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FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 35

CASES FROM THE WEEK OF SEPTEMBER 5, 2025 

APPELLATE COURT ADDRESSES CASES “HALLUCINATED” BY CHATGPT

Takeman v. The Pickleball Club, 50 Fla. L. Weekly D1930 (Fla. 3d DCA Aug. 27, 2025):

The court affirmed, writing only to address an issue of growing concern: the proliferation of fake or hallucinated case citations in court filings. Noting the serious problem that this has become all over the country, the appellant’s brief (done by a pro se litigant) was filled with cases that did not exist.

The repeat citations to fake cases (even after the opposing party pointed it out) was particularly egregious, but here, the initial brief also cited to cases with names that were either identical to or just slightly off real cases, with pinpoint cites.

Even more troubling than the errant citations, were the parentheticals describing the cases to stand for the exact proposition the party wanted it to (even though they didn’t). A review of the case revealed there was NO WAY such language could be reasonably interpreted to suggest such a holding.

The court issued an order to show cause as to why the appellant shouldn’t be sanctioned, and at a minimum be required to have a member of the Florida Bar appear on his behalf. Let’s hope the Bar member does not make the same mistakes!

ERROR TO DENY INSURED’S MOTION FOR ATTORNEYS’ FEES BASED ON AMENDMENTS TO SECTIONS 627.428 AND 627.70152—COURT SHOULD NOT HAVE APPLIED THOSE STATUTES RETROACTIVELY

Blumberg v. Security First Insurance Co., 50 Fla. L. Weekly D1933 (Fla. 5th DCA Aug. 28, 2025):

The plaintiff appealed the trial court’s order denying her motion for attorney’s fees against her property insurer based on the 2021 version of sections 627.428 and 627.70152.

The insurance company successfully urged there was no entitlement to fees, because the plaintiff’s statutory right to them had been eliminated prior to her filing her action.

The court explained that nothing in the legislation indicated a clear intent for retroactive application of these statutes. To determine retroactive application, the Florida Supreme Court has explained that courts should look at the date the insurance policy was issued, and not the date the suit was filed, or the accident occurred; the statute in effect at the time the insurance contract is executed, governs the substantive issues arising in connection with the contract.

Under the Menendez v. Progressive retroactivity test, the court first looked for clear evidence of retroactive intent (substantive statutes are presumed to apply prospectively absent clear legislative intent to the contrary). None of the amendments to the statute discussed retroactivity or prospectivity.

While House Bill 837 does not include language explicitly discussing retroactivity, it does state that it shall not be construed to impair any right under an insurance contract in effect, or before the effective date of the act.

The text of the statutes also provides little evidence regarding retroactivity, other than a statement in the pre-suit notice provisions of section 627.701521 noting that it will apply to “all suits” arising under property insurance policies. The court wrote that the words application to “all suits” does not indicate clear legislative intent for retroactive application.

Even if the statutory changes demonstrated an intent for retroactive application, precedent required that those changes would be inapplicable to the plaintiff’s case under the second Menendez prong due to their impact on a substantive right. The statutory right to attorneys’ fees is not a procedural right, but rather a substantive right.

The plaintiff’s claim in this case was based on a contractual right stemming from the incorporation of the statute into her insurance policy. That right incorporated a statutory right to attorneys’ fees at the time it was issued, and the statutory amendment eliminating that right to attorneys’ fees could not be retroactively applied to the plaintiff’s claim.

The Fifth District aligned itself with the Sixth District, which also found no retroactive application of this statute (instead of the Fourth District, that found it did, by distinguishing the rights at issue under the property insurance scheme, with those at issue under the personal injury statutory scheme found in Menendez).

TO PRESERVE AN ARGUMENT FOR DISQUALIFICATION A PARTY MUST TIMELY FILE A MOTION

Florida Homeowner Equity & Loss Property v. Fairchild, 50 Fla. L. Weekly D1948 (Fla. 2nd DCA Aug. 29, 2025):

A third-party intervenor in a mortgage foreclosure proceeding filed three separate motions to disqualify the trial judge. All three were filed between March and May of 2024.

