Maybe six different courts ARE wrong!

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 12

CASES FROM THE WEEK OF MARCH 27, 2026

SIXTH DCA REVERSES FEE AWARD WHERE MOVING PARTY DID NOT SUBMIT TIME RECORDS—BUT COURT ALSO HOLDS THERE IS NO UNIVERSAL REQUIREMENT FOR AN EVIDENTIARY HEARING OR EXPERT TESTIMONY ON FEES IN EVERY CASE, AND CERTIFIES DIRECT CONFLICT WITH OTHER DISTRICTS, NOTING IT IS NOT BOUND BY ANY OTHER DISTRICT

Ruffenach v. Deutsche Bank National Trust Co., 51 Fla. L. Weekly D521 (Fla. 6th DCA Mar. 20, 2026):

The appellant challenged a final judgment and the accompanying fee award. The court affirmed the judgment “without discussion,” but did address the fee issue in great detail.

The concurrence noted that “as a new court without a large body of prior precedent,” the court was able to “correct a glaring error in Florida law that has persisted for more than six decades.”

The court rejected the long-standing, across-the-board assumption (from district precedent) that a trial court cannot award fees without first conducting an evidentiary hearing and receiving expert testimony on reasonableness.  It held a trial court need not always hold a hearing or take expert testimony absent a showing that a hearing or expert testimony is needed to resolve a disputed issue. It noted that expert testimony may be needed to ascertain questions involving things like a multiplier.

In this case, the appellant claimed the court should reverse the fee award because (1) there was no evidentiary hearing; (2) because there was no expert testimony and (3) because the appellee failed to supply records that detailed the work performed.

The court rejected reversal as to reasons one and two but did reverse for the lack of record evidence to support the award itself.

The court then certified direct conflict with the other districts on its broader holding regarding universal hearing/expert requirements.

IN ANOTHER BOLD RULING, THE SIXTH DCA SITTING EN BANC LIMITS BINGER, AND HOLDS TRIAL COURTS MAY STRICTLY ENFORCE CASE MANAGEMENT EXPERT DISCLOSURE DEADLINES EVEN WITHOUT A PREJUDICE ANALYSIS

Crecelius v. Rizzitano, 51 Fla. L. Weekly D551 (Fla. 6th DCA Feb. 27, 2026):

With a new sheriff in our State’s appellate courts, the Sixth DCA again looked another bold precedent (Binger) straight in the eye and rejected the mushy “prejudice” analysis in favor of strict enforcement of case management deadlines.

Here, the defendant made a left turn and collided with a motorcyclist who died in the crash. Both parties stipulated to the alcohol levels for both drivers.

The trial court entered (and later amended) case management orders requiring the parties to disclose experts and their opinions by a specified deadline. The defendant missed the deadline, and the plaintiff moved to strike the defense experts.  The trial court granted the motion to strike, leading the defendant to argue on appeal that to do so was error considering Binger and its progeny, and that the trial court erred in both excluding the experts and in failing to conduct a prejudice analysis.

The court rejected the defendant’s argument. It held that where a party fails to meet a disclosure deadline set in a case management order, the trial court may strictly enforce the order and exclude the undisclosed or late-disclosed evidence, without considering whether the opposing party would be prejudiced by the late disclosure. 

The court found that the trial court did not err by enforcing its order and excluding the experts’ testimony on the record before it.

SIXTH DCA AFFIRMS JURY VERDICT AFTER TRIAL COURT EXCLUDED A LATE-DISCLOSED EXPERT OPINION–COURT HOLDS A TRIAL JUDGE MAY STRICTLY ENFORCE CASE MANAGEMENT DEADLINES AND EXCLUDE UNDISCLOSED OPINIONS WITHOUT A BINGER PREJUDICE ANALYSIS, AND CERTIFIES CONFLICT WITH THIRD DCA AUTHORITY

Wal-Mart Stores East, L.P. v. Wynn, 51 Fla. L. Weekly D529 (Fla. 6th DCA Mar. 20, 2026):

The plaintiff alleged she tripped on a crack in a Wal-Mart parking lot, resulting in a sprained ankle and nerve damage. The defendant disputed causation as to the nerve damage.

Again, the trial court had entered a case management order with specific expert disclosure requirements and a deadline to disclose any changes in expert opinions no later than sixty days before the pretrial conference.  The defense expert later offered a new opinion during a second deposition (taken close to trial) after reviewing additional records produced at the discovery cutoff, and the trial court excluded that opinion as not timely disclosed under the case management order.

The Sixth affirmed. Relying on its en banc decision in Crecelius discussed above, it held that when an opinion is not disclosed by the deadline required in a case management order, the trial court is permitted to strictly enforce the order and exclude the undisclosed opinion without first analyzing prejudice under Binger.  The Sixth certified conflict with two third DCA decisions that require a different approach.

PUBLIX OWED NO LEGAL DUTY TO ANTICIPATE AND PROTECT CUSTOMERS FROM A RANDOM ACTIVE SHOOTER–GENERALIZED AWARENESS THAT ACTIVE SHOOTER EVENTS CAN OCCUR ALONG WITH NATIONAL SHOOTING STATISTICS, DO NOT CREATE A FORESEEABLE ZONE OF RISK AT A PARTICULAR LOCATION

Varone v. Publix Super Markets, Inc., 51 Fla. L. Weekly D490 (Fla. 4th DCA Mar. 18, 2026):

The plaintiffs sued the defendant Publix, after a tragic shooting at a Publix store. The plaintiffs asserted negligent security theories, arguing that the defendant had a duty to protect against this type of third-party criminal attack.

