Not quite off the hook…

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 47

CASES FROM THE WEEK NOVEMBER 25, 2022

COURT REVERSES SUMMARY JUDGMENT FOR ATTORNEYS WHO WERE NOT ACTUALLY ATTORNEYS OF RECORD WHEN THE MALPRACTICE WAS COMMITTED, BUT WHO COULD HAVE REMEDIED THE PROBLEM ONCE THEY TOOK OVER

Baum v. Becker & Poliakff, 47 Fla. L. Weekly D2374 (Fla. 5^th DCA Nov. 18, 2022):

The plaintiff filed a multi-count legal malpractice action against all of the lawyers who represented her at any time in the underlying probate litigation. The defendants asserted that the plaintiff’s probate litigation went south when her predecessor counsel failed to timely effect service of process. Because that omission occurred before the defendant lawyers ever got involved, they argued that under no theory could they be liable.

However, the plaintiff argued that while her case was already in peril before the defendant lawyers showed up, it was still salvageable. She alleged in an affidavit opposing summary judgment that the defendant lawyers were aware of the order setting the deadline for service of process, and further asserted that the defendant law firm represented to her that they could easily overcome it. Plaintiff also alleged that the defendant lawyers could have salvaged her case by showing good cause or excusable neglect, but made no effort to do so.

She contended that the defendants’ representation of her was negligent, and led to the dismissal of her probate litigation, which in turn proximately resulted in her having no opportunity to receive anything from her father’s $100 million estate.

The court noted that the fact that the deadline for serving process had been missed before the defendant lawyers got involved did not by itself terminate the plaintiff’s probate litigation, relying on the plaintiff’s affidavit opposing summary judgment, in advising that the lawyers were hired–at least in part–to take reasonable steps to avoid the adverse consequence of predecessor counsel’s failure to effect service of process.

Because the defendants made no attempt before or during the subject hearing to prove good cause or excusable neglect for failing to timely serve process, there was a clear dispute concerning the defendants lawyers’ assertion that they did everything possible to revive the probate claim. The court also rejected the lawyers’ argument that the case was “dead on arrival” for purposes of summary judgment, given that they had failed to offer any evidence prior or during the subject hearing regarding good cause.

The court explained that whether the grounds and proof later offered by the defendants would have successfully excused them from failing to serve process, or whether the trial court would have employed some lesser sanction other than dismissal pursuant to Kozel, were also in dispute and precluded summary judgment.

TRIAL COURT DID NOT ERR IN DENYING A MOTION TO ENFORCE SETTLEMENT AGREEMENT, WHERE THE SETTLEMENT AROSE FROM A MEDIATION AND FAILED TO HAVE BOTH PARTIES SIGNATURE ON IT IN ACCORDANCE WITH RULE 1.730

The Parkland Condominium Assoc. v. Henderson, 47 Fla. L. Weekly D2350 (Fla. 2^nd DCA Nov. 16, 2022):

The plaintiff sued her condominium association after a water leak caused damage to her property. Following court ordered mediation, the parties’ attorneys exchanged several emails that included the terms and drafts of the proposed settlement agreement.

Defendant’s attorney accepted the settlement agreement, sending an email stating that he had received word from his client and they agreed to the documents as drafted.

Plaintiff’s attorney filed that with the court along with a settlement agreement and consent decree, both of which had been signed by him along with a cover letter that referred to the mutually agreed settlement agreement. The plaintiff, however, had not signed either document, and the representative of the condominium association had not signed the settlement agreement.

The association moved to enforce the settlement agreement. The trial court ruled that it could not determine that there was a full meeting of the minds.

While settlements are highly favored and will be enforced whenever possible, when parties reach a settlement agreement after mediation, Florida Rule of Civil Procedure 1.730(b) expressly requires the agreement to be reduced to writing and signed by the parties and their attorneys, if any.

The court noted that if the purported settlement agreement had not been reached in the context of a court ordered mediation, it would have likely concluded that the settlement was binding and enforceable. However, in light of the plain language of Rule 1.730(b), the court was constrained to conclude that the settlement agreement was unenforceable because the agreement lacked the parties’ signatures.

