The Week in Torts – Cases from the Week of April 24, 2020

It’s That Much, I Promise..

FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 16
CASES FROM THE WEEK April 24, 2020

THERE IS NO REQUIREMENT THAT A MOTION TO TAX COSTS BE VERIFIED OR ACCOMPANIED BY AN AFFIDAVIT.

Campos v. Insta Insure, LLC 45 Fla. L Weekly D852 (Fla. 4^th DCA April 15, 2020):

The trial court denied a motion to tax costs based on a lack of verification. The appellants then filed a verified motion for rehearing, explaining the extenuating circumstances surrounding the attorney’s absence from the hearing, and advising that the attorney representing the prevailing party was prepared to offer evidence in support of the motion.

The trial court set a re-hearing, ordering the attorneys to submit a copy of “all the relevant pleadings,” a copy of any memorandum of law, and copies of all cases in advance of the hearing,” advising that without such documents, rehearing would be denied.

The court then denied the motion a second time, because the party failed to submit all relevant pleadings prior to the hearing.

§57.041(1), provides that a party recovering judgment shall recover all of his or her legal costs and charges, which shall be included in the judgment. There is nothing requiring it to be asserted in the pleadings. Pursuant to Rule 1.525, a party seeking a judgment to tax costs shall serve a motion no later than 30 days after the filing of the judgment.

The Fourth District has held that these rules do not require a supporting affidavit (though still a better practice, in this author’s opinion).

In the “unlikely” event that there is a genuine dispute over an identified item of taxable costs, the court should conduct a hearing to resolve the dispute.

Here, the trial court erred in denying the motion for costs based either on the lack of verification, or on counsel’s failure to submit all relevant pleadings.

NON-SPECIFIC BLANKET ORDERS DENYING DISCOVERY REQUESTS CONTAINING MULTIPLE ITEMS, DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW.

Hepco Data, LLC. v. Hepco Medical LLC d/b/a Green Earth Medical Solutions, 45 Fla. L Weekly D843 (Fla. 2^nd DCA April 15, 2020):

The defendants moved to compel depositions of eighteen prospective witnesses. The trial judge granted the plaintiff’s motion for protective order, but the order failed to address (1) the materiality of the proposed testimony of the deponents; and (2) the good cause component of Rule 1.280(c).

Here, the defendants argued that these witnesses had “nothing relevant to say.” However, neither the rules of discovery nor the courts of Florida have held that a party must rely upon the representations of opposing counsel as to whether the requested discovery (in this case, the depositions of non-parties) are relevant. While the information may not actually lead to anything germane to the case, the party is nevertheless entitled to make such discovery, if the proffer shows that–at the very least–the depositions sought were reasonably calculated to lead to the discovery of admissible evidence.

Because the plaintiffs’ general objections failed to rebut the defendants’ proffer regarding the materiality of the eighteen proposed deponents, absent a showing of good cause under Rule 1.280(c), the defendants were entitled to the discovery.

The trial court’s blanket denial eviscerated the defendant’s right to defend against the declaratory judgment action and to prosecute their counterclaim establishing their ownership right to the Data at issue. Because the order did not address the materiality of any of the eighteen deponents, or the justification for the entry of the protective order, the trial court’s orders departed from the essential requirements of law.