The Week In Torts – Cases from October 7, 2022
Judge, why do you keep ruling against me?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 40
CASES FROM THE WEEK OCTOBER 7, 2022
WRIT OF PROHIBITION BASED ON BAD RULINGS DENIED
N.I. Nitof, Inc. v. Unknown Heirs of Cecile McCartney, deceased, 47 Fla. L. Weekly D1994 (Fla. 3rd DCA Sep. 30, 2022):
It is a well settled principle that the laws governing judicial disqualification were never intended to enable a discontented litigant to oust a judge because of adverse rulings made. Thus, a recitation of adverse rulings without more is insufficient to demonstrate the requisite bias or prejudice necessary to support disqualification.
ORDER WHERE THE TRIAL COURT GRANTED A MOTION TO CLARIFY AN ISSUE, THEREBY ISSUING A SUBSEQUENT AMENDED ORDER, RESTARTED THE TIME FOR THE NOTICE OF APPEAL, LEADING THE APPELLATE COURT TO DENY THE MOTION TO DISMISS
Van Dyke v. Tillman, 47 Fla. L. Weekly D1976 (Fla. 1st DCA Sep. 28, 2022):
The plaintiff sought to dismiss the defendant’s appeal of an order granting her the ability to amend her complaint to add a claim for punitive damages based on lack of jurisdiction.
The trial court had granted a motion to clarify based on an error in its original order, stating the new order was correcting an initial “oversight.” The trial court then issued an amended order that made it clear for the first time that the appealing defendant was potentially subject to the additional claim for punitive damages. The order granted him twenty days to respond to the amended complaint.
The original order included only one defendant. The second order added the appealing defendant. This amounted to a material change sufficient to restart the clock for purposes of appeal and is not the type of minor or superficial change that has no impact on the final judgment.
NO ABUSE OF DISCRETION WHEN COURT AWARDED ATTORNEYS’ FEES WITHOUT MAKING SPECIFIC FINDINGS AS TO THE REASONABLE NUMBER OF HOURS WORKED—EVEN WITHOUT ACCURATE AND CURRENT TIME RECORDS, COUNSEL STILL PRESENTED COMPETENT SUBSTANTIAL EVIDENCE OF TIME WORKED—NOT NECESSARY TO REDUCE “CONSIDERATIONS” INTO WRITTEN FINDINGS
Waites v. Middleton, 47 Fla. L. Weekly D1977 (Fla. 1st DCA Sep. 28, 2022):
The defendant argued that the trial court abused its discretion in failing to follow Rowe, and the decision in Grapski v. City of Alachua, because the court failed to make specific findings regarding the reasonable number of hours worked before awarding attorney’s fees. The defendant interpreted Grapski to mean that fees could not be awarded without current, specific and detailed evidence of the time spent working on the case.
Rowe explains that an attorney is obligated to keep accurate and current records of time spent on a case, particularly when someone other than the client may pay the fee. To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed. Inadequate documentation may result in a reduction of the number of hours claimed, and so will a claim made for excessive or unnecessary hours.
However, this case tells us that attorney’s fees are not prohibited where records are inadequate. Rowe includes a host of factors that should be considered in determining reasonable attorney’s fees, but courts are still not required to reduce those considerations into written findings.
The court observed that in Grapski, where it had affirmed an award of fees based on credible expert witness testimony despite insufficient records detailing the work performed. The expert witness had thoroughly reviewed the record and detailed the amount of hours reasonably incurred. When there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances, there is no abuse of discretion.
In this case, while the plaintiff’s attorney did not keep accurate and current records of the time spent on legal work, he did present competent substantial evidence to show that at least fifty hours of work had been performed over a ten-year period. Plaintiff’s counsel produced the court docket and internal files showing the number of filings drafted, and submitted his own affidavit explaining the time spent on the case, as well as an affidavit of an expert witness. The expert also testified at the fee hearing that the fifty hours was a reasonable and conservative estimate of the time spent.