ERROR TO DISMISS CLAIMS WITH PREJUDICE WITHOUT ALLOWING THE PLAINTIFFS THE OPPORTUNITY TO AMEND THEIR COMPLAINT WHERE NOTHING IN THE RECORD SUGGESTED THAT THE PRIVILEGE TO AMEND HAD BEEN ABUSED, OR THAT THE AMENDMENT WOULD BE PREJUDICIAL

Tatum v. Clear Water Care and Rehab, 47 Fla. L. Weekly D2351 (Fla. 2^nd DCA Nov. 16, 2022):

The court found it was acceptable for the trial court to dismiss the plaintiffs’ claims, admonishing that the dismissal should have been without prejudice.

Rule 1.190(a) provides that amendments shall be given freely when justice so requires. Florida law also allows the liberal amendment of pleadings.

Consequently, Florida law is well settled that a dismissal with prejudice should not be ordered without giving the party offering the pleading and opportunity to amend unless it appears that the privilege to amend has been abused or it is clear that the pleading cannot be amended to state a cause of action.

Because the court could not conclude that the amendment would have been futile as a matter of law (it included claims against institutions that were prior owners of the facility and were alleged to have had a relationship with the subsequent purchaser), and without any evidence that the ability to amend had been abused, the trial court should have allowed another amendment to the complaint.

NO DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN COURT ORDERED DEFENDANT TO PROVIDE A VERIFIED INTERROGATORY ANSWER BASED ON ITS KNOWLEDGE OF THE INCIDENT (INCLUDING FACTS LEARNED FROM THE EMPLOYEE AND/OR AGENTS) – PLAINTIFF NOT REQUIRED TO PROVE NEED AND UNDUE HARDSHIP WHEN SEEKING PRODUCTION OF WORK PRODUCT MATERIALS CONTAINING OTHERWISE DISCOVERABLE FACTUAL INFORMATION

Walt Disney Parks and Resorts v. Alesi, 47 Fla. L. Weekly D2373 (Fla. 5^th DCA Nov. 18, 2022):

Plaintiff claimed a Disney employee had injured her by striking her with a garbage cart. She propounded an interrogatory asking Disney to describe how the incident happened, including all actions taken by its employees and agents to prevent it.

The initial response suggested that discovery was ongoing, and that the plaintiff was not properly watching her surroundings. Disney produced a privilege that contained two reports about the incident, including one by a Disney nurse who treated the plaintiff, as well as a recorded statement by the employee who was pushing the garbage cart. Neither employee was currently working for Disney at the time of the lawsuit.

Plaintiff moved to compel a better response. Disney stated that it had been informed that a cast member pushing a garbage receptacle came into contact with her. However, it urged that the depositions had not yet been taken (while still referencing the previous production of a policy regarding trash removal).

Plaintiff again moved for a better response. The trial court specifically ordered Disney to provide a verified interrogatory answer based on its knowledge of the incident including, but not limited to, facts learned from employees and/or agents whether former or current. Disney sought certiorari review.

Certiorari review is appropriate if the petitioner can show a departure from the essential requirements of law that resulted in material injury for the rest of the trial, and that could not be remedied on appeal.

There are two types of work product: “Fact work product” protects information related to the case that is gathered in anticipation of litigation. There is also “opinion work product” that safeguards mental impressions, conclusions, opinions, and theories.

A party seeking production of fact work product must first show it needs the materials for preparation of its case, and that it cannot otherwise obtain them without undue hardship.

While Disney argued that the work product doctrine protected every piece of information contained in the reports and recorded statements, the plaintiff advised that she was not seeking production of the actual documents, and just wanted to know the factual details about how the incident happened. Therefore, she asserted she did not have to show need or undue hardship. The court agreed.

The underlying facts contained in a document protected by the work product doctrine are neither fact work product nor opinion work product. A party may discover facts, even if they are embedded in work product. For that reason, part of the trial court’s order was correct, and the plaintiff could discover the underlying material and non-privileged factual information contained in the reports and the statement via an interrogatory.

The court noted, however, that if the reports and statement contained any of Disney’s opinions regarding the incident, those opinions would remain protected.

