The Week in Torts – Cases From the Week of August 27, 2021
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FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 34
CASES FROM THE WEEK AUGUST 27, 2021
MOTION TO DISQUALIFY JUDGE FILED MONTHS AFTER THE JUDGE WAS ASSIGNED WAS LEGALLY INSUFFICIENT IN VIEW OF RULE 2.330(c)(2)’s TIME REQUIREMENT
R. J. Reynolds Tobacco Co. v. Coxwell, 46 Fla. L. Weekly D1901 (Fla. 1st DCA August 20, 2021):
Rule 2.330(g) requires that motions to disqualify be filed “within a reasonable time not to exceed 20 days after discovery by the party or party’s counsel, whichever is earlier, or the facts constituting the grounds for the motion.” Rule 2.330(c)(2) also requires the motion to identify the “precise date” and “when the facts constituting the grounds for the motion” were discovered by the party or party’s counsel, whichever is earlier.
In this case, the petitioner filed its motion months after the trial judge was assigned, equating the precise date to the time when “counsel became aware of the facts constituting grounds for the motion.” The motion, however, failed to give the precise date of the petitioner’s knowledge, instead alleging facts detailing the petitioner’s long history of opposition in Engle cases, from the now trial judge in this Engle case.
The corporate declaration in support of the petitioner’s motion also failed to supply a precise date of the discovery of the problem with the trial judge. In view of the rule’s time requirement, the court agreed that the motion was legally insufficient.
TRIAL COURT ERRED IN STRIKING PLAINTIFF’S AMENDED COMPLAINT BECAUSE IT WAS FILED WITHOUT LEAVE OF COURT – PLAINTIFF HAS AN ABSOLUTE RIGHT TO AMEND A COMPLAINT ONCE BEFORE A RESPONSIVE PLEADING IS SERVED
Arnold v. Arnold Family Limited Partnership, 46 Fla. L. Weekly D1850 (Fla. 2nd DCA August 18, 2021):
After the plaintiff filed his initial complaint, the defendant filed a motion to strike his pleadings and to dismiss it with prejudice for fraud upon the court. The motions were based on the defendant’s assertion that the plaintiff had attached a fraudulent document to his complaint to support his claim.
Shortly before the hearing, the plaintiff filed an amended complaint. The defendant argued that the amended complaint did not negate the fraud. However, the plaintiff asserted that the original complaint was no longer the operative one and that his amended version mooted defendant’s motion.
The trial court declined to find fraud or some type of deliberate scheme calculated to subvert the judicial process. However, it still ruled to strike the amended complaint about having been filed without leave of court, further finding that the exhibits attached to the original complaint were directly contradicted by the allegations.
The court held that neither the motion to strike nor the one to dismiss for fraud was responsive pleadings according to Fla. R. Civ. P. 1.190(a), and then explained that a plaintiff has an absolute right to amend his or her complaint without leave before a responsive pleading is filed.
TRIAL COURT ERRED IN DENYING A TIMELY MOTION FOR COSTS BASED ON RULE 1.420(d)
Viera v. Novation Ventures, LLC, 46 Fla. L. Weekly D1957 (Fla. 4th DCA August 18, 2021):
After the plaintiffs’ complaint was dismissed for failure to prosecute, the defendant filed a timely motion for costs based on Rule 1.420(d). That rule is clear and states that costs in any action dismissed under that rule shall be assessed and judgment for costs entered. Thus, the denial of the costs was error.
THE CIVIL THEFT STATUTE DOES NOT SUPPORT AN AWARD OF “FEES FOR FEES”
Mallas v. Mallas, 46 Fla. L. Weekly D1859 (Fla. 4th DCA August 18, 2021):
The trial court determined that the defendant was entitled to attorney’s fees under §772.11, Fla. Stat. While there are certain contexts where an award of “fees for fees” is permissible, §772.11, Fla. Stat., is not one of them.
The defendants also sought fees pursuant to Rule 1.380(a)(4) based on the plaintiff’s discovery violations. Under that rule, attorney’s fees may be awarded against a party that fails to attend a deposition, but only for the reasonable expenses caused by said failure (which may include attorney’s fees).
None of the provisions in Rule 1.380(a)(4) or 1.380(b) provides sufficient discretion to allow a trial court to award attorney’s fees for time spent litigating the number of attorney’s fees. Thus, the award of “fees for fees” was overturned.
TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING COMPLAINT FOR FRAUD ON THE COURT WHERE CONDUCT MERITING THE SANCTION WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE
Chess v. Sweeney, 46 Fla. L. Weekly D1877 (Fla. 3rd DCA August 18, 2021):
While the court did not consider any facts in its decision, it noted that upon consideration of the record, the defendant failed to establish by clear and convincing evidence that the plaintiff had “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” As such, the dismissal was improper.
THE OFFER OF JUDGMENT RULE SET FORTH IN §768.79 DOES IN FACT APPLY TO SMALL CLAIMS COURT CASES
Davis v. Clark, 46 Fla. L. Weekly D1899 (Fla. 2nd DCA August 20, 2021):
The statute provides that an offer of judgment is available in any civil action for damages filed in the courts of this state. Thus, the statute confers a substantive right to recover attorney’s fees in any case which meets the terms of the statute, and civil cases filed in small claims court fall within that category.