All entries filed under “Litigation”

Courts blow Proposal for Settlement doors wide open in wake of Supreme Court case

Following the Supreme Court of Florida's decision in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), we noted ambiguity in the landscape of proposals for settlement would likely lead to a slippery slope of formerly fatal technical deficiencies that would now be potentially acceptable for purposes of awarding fees.  That slope appears to be drawing some early action within the Second District in the case of Polk Cty. v. Highlands-In-The-Woods, L.L.C., 42 Fla. L. Weekly D1135 (Fla. 2d DCA May 19, 2017).

As we previously noted, prior to the Kuhajda decision, the Supreme Court of Florida's precedent from Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013), even minute and seemingly irrelevant technical deficiencies could render an offer of judgment invalid for the purpose of seeking attorneys' fees .   Under that precedent, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice). Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).

However, in Polk Cty. v. Highlands-In-The-Woods, L.L.C., the Second District held that the offering party did not need to address specifically the issue of attorneys' fees in the offer, did not need to address the issue of punitive damages in the offer, and did not need to address the issue of injunctive relief in the offer.  In essence, where there may have been previously three potentially fatal deficiencies, the Second DCA found none.  The Court reversed the trial court's denial of the motion for attorneys' fees premised on the offer of judgment at issue and remanded to determine the amount of fees that were to be awarded. 

The landscape of procedural mechanisms for obtaining attorneys' fees is shifting potentially now more than ever.  The help of an experienced litigation attorney could mean the difference in thousands of dollars in attorneys' fees awarded either for or against a litigant.  Reach out to the attorneys of Icard Merrill today if you have questions or need help.


Proposal for Settlement, an Elimination of the "Good Faith" Requirement?

A 2017 case decided in the Third District illustrates one of the (numerous) nuances of offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442.  Case law has traditionally referred to a requirement that these procedural mechanisms for triggering liability for attorneys' fees must be made in "good faith" with respect to the amount offered.   There have been numerous cases exploring the issue of whether offers are made in good faith and whether certain offer amounts can lead to a finding that the offer was not made in good faith.  

As the Court notes in its opinion UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER (24 Fla. L. Weekly Supp. 785a), "[t]he rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.” E.g., State Farm Mut. Auto. Ins. Co. v. Sharkey928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a] (citations and quotation marks omitted)."  However, the important part of that ruling could be argued to be that the party could reasonably believe "its exposure" was nominal.  The instant case seems to expand that ruling. 

In this action, the defendant proposed settlement for a total amount of $500.  The defendant argued after the fact that the offer was made in good faith since the insurance company believed the whole time that it was very likely to win the case.  Having litigated many dozens of cases, this blog's author has yet to meet a party that did not feel it was right and at least fairly likely to win the case.  However, the Court noted that, since the defendant was consistent (or perhaps persistent) in its belief that it was, indeed, correct and would win at trial, the offer was made in good faith. 

What was argued--and ultimately dismissed by the Court--was that the defendant's exposure could never really have been anywhere close to $500. Since there were legal issues being decided on both a helpful and hurtful side of the fence for defendants during the action, the insurer would eventually be proven right or wrong.  Although the chances of being proven right may have been on the side of the insurer, leading to its confidence in its position, its exposure if incorrect would have always been far greater than the $500 offered.  Therefore, the rule of assessing reasonable expectations of "exposure" could be argued to have melded into the concept of self-confidence in the likelihood of success.  Based on this ruling, any party who ultimately prevails will need to show only that an offer was made and that the party was very sure throughout the case that it would win and the proposal is likely to be upheld (especially so since it is very difficult to argue that an expectation of winning was unreasonable when a party does indeed win down the road).  

If you have questions about your case or the complex world of offers of judgment or proposals for settlement, contact one of our litigation attorneys today. 


Supreme Court rejects requested change from Frye to Daubert in evidence code.

Despite some local groundswell and a hearty minority recommendation to bring the State of Florida’s evidence code in line with Federal standards (as well as those of a majority of other jurisdictions), the Supreme Court of Florida last week declined to adopt a 2013 amendment passed by the state legislature which replaced Frye with Daubert as the standard for admission of expert witness testimony.  In re Amendments to the Fla. Evidence Code, No. SC16-181, 2017 Fla. LEXIS 338, at (Feb. 16, 2017).

Citing “grave” constitutional concerns (and teeing up, if not hinting at a potential future ruling of unconstitutionality), the Court found the Daubert standard used in the majority of jurisdictions to be a poor fit for Florida.

