The Week in Torts – Cases from the Week of May 17, 2019
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 20
CASES FROM THE WEEK OF May 17, 2019
ERROR TO DISMISS COMPLAINT WHEN MOTION TO SUBSTITUTE PARTY WAS NOT SERVED WITHIN NINETY DAYS AFTER SUGGESTION OF DEATH– PLAINTIFF’S COUNSEL MADE A SUFFICIENT SHOWING OF EXCUSABLE NEGLECT.
Sammons v. Greenfield, 44 Fla. L. Weekly D1215 (Fla. 2nd DCA May 8, 2019):
The Plaintiff passed away during the course of litigation. Plaintiff’s counsel filed a suggestion of death, but failed to serve a motion to substitute the personal representative of the Plaintiff’s estate within ninety days as required by Rule 1.260 (a) (1). Counsel also failed to seek an extension of time within which to do so.
A week after the ninety-day period passed, the appellees moved to dismiss the Plaintiff’s lawsuit with prejudice. At the hearing, Plaintiff’s counsel presented the affidavit detailing a health issue she had been experiencing, and explained how the condition was responsible for her failure to timely file the motion to substitute. The trial court rejected the claim of excusable neglect, and then granted the motion to dismiss-with prejudice–because the statute of limitations had run.
Rule 1.260 has been liberally interpreted to permit substitution beyond the ninety-day time period. Moreover, all doubts should be resolved in favor of allowing a trial on the merits.
With those principles in mind, the court concluded that the Plaintiff’s attorney did make a sufficient showing of excusable neglect. The court reversed the judgment, remanding for the trial court to vacate the order dismissing the Plaintiff’s complaint, and for further proceedings.
COURT PROPERLY AWARDED INSURER’S ATTORNEY’S FEES AS PREVAILING PARTY PURSUANT TO PROPOSAL FOR SETTLEMENT – THE INSURED’S SEPARATE COUNT FOR DECLARATORY RELIEF WAS NOT A CLAIM FOR CLEARLY “EQUITABLE RELIEF,” THAT WOULD INVALIDATE THE PROPOSAL, BECAUSE THE REAL ISSUE IN THE CASE WAS THE CLAIM FOR BREACH OF CONTRACT AND MONEY DAMAGES.
Suarez v. Citizens Property Insurance Co., 44 Fla. L. Weekly D1223 (Fla. 3rd DCA May 8, 2019):
The court ruled that the insurer’s valid proposal for settlement should have been enforced. It rejected the insured’s argument that her separate count for declaratory relief was a claim for purely equitable relief, thereby invalidating the insured’s proposal for settlement. The trial court correctly determined that the “real issue” in the case was the claim for breach of contract and money damages.
The insurer was entitled to fees from the date of the proposal for settlement through the date of the order granting entitlement to fees.
TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING AWARD OF SECTION 57.105 SANCTIONS AGAINST PLAINTIFF WHO FILED AN ALLEGEDLY FRIVOLOUS FEE MOTION AGAINST THE DEFENDANT AND APPELLATE COUNSEL, WHERE PLAINTIFF REASONABLY BELIEVED THERE WAS A BASIS FOR HER CLAIMS.
Fills-Aime v. Roberson, 44 Fla. L. Weekly D1227 (Fla. 3rd DCA May 8, 2019):
The case began as a landlord/tenant dispute. Plaintiff also requested sanctions against the Defendants and their appellate counsel for bringing a frivolous appeal. The court’s order granting fees did not indicate that it was granting the Plaintiff’s request for sanctions, and did not include any expressed findings of misconduct. Neither party sought clarification.
After the mandate issue, the Plaintiff filed three fee motions against the Defendants and Appellate counsel. Appellate counsel served the Plaintiff with a notice of their intent to file a motion for sanctions pursuant to section 57.105, based on the wrongful seeking of fees. The trial court denied those motions.
Appellate courts review orders denying motions for 57.105 fees for an abuse of discretion. Courts have stated they will only reverse if the record reflects that no reasonable trial judge could have denied the 57.105 sanction motions. Appellate courts can only reverse where the trial court’s decision is completely unreasonable.
