The Week in Torts – Cases from the Week of April 17, 2020
“Mere Dislike Not A Race-Neutral Reason”
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 15
CASES FROM THE WEEK April 17, 2020
WHITE MALES ARE MEMBERS OF A DISTINCT RACIAL GROUP FOR PURPOSES OF A MELBOURNE INQUIRE, AND DEFENDANT’S STATEMENT THAT HE SIMPLY DID NOT LIKE THE JUROR BASED ON HIS RESPONSES WAS NOT A RACE-NEUTRAL REASON FOR A PEREMPTORY STRIKE.
Risech v. State of Florida, 45 Fla. Weekly D836 (Fla. 1st DCA April 09, 2020):
The trial court denied the defendant’s peremptory strike on a white male juror, arguing that the reason “defendant simply did not like him from the responses he provided” was not a race-neutral explanation. The appellate court affirmed the trial judge’s denial, agreeing that such an assertion was not a race-neutral explanation for a peremptory strike, and stating that Florida Courts have constantly rejected “general feelings” of or dislike of a juror as a genuine race-neutral reason for exercising a peremptory challenge.
In addition, the court found the challenge was not preserved. After denying the strike, the trial court asked whether the jury was acceptable and defense counsel said yes. The court later asked the defendant himself whether the jurors were acceptable to him and he also replied yes. The jury was than sworn in without any objection.
CONFLICTS IN JURISDICTIONAL EVIDENCE REQUIRED EVIDENTIARY HEARING.
Suncoast Nursing Centers, Inc. v. Littman, 45 Fla. L Weekly D807 (Fla. 4th DCA April 08, 2020):
This is a nursing home case where a man developed complications after his admission, and died, and his estate sued for failing to adequately diagnose, treat or care for his condition.
The amended complaint asserted that one of the defendants was a Florida Corporation, another a Delaware Corporation authorized to do business in Florida, and the president of one of the defendant corporations who was a resident of Pennsylvania.
Two of the defendants filed affidavits alleging that the corporation (1) did not have a principal place of business in Florida, (2) was not qualified to and did not conduct business in Florida and (3) did not own manager or consult with any Florida nursing homes.
The corporation’s president filed an affidavit, alleging that his corporation did not hire, supervise, monitor or fire employees at this nursing home, and did not review or control budgets for staffing, training or other matters. Another person signed and filed an affidavit on the company’s behalf alleging it too was a Delaware Corporation not doing business in Florida.
The plaintiff did not file counter affidavits to dispute the allegations regarding jurisdiction, instead referring to the allegations in the amended complaint and relying on a deposition of the president taken in an unrelated nursing home case, where the statements contradicted the allegations made in the affidavits.
The Circuit Court conducted a non-evidentiary hearing on appellant’s motion to dismiss for lack of jurisdiction. Over defendants’ objection Plaintiff’s counsel argued that an evidentiary hearing was not necessary.
The court reviews the motion to dismiss for lack of personal jurisdiction de novo. Finding that there were factual conflicts in the jurisdictional evidence, the court reversed and remanded for an evidentiary hearing (reversing and remanding for dismissal as to one of the defendants where there was no conflict in the evidence).
ON REHEARING, THE FOURTH DISTRICT REVERSES ITSELF AND GRANTS A WRIT OF PROHIBITION REMOVING THE JUDGE EVALUATING A CLAIM FOR PUNITIVE DAMAGES AGAINST PUBLIX (IN A CASE INVOLVING CELL PHONE USE).
Publix Supermarket, Inc. v. Olivares, 45 Fla. L Weekly D819 (Fla. 4th DCA April 08, 2020):
The Fourth District initially denied Publix’s petition seeking writ of prohibition to disqualify the trial judge based on his alleged bias. The suit arose out of a fatal collision involving a Publix tractor-trailer. The driver was using his cell phone with a hands-free device at the time of the crash.
Publix claimed that the judge’s comments at the hearing on Plaintiff’s motion to add a claim for punitive damages, showed that the judge was biased against its position. It argued that the hands-free use of a cell phone while driving or a policy permitting such use, does not justify punitive damages, because cell phone use while driving is not prohibited by Florida law.
The judge made multiple comments showing his feelings that cell phone use while driving, even if legal, is dangerous and should not be allowed. The trial judge denied Publix’s motion to as disqualify him.
On rehearing, the Fourth District determined that Publix’s motion to disqualify was legally sufficient after all, and had to be granted because the facts alleged court “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”
Because the trial judge’s comments denigrating Publix’s position regarding its cell phone policy would create fear in a reasonable person that Publix would not receive a fair trial, and because the comments tended to show a disdain not only of Publix’s legal position, but for the company’s lack of policy prohibiting cell phone use while driving, the court found that the judge did exhibit bias and should have disqualified himself.
SERVICE ON DEFENDANT WHERE SHE MAINTAINED AN ADDRESS BUT DID NOT ACTUALLY LIVE, WAS NOT PROPER.
Katz-Luongo v. Amortegui, 45 Fla. L Weekly D819 (Fla. 3rd DCA April 08, 2020):
Pursuant to §48.031 (1)(a), Fla. Stat., service of process requires that the plaintiff serve the defendant at his or her “usual place of abode.” It is well settled that for the purpose of the statute, a person can only have one usual place of abode: the place they are living at the time the service is made.
According to the affidavit of the process server, he attempted service at an address in Venezuela where the defendant was known not to be currently living, even though she had maintained that address. The process server was informed that although the defendant maintained that address, she was actually living in an apartment in Colombia.
Because the plaintiff failed to strictly comply with §48.031(1)(a) to serve the Defendant “in her usual place of abode,” the court was compelled to reverse and remand to quash the service.
NO EXPERT NEEDED IF ATTORNEY CLAIMING FEES HAS TESTIFIED REGARDING THE STIPULATED RATES AND HOURS.
Law Offices of Granoff & Kessler, P.A. v. Glass, 45 Fla. L Weekly D821 (Fla. 3rd DCA April 08, 2020):
In this dispute over attorney’s fees in a divorce case, the clients had retained the lawyers at a specified hourly rate. Invoices were paid by the client in accordance with the fee agreement.
After the client refused to pay the final bill once the dissolution was over, the lawyer sued the client, but did not present any expert testimony by an unaffiliated attorney regarding the reasonableness of the fees, or the value of the legal service. Without such testimony, the trial court refused to award the fees.
Noting the conflict with a Second District’s decision in Snow v. Harlan Bakeries, Inc., 932 So. 2d 411 (Fla. 2nd DCA 2006), the court ruled that corroboration by an independent expert on the stipulated rates and hours incurred is not necessary, when the attorney claiming the fees from his or her former client has testified regarding the matters and that the fee contract and invoices are admitted into evidence.
Here, successor counsel agreed both that there was no dispute about the hourly rates, and that the invoices had been paid for most of the contentious three-year litigation, with the final billings unpaid after the client was disappointed with the result.