La Cava & Jacobson, P.A.

Florida Law Weekly – March 1, 2019

Breger v. Robshaw Custom Homes, Inc. – 5th DCA
The Fifth District reversed a Trial Court Order enforcing a settlement and dismissing the complaint with prejudice.  Plaintiffs owned certain real property as joint tenants with the right of survivorship.  The Defendant entered into a contract with the Appellants to improve the property.  After completion, the Plaintiffs were not satisfied with the quality of the work, filing a lawsuit for breach of contract and negligence.   Plaintiffs each filed individual proposals for settlement, with the Defendants accepting one of them.  The Defendant believed that acceptance of one would end the lawsuit.  The Trial Court agreed, stating that the claims were “undifferentiated” and that settlement as to one Plaintiff was binding as to all.  The Fifth District disagreed, noting that acceptance must be a mirror image of the offer.   The Fifth District noted that the acceptance was not (as it included the other Plaintiffs) and further found that one Plaintiff could not bind the others to a settlement.

Younkin v. Blackwelder – 5th DCA 2019
In this case, the Fifth District held that a plaintiff was entitled to know the total number of times a defense firm has retained an expert to perform a Compulsory Medical Examination as well as the amounts paid to that physician.  The Court based this decision on Allstate Ins. Co. v. Boecher, where the Florida Supreme Court held that similar information with respect to an insurer’s relationship with an expert was discoverable.  The Fifth District also certified conflict with the Florida Supreme Court’s decision in Worley v. Central Florida YMCA, which held that the attorney-client privilege prohibited a defendant from obtaining discovery from a Plaintiff’s law firm regarding the number of times it referred clients to a particular physician.  As the Younkin Court noted, a plaintiff’s firm can refer all of its clients to the same physician and this information is not discoverable, yet the same protections are not afforded to Defendants.

La Cava & Jacobson, P.A.

Florida Law Weekly – February 8, 2019

Business Telecommunications Services, Inc. v. Madrigal, 3rd DCA
In this case, the Court denied the defendant certiorari relief from the Trial Court’s Order requiring the production of a surveillance video prior to the plaintiff’s deposition in a personal injury case.  In doing so, the Court noted the difference between surveillance conducted after the incident (to be used for impeachment purposes) and video taken at or near the time of the incident.

Cat Cay Yacht Club, Inc., v. Diaz, 3rd DCA
The Third District granted certiorari relief and quashed an Order granting the plaintiff’s motion for leave to file an amended complaint and assert punitive damages.  In doing so, the Court held that the Trial Court was required to make specific findings setting forth what evidence it considered sufficient to provide a reasonable basis for granting the amendment.  In doing so, the Court expressed that a Trial Court was required to “do more than just accept the allegations as true.”  Additionally, the Court noted that the Trial Court did not consider the fact that the issues raised may have been legally insufficient to permit punitive damages.

La Cava & Jacobson, P.A.

Florida Law Weekly – February 1, 2019

Davis v. Karr, 5th DCA

In this case, the Court addressed the issue of whether, under Florida’s Medical Malpractice Act, a presuit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant nevertheless meets the statutory presuit investigatory requirements for filing a medical negligence suit.  In the case reviewed, the defendant was an orthopaedic surgeon.  The presuit expert affidavits provided by the plaintiff were executed by an emergency room physician, a radiologist and a nurse.  Defendant sought dismissal asserting that the three affidavits were insufficient to meet the statutory presuit requirements of Section 766.102(5)(a)1., Florida Statutes (2013), because none of the affidavits was from an expert witness specializing in his field of orthopaedic surgery.  The 5th DCA affirmed the dismissal, holding that the plain language of the statue required the presuit affidavit to be executed by a physician within the same specialty as the defendant.

Henry v. State, 4th DCA

In this case, the Court affirmed the Trial Court’s ruling that a photograph of a contact information screen on a cell phone was not inadmissible hearsay.  The Court explained that if the photograph was used to prove the defendant’s telephone number, it would be considered inadmissible hearsay.  However, the contact information screen addressed at trial was similar to an entry in an address book, which Courts have generally held to be non-hearsay when used for the limited purpose of proving association between the maker of the address book and another.

Middleton v. Don Asher & Assoc, 5th DCA

In this premises liability case, the 5th DCA reversed the Trial Court’s order granting summary judgment.  Plaintiff owned property where the incident occurred and had resided there for fifteen years. While walking on the defendant’s premises, plaintiff tripped on an uneven sidewalk and was injured. The opinion notes that the plaintiff had previously walked the property on several occasions and frequently passed the area where she fell. She then brought a negligence action against Appellees.  The Trial Court granted the motion for summary judgment, which argued that the condition of the sidewalk was open and obvious.   In response, plaintiff argued that even if the condition was open and obvious, an issue of fact remained as to whether the defendant should have anticipated that condominium residents would use the sidewalk and encounter the cracked and uneven concrete, requiring it to be inspected and repaired.   While the 5th DCA agreed that an uneven sidewalk was an open and obvious condition as a matter of law, because the issue of the defendant’s duty to maintain and repair existed, summary judgment was not appropriate.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 11, 2019

