Expert Determination

“Expert determination is a form of dispute resolution in which the parties use a subject-matter expert, rather than a judge, mediator, or arbitrator with legal training, to decide the dispute. It may be the least known form of alternative dispute resolution. In fact, it’s been called the “secret alternative to arbitration.” While the term “expert” may call to mind the concept of an expert witness, expert determination actually has its roots in the English common law of “valuation” or “appraisement.” Perhaps because we do not generally use the word “expert” to describe the decision maker, the concept of a person without legal training acting as the ultimate decider of law and fact may be most familiar in the form of an agreement to resolve a dispute over value through an appraiser or panel of appraisers.”

Resolving Disputes by Expert Determination: What Happens When Parties Select Appraisers, Accountants, or Other Technical Experts to Decide Disputes

Trial Court Erred by Weighing Credibility of Expert’s Affidavit on Summary Judgment

In this case involving a slip in fall at a condominium, the Plaintiff sought to prove negligence of the Condominium Association through an expert who opined on the length of time an elevator oil leak existed based on the depth of the oil puddle. Defendant filed a Motion for Summary Judgment arguing it did not have notice of the oil leak.

Regarding Plaintiff’s expert, the trial court stated: “[h]is opinion was weak, and could only state that the leak was possibly long term. This leaves open that other possibilities are equally as likely.”

The trial court found that their was no material facts in dispute regarding the length of time the leak was present and granted summary judgment for the Defendant. On appeal, the Second DCA overturned summary judgment stating:

“the trial court explicitly weighed witness credibility by finding that Dr. Benedict’s affidavit ‘lacked credibility &/or reliability.’ The court also speculated about McNabb’s chance of success by finding that Dr. Benedict’s ‘opinion was weak.'”

The Second DCA, did note that:

“the trial court is not required to consider affidavits that are not based upon personal knowledge or are devoid of evidentiary support.” Citing See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 980 (Fla. 2d DCA 2001); Howard v. Boulanger Drywall Corp., 23 So. 3d 817, 819 (Fla. 4th DCA 2009).

Here, however, the Second DCA stated that the expert’s affidavit was based on his personal knowledge and therefore the trial court erred by discounting the expert’s affidavit.

Jonathan McNabb v. Bay Village Club Condominium Association, Inc., Case No. 2D15-5613 (Fla. 2D DCA March 29, 2017).



No Added Time For Mailing

When a court orders that a matter be done by a certain date, do the parties get to add an additional five days for mailing pursuant to Rule 2.514? The First DCA took a detailed look at the issue and determined that, when a deadline is set by court order, no additional time is available unless specified by the court:

[W]hen a court orders that a document be filed by a “date certain” or “even by reference to a specified number of days from a date noted in the order,” the additional time afforded by rule 2.514(b) is unavailable.

C.M. v. Dep’t of Children and Families, CASE NO. 1D16-4711, (1st DCA Feb. 16, 2017).

New Year, New Rules Amendments

Must and document. Those two words summarize the latest amendments to the Florida Rules of Civil Procedure. The amendments change 16 different rules and introduce a new rule 1.545 dealing only with the Final Disposition Form. The full list of edited rules is below and has been updated with all of the changes, which became effective January 1st.

While covering a lot of ground, the amendments are almost entirely directed toward updating and replacing four words used widely throughout the rules – ‘document’ replaces ‘paper,’ ‘must’ replaces ‘shall,’ ‘on’ replaces ‘upon,’ and ‘immediately’ replaces ‘forthwith.’

The first change, document instead of paper, is obvious. With electronic filing, the reference to paper was archaic. We all knew that the term paper also referred to electronic documents, but the change makes it clear. A document is specifically defined in the Florida Rules of Judicial Administration, Rule 2.520(d), as “pleadings, motions, petitions, memoranda, briefs, notices, exhibits, declarations, affidavits, orders, judgments, decrees, writs, opinions, and any paper or writing submitted to a court.”