TRIAL COURT ERRED IN RELYING ON SECTION 768.043, FLA. STAT. IN GRANTING THE INSURER’S MOTION FOR NEW TRIAL BASED ON AN ALLEGEDLY EXCESSIVE DAMAGES AWARD – THE INSURANCE COMPANY’S INITIAL REMITTITUR MOTION HAD BEEN DENIED AS LEGALLY INSUFFICIENT, RENDERING ITS AMENDED REMITTITUR MOTION PROHIBITED UNDER THE RULE – THE COURT REMANDED FOR RECONSIDERATION OF THE MOTION FOR NEW TRIAL BASED ON THE CORRECT COMMON LAW LEGAL STANDARD

Marinec v. Progressive, 47 Fla. L. Weekly D2380 (Fla. 2^nd DCA Nov. 18, 2022):

Progressive disputed that the plaintiff suffered a permanent injury, and while it admitted liability in this UM case, it disputed damages. The jury awarded everything that the plaintiff asked for.

Progressive moved for a new trial and for remittitur. Plaintiff argued the remittitur motion was legally deficient because it did not suggest an amount to which the verdict should be remitted under Rule 1.535(a)(2020).

The trial court agreed and entered an order denying the remittitur without prejudice to refile in accordance with the order in 10 days. Progressive filed an amended motion for remittitur asking that the future medical expense award and non-economic damages be reduced to zero.

The trial court realized that orders on remittitur motions could not be entered without prejudice, and denied the amended motion as moot, while ordering supplemental briefing on the question of whether it could lawfully grant a new trial solely on the basis that the verdict was excessive, even when the trial court had denied the motion for remittitur as untimely.

While plaintiff argued that the trial court could not use the remittitur statute to grant a new trial based on excessive damages when it had already denied a remittitur, Progressive argued that the remittitur statute was not the exclusive authority for granting a new trial. Instead, it urged the court to apply the common law analysis when a verdict shocks the judicial conscious or jury has been unduly influenced by passion of prejudice.

The court found that due to the nature of the trial court’s legal error, and in view of the evidence introduced at trial, it could not definitively say that the trial court would not have granted a new trial had it applied the correct legal standard.

Under the common law rule, the trial judge does have broad discretion in considering whether to grant a new trial based on an excessive verdict. While that discretion is not unlimited, it allows the granting of a new trial even when it is not clear, obvious, and indisputable that the jury was wrong.

Based on this finding, the court reversed the trial judge’s decision to grant the new trial and reversed for consideration of the proper legal standard.

TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY PERMITTING INSURER TO DEPOSE NON-TESTIFYING CONSULTING EXPERT ON MATTERS BEYOND THE SCOPE OF THE EXPERT’S PREVIOUSLY DISCLOSED REPORT – NO EXCEPTIONAL CIRCUMSTANCES SUPPORTING THE TAKING OF THE CONSULTING EXPERT’S DEPOSITIONS EXISTED AND THE INSURED COULD NOT ESTABLISH IRREPARABLE HARM, WHEN THE INSURED VOLUNTARILY DISCLOSED THE REPORT TO THE INSURER 

Wallace v. Citizens Property Insurance Co., 47 Fla. L. Weekly D3281 (Fla. 2^nd DCA Nov. 18, 2022):

In this first-party property insurance case, plaintiff disclosed an expert who had inspected the roof and had written a report documenting his expert opinions. When the time came for the plaintiff to file his witness list for trial, he omitted that expert and listed a different one as the testifying expert. Concurrently, plaintiff informed the insurer that the original expert was just a non-testifying consulting expert and that the new expert had prepared a report.

Citizens still sought to depose the original expert. Plaintiff sought a protective order. The trial court denied the protective order and ordered that the plaintiff produce the original consulting expert for deposition.

Citizens did not argue that exceptional circumstances supported taking the deposition. Nor did it submit any affidavits with other evidence demonstrating exceptional circumstances. There was also no transcript from the hearing, but it appeared that the trial court denied plaintiff’s motion for protective order without any consideration of whether such circumstances existed, let alone based on a showing that they did.

However, the insured had voluntarily disclosed the report to Citizens, leading the court to conclude that it was hard pressed to understand how insured could have suffered irreparable harm as required for certiorari relief.