Possibly the more noteworthy issue is the interplay between the branches of the State’s government.  It would be a potentially interesting discussion (at least to civics wonks or those with a fascination for tedium) to have regarding the legislature’s rule-making authority compared to the Court’s inherent power to issue and administer rules for court procedure. 

As the Court mentions in its refusal to adopt another legislative change to the “same specialty” requirement regarding medical expert testimony, “we do not address the substantive/procedural issue raised here because whether the Legislature's amendments to section 766.102(5)(a) and repeal of section 766.102(14) somehow run afoul of the trial court's inherent power or this Court's rule-making authority must be left for a proper case or controversy and not decided in this rules case.” Id. (citations omitted).

Evidence code issues such as these can often be the downfall of an otherwise viable case.  It is critical to seek the advice of an experienced litigation attorney if you are concerned about your case.  Talk to one of the civil litigators at Icard Merrill today. 


Statutory caps on non-economic "pain and suffering" damages in medical malpractice cases declared unconstitutional.

The Second District Court of Appeals doubled down on a previous ruling in North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858 by stating that the trial court correctly followed the Fourth District’s ruling that medical malpractice personal injury case statutory caps on non-economic damages violates the equal protection provision of the Florida Constitution.   Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2d DCA October 26, 2016).   

Both Kalitan and Suarez represent an extension of the Supreme Court of Florida’s ruling that similar statutory caps imposed in medical negligence wrongful death claims were likewise unconstitutional in Estate of McCall v. United States.  134 So. 3d 894, 897 (Fla. 2014).

This appears to be the judiciary striking back against the attempts of lawmakers to limit the amount of damages awardable on the basis of “soft” claims in medical negligence cases—claims that can make the practice of medicine and obtaining and providing coverage for malpractice insurance for physicians in the State of Florida difficult and costly. 

It will be interesting to see how many dominoes continue to fall as other statutory caps may find themselves in the judiciary’s crosshairs.

If you have a question about your case, about the types and amounts of damages you could be awarded, or questions about whether you may have a case at all, consult with the experienced litigation attorneys of Icard Merrill today. 


Florida's Impact Rule for Emotional Distress in Tort Actions

Prospective clients often wonder whether they can try to collect “pain and suffering” damages from another person or party when a dispute arises.  Outside of certain somewhat limited types of claims (e.g., employment discrimination/retaliation, negligence cases, etc.), these types of damages are not normally available to aggrieved parties complaining of negligent behavior.   

A recently decided case reminds parties of the greatest hurdle preventing “pain and suffering” (usually referred to as ‘non-economic damages’); the Florida Impact rule.  In the case of G4S Secure Solutions USA, Inc. v. Golzar, the plaintiff had been allegedly captured in a state of undress on video from outside her home by a security guard holding his cell phone against her window while on his rounds in the early hours of the morning in a residential security job.  No. 3D14-2588, 2016 Fla. App. LEXIS 16663, at *7 (3d DCA Nov. 9, 2016).  The defendant security firm was alleged to have hired the guard without properly verifying certain aspects of the man’s past (including specifically allegations that he had done something similar previously).  Id.    

As the holding makes clear, non-economic damages are not available against the security company for negligent hiring since the employer’s behavior was allegedly negligent—not intentional—and the intentional conduct of the employee could not be imputed (i.e., held against) the employer for purposes of collecting non-economic damages.  Id.  This would violate both the law regarding imputing liability as well as Florida’s impact rule, which requires that there be an actual physical impact (i.e., touching) of the person in order for non-economic damages to be available.  Id

One exception to this rule about which sometimes laypersons are familiar is in the area of intentional infliction of emotional distress claims.  However, given that these claims require no proof of touching, the standard is extraordinarily high for a plaintiff to prove in order to be awarded non-economic damages.  The plaintiff must show:

(1) The wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;

(3) the conduct caused emotion distress; and

(4) the emotional distress was severe.

Legrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. 3d DCA 2004). 

If you have concerns about claims you may have against another person or company, contact the attorneys of Icard Merrill for information about non-economic damages in your case.  


A Loophole in Proposals for Settlement in Joint and Several Liability Cases?

A fascinating practice point was revealed in a Florida Supreme Court ruling earlier this month relating to offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442 and the reasoning forming the framework of the Court’s analysis came from right here in the Second District. 