The other changes are directed at the same goal, replacing purportedly archaic words. However, at least for shall and upon, it is not clear that the words are actually past their use by date. Judging by filings in my cases, the terms shall and upon are still in regular use by parties and courts across the state. I have not seen a forthwith used in quite some time. Lawyers are loathe to drop a useful word, so time will tell whether these terms are actually headed for the linguistic dust bin.

Revised Rules:

1.020 (Privacy and Court Records);
1.071 (Constitutional Challenge to State Statute or County or Municipal Charter, Ordinance, or Franchise; Notice by Party);
1.100 (Pleadings and Motions);
1.130 (Attaching Copy of Cause of Action and Exhibits);
1.140 (Defenses);
1.170 (Counterclaims and Crossclaims);
1.200 (Pretrial Procedure);
1.310 (Depositions Upon Oral Examination);
1.320 (Depositions Upon Written Questions);
1.340 (Interrogatories to Parties);
1.410 (Subpoena);
1.431 (Trial Jury);
1.500 (Defaults and Final Judgments Thereon);
1.510 (Summary Judgment);
1.625 (Proceedings Against Surety on Judicial Bonds); and
1.630 (Extraordinary Remedies);

New Rule:

1.545 (Final Disposition Form).

In Re: Amendments to the Florida Rules of Civil Procedure, Case No. SC16-155 (Fla. Sept. 1, 2016).


Juror Goes on Social Media Rant – No New Trial

I once had a case where a prospective juror went on Facebook during  a break in voir dire to make some rather colorful comments about the process. That juror was dismissed. This is a post about a juror whose social media posts were not uncovered until after the trial. Warning – a few of the tweets feature obscene language.

In this car accident case, the juror – Juror 5 – waited until the middle of the trial to go on a twitter rant. Several of the tweets are cited in the opinion, but it turns out they are still up on Twitter and make for classic insight into the mind of a juror:

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“After conducting two hearings, the trial court granted the motion for juror interview. During the interview, Juror 5 admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. The trial court asked Juror 5 about his understanding of the court’s instruction to not communicate about the case or his jury service on social media. Juror 5 responded that he thought the instruction “pretty much” meant “don’t talk about the case.” Juror 5 testified that he did not tweet while sitting in the courtroom during the trial and that he did not intentionally or deliberately disobey the court’s order regarding the use of social media. Finally, Juror 5 denied telling anyone else his views about the case at any time prior to the commencement of deliberations.”

The Plaintiff moved for a new trial, pursuant to Rule 1.530, and the trial court ultimately denied the motion.

On appeal, the Fourth DCA reviewed the Motion for New Trial using an abuse of discretion standard. The Fourth DCa noted that (1) “the trial court necessarily credited and accepted Juror 5’s explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case”; (2) “There is no evidence that any of the other jurors saw, or had any discussions about, Juror 5’s tweets”; and (3) “nothing in the plain language of Juror 5’s tweets discusses any facts specific to this case or the parties involved.”

The Plaintiff also alleged that the tweet “[e]veryone is so money hungry that they’ll do anything for it” implied the juror was biased. However, the Fourth DCA notes that the juror expressed similar opinions during voir dire, such as: some people sue “just for the money” or for “dumb reasons.”

Ultimately, the Fourth DCA upheld the trial court’s denial of Plaintiff’s Motion for New Trial finding that the trial court did not abuse its discretion in denying the motion.

This case is also notable for including a definition of Twitter:

“Twitter is a real-time information network that lets people share and discuss what is happening at a particular moment in time through the use of ‘tweets,’ updates composed of 140 characters or less. The service allows users either to Direct Message (DM) specific individuals or to use ‘twitter posts’ accessible to the public. The process of posting messages on Twitter is commonly referred to as ‘tweeting.’ ” Dimas-Martinez v. State, 385 S.W. 3d 238, 243 n.3 (Ark. 2011) (citation omitted).