The trial court entered summary judgment, limiting its ruling to duty, and relying on Relyea v. State, 385 So.2d 1378 (Fla. 4^th DCA 1980), a case holding that a landowner owes no duty to protect an invitee from criminal attacks, unless the landowner has actual or constructive notice of prior similar criminal acts.

The appellate court affirmed, concluding that Relyea is still good law, and reiterating the main point from that case, i.e., that a premises owner’s duty to guard against third-party criminal attacks exists only to the extent the attack is reasonably foreseeable. The court concluded (as did the trial court), that on this record the shooting was not reasonably foreseeable.  The court noted there was no evidence of prior batteries against a person, let alone shootings, at this Publix, and it rejected the plaintiffs’ attempt to create foreseeability based on Publix’s conducing of active-shooter training and general national data about shootings.

In other words, while training and awareness may show the defendant knew active shooter events can happen somewhere, someday, that does not make it objectively reasonable to expect a random act of gun violence at a particular store, necessitating summary judgment for Publix on duty.

SUMMARY JUDGMENT AFFIRMED IN SLIP AND FALL CASE–PLAINTIFF COULD NOT PROVE THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE SPECIFIC HAZARD, AND GENERAL EVIDENCE ABOUT GEL PACK USE AND “POTENTIAL HAZARDS” DID NOT SATISFY SECTION 768.0755

Kincaid v. Wal-Mart, 51 Fla. L. Weekly D495 (Fla. 4th DCA Mar. 18, 2026):

The plaintiff slipped on a gel pack near the meat department and sued the defendant for negligence.  The trial court granted summary judgment, and the appellate court affirmed because no reasonable finder of fact could conclude the defendant had either actual or constructive knowledge of the ruptured gel pack that caused the fall.

The opinion reminds us that “actual knowledge” means knowledge of the specific dangerous condition at issue, not merely knowledge that a store practice could, in the abstract, create a risk.  A plaintiff may show “constructive knowledge” by circumstantial evidence that shows that the dangerous condition existed for such a length of time that in the exercise of reasonable care, the defendant should have known of the condition, or that it occurred with such regularity that it was foreseeable.

The plaintiff here attempted to show constructive notice through evidence that employees used gel packs to absorb condensation and that they may rupture if they are full or get stepped on. She also relied on what the court described as vague testimony suggesting gel-pack incidents had happened “many times.”

However, the record did not establish the regularity of this condition in this particular area of the store, and the court held that generalized hazard testimony and generalized safety practices could not create a triable issue about notice of the specific gel pack hazard that caused the fall. Based on the lack of genuine issues about notice, the court affirmed summary judgment for the defendant.

OBJECTIONS MADE BASED ON PRIVILEGE ARE NOT WAIVED DUE TO UNTIMELINESS

Aaraya Public Adjusting, LLC v. Crucial Claims, Inc., 51 Fla. L. Weekly D515 (Fla. 2d DCA Mar. 20, 2026):

The trial court ruled that the defendant’s objections to providing private financial information about it clients were waived, because they were untimely. However, the defendant raised objections based both on privacy and attorney client privilege, noting that private financial records can be discoverable if they are relevant.

The court reminded us, however, that an assertion of privilege is NOT waived by an untimely objection. Here, because the documents were asserted to be related to a law firm’s representation of the defendant, the defendant objected (albeit late) that the records were subject to both attorney client and work product privilege.

The court granted certiorari as related to the claims of privilege, despite the untimely objections.

COURT REVERSES DENIAL OF DIRECTED VERDICT AND CONCLUDES THAT PLAINTIFF COULD NOT SHOW LACK OF SMOKE DETECTORS WERE THE PROXIMATE CAUSE OF HIS INJURIES, COMPELLING A VERDICT FOR THE DEFENDANT.

Diversified Land Management, LLC v. Agosto, 51 Fla. L. Weekly D518 (Fla. 6th DCA Mar. 20, 2026):

This case arose from a fire started by cooking oil, that severely burned the plaintiff, who rented the home from the defendant landlord.  The plaintiff’s negligence theory was that the absence of smoke detectors was a proximate cause of his injuries because smoke detectors would have alerted him to smoking oil with sufficient time to prevent spontaneous combustion.

At trial, the plaintiff testified he put a pot of oil on medium-high heat, then went outside in the rain to cover his dog’s cage/kennel, leaving the kitchen door partly open.  The evidence showed that he was more than 26 feet away from where the smoke detector should have been placed.

The defendant moved for directed verdict on proximate cause, arguing the evidence was pure speculation (that the plaintiff would have heard the alarm while outside in the rain placing the tarp) and did not support a reasonable inference that the plaintiff would have heard an alarm.

The appellate court agreed and reversed. It held that the plaintiff did not present sufficient evidence to establish that the absence of smoke detectors was a proximate cause of his injuries. Thus, it remanded for entry of a directed verdict for the defendant.