In the case of Anderson v. Hilton Hotels Corp., the Court agreed with the reasoning provided by the Second District in conflict with a ruling from the Fifth District in determining that offers of judgment to separate defendants against whom a joint and several judgment is rendered cannot be aggregated for purposes of denying the prevailing party’s motion for attorneys’ fees.  41 Fla. L. Weekly S500 (Fla. November 3, 2016).

This is an interesting clarification on the practical use of and strategy concerning offers of judgment.  For instance, similar to an example given by the Court, an offer to Defendant A could be very high (say, $300,000) and the offer to Defendant B could be quite low (say, $5,000), yet a judgment against both defendants in the amount of $20,000 would entitle the Plaintiff to fees against Defendant B.  Id.  Further, offers to Defendants A, B, and C in equal amounts of $100,000 would result in an entitlement to fees by the Plaintiff against all three Defendants if the judgment lists all three jointly and severally even on a judgment in the amount of only $126,000  (at least 25% greater than each respective offer). 

The Court’s ruling makes clear that the offer to a party and a judgment against that party (even if other parties are included in the judgment) are what triggers liability for fees—not some aggregation of offers and judgments.  As the Court notes, this is true regardless of what a jury verdict states as to apportionment of damages against various defendants so long as the final judgment applicable against any party is greater than the amount offered by at least 25%.  Id. at 22-23.

This provides practitioners with varied options for strategies in their civil actions and offers of judgment—to wit, the Court quotes these examples from the Second District’s opinion:

It is worth explaining that the plaintiff may have a logical, strategic reason to make such differentiated offers. It forces one defendant to settle. The plaintiff obtains money that can be used to further prosecute the lawsuit or which can be safeguarded from the risk of a future judgment if the defendants obtain the right to a judgment for their fees. The plaintiff can eliminate the defendant for whom the jury may have sympathy, or the defendant who may be on the brink of bankruptcy. If more than one lawyer is involved, the plaintiff can remove the defendant with the best lawyer. We doubt that  these are considerations addressed by the legislature when enacting these fee-shifting provisions, but they are logical considerations and we cannot rule that they are matters that a plaintiff's attorney should disregard when making a good faith offer to settle a case. . . .

Id., quoting Hess v. Walton, 898 So. 2d 1046 (Fla. 2d DCA 2005). 

As has been previously noted in this Blog, the offer of judgment rule and statute provide a significant challenge even for experienced practitioners and provide one excellent example for why lay persons should seek the help of a skilled attorney in disputes (as the old saying goes, you wouldn’t perform your own open heart surgery even if you have a pretty good idea how it is supposed to be done).

If you have questions about your rights in a dispute or future litigation, reach out to our skilled and experienced trial attorneys today at Icard Merrill.  


Significant Ruling on Offer of Judgment and Strict Construction

A potentially landmark ruling was issued recently on the issue of the strictness of construction of offers of judgment and/or proposals for settlement under Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442.  Though, perhaps the ruling itself further makes murkier the already tricky offer of judgment waters. 

Previous to the certified conflict between the First District in Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 3d 242 (Fla. 1st DCA 2015) and the Fourth District in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003), as discussed in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), the landscape was clear, if not laden with traps for prospective offerees. 

The previous clarity was lent by the Supreme Court of Florida in Diamond Aircraft Industries, Inc. v. Horowitch, where the Court made it clear (seemingly) that any deficiency—even if only a technicality and even (again, seemingly) despite the relative irrelevance of the deficiency to the action—would render the offer invalid.  107 So. 3d 362 (Fla. 2013).  For instance, under the holdings which were embossed by Horowitch, even the arguable deficiency of failure to mention attorneys’ fees in an offer where no attorneys’ fees have been sought in the case renders the offer invalid (e.g., Borden Dairy Co. of Alabama, LLC v. Kuhajda).  

To show even more the “strictness” of interpretation afforded before Bennett, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice).  Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).

However, the Court recently held in Kuhajda v. Borden Dairy Co. that an offer is not invalid simply because it fails to address whether the proposal includes fees and whether the fees were sought in the action if the action did not, in fact, seek attorneys’ fees as part of the claims therein.  41 Fla. L. Weekly S471 (Fla. October 20, 2016).  It would have been arguably a major departure and loosening of the “strict” standard for interpretation of the statute and rule to simply state that the offer in question need not address whether attorneys’ fees were included in the offer if it stated that fees were not sought in the case.  However, to state that neither was required seems to fly fully and firmly in the face of the long-held (and what could fairly be described as ‘hyper-technical’) strict construction mantra used to strike down innumerable offers on what often amounted to insubstantial technical deficiencies. 

