La Cava Jacobson & Goodis

Florida Law Weekly – Nov. 27, 2020

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 & Goodis

Florida Law Weekly – Nov. 20, 2020

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.

La Cava Jacobson & Goodis

Florida Law Weekly – Nov. 13, 2020

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 & Goodis

Florida Law Weekly – Nov. 6, 2020

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.”

La Cava Jacobson & Goodis

Florida Law Weekly – Oct. 30, 2020

Skupin v. Hemisphere Media Group, Inc. – 3rd DCA

In this libel and defamation case, the Court held that the Trial Court made no error in dismissing a complaint with prejudice where the complaint was not actionable on any of the grounds alleged.  The Court acknowledged that the Trial Court’s review was limited to the four corners of the complaint, including any attached or incorporated exhibits, when ruling on a motion to dismiss. The Court also held that conclusions of the pleader regarding exhibits are not binding on the Trial Court. Further, the Court held that whether a statement is one of fact or opinion, and whether a statement is a privileged expression or unprivileged opinion, are both questions of law for the Court.

La Cava Jacobson & Goodis

Florida Law Weekly – October 23, 2020

Tallahassee Housing Authority v. Prather – 1st DCA

In this case, the Trial Court, over the objections of Plaintiff’s counsel, limited voir dire examinations of potential jurors to 1 hour per side. After the jury returned a defense verdict, Plaintiff moved for a new trial arguing, in part, the trial court erroneously limited him to one hour of voir dire time. The Trial Court ultimately granted this motion. The 1st District Court of Appeal reversed the Trial Court’s decision to grant a new trial because Plaintiff failed to demonstrate that he was prejudiced by the limitation.

Vital Pharmaceuticals, Inc. v. Ohel – 4th DCA

In this case, the 4th District Court of Appeal held that the Trial Court departed from the essential requirements of law when it refused to consider whether an actual factual basis for punitive damages existed before deciding whether to limit, delay, or deny financial worth discovery. Defendant objected to the Plaintiff’s request for production of documents concerning financial worth on the basis that there had been no determination that a reasonable evidentiary basis for the recovery of punitive damages existed.

La Cava Jacobson & Goodis

Florida Law Weekly – October 16, 2020

Escadote I Corporation v. Ocean Three Condominium Association, Inc. – 3rd DCA

In this case, the Trial Court granted summary judgment in favor of the Defendant property manager regarding Plaintiff’s claim for intentional infliction of emotional distress stemming from alleged water intrusion due to a leaky roof in a condominium owned by Plaintiff. To maintain a cause of action, it must be shown that: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The 3rd District Court of Appeal agreed with the Trial Court’s finding that there was no evidence indicating that Plaintiff was particularly susceptible to stress, nor was there any evidence that the Defendant property manager was in a position of power over the Plaintiff to sustain a claim. Therefore, no genuine issues of material fact existed and Defendant’s motion for summary judgment was properly granted.

Cavanaugh v. Stryker Corporation – 4th DCA

In this case, the 4th District Court of Appeal held that the Trial Court’s decision to allow one additional peremptory strike for replacing an excused juror with a duly selected alternate did not constitute an error that required a new trial because there was no “tactical gamesmanship” on the part of the Defendant. The 4th District Court of Appeal reasoned that parties are not entitled to have any particular jurors serve, rather they are entitled only to have qualified jurors. The Court noted that there have been numerous cases in which it was found that any error in removing a juror is harmless where the juror was replaced by a duly selected alternate who had been present during the entire proceedings and where no prejudice was shown to have resulted from the substitution.

State of Florida v. Torres – 4th DCA

In this case, the 4th District Court of Appeal held that even when messages are not obtained directly from the sender’s phone, electronic communications, like other traditional communications, may be authenticated by appearance, context, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. Prior to trial, the Trial Court granted Defendant’s motion in limine to exclude screenshots because of insufficient evidence connecting the Defendant with the messages. The 4th District Court of Appeal reversed the Trial Court’s order, finding that the Trial Court erred because the authentication of screenshots of messages from an instant messaging app was satisfied by the victim’s ability to identify the Defendant as the sender of the messages based on his extensive history of texting the victim through the messaging application, the nickname he used as his screen name, and the content of the messages which referenced facts known only to the Defendant and the victim.

La Cava Jacobson & Goodis

Florida Law Weekly – October 2, 2020

R.R. v. New Life Community Church of CMA, Inc. – Supreme Court of Florida

In this case, the Supreme Court of Florida concluded that negligence and respondeat superior claims against an employer for sexual abuse accrue at the time of injury in a case where the alleged abuse occurred when the Plaintiff was a minor. Plaintiffs alleged that the sexual abuse they experienced as children by the Defendant was connected to and facilitated by his employment. As a result, Plaintiffs brought negligence and respondeat superior claims against the Defendant Church as well. The Church’s motion for summary judgment was granted because Plaintiffs’ claims against them accrued at the time of injury and were therefore untimely. The Supreme Court of Florida affirmed the 2nd DCA’s holding that unless otherwise stated within a statute, a cause of action accrues when its last element occurs.

La Cava & Jacobson, P.A.

Florida Law Weekly – April 5, 2019

Tabraue v. Dostors Hospital – 3rd DCA
In this wrongful death case, the Court held that there was no non-delegable duty existed in the context of a hospital providing non-negligent emergency care to patients via common law, statutes, express contracts or implied contracts. In rejecting the argument that a patient’s admission to an emergency room creates an implied contractual relationship with the hospital, the Court disagreed with contradictory holdings of the 4th District Court of Appeal and certified conflict.

Sentz and Geico v. Tracy – 5th DCA
In this case, the plaintiff was awarded attorneys fees and costs as a result of the defendants’ denial of requests for admissions. The requests sought an admission that the defendants acted negligently. The 5th District reversed, holding that requests for admissions that go to ultimate issues are improper.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 29, 2019

Cruz v. Wal-Mart – 4th DCA
In this premises liability case, the Court reversed the Trial Court’s Order granting summary judgment in favor of Wal-Mart. The plaintiff, a 72-year-old man, tripped on a raised manhole cover and fell in a Wal-Mart parking lot at night, sustaining serious head trauma. .In doing so, the Court rejected the theories that there was no liability because: 1) the manhole was inspected and approved by government agencies; 2) the accident was not foreseeable because there were no prior similar events; and 3) the manhole was an open and obvious danger, negating any duty to warn. Ultimately, the Court found that issues of fact remained precluding summary judgment.