIDING FOR MANDATORY ARBITRATION OF FEE DISPUTES

Labelle v. Berenson, 49 Fla. L. Weekly D37 (Fla. 3^rd DCA Dec. 26, 2023):

After the plaintiff brought a legal malpractice action against his prior law firm, the law firm moved to compel arbitration pursuant to the arbitration provision found in the parties’ fee agreement (that the defendant attorneys had the plaintiff sign midway through the representation in a commercial lawsuit).

The arbitration provision stated that all disputes “arising out of the agreement and the plaintiff’s legal services” were subject to binding arbitration. 

The arbitration provision failed to advise the plaintiff to seek independent counsel in deciding whether to agree to arbitration; a violation of Florida Bar Rule 4-1.5(i).  The trial court granted the motion to compel arbitration. 

Rule 4-1.5(i) prohibits a lawyer from making a prospective agreement with a client for mandatory arbitration in a fee dispute, without first advising the client in writing that the potential client should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such a mandatory arbitration provision.  The rule also requires that the language in the agreement be in bold print.

When an arbitration provision fails to include the requisite notice to seek independent counsel, the arbitration clause violates Rule 4-1.5(i) and is unenforceable on its face, regardless of the type of dispute that is brought. 

Additionally, because the mandatory arbitration of the fee dispute went to the essence of the arbitration agreement, the court refused to sever the invalid portion, which would have then resulted in it rewriting the agreement.

Here, where the requisite notice was completely absent from the arbitration provision, the court declared the provision unenforceable and reversed the trial judge’s ruling to the contrary.

TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT IN A TRIP AND FALL CASE WHERE PLAINTIFF WAS AN UNINVITED LICENSEE WHEN SHE ENTERED THE DEFENDANT’S PROPERTY, DOING SO ONLY AS A MATTER OF HER OWN CONVENIENCE

Norris v. Rodriguez, 49 Fla. L. Weekly D67 (Fla. 2^nd DCA Dec. 29, 2023):

The plaintiff sustained injuries after she tripped and fell on an elevated apron of defendant’s concrete driveway.  She asserted she was a public invitee because she fell on the portion of the driveway located within a public right of way. 

The parties disputed whether the plaintiff or the County had ownership and control over the subject property. They agreed that the defendant had obtained a permit to install the driveway.

After returning home from a movie, the plaintiff walked across the street, preparing to walk her dog. It was dark. After crossing the street, the plaintiff attempted to cross over the defendant’s driveway to access a public sidewalk.  She tripped over the corner of the apron of the driveway where there was broken concrete, and sustained injuries.

Both parties moved for summary judgment.  The defendant asserted that the plaintiff was at best an uninvited licensee having entered his property as matter of her own convenience.

The duty of care owed by a landowner is not a “one size fits all” analysis. It depends upon the relationships involved between persons who come upon an owner’s property. 

There are two kinds of invitees: a public invitee and a licensee by invitation.  A public invitee is one who is invited to enter or remain on land as a member of the public for the purpose for which the land is open.  An uninvited licensee is neither an invitee nor a trespasser, but has a legal status somewhere in between.  An uninvited licensee is neither sought nor forbidden, but tolerated by the landowner. 

In the instant case, the plaintiff attempted to cut across the defendant’s driveway because she wanted to walk her dog on the public sidewalk. Though she argued that she fell in the area of the driveway that was located within the County’s right of way, in route to the public sidewalk, there was no evidence that the defendant held his property opened to the public. 

The plaintiff was an uninvited licensee. The defendant thus owed her a duty to refrain from willful misconduct, and to refrain from intentionally exposing her to danger.  His only duty to warn was to warn of dangers not open to ordinary observation. 

Based on the photographs and the evidence, the trial court properly found the condition of the driveway was open and obvious, therefore relieving the defendant from any duty to warn the plaintiff as an uninvited licensee of the open and obvious danger of the driveway.

IMPACT RULE DOES NOT BAR RECOVERY OF EMOTIONAL DISTRESS DAMAGES IN INTENTIONAL TORT CASES – – EVEN IF THE RULE DID APPLY, IT DOES NOT APPLY TO A CLAIM FOR INTENTIONAL INTERFERANCE WITH AN ADVANTAGEOUS BUSINESS RELATIONSHIP WHERE EMOTIONAL DAMAGES RESULTED FROM THE CONDUCT THAT WAS A FREESTANDING TORT, INDEPENDENT OF ANY EMOTIONAL INJURY

Florida BC Holdings, LLC v. Reese, 49 Fla. L. Weekly D27 (Fla. 6^th DCA Dec. 21, 2023):

Plaintiff sued his former employer for attempting to enforce a non-compete agreement he allegedly signed. The employer could never produce the document that it said the plaintiff signed, but the plaintiff’s new employer fired him anyway.

