NO RECOVERY NO FEES
Tue 18th May | 2021

The Week in Torts – Cases From the Week of April 30, 2021

Appellate Litigation Business Litigation Insurance Bad Faith Personal Injury Premises Liability The Week in Torts BY

Dawning of a New Summary Judgment Age

FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 17
CASES FROM THE WEEK APRIL 30, 2021

IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.510, 46 Fla. L. Weekly S95 (Fla. April 29, 2021):

In keeping with the court’s opinion from December of 2020, advising of its intent to change the summary judgment rule (1.510), the court amended that rule as of May 1, 2021.

For the purpose of simplicity, the highlights are set forth below:

  1. The Florida Supreme Court actually replaced the text of Rule 1.510 with Federal Rule 56 coupled with a few tweaks. So, there IS a rule….it’s not just case law and the Celotex standard.
  2. 1.510(a) now says that the rule will be construed “in accordance with the federal standard” meaning we need to cite to federal cases for a while.
  3. Rule 1.510 makes the summary judgment standard like the directed verdict standard: Both focus on “whether evidence presents a sufficient disagreement to require submission to a jury.” And both standards make the burden for showing a genuine issue of fact to be equal with the burden of proof at trial.
  4. To get summary judgment, it is not necessary for the non-movant to “disprove” the other side’s case (if the non-moving party has to prove “x” to win at trial, then the party moving for summary judgment can either (a) produce evidence to show that “x” is not so, or (b) that the non-movant lacks the evidence to prove “x”.
  5. The test for whether a genuine issue of fact exists asks the trial judge to decide whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
  6. Finally, a judge must ARTICULATE the reasons ON the record for granting or denying a motion for summary judgment (the Federal rule actually makes it permissive, while 1.510(a) makes it MANDATORY).

TIMING AND SCHEDULING ISSUES:

  1. The Rule took effect on 5/1/21.
  2. Summary judgment hearings must be set FORTY (40) days before the hearing (NOT just 20 like the old rule said), and we must respond within TWENTY (20) days, NOT five days, or two days etc.

A BAD FAITH CLAIM BEFORE A COVERAGE DETERMINATION IS PREMATURE – PETITION FOR CERTIORARI STILL DENIED DESPITE THE PREMATURITY BECAUSE THE INSURER FAILED TO ESTABLISH IRREPARABLE HARM

National Fire & Marine Insurance Co. v. Infinity Biscayne, 46 Fla. L. Weekly D902 (Fla. 3rd DCA April 21, 2021):

Plaintiff sued its insurance company for breach of good faith and fair dealing arising out of the adjusting of its losses, specifically alleging that the insurance company unreasonably withheld a formal coverage decision in bad faith. The court observed that the claim was merely a “cloaked claim” for bad faith, thus, in the absence of a coverage determination, the bad faith claim was premature.

Despite the apparent prematurity, binding precedent precluded a finding of irreparable harm (unlike those cases where an issue of removal was involved). Accordingly, while the court found that certiorari did not lie and the court dismissed the petition.

AN APPEAL FILED ON THE 31ST DAY IS UNTIMELY DESPITE THE SUBSTANTIVE INFIRMITIES WITH THE ORDER BEING APPEALED

Hanson v. The Lofts Town Villas, 46 Fla. L. Weekly D904 (Fla. 3rd DCA April 21, 2021):

An appeal filed even one-day late fails to trigger jurisdiction of the appellate court, and bars review of even a patently erroneous order.

UNDER THE CIRCUMSTANCES, THE TRIAL COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW IN DENYING AN EXTENSION OF THE DISCOVERY CUT OFF DATE

City of Sweetwater v. Mejia, 46 Fla. L. Weekly D904 (Fla. 3rd DCA April 21, 2021):

The City defendant sought certiorari review from a series of orders denying an extension of discovery.

The court acknowledged that denying a party a timely extension to obtain necessary, material discovery that the party was unable to obtain through no fault of the party’s own, may constitute a departure from the essential requirements of law resulting in material harm that cannot be cured at the end of the case on appeal.

However, in this case, the City defendant actively opposed an extension sought by the plaintiff, based on the discovery cut off and then later filed a joint motion for extension of time to seek additional discovery. However, the motions and the motion for reconsideration provided only boilerplate legal standards for the extension, and failed to identify the specific discovery needed, from whom it was needed, and on what issue it was needed.

The trial judge then denied the joint motion for extension and sua sponte denied the motion for reconsideration without a hearing.

The court explained that while the trial court could have granted the extension and perhaps the better practice would have been to do so, it was not a departure from the essential requirements of law for it to rule alternatively. Based on the defendant’s actions in opposing the extension during the summary judgment hearing, and the lack of information presented to the trial judge in the subsequent motion seeking to extend the deadline, the court refused to grant the petition.

MERE OWNERSHIP OF TWO CONDOMINIUM UNITS WITHIN THE STATE IS INSUFFICIENT TO CONFER GENERAL PERSONAL JURISDICTION OVER A DEFENDANT IN A BREACH OF CONTRACT CASE

Meraki Investments v. Unit 1805, 46 Fla. L. Weekly D905 (Fla. 3rd DCA April 21, 2021):

A foreign corporation sought to sue a Panamanian corporation for breach of contract. The plaintiff alleged that the trial court had general personal jurisdiction based on “substantial and not isolated activity within the state” because it owned property in Miami-Dade County and maintained a banking relationship in Miami.