The party contended that the trial judge evinced bias when in a September 11, 2023 hearing, the judge commented that the party’s lawyer should “extricate himself” from the case. As a threshold matter, the argument on appeal was different from the party’s arguments raised in the motions to disqualify because the party failed to raise that specific argument below. As it was not preserved for appeal, the court could only review it for fundamental error.

The party also failed to meet its burden on the merits. In appellate proceedings the decision of a trial court has the presumption of correctness, and the burden is on the appellant to demonstrate error. To demonstrate that a trial judge erred in concluding that a motion to disqualify was legally insufficient, the appellant must necessarily demonstrate that the motion was in fact, legally sufficient.

Here, the party failed to show any error, much less fundamental error. First, the party failed to show that any of the motions to disqualify were timely, as the purported basis for the disqualification had come during a hearing the previous September.

Rule 2.330(g) mandates that a motion to disqualify must be filed within a reasonable time, not to exceed 20 days after the movant becomes aware of the facts constituting the grounds for disqualification. The first motion in this case was not filed until over 6 months after the comment was made.

Additionally, the party also failed to establish an objectively reasonable belief that the trial judge was biased based on the comment made during the hearing. Reasonableness is an objective standard. The party alleged that it feared bias when the trial judge said that the lawyer should extricate himself from the case as part of a hearing conducted on a motion to sanction the party and its attorneys for fraud on the court.

Prior to the comment in question, the judge had been informed that the party had laid claim to more than $156,000 of funds that were held by the Hillsborough County Clerk of Court based on a very suspicious signature of someone who testified under oath and filed affidavits swearing the signature was not hers. The defendant demanded that the judge impose sanctions on that party for its fraud.

When viewed in that context, the party did not establish that it was objectively reasonable to conclude that the comment was reflective of bias. Instead, the comment was consistent with the professional obligations of a member of the bar, if the client has committed fraud on the court. Comments from the bench, even unflattering remarks, which reflect observations or mental impressions, are not legally sufficient to require disqualification.

THE AMENDMENTS TO RULE 1.442 REQUIRING PROPOSALS TO EXCLUDE NONMONETARY TERMS WERE NOT APPLICABLE TO A PROPOSAL THAT WAS MADE AND REJECTED BEFORE THE AMENDMENTS BECAME EFFECTIVE

Stevens v. Florida Peninsula Insurance Co., 50 Fla. L. Weekly D1936 (Fla. 2nd DCA Aug. 29, 2025):

In this property damage case, the insurer filed identical proposals for settlement against the two insureds in 2020, each of which contained a general release. Neither insured accepted the timely proposal, thereby rejecting them.

In 2022, the trial court entered summary judgment for the insurer, who thereafter moved for fees and costs based on the rejected proposals for settlement. By the time of the hearing, the Florida Supreme Court had amended Rule 1.442 to require that proposals “exclude non-monetary terms, with exceptions of a voluntary dismissal of all claims with prejudice and any other non-monetary terms permitted by statute.”

The insureds challenged the proposals as invalid and unenforceable, contending that the general releases should have invalidated the proposals even before the 2022 amendments.

The court disagreed. It found that prior to 2022, the rule did not bar enforcement of a proposal based on the inclusion of a release. By its own terms, the amendment to 1.442 became effective on July 1, 2022, at 12:01 a.m. At the time the proposals for settlement were made and rejected, the amended rule was not applicable.

The court also addressed the concurring judge’s opinion, suggesting the law creates an obligation on litigants to raise ambiguities in proposals before trial. The majority rejected such a suggestion, admonishing that it was not for the court to add to the plain text of the statute or rule a new legal requirement not stated by the legislature or Supreme Court. The court then noted the incongruity in making it the responsibility of the offeree to assist the offeror in meeting the offeror’s burden to make a legally compliant offer.