The trial court did not abuse its discretion by relying on this competent substantial evidence in its fee award leading the court to affirm.
NOTE: While this case seems to go against other recent decisions requiring a lot of I dotting and crossing on the need to support attorney’s fees awards, it is certainly not a bad one to have.
NOTICES OF SUPPLEMENTAL AUTHORITY SHOULD NOT BE USED FOR THE PURPOSES OF INCLUDING CITATIONS TO CASES AND AUTHORITIES THAT WERE PUBLISHED, DECIDED AND AVAILABLE BEFORE BRIEFING – COURT URGES APPELLATE RULES COMMITTEE TO CONSIDER LIMITING USE OF SUPPLEMENTAL AUTHORITY
Davi Nails Salon and Spa v. Do, 47 Fla. L. Weekly D1978 (Fla. 2nd DCA Sep. 30, 2022):
TRIAL COURTS NEED TO CONDUCT IN CAMERA REVIEWS WHEN DISCOVERY REQUESTS COULD YIELD PRIVATE OR PRIVILEGED INFORMATION
Allstate Ins. Co. v. Ray, 47 Fla. L. Weekly D1979 (Fla. 2nd DCA Sep. 30, 2022):
In this bad faith case, the estate sought various categories of documents including personnel files of several Allstate employees involved in the underlying claim, as well as documents reflecting the “goals, strategies, objectives, performance, metrics, or business targets” for Allstate’s claims department. Allstate objected based on relevance, privacy, attorney-client, and work product privileges.
The trial court ruled to compel the production of documents.
The appellate court found that the portion of the order compelling production of employees’ personnel files violated the employees’ fundamental privacy rights under the Florida Constitution. These employees were not parties to the underlying bad faith action and only one had an opportunity to raise a privacy objection.
The court explained that these kinds of discovery disputes require an in camera inspection prior to production. While the plaintiff contended that the relief was not warranted because Allstate failed to submit a privilege log, the court noted that the obligation to file such a log does not arise until the trial court has determined that the information sought is otherwise discoverable, i.e., after the trial court has ruled on any non-privilege objections.
Because Allstate’s non-privilege objections to the requested discovery were not resolved until the rendition of the order under review, the court refused to find that Allstate had waived its privilege claims.
COURT RULES THAT PLAINTIFF’S CLASS ACTION FOR BREACH OF CONTRACT AND UNJUST ENRICHMENT BASED ON COLLEGE’S ALLEGED COLLECTION OF STUDENT FEES FOR ON-CAMPUS SERVICES NOT OFFERED AS A RESULT OF COVID-19, MAY PROCEED
The University of South Florida v. Moore, 47 Fla. L. Weekly D1987 (Fla. 2nd DCA Sep. 30, 2022):
The University had argued that sovereign immunity barred the case. However, state entities may enter into contracts authorized by general law, and the defense of sovereign immunity will not shield them from litigation.
The complaint alleged there was an express written agreement to provide on-campus services in exchange for fees. The court found the issues would be more appropriately resolved at the summary judgment stage.
The court affirmed the trial court’s order denying USF’s motion to dismiss based on sovereign immunity, without prejudice to its right to assert the defense at summary judgment.
ERROR TO DENY MOTION FOR RELIEF FROM DEFAULT JUDGMENT AFTER DEFENSE ATTORNEY’S FAILURE TO ATTEND SHOW CAUSE HEARING, WHERE COUNSEL ESTABLISHED AN ERRONEOUS BUT HONEST BELIEF THAT THE HEARING WOULD BE POSTPONED, AND THERE WERE SWORN, UNREFUTED ALLEGATIONS THAT COUNSEL MISSED COURT ORDERS WHILE BEING PRE-OCCUPPIED WITH A FAMILY ILLNESS.
Zuchaer v. Peninsula Condominium Association, 47 Fla. L. Weekly D1991 (Fla. 3rd DCA Sep. 30, 2022):