La Cava Jacobson

Florida Law Weekly – Nov. 27, 2020

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Shanekopp v. State of Florida – 3rd DCA

In this case, the Court found that the Trial Court did not abuse its discretion in allowing testimony that a person depicted in video footage was the defendant, where the video was of poor quality and the witness was in a better position than the jury to identify the defendant. The video showed a person wearing a white shirt, dark pants, and red backpack approaching the vehicle, but the identity of the individual was not ascertainable because of the poor quality of the video. Prior to the witness’s testimony identifying the defendant, the State elicited testimony that the witness had previously interacted with the defendant for a lengthy period in person, had seen the defendant on video, and had viewed the footage at issue several times before trial. The Court found that a witness may testify as to the identification of a person depicted in photographs or video when the witness is in a better position than the jurors to make that identification.

Glover v. Vasallo – 3rd DCA

In this case, the Court held that the Trial Court departed from the essential requirements of the law by severing a replevin count from other counts of the complaint where factual and legal issues underlying the severed count were inextricably intertwined. Here, the Appellant owned a boat and contracted through a company to sell it. That company illegally sold the boat to a third party who would not relinquish the boat, and the Appellant filed a complaint containing one count of replevin and two counts of negligence against the contracted company. Appellee moved to sever the replevin count against him, and the Trial Court granted the motion. The Third District quashed the order on appeal, finding that the claims involved interrelated factual and legal issues.

J.B. v. State of Florida – 5th DCA

In a case addressing the Baker Act, the Court reversed an order of involuntary placement entered pursuant to Fla. Stat. 394.467 because the State failed to present adequate evidence linking the Appellant’s mental health condition, his failure to take medications or his issues managing his hygiene to a real and present threat of substantial harm to his well-being. Further, the Court stated that testimony about the Appellant not being able to survive on his own was conclusory. The State claimed that the Appellant was a chronic mental health patient and would decompensate if released from the facility because he would stop taking treatment medication. The Court noted that “the mere fact that an individual might suffer from a mental illness is not sufficient standing alone to justify involuntary commitment.” Further, the Court noted that “the need for treatment and medication and the refusal to take medication despite a deteriorating mental are insufficient to meet the states burden.” Lastly, the Court held that “conclusory testimony, unsubstantiated by facts in evidence is insufficient to satisfy the statutory criteria by the clear and convincing evidence standard.”

La Cava Jacobson

Florida Law Weekly – Nov. 20, 2020

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Walding v. State of Florida – 4th DCA

In this case, a defendant appealed his conviction alleging that improper hearsay testimony was presented at trial. The Court held that an officer’s testimony recounting the defendant’s sister’s excited utterance that “he has a gun” was properly admitted (although a knife was used during the crime). The Court found that the State established a sufficient link between firearm testimony and the charged crime, and that the testimony was relevant to prove consciousness of guilt and desire to evade prosecution. The Court held that that the testimony alone was unlikely to suggest to the jury that the defendant committed the crime.

Sears v. State of Florida – 4th DCA

In this case, the Court addressed an issue regarding jury selection. The Court held that the Trial Court did not abuse its discretion by dismissing a juror after determining that the juror could not be impartial, without allowing the defense to question or rehabilitate the juror. The Court held that the right of the defense to question the venire is not absolute. When a juror expresses reservations based on immutable opinions and attitudes that arise from personal life experiences or otherwise firmly held beliefs, it may not be necessary or even appropriate for the Trial Court to attempt to rehabilitate the juror into rejection of their beliefs. The juror in this case commented that the legal system was flawed and prejudiced, which constituted more than a mere expression of doubt that they could be impartial.

Bailey v. State of Florida – 1st DCA

In this case, the Court held that the trial Court did not err in denying the defendant’s motion to suppress warrantlessly obtained GPS records which tracked defendant’s movements in a borrowed car, whose owner had consented to GPS tracking by a third party. The Court held that no search occurred when law enforcement obtained the borrowed vehicle’s GPS data because the defendant did not have a reasonable expectation of privacy in his movements while operating a vehicle that he did not own. The Court held that short-term monitoring of a person’s movements on public streets is reasonable, while long-term monitoring impinges on one’s expectation of privacy. The Court stated that the GPS only tracked the car, and more evidence was required to place the defendant in it. Additionally, since law enforcement played no role in recording the information, and simply availed itself of the advantages afforded by the electronic recording, any expectation of privacy on the appellants part was not objectively reasonable.