It will be interesting to track how far district courts are willing to go in loosening standards under § 768.79 and Rule 1.442 following Kuhajda.  Offers of judgment now potentially move from the realm of clear law with many known traps, to unclear law and unknown traps.  Such rulings often keep litigators very busy in the time after reconsidering their position in cases where offers of judgment are in play and remind litigants that the expertise of an experienced litigation attorney is more valuable now than ever.   If you have questions about your case or need help in a dispute, turn to the trusted litigation attorneys of Icard Merrill today. 


Court Orders Should Be Taken Seriously: Indirect Criminal Contempt

For those that need a reminder (including attorneys) that court orders are no laughing matter and should be taken very seriously, look no further than the recent case of Haas v. State decided in the Second District.  196 So. 3d 515, 523 (Fla. 2d DCA 2016).  

In Haas, attorneys for one of the parties were alleged to have retained certain confidential files and to have filed certain confidential files without ensuring they were filed under seal.  This conduct arguably violated the trial court's order as to confidentiality, so the court set a hearing to investigate further.  The two attorneys at issue were found guilty of indirect criminal contempt for violating the court's order in filing documents without ensuring they were under seal and for retaining copies of certain documents.

The holding of the Second DCA, which reversed the finding of guilt as to indirect criminal contempt, included the following that; "[f]or a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order" . . . [a] trial court cannot make a finding of contempt for violation of a court order based upon its intent in issuing the order when the court's 'intent was not plainly expressed in the written order' . . . [i]n other words, a finding of contempt for violating a court order cannot be based upon something the order does not say."  (internal citations omitted).

It should be noted that the applicable standard for indirect criminal contempt--like any criminal matter--remains "beyond a reasonable doubt."  However, it was, for a time, likely an extremely unsettling prospect to have been found guilty of a crime of contempt and fined (the opposing attorney sought jail time for the two attorneys--raising serious questions about the working relationship between those two firms) before the judgment was overturned.  

This holding should also serve as notice to courts and to attorneys drafting proposed orders for the Court to ensure they are clear and explicit in the instructions and requirements that go into the order if compliance is to be ensured by potential contempt proceedings.

For those that take court orders lightly, beware that civil sanctions are not the only remedy out there for judges to ensure people take their proclimations seriously.


Retaining Jurisdiction on Deficiency Deprives Court of Separate Action Jurisdiction

A curious result in a recent foreclosure action bears a closer look.  In the case of Higgins v. Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016), the First District Court of Appeals held that the final order of the trial court which included language retaining jurisdiction to determine a deficiency judgment on the foreclosed note precluded jurisdiction of the trial court in a subsequent action for deficiency.  

The First DCA found that, since a deficiency was asked for in the complaint and included in a reservation by the trial court, the matter was resolved pending entry of the deficiency by the trial court in the first action and there was, essentially, nothing left to sue for in the second action.  

The decision has caught the attention, though not in a positive way, of other courts subsequently.  In fact, the First DCA's opinion has already seen criticism by the Second, Fourth, and Fifth DCAs.  


Enforcement of Non-Competition Agreement Update

As the pendulum of non-competition agreement enforcement seemingly swings back and forth, we recently got an update on the arc of that sweep from the Third District Court of Appeals. 

In Telemundo Media, LLC v. Mintz et al., the Third DCA reversed a trial court's refusal to enter a temporary injunction against a Spanish television executive  who had a non-compete for a period of six months that spanned the entire United States.  Using somewhat standard boilerplate terminology, the Court found that the defendant had agreed his employer would be damaged irrevocably by his departure and subsequent employment with a competitor. 

Therefore, the Court found injunctive relief appropriate and reversed the trial court's refusal to enter one.   Thus, we see again that the best means of protecting yourself from an overbearing non-compete agreement is by disagreeing with the language at the time or refusing to sign in the first place.  

Employers in some cases sacrifice a great deal or put substantial assets into key employees, so having that person leave and take their talents (and, in some cases, secrets) to another employer in the marketplace can have a substantial impact.  In those cases, non-competes are both necessary and valuable.  However, it remains up to the employee whether they want to either negotiate the terms of the agreement or refuse to sign and roll the dice on a possible termination of employment. 

Speak to one of our employment attorneys today to find out your rights and options.