Accordingly, the court concluded that it lacked certiorari jurisdiction to preclude Citizens from deposing the expert on his report, but struck the trial court’s order to the extent it permitted Citizens to inquire of the expert as to the facts known and the opinions held by him that were not previously disclosed.

ERROR TO COMPEL ARBITRATION IN A NURSING HOME CASE BASED ON AN AGREEMENT SIGNED BY ONE OF THE DECEDENT’S DAUGHTERS – ALTHOUGH THE SIGNOR HELD A VALID POWER OF ATTORNEY INCLUDING THE ABILITY TO CONSENT TO ARBITRATION, THE SIGNOR DID NOT SIGN IN HER CAPACITY AS THE RESIDENT’S ATTORNEY-IN-FACT, BUT DID SO AS THE RESIDENT’S “RESPONSIBLE PARTY”

Etheridge v. Palm Garden, 47 Fla. L. Weekly D2383 (Fla. 2^nd DCA Nov. 18, 2022):

The narrow issue for the court’s determination was whether the “responsible party” who signed a nursing home admission agreement, is also thereby authorized to bind the nursing home resident to an arbitration clause within the admission agreement. Because the signor in this case did not sign in her capacity as the resident’s power of attorney, the court held that the subject arbitration clause could not be enforced.

While a durable power of attorney may contain a catch all statement that confers a broad grant of authority of powers, the one at issue in this case lacked an express reference to the attorney, and lacked any authority to arbitrate claims (even though it did authorize the attorney in fact to prosecute, defend and settle all claims and legal actions involving the estate, and to do anything regarding the estate property or affairs that the principle could do for him or herself). Still, this broad grant of authority did include the ability to consent to arbitration.

The court refused to conclude that the signor had consented to the terms of the voluntary arbitration agreement because she signed her mother’s paperwork as a “responsible party, and not as her attorney in fact. The admission agreement defined the terms “legal representative” and “responsible party” and it was clear and unambiguous that in signing as a responsible party the daughter did agree to honor certain specified obligations, but did not have the authority to consent to a voluntary arbitration.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING DISCLOSURE OF A SWEEPING RANGE OF IMFORMATION FROM THE DEFENDANT’S CELL PHONE RECORDS, WITHOUT FIRST DETERMINING THE RELEVANCE AND BALANCING THE NEED FOR INFORMATION AGAINST THE DEFENDANT’S PRIVACY RIGHTS – THE ORDER QUASHED EXCEPT TO THE EXTENT THAT THE ORDER ALLOWED DISCOVERY OF WHETHER THE DEFENDANT WAS USING HER CELL PHONE CLOSE TO THE TIME OF THE ACCIDENT

Wharran v. Morgan, 47 Fla. L. Weekly D2384 (Fla. 2^nd DCA Nov. 18, 2022):

The defendant in an automobile accident case sought certiorari review of a discovery order overruling the production of her cell phone records by Verizon.

The court found that the trial judge entered a very broad order implicating the defendant’s privacy interests. The defendant had not objected to production of the cell phone records for the moments leading up to the accident, but objected to producing the substantive content of the records.

The court’s order compelled production of the records 24-hours before the accident and 24-hours after it. The order also permitted the defendant to set another hearing to narrow down or limit the requested types of information or data listed on the subpoena.

The defendant argued that there was no allegation in the complaint that she was using her phone at the time of the collision. But the plaintiff asserted that the defendant had testified she was phoning a friend, and testified that she wasn’t distracted during her deposition.

The plaintiff also asserted that the defendant was very active in social media, and posted on Facebook about alleged fraudulent activity by the plaintiff, which was what led the plaintiff to seek text messages, cell phone records, and the call registry showing any calls made before or and after the accident.

The court reiterated that the right to privacy protects cell phone data. Defendant contented the trial judge failed to balance defendant’s privacy rights with the plaintiff’s discovery rights, asserting that the trial court failed to mandate protective measures beyond the time frame, when ordering discovery of her cell phone records.

The trial court departed from the essential requirements of law by compelling disclosure of a sweeping range of information from the defendant’s cell phone records without first determining relevance and balancing the need for the information against the defendant’s privacy rights, and in failing to conduct an in camera review of the records as necessary. That departure consented irreparable harm because the very broad discovery implicated that the defendant’s privacy interests, necessitating the granting of the petition.