ESJ JI Operations, LLC v. Domeck – 3rd DCA

In this case, the Court held that the Trial Court properly entered summary judgment against a counterclaim alleging fraud. The Appellant had an agreement for building and operating an adventure park on appellee’s property. When the Appellee failed to perform, the Appellant terminated the license agreement. The Appellee then filed suit and the appellant countersued, alleging breach of contract and fraud. The Court found that summary judgment was appropriate because the damages sought in the fraud claim (unpaid rent) were identical to those recoverable in the breach of contract claim.

Lou La Cava Guest Speaker for Emergency Medicine Physicians

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Louis J. La CavaLou La Cava was a guest speaker for a group of emergency medicine physicians. He presented information regarding COVID 19 litigation, Baker Act procedures for the ER physician and liability related to physician extenders.

La Cava Jacobson

Florida Law Weekly – Nov. 13, 2020

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Pride of St. Lucie Lodge 1189, Inc. v. Reed – 4th DCA

In this wrongful death case alleging premises liability and negligent security, plaintiff brought an action against the owner and operator of a parking lot where the decedent was fatally shot after participating in a brawl. The Court held that the Trial Court did not err by refusing to give a requested instruction pursuant to Fla. Stat.  768.075(4), which provides that owners of real property cannot be held liable for negligence resulting in death of a person who is attempting to commit a felony or engaged in the commission of a felony on the property. The Court stated that the statutory language clearly reflects that the defense only applies to injuries which a plaintiff sustains in the commission or attempted commission of a felony. In this case, the decedent committed a felony during the parking lot brawl.  However, the decedent was no longer engaged in the commission of a felony when she was shot because after the brawl ended, she was sitting in her car.

Routhier and St. Augustine Surgical, LLC v. Tonia Barnes – 5th COURT

In this medical malpractice action, the Court denied a Petition for Writ of Certiorari stemming from a discovery order compelling defendants’ counsel and their law firm to disclose the amount of money paid to retained experts. The Court held that disclosure of this type of financial information furthers the truth-seeking function and fairness of trial. The Court also certified the question of whether the rule of law under review should also apply to preclude a defense law firm that is not a party of the litigation from having to disclose its financial relationship with experts that it retains for the purposes of litigation, including those that perform Compulsory Medical Examinations.

Castro v. Stoddard – 3rd DCA

In this defamation case, the Court affirmed the Trial Courts’ final summary judgment granting absolute immunity in an action brought by a plaintiff police chief against the defendant mayor. Plaintiff alleged that the mayor made defamatory statements in a blog and in a letter to city residents. In support of their decision, the Court held that the “public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged.” The Court found that the defendant’s public statements regarding the actions and conduct of the plaintiff police chief fell within the scope of the mayor’s duty to keep his constituents informed of current events and operations within the city and its government, which includes the operations and performance of the police department and its police chief.

La Cava Jacobson

Florida Law Weekly – Nov. 6, 2020

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Lazzari v. Guzman – 3rd DCA

In this medical malpractice case, the Court held that a University was entitled to sovereign immunity for services rendered by its employee physician at a Public Health Trust teaching hospital where the University provided healthcare services. The Court explained that pursuant to terms of the University’s agreement with the hospital, the physician was the hospital’s agent at the time the physician treated the plaintiff. Therefore, the University was immune from suit because the physician treated the plaintiff while acting as the hospital’s statutory agent. Pursuant to Fla. Stat. 768.28(10)(f), a private medical school and its physicians are agents of the State when the institution is a “nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school…and…has agreed in an affiliation agreement or other contract to provide, or permit its employees or agents to provide patient services as agents of a teaching hospital and those employees or agents are acting within the scope of and pursuant to guidelines established in the affiliation agreement or other contact.”