The Week in Torts – Cases From the Week of September 10, 2021
What Really Goes Into Computing The “Judgment Obtained”?
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 36
CASES FROM THE WEEK SEPTEMBER 10, 2021
SUPREME COURT REMOVES “POST-OFFER PREJUDGMENT INTEREST” FROM THE “JUDGMENT OBTAINED” AMOUNT ASSESSED WHEN EVALUATING WHETHER THE PLAINTIFF HAS MET THE THRESHOLD FOR ENTITLEMENT TO FEES
CCM Condominium Association v. Petri Positive Pest Control, 46 Fla. L. Weekly S259 (Fla. September 9, 2021):
The Florida Supreme Court addressed the following question of great public importance as certified by the Fourth District:
FOR PURPOSES OF CALCULATING WHETHER A PLAINTIFF HAS MET THE THRESHOLD AMOUNT OF THE DIFFERENCE BETWEEN AN OFFER OF JUDGMENT AND THE JUDGMENT ENTERED FOR PURPOSES OF SECTION 768.79, FLORIDA STATUTES, MUST POST-OFFER PREJUDGMENT INTEREST BE EXCLUDED FROM THE AMOUNT OF THE “JUDGMENT OBTAINED”?
The court answered the certified question in the affirmative.
A condominium association had sued a pest control company for its negligence and breach of contract in treating termites. The association had offered to settle all of its claims, including punitive damages, for $500,000, which the pest control company rejected.
After a trial three years later, the jury found in favor of the association and awarded $551,881 in damages. With the prejudgment interest, the plaintiff beat the offer of judgment entitling it to attorney’s fees. Without it, it did not.
The trial court concluded that White addressed only pre-offer costs in relation to a plaintiff’s “judgment obtained.” It then relied on Perez v. Circuit City to rule that prejudgment interest would also get included in the “judgment obtained.” The Fourth District reversed, finding that White and Shands Teaching Hospital v. Mercury required the exclusion of post-offer prejudgment interest from the judgment obtained.
Following the formula set forth in White, the Court noted that the district courts have consistently excluded amounts that were not present on the date of the offer, including damages for claims that had not yet been added. It then said that it simply does not have a definite and firm conviction that its prior interpretation of the offer of judgment statute and the terms “judgment” and “judgment obtained” and “net judgment entered” were wrong.
The Court concluded that it could not find that its prior precedent interpreting §768.79 was clearly erroneous, thus it declined to recede from the formula set forth in White. Therefore, the Court held that post-offer prejudgment interest is excluded from the “judgment obtained” when determining entitlement to attorney’s fees under §768.79.
Justice Canady and Lawson dissented from the decision, finding that there was no
applicable precedent for the result and that it was detached from the text of the statute.
TRIAL COURT ERRED IN DETERMINING THAT PLAINTIFF WAS ENTITLED TO RECOVER ATTORNEY’S FEES UNDER §768.79 BECAUSE OF ITS MISCALCULATION OF THE “JUDGMENT OBTAINED” WHICH INCLUDED PRE-OFFER COSTS THAT WERE NOT TAXABLE ON THE DATE THE PROPOSAL FOR SETTLEMENT WAS SERVED – WHILE EXPERT DEPOSITION FEES COULD HAVE BEEN TAXED IN THE TRIAL COURT’S DISCRETION IF THE PLAINTIFF HAD ESTABLISHED THAT SHE HAD TO PRE-PAY A NON-REFUNDABLE FEE TO GET ON THE EXPERT’S SCHEDULE — SHE NEVER ESTABLISHED THAT
Sweeney v. Washington, 46 Fla. L. Weekly D1972 (Fla. 2nd DCA September 3, 2021):
In another “judgment obtained” case, the plaintiff served her proposal for settlement, which was not accepted. The plaintiff had pre-paid the expert fees prior to the service of the proposal, but both depositions were actually taken after service of the proposal. It was undisputed that without those pre-paid extra fees, the threshold for fees was not met.
The defendant filed one of the expert physician’s fee schedules that expressly provided that prepayment for his deposition was due seven days in advance, and was only non-refundable if canceled within 72-hours. Cancellation of less than 48-hours would result in retention of the entire prepaid fee.
The plaintiff presented no evidence about the doctors’ cancellation policies. Defense counsel speculated that there could have been a refund, though no one knew for sure.