The plaintiff sued his former employer for tortious interference with an advantageous business relationship and sought emotional distress damages as part of his relief.

The defendant asserted that the impact rule barred the plaintiff’s claim for emotional damages. The trial court denied defendant’s motions for directed verdict on both emotional distress and punitive damages, granting the plaintiff the ability to seek punitive damages. 

The purpose of the impact rule is to ensure the authenticity of mental distress claims.  While the Florida Supreme Court has repeatedly reaffirmed the applicability of the rule to negligence actions, it has also carved out numerous exceptions for specific torts sounding in negligence.  The causes of action for which the Florida Supreme Court has created an exception all fall within a class of claims for which the foreseeable harm flowing from the negligent conduct is predominantly emotional in nature.

The court concluded that the impact rule does not apply to intentional torts involving actual malice, or to those justifying the imposition of punitive damages. Nor does it apply where emotional damage is a consequence of conduct that itself is a free-standing tort apart from any emotional injury.

However, because there is confusion in the law regarding the impact rule’s application to intentional torts, the court certified two questions to be of great public importance:

• Subject to exceptions previously recognized by the Supreme Court of Florida, does the impact rule generally apply to intentional torts?
• Does the impact rule apply to the tort of tortious interference with an advantageous business relationship and if so, does the impact rule apply when such tort is committed with actual malice?

The court affirmed the final judgment awarded in favor of the plaintiff.

TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S THIRD AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CAUSE OF ACTION, WHEN THE ALLEGATIONS WERE SUFFICIENT TO STATE A BASIS FOR HOLDING THE OPERATOR VICARIOUSLY LIABLE FOR THE ACTIONS OF ITS EMPLOYEE – – A PARTY MAY ASSERT INCONSISTENT CLAIMS IN THE SAME PLEADING, EVEN IF THE CLAIMS ARE MUTUALY EXCLUSIVE

Thomas v. Trench Training Systems, 49 Fla. L. Weekly D56 (Fla. 2^nd DCA Dec. 29, 2023):

The plaintiff sued the defendant alleging that it negligently failed to properly install and maintain synthetic turf at an athletic training facility, which he asserted ultimately injured him, a business invitee.

A year later, the plaintiff filed an amended complaint adding four defendants and new counts.  The new counts sounded in negligence against the new defendants. They alleged that each of them had some ownership interest or possession and control of the premises. 

Those new defendants moved to dismiss for various reasons (personal jurisdiction being one of them), leading the plaintiff to ultimately file a third amended complaint. 

The defendant moved to dismiss the third amended complaint (even though it had answered the first one). The third amended complaint included alternative theories of negligence.

Plaintiff asserted that the defendant had an agreement with the owners’ in possession of the subject premises to provide athletic training there, and was at the facility to prepare for the 2019 NFL draft when he was injured on the negligently installed and maintained synthetic turf that the defendant instructed him to train on (the plaintiff suffered a ruptured Achilles tendon).

The complaint also alleged that the defendant owed the plaintiff duties to maintain the property it used to train clients, to train its employees properly, and to correct or warn of dangerous conditions it knew or should have known about.

The defendant moved to dismiss asserting that the factual allegations against it were ”sparse to non-existent,” and argued that the complaint contained “contradictory allegations” about who possessed and controlled the premises.  The defendant additionally asserted that the plaintiff had “commingled theories of negligence” as he had done in an earlier draft of the complaint. The trial court granted the motion to dismiss with prejudice.

The appellate court reversed.  It noted that the rules of civil procedure allow a plaintiff to state causes of action in the alternative (see 1.110(g)).  This permission to assert inconsistent claims in a pleading remains true, even when the claims are mutually exclusive.  Plaintiffs may even plead allegations that negate one another.

Additionally, a plaintiff is not required to separate different theories of relief into different counts to avoid dismissal.  Combining two theories of relief into one count is not a sufficient basis for dismissing a complaint. 

Although the better practice is to separate the alternative allegations and separate counts, the mere inclusion of them in the same count is not a proper basis for dismissal. 

Because the plaintiff had used all the necessary words and phrases to facially state a cause of action for negligence, asserting duty, breach, injury and damages caused by the breach, dismissal was improper.

The court distinguished the Goldschmidt case the defendant relied on, where the court had dismissed a complaint because the plaintiff failed to allege that the treating physician was vicariously liable for the covering physicians’ actions, and failed to set forth any ultimate facts to establish either actual or apparent agency or any other basis for vicarious liability.

The court said that in this case, the plaintiff had expressly alleged that the defendant was vicariously liable for the negligence of its employee and set forth factual allegations supporting vicarious liability.

The court reversed the trial court’s dismissal of the third amended complaint.