While the Defendants argued that they were entitled to sanctions because the Plaintiff’s filing of the motions for fees was not supported by the material facts or existing case law, the Plaintiff argued that she reasonably believed there was a basis for her claim, because the court had granted fees in the prior appeal. While the Plaintiff perhaps should have realized that this Court’s fee order did not grant fees as sanctions because the order was completely silent as to sanctions, and made no findings of misconduct, the trial court nonetheless did not abuse its discretion when it denied the motions for sanctions because the decision was not completely unreasonable.
TRIAL COURT LACKED JURISDICTION TO SUA SPONTE AWARD 57.105 SANCTIONS AFTER THE CASE WAS VOLUNTARILY DISMISSED.
Almazan v. Aguilera – Valdez, 44 Fla. L. Weekly D1230 (Fla. 4th DCA May 8, 2019):
The underlying probate action involved litigation by a purported heir. Although the Estate was being administered in Mexico, the purported heir petitioned for intestate administration in Florida. Ultimately the Estate served ae 57.105 motion via email. The Petitioner did not dismiss the action within the 21 days.
After Petitioner voluntarily dismissed the case, the court held a hearing on the Estate’s pending sanctions motion. The court concluded that it could not impose sanctions, because the Estate had failed to comply with the email service requirements when it served the safe harbor notice.
The court still concluded that sanctions were warranted. The Petitioners moved for reconsideration, arguing that the court lacked jurisdiction to impose the sanctions on its own initiative in light of the voluntary dismissal. In response, the court issued an order stating it was proceeding under its inherent authority pursuant to the “inequitable conduct doctrine”. The Court concluded that a party cannot divest a court of its inherent powers to sanction bad faith conduct by filing a voluntary dismissal.
Generally, even in the absence of statutory authority, a trial judge has the inherent authority to award attorney’s fees as a sanction for bad faith conduct. However, this discretion can be limited by the entry of a voluntary dismissal. That is because the voluntary dismissal completely removes for the court’s consideration the power to enter an order, which equates in all respects to a deprivation of jurisdiction.
With such parameters in mind, the court held that a trial judge’s inherent authority to award attorney’s fee as a sanction for bad faith conduct on its own initiative does not extend beyond voluntary dismissal. As such, the court had no jurisdiction to award fees as a sanction.
ON REHEARING, COURT REITERATES SUPREME COURT PRECEDENT IN WORLEY, THAT A LAWYERS PAYMENTS MADE TO TREATING PHYSICIANS IS A MATTER PROTECTED BY ATTORNEY-CLIENT PRIVILEGE.
Bellezza v. Menendez, 44 Fla. L. Weekly D1238 (Fla. 4th DCA May 8, 2019):
On rehearing in this case reported several weeks ago, the court reiterated that payments made by an attorney to treating physicians are a matter protected by attorney-client privilege.
In this case, the trial court not only required Plaintiff’s counsel to produce documents about the financial relationship between her and the Plaintiff’s treating physicians, but was then required to sit for a deposition, and even compelled to testify at trial. The central theme of the Defendants case became the Plaintiff’s attorneys’ financial relationship with the treating physicians.
Because the court held that Worley prohibits the discovery and admission of attorney-client privilege information concerning the relationship between the Plaintiffs’ attorney and the treating physicians as well as the financial information concerning that relationship, the court reversed for a new trial.
IN ANOTHER TAKE ON WORLEY, THE COURT CERTIFIES A QUESTION OF WHETHER THE ATTORNEY-CLIENT PRIVILEGE ALSO APPLIES TO DEFENSE LAW FIRMS OR INSURANCE COMPANIES THAT ARE NOT PARTIES TO THE LITIGATION.
Salber v. Frye, 44 Fla. L. Weekly D1249 (Fla. 5th DCA May 10, 2019):
Again acknowledging that discovery of certain types of financial information requested is permissible to assist counsel in impeaching examining physicians and other experts, by demonstrating that the expert has economic ties to the insurance company or law firm, the court further acknowledged the argument that the law is not being applied evenhandedly (by finding defense firms/insurance companies cannot claim the privilege). The Court certified the question of the applicability of Worley to insurance companies and defense firms to the Florida Supreme Court.