The trial court found that the prepaid deposition fees were pre-offer taxable costs included in the “judgment obtained” and “calculation”. The defendant asserted that taxable costs for the purposes of triggering a proposal for settlement are distinguishable from actual taxable costs available to a prevailing party.
The defendant argued that if it had accepted the proposal when it was served, both depositions would have been canceled, and the prepayments would have been fully refunded to the plaintiff based on the doctors’ cancellation policy.
The Second District looked at the Uniform Guidelines for Taxation of Costs in determining that the judgment obtained under §768.79(6)(b) must be determined in accordance with those guidelines. The Guidelines state that costs for a witness’ deposition and/or trial testimony should be taxed, while any expenses relating to consulting, but non-testifying experts should not be taxed.
The Second District looked at the costs by asking whether they were taxable at the time the plaintiff served her proposal. The fact that they were prepaid did not necessarily mean that they were taxable for the purposes of attorney’s fees, and plaintiff as the moving party had the burden to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time of the action precipitating the cost was taken. This meant that the plaintiff had the burden to establish that the doctors’ deposition fees were reasonably necessary.
However, when the proposal was served, neither of the doctors’ depositions had been taken. As such, their fees at the time of the proposal would not have been taxable under the guidelines.
Plaintiff could have established the exception to the Guidelines providing that the fees had to be pre-paid and thus, non-refundable. The plaintiff did not establish that.
Under these facts, the court concluded that the two prepaid expert deposition fees were not taxable for the purposes of a fee award under §768.79(6)(b), and therefore reversed the award of fees to the plaintiff.
A PERSON’S AGE DOES NOT CONSTITUTE AN EXCEPTION UNDER §90.804(2)(d)
CREATING A HEARSAY EXCEPTION FOR STATEMENTS OF PERSONAL OR FAMILY HISTORY INCLUDING STATEMENTS ABOUT THE DECLARANT’S BIRTH
Miles v. State, 46 Fla. L. Weekly D1937 (Fla. 1st DCA August 30, 2021):
The parties agreed that the juvenile officer’s testimony about the age of the victim at the time of the alleged crime was hearsay. However, the State asserted that it was subject to the exception set forth in §90.804(2).
Said exception, though, only applies when the declarant is unavailable. To satisfy its burden under the exception, the State relied on the defense attorney’s comments during the hearing on the motion to sever that the victim had become difficult to locate and might not appear for trial. Yet there was no stipulation at the hearing that the victim was unavailable for a trial that would occur months later. The State also failed to lay any of the groundwork necessary to establish the victim’s unavailability.
Because the State could not prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or a reasonable possibility that the error contributed to the conviction, the court reversed.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN, AFTER RECOGNIZING THE MOTION TO TRANSFER HAD MERIT, DENIED IT WITHOUT PREJUDICE SO THAT THE PARTIES COULD ATTEND NON-BINDING ARBITRATION
Graham v. Virgil, 46 Fla. L. Weekly D1964 (Fla. 4th DCA September 1, 2021):
The defendants presented overwhelming evidence in this negligent security case that the incident took place in Palm Beach County on property located in Palm Beach County. Additionally, all the parties, and nearly all the witnesses, were located in Palm Beach County, making all of the factors enumerated in §47.122 to weigh strongly in favor of transfer.
The trial court recognized that the motion to transfer had merit, but denied it without prejudice, to enable the parties to engage in non-binding arbitration. The Fourth District ruled that was an abuse of discretion, and reversed and remanded with directions for the trial court to grant the motion to transfer.
ERROR TO GRANT ATTORNEY’S FEES AS A SANCTION PURSUANT TO § 57.105- – DESPITE LACK OF TRANSCRIPT REVERSAL WAS REQUIRED WHERE THE TRIAL COURT FAILED TO MAKE SPECIFIC WRITTEN FINDINGS REGARDING THE FACTS REQUIRED BY FLORIDA PATIENTS COMPENSATION FUND v. ROWE; IN ADDITION TO THE LACK OF THOSE FINDINGS, THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE AMOUNT OF THE FEES IN THE ABSENCE OF WAIVER OR STIPULATION
Soto v. Carollwood Village Phase III Homeowners Association, 46 Fla. L. Weekly D1974 (Fla. 2nd DCA September 3, 2021):