Florida Hospital v. Newsholme: 4th DCA

In this medical malpractice case, the 4th DCA reversed the Trial Court’s order allowing the plaintiff to amend the Complaint to assert punitive damages.  In doing so, the 4th DCA held that the Trial Court utilized an incorrect legal standard.   After a hearing, the Trial Court entered an order acknowledging that, pursuant to Section 768.72(1), Florida Statutes, plaintiff needed to make a reasonable showing by evidence which would provide a reasonable basis for recovery of punitive damages.  The Trial Court also stated that it was bound to take plaintiff’s allegations as true, stating, ” [t]he standard of whether a claimant has established a ‘reasonable basis’ for recovery is similar to that of whether a claimant has stated a cause of action.” The 4th DCA noted that in Bistline v. Rogers, 215 So. 3d 607 (Fla. 4th DCA 2017), it held that Section 768.72(1), Florida Statutes, required the Trial Court to act as a gatekeeper and precluded a claim for punitive damage where there was no reasonable evidentiary basis for punitive damages.  As explained by the 4th DCA, presenting mere allegations was not enough to warrant amendment.  Because the Trial Court did not determine whether the evidence presented satisfied the “reasonable showing” requirement, the Order was quashed.

 

Wheaton v. Wheaton – Florida Supreme Court

In this case, the Florida Supreme Court held that a proposal for settlement was not subject to the email service provisions of Florida’s Rules of Judicial Administration.  As the Florida Supreme Court noted, the Florida Rules of Civil Procedure require that while a proposal shall be served upon a party, the proposal is not filed unless necessary for enforcement.  Florida’s service provisions now require service by email.  The Florida Supreme Court noted that a notice of proposal for settlement does not require service by email because the proposals themselves are not filed until a party seeks attorney’s fees.  All that is required is service of the notice, so that the opposing party is made aware of the proposal.   Finally, the Florida Supreme Court noted that failing to comply with email requirements does not render the proposal unenforceable.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 4, 2019

METROPCS Communications v. Porter:  3rd DCA

Court held that an arbitration provision contained monthly text messages to plaintiff was enforceable.  The text message informed the plaintiff of terms and conditions of service and contained a hyperlink which plaintiff could use to read the arbitration agreement.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 27, 2018

Manzaro v.  HCA, (3rd DCA)

In this wrongful death malpractice case, the Manzaro Court held that the Trial Court properly dismissed the complaint where there was a failure to comply with the statutory presuit requirements pursuant to Florida’s medical malpractice laws. The Trial Court conducted a two-hour hearing to afford the plaintiff the opportunity to demonstrate that he conducted a good faith investigation and had a reasonable basis for the claims asserted in the complaint. As the Manzaro Court concluded, while the death certificate asserted that the decedent died of natural causes, the autopsy report of the plaintiff’s expert was inconclusive. There was no corroborating expert affidavit and the Trial Court further found that there were scant details among the facts to explain the actual proximate cause of the wrongful death alleged. The Trial Court also found that it was not at all clear what the doctors and hospitals did or failed to do that constituted a breach of the standard of care that may have resulted in the wrongful death. As this finding was made after the expiration of the two-year statute of limitations, the matter was dismissed with prejudice properly.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 13, 2018

Osceola Regional Hospital v. Calzada, (5th DCA)

In an argument presented by Mr. Azzarone and Mr. Nelson, the Osceola Regional Hospital Court agreed that the Trial Court departed from the essential requirements of law in denying the defendant hospital’s motion to dismiss the complaint on the basis that the plaintiffs failed to comply with presuit. The Osceola Regional Hospital Court held that the Trial Court was required to conduct an evidentiary hearing and make express findings as to whether the plaintiff complied, or did not comply, with Florida’s medical malpractice presuit screening requirements.

La Cava & Jacobson, P.A.

Florida Law Weekly – July 6, 2018

Kim v. Chang, (2nd DCA)

In this case, the Kim Court held that the Trial Court erred in denying a counterclaim defendant’s motion for directed verdict on the counter claim for intentional infliction of emotional distress where the evidence was legally insufficient to establish that the conduct caused severe emotional distress. The Kim Court goes into an extensive analysis of what is required under this cause of action and specifically the elements of outrageous conduct that is beyond all bounds of decency and utterly intolerable in a civilized community. As the Kim Court noted, the definition of severe emotional distress is the equivalent of severe emotional distress that involves the stress that is so severe that no reasonable man could be expected to endure it and that the intensity and duration of the distress are factors to be considered in determining severity. With respect to causation, the Kim Court notes that the distress must be so long-lasting that no reasonable person could expect to endure it the court found that there was no evidence establishing either of these elements and therefore directed verdict should have been entered.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 29, 2018

Bechtel Corporation v. Batchelor – (3rd DCA)

In this premises liability action, the Bechtel Corporation Court held that the Trial Court erred in denying the defendant’s motion for directed verdict where there was insufficient evidence that the defendant exercised possession and control of the premises required to satisfy a premises liability claim. The Bechtel Corporation Court agreed that where more than one person is under a duty to maintain the premises, liability is predicated upon the person who has control of egress and ingress and not ownership of the property. Given that no witnesses testified that the defendant had controlled the property, the Trial Court should have granted a directed verdict.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 22, 2018

Wallace v. Keldie – (1st DCA)

The Court held that the Trial Court did not abuse its discretion by dismissing a personal injury suit for fraud upon the court where the plaintiff fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during deposition. According to medical records, seven months prior to the accident at issue, the plaintiff slipped and fell off a stepladder resulting in pain radiating into his left leg. Additionally, a medical records from an emergency room visit 9 days after the accident at issue reflected that the plaintiff stated that his back pain began a long time ago and it was made worse by the first accident. The court did not accept the plaintiff’s explanation that a poor memory caused his memory loss or that his testimony was influenced by heavy drinking or medications.