In ferreting out the issue, it was determined that the bank account was actually based in New York. Also, the mere ownership of two condominium units without more is insufficient to confer general jurisdiction over a nonresident defendant. In this case, the two units were not available for commercial use, and the loan in question was wholly unrelated to the mortgage or the financing of those two units. Also, the bank account had virtually no ties to Florida.

Because those contacts were not sufficiently “continuous and systematic” to render the defendant “at home” in Florida, the court affirmed the dismissal of the complaint.

NO MISCARRAGE OF JUSTICE IN THE COURT’S REFUSAL TO STRIKE A JUROR FOR CAUSE WHICH THEN LED A JUROR THE PLAINTIFF WOULD HAVE STRUCK PEREMPTORILY, TO SERVE ON THE JURY

Seadler v. Marina Bay Resort Condo, 46 Fla. L. Weekly D938a (Fla. 1st DCA April 26, 2021):

The plaintiff sustained damages when a pool chair collapsed at a hotel. While the plaintiff received a verdict from the jury, he still appealed the final judgment asking for a new trial.

The main basis for the appeal was that the trial judge impermissibly denied a cause challenge, which then led the plaintiff to have to use a peremptory challenge on the “cause” juror, which ultimately left the plaintiff short a peremptory challenge to use on another juror. The plaintiff asserted this denied him a fair trial.

The plaintiff used the peremptory challenge on who he believed should have been removed for cause, and then was left with the need for an additional peremptory challenge. When the plaintiff asked the court for an additional peremptory because he was “down one,” the court denied it. On appeal, the plaintiff argued that the fact that a juror that he would have exercised a peremptory challenge on, served on his jury and deprived him of a fair trial.

Based upon the way the court did jury selection, allowing ten jurors in the box and having them move up based on strikes, and doing the same for alternates, the court found that ultimately the plaintiff was going to be stuck with a juror that he wished to strike peremptorily anyway, and thus the trial court’s ruling could not have resulted in a miscarriage of justice because there was always going to be a subjectively objectionable juror even with the extra strike…hmm.

WHEN A CASE GETS INVOLUNTARILY DISMISSED BASED ON AN ATTORNEY’S FAILURE TO SHOW UP, THE PROOF MUST BE SWORN UNDER RULE 1.540(b)

Arriechi v. Little Wonders Preschool, 46 Fla. L. Weekly D907 (Fla. 4th DCA April 21, 2021):

After plaintiff’s counsel failed to show up for a case management conference, the trial court entered an order dismissing the case without specifying whether the dismissal was with or without prejudice. Four months later, the plaintiff filed a motion to set aside the judgment, but never invoked Rule 1.540(b). Instead, plaintiff sought mere reconsideration of the order of dismissal. The plaintiff argued that the nonspecific dismissal was without prejudice so the trial court could reconsider the non-final order at any time. The plaintiff also argued that the dismissal order should be vacated because the trial court failed to consider the factors set forth in Kozel v. Ostendorf.

Because the plaintiff’s motion to set aside the judgment was unsworn and unsupported by the evidence, there was no competent evidence to set it aside (attorney’s unsworn, unverified statements do not constitute competent evidence). Additionally, judicial errors are not correctable via Rule 1.540, so that consideration of Kozel factors was not proper either. Finally, the four-month delay in even seeking relief from judgment precluded the granting of the motion to vacate also because of the lack of due diligence.

CONTINGENCY FEE AGREEMENT BETWEEN LAW FIRM AND CLIENT VOID WHERE AGREEMENT WAS NOT SIGNED – CLIENT DID NOT ACCEPT THE TERMS OF THE AGREEMENT IN A SERIES OF EMAILS INDICATING THAT THE CLIENT WANTED TO FURTHER NEGOTIATE THE TERMS

Font & Nelson v. Path Medical, 46 Fla. L. Weekly D911 (Fla. 4th DCA April 21, 2021):

The client that had been sent from an accident referral service sought to retain the law firm to represent it in an ongoing federal lawsuit involving thousands of PIP claims, that GEICO deemed fraudulent and unpayable. To establish the relationship, the law firm sent a purposed contingent fee agreement to the client for its approval, and the client responded by proposing edits to the draft, suggesting a conference to discuss the remaining issues. While the law firm admitted that the client never signed the contingency agreement, it argued that the agreement was fully memorialized and agreed to in the parties’ email exchanges.

Ultimately, the client and GEICO reached a confidential settlement, and the Federal District Court dismissed all pending claims with prejudice. The law firm alleged that after it successfully negotiated the agreement, the plaintiffs dismissed the ancillary state court PIP lawsuits.

The trial court dismissed the law firm’s complaint as to the breach of contract and tortious interference claims, because it found that there was no signed contingency fee agreement. The trial court allowed the law firm to amend its complaint to reassert unjust enrichment claims, which would have allowed fees without a signed written agreement. However, instead of amending, the law firm appealed.

The Fourth District affirmed, finding that there was no written agreement, and that the record did not support the defendant’s claim either. The court then held that a contingency fee agreement that is void due to non-compliance with Rule 4-1.5(f)(2), cannot be used as a basis for a tortious interference action, and therefore that claim also failed as a matter of law.

Categories