The Week In Torts – Cases from October 29, 2021
Arbitration when lawyers
are loud and clear.
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 43
CASES FROM THE WEEK OCTOBER 29, 2021
PLAIN AND UNAMBIGUOUS LANGUAGE IN ARBITRATION PROVISION IN MORGAN & MORGAN FEE CONTRACT COMPELLED ARBITRATION OF PLAINTIFF’S MALPRACTICE CLAIM AGAINST THAT FIRM
Ramkelawan v. Morgan & Morgan, 46 Fla. L. Weekly D2291 (Fla. 3rd DCA October 20, 2021)
The Morgan & Morgan fee contract contained a very extensive and detailed arbitration provision stating that all disputes, including those regarding attorney’s fees and costs, negligence, malpractice, breach of fiduciary duty and even fraud, would be arbitrated in the event one arose. The provision also contained a bold-faced paragraph stating that because it involved the arbitration of fee disputes, the client should consult with another lawyer about the advisability of making such an agreement with mandatory arbitration requirements before signing.
In contending that the arbitration provision violated Rule 4-1.5(i), the client argued that the contract failed to give proper written notice of arbitration.
However, the court compared the language of the Florida Bar rule with the language of the agreement, and found that there were only minor immaterial differences. Plaintiff relied on two cases, but both held that an arbitration provision was unenforceable when it did not contain any portion of the bold print notice required by Rule 4-1.5(i). However, here the provision did contain the bolding, leading the court to affirm trial judge’s decision to dismiss the lawsuit and compel arbitration.
TRIAL COURT ERRED IN DISMISSING COMPLAINT FOR FAILURE TO COMPLY WITH PRESUIT REQUIREMENTS, WITHOUT AFFORDING PARTIES EVIDENTIARY HEARING
Powell v. Sampson, 46 Fla. L. Weekly D2293 (Fla. 3rd DCA October 20, 2021):
Plaintiff’s counsel argued than an evidentiary hearing was required to adjudicate a motion on failure to comply with medical malpractice presuit requirements. The trial judge disagreed and dismissed the case.
The Third District reversed. An evidentiary hearing is required to determine whether the plaintiff complied with reasonable presuit investigation requirements of Chapter 766.
TRIAL COURT PROPERLY COMPLIED WITH PROCEDURAL REQUIREMENTS OF PUNITIVE DAMAGES STATUTE BEFORE GRANTING PLAINTIFF’S MOTION TO AMEND RENDERING CERTIORARI NOT AVAILABLE
Leon Medical Centers v. Duran, 46 Fla. L. Weekly D2296 (Fla. 3rd DCA October 20, 2021):
In assessing whether the trial court departed from the essential requirements of law in granting a motion to amend a complaint to add a claim for punitive damages, appellate review is limited to whether the trial court complied with the procedural requirements of §768.72. Certiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant, which would provide a reasonable basis for recovery of such damages.
Appellate courts are also not permitted to reweigh a trial court’s finding that a sufficient evidentiary basis for a punitive damages claim exists, and such a finding cannot be disturbed or even evaluated on certiorari review.
The scope of certiorari review is confined to whether the plaintiff proffered evidence in support of the punitive damages claim and after a hearing, whether the trial court entered an order finding the proffer to be sufficient to support the claim.
Because that was done in this case, the court denied the petition for writ of certiorari.
WHERE THERE IS EVIDENCE OF PLAINTIFF’S COUNSEL PROPERLY ADDRESSING, STAMPING, AND MAILING AN ORDER RE-SETTING TRIAL TO THE DEFENDANT DIRECTLY, PLAINTIFF IS ENTITLED TO A PRESUMPTION OF SERVICE, REBUTTABLE BY DEFENDANT, REGARDLESS OF WHETHER THE PLAINTIFF INCLUDED A CERTIFICATE OF SERVICE
Berggren v. North Miami Bagels, Inc., 46 Fla. L. Weekly D2298 (Fla. 3rd DCA October 20, 2021):
After many machinations between the defendant/owner of a bagel restaurant and an insurance company that dropped the ball on defending it, the trial court vacated a default judgment against the defendant.
The Third District reversed. It found that a presumption of proper service of pleadings exists, even when there was no certificate of service.
INTERESTING CONCURRENCE IN PETITION FOR CERTIORARI COURT DENIED ON A DISCOVERY ISSUE BASED ON OVERBREADTH
Werner Enterprises v. Sweeney, 46 Fla. L. Weekly D2309 (Fla. 5th DCA October 22, 2021):
In this case, the defendant sought certiorari review of a trial court’s order compelling a better answer to a particular interrogatory. The majority dismissed the petition.
The concurring judge agreed that the dismissal was proper because defendant failed to establish irreparable harm, and noted that unless the interrogatory constitutes a “carte blanche” request for irrelevant discovery, it will not be subject to certiorari.
The concurring judge did wish to remind litigants, however, that a dismissal of this sort did not preclude the trial court from revisiting the order, particularly if the petitioner/defendant provided greater detail as to the cost likely to be incurred in order to comply with the request. The judge also noted that the dismissal of the petition would not preclude the petitioner from seeking to recoup costs incurred from overly burdensome discovery at the conclusion of the case.