Screenshots emerging on the evidentiary scene

Much to the chagrin (and likely confusion) of more--ahem--‘veteran’ attorneys, the screenshot is starting to make its way into courtrooms across the country.  A “screenshot” is a photograph taken on a smartphone, tablet, or other device that captures an image of whatever document, photo, or application is being shown on the device at the time.  From a classical evidentiary standpoint, it can be a proverbial quagmire of issues; forcing a court to potentially wade through layers of hearsay and evidence custody and custodianship.

One recent case decided by the Fourth DCA illustrates how this byproduct of our technical present is being used in courtrooms—potentially resulting in a loosening of evidentiary standards.  Calvo v. U.S. Bank Nat. Ass'n, 181 So. 3d 562, 563 (Fla. 4th DCA 2015).  In Calvo, the record custodian for U.S. Bank testified using screenshots captured, presumably, from bank records.  It is unclear from the opinion what additional foundation was required, if any, in testifying about the content of the screenshots and how they were created (though this case involved a mortgage foreclosure action—which has, at times, presented a lax evidentiary environment). 

Unfortunately for U.S. Bank, the screenshots apparently did not provide as much detail as the appellate court required in order to establish standing at the time the complaint was filed and the case was remanded, reversing the bank’s foreclosure win and requiring the trial court to hand the bank an involuntary dismissal defeat (and likely costing the bank attorneys’ fees and costs, to boot).  

As electronic data, devices, and their use continues to expand and replace paper documents in our daily lives, these types of issues will likely become more prevalent in court battles, as well.  An attorney with experience in electronic discovery and in dealing with electronic evidence could save your case—and your money.  Contact the litigation team at Icard Merrill for help managing your electronic evidence. 


Second DCA adopts position contrary to that of Federal court on Hague Service

Recently, the Second DCA ruled that service of process of persons outside the United States pursuant to the Hague Convention may be made by mail.  Portalp Intern. SAS v. Zuloaga, 40 Fla. L. Weekly D2791 (Fla. 2d DCA Dec. 18, 2015), reh'g denied (Mar. 3, 2016).  

In cases brought in a number of Federal district courts—including those in the Northern District of Florida, as well as potentially* the Southern District and Middle District of Florida—achieving service of process on foreign defendants can be a very time consuming and expensive process, taking weeks or months and costing hundreds or thousands of dollars and often involve subjecting your attempts to serve defendants to the discretion of local jurisdictions in the foreign country to determine whether it would permit service on the defendant.  As the Second DCA notes in quoting the defendant, it is a “rather involved procedure.”

Rather, the Second DCA has--like the majority of U.S. court of appeals circuits—has now construed the Hague Convention** to allow service of initial process in a lawsuit on a defendant by mail.***  This ruling streamlines the process of serving international defendants immensely and still achieves the purpose of requiring service of process—to make the defendant aware that a lawsuit has been brought against him or her.

If you have questions about serving a foreign defendant, or may have to sue a foreign person or entity, contact one of Icard Merrill’s experienced litigation attorneys in Sarasota, Bradenton/Lakewood Ranch, Punta Gorda, or Fort Myers for advice.

* As the Second DCA noted in Portalp, there appears to be a conflict even among cases decided in the Middle and Southern Districts themselves.  See, Intelsat Corp. v. Multivision TV LLC, 736 F. Supp. 2d 1334 (S.D. Fla. 2010); Arco Elecs. Control Ltd. v. Core Int'l, 794 F. Supp. 1144 (S.D. Fla. 1992); Wasden v. Yamaha Motor Co., Ltd., 131 F.R.D. 206 (M.D. Fla. 1990); and In re MAK Petroleum, Inc., 424 B.R. 912 (Bankr. M.D. Fla. 2010); but see, Geopolymer Sinkhole Specialist, Inc. v. Uretek Worldwide Oy, No. 8:15-cv-1690-T-36JSS, 2015 WL 4757937 (M.D. Fla. Aug. 12, 2015); TracFone Wireless, Inc. v. Unlimited PCS Inc., 279 F.R.D. 626 (S.D. Fla. 2012); Julien v. Williams, No. 8:10-cv-2358-T-24 TBM, 2010 WL 5174535 (M.D. Fla. Dec. 15, 2010); and Conax Fla. Corp. v. Astrium Ltd., 499 F. Supp. 2d 1287 (M.D. Fla. 2007).

** An international treaty between 71 signatory countries, which is actually titled “Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.”

*** Although, interestingly, the Second DCA did note that the appellant defendant did not raise on appeal the issue of whether the Florida Rules of Civil Procedure would conflict with the Hague Convention in that the Florida Rule 1.070(i) and its requirement that a defendant consent to service by mail in order to result in effective service.