The Week in Torts – Cases from the Week of January 19, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 3

CASES FROM THE WEEK OF JANUARY 19, 2018

TRIAL COURT DID NOT ERR IN GRANTING A NEW TRIAL BASED ON THE TRIAL COURT’S FAILURE TO ALLOW DEFENDANTS TO QUESTION SEVERAL MEMBERS OF THE VENIRE BEFORE THEY WERE EXCUSED FOR BIAS.

Irimi v. R.J. Reynolds, 43 Fla. L. Weekly D138 (Fla. 4^th DCA January 10, 2018):

In this tobacco case, after the first round of questioning of the venire, the trial court advised the defense that he did not see how certain jurors could be rehabilitated. The defense agreed to that about some, but not about all of the potential jurors. Still, the court decided to excuse them.

The trial court then granted defendant’s motion for new trial, stating that it was error for him to eliminate 31 people without allowing defendant to attempt rehabilitation. The Fourth District deferred to the trial court’s unique perspective to reflect on its own decision, and agreed that a new trial was proper.

That said, the court said it disagreed with the tobacco defendants to the extent that their right to question the venire encompassed the use of that process to taint the entire venire.

The better procedure, the court noted, would have been to allow the defense to question the 31 venire members outside the presence of the entire venire once it became apparent that some or all of them might possess a bias that could not be undone. In that way, the court could ensure that biased members were excused without tainting the entire venire with the bias of those members.

FINAL DEFAULT JUDGMENT AGAINST DEFENDANT WAS VOID IN THE FACE OF INSUFFICIENT SUBSTITUTED SERVICE OF PROCESS.

Cozzetto v. Banyan Finance, LLC, 43 Fla. L. Weekly D133 (Fla. 4^th DCA January 10, 2018):

Plaintiff sued a Michigan resident who was the majority owner and president of a Michigan corporation providing healthcare services. The defendant corporation allegedly failed to pay its account receivables to the plaintiff, and the plaintiff filed suit in Florida, alleging that the defendant was a Michigan resident doing business in Florida. The complaint did not contain any specific facts indicating how the defendant was doing business in Florida.

The plaintiff obtained service on the defendant’s corporation but was unable to obtain service on the defendant himself in Michigan after several attempts. The plaintiff then served the defendant through substituted service.

After the plaintiff served the alias summons on the secretary of state, plaintiff obtained a clerk’s default and then a default judgment.

Defendant filed a motion to vacate the judgment, providing an affidavit which alleged that he was a chiropractor in Michigan, had no business ties at all to Florida, and also stated he had not been avoiding service.

The judge found that the defendant was conducting business within Florida, based on the assignment agreements entered into with the plaintiff requiring payment in Florida. Based on that finding of fact, the court concluded the judgment was not void for want of service.

Upon review of the record however, the appellate court concluded that competent substantial evidence did not support the circuit court’s finding that the defendant was conducting business in Florida. Plaintiff’s bare allegations could not counter the defendant’s sworn unrefuted testimony that he was not conducting business in the face of the agreements between the financing companies, and the defendant’s corporation bore no relation to Florida.

Thus, the circuit court should have granted the defendant’s motion to vacate the judgment which the appellate court ordered.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WHEN AFTER IN CAMERA REVIEW, IT ENTERED AN ORDER COMPELLING PRODUCTION OF DOCUMENTS THE INSURER CLAIMED WERE PROTECTED BY WORK-PRODUCT PRIVILEGE AND ATTORNEY-CLIENT PRIVILEGE, WITHOUT MAKING SPECIFIC FINDINGS ADDRESSING EACH PRIVILEGE CLAIM–THE COURT REMANDED FOR FURTHER PROCEEDINGS.

State Farm v. Knapp, 43 Fla. L. Weekly D150 (Fla. 5^th DCA January 12, 2018):

Because the court found State Farm filed appropriate objections, motions and privilege logs asserting that work-product and/or attorney-client privilege protected the documents at issue, the trial court was required to make specific detailed findings addressing each privilege claim before ordering production. However, the trial court failed to do that, leading the appellate court to grant the petition and remand for further proceedings.

In order to overcome work-product immunity, the party must make a showing of need and undue hardship with specific explanations and reasons. However, there is no “relevance” or “need” exception to the attorney-client privilege.

Because State Farm had established a good faith basis for asserting the attorney-client privilege in this case, the trial court has to determine on remand whether that privilege protects each objected-to document from discovery.