MICHELE L. MURPHY v. MICHAEL B. ROTH, Case No. 4D14-4830 (Fla. 4th DCA Oct 5, 2016)

Claims in Amended Pleadings Relate Back – Not Time Barred

This case was marred by rather convoluted pleadings resulting from the consolidation of two separate suits filed by the same Plaintiff in 2009 and 2010. Post consolidation, the trial court permitted the Plaintiff – who was common to both cases – to file a single Amended Complaint. The Amended Complaint bore both the 2009 and 2010 case numbers, alleged a single set of facts, and asserted six separate counts. The trial court ultimately dismissed the Amended Complaint on the basis of the statute of limitations.

On appeal, the Third DCA criticized the trial court for allowing a single pleading in a consolidated case.

“Consolidation does not merge suits into a single cause or change the rights of the parties, or make those who are parties in one suit parties in another. Rather, each suit maintains its independent status with respect to the rights of the parties involved.” Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So. 2d 722, 725 (Fla. 3d DCA 1988) (quoting Wagner v. Nova Univ., Inc., 397 So. 2d 375, 377 (Fla. 4th DCA 1981)).

The Third DCA went on to trace each count in the Amended Complaint back to the original pleading in order to determine whether the causes of action in the Amended Complaint related back to the original filing.

Florida Rule of Civil Procedure 1.190(c) governs the relation back of amendments and provides as follows:

(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

Analyzing the case at hand, the Third DCA stated:

The Supreme Court of Florida has reiterated that “rule 1.190(c) is to be liberally construed and applied.” Caduceus Props., LLC v. Graney, 137 So. 3d 987, 992 (Fla. 2014). This Court has stated that the proper test of relation back of amendments is not whether the cause of action stated in the amended complaint is identical to that stated in the original, but “whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ ” Flores v. Riscomp Indus., Inc., 35 So. 3d 146, 148 (Fla. 3d DCA 2010) (quoting Kiehl v. Brown, 546 So. 2d 18, 19 (Fla. 3d DCA 1989)).

Here, the underlying facts in the Amended Complaint were sufficiently similar to put the Defendants on notice of the claims and the Third DCA overturned the trial court’s dismissal.

Anderson v. Epstein, 3D15-1050 (Third DCA Sept. 28, 2016).

Trial Court’s Erroneous Handling of a Writ of Mandamus

This case concerns a dispute between the Miami-Dade County Commission and a citizens group attempting to place ballot initiative before voters through a petition process.  The County Commission rejected the citizens’s petition and the citizen’s group filed a Petition for Writ of Mandamus, which was granted by the Trial Court.

The County Commission appealed. On review, the Court found that the Trial Court had failed to follow the procedure laid out in Florida Rule of Civil Procedure 1.630 and stated:

Florida Rule of Civil Procedure 1.630 sets forth the procedure for a trial court’s issuance of extraordinary writs, including a writ of mandamus. Pursuant to Rule 1.630(d)(2), “[i]f the complaint shows a prima facie case for relief, the court shall issue . . . an alternative writ in mandamus.” An alternative writ in mandamus is essentially an order to show cause. See Gilliam v. State, 996 So. 2d 956, 958 (Fla. 2d DCA 2008) (stating that if a petition for writ of mandamus states a prima facie case for relief, the trial court must issue an alternative writ, “which ‘is essentially an order to show cause why the requested relief should not be granted.’ ” (quoting Bostic v. State, 875 So. 2d 785, 786 (Fla. 2d DCA 2004))); Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989) (“Upon receipt of a facially sufficient petition for writ of mandamus, a court having jurisdiction to consider such a petition should first issue an alternative writ, which is essentially an order to show cause why the requested relief should not be granted.”). “If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties.” See Radford v. Brock, 914 So. 2d 1066, 1068 (Fla. 2d DCA 2005).

Additionally, Rule 1.630(e) provides that a defendant “shall respond to writ as provided in rule 1.140.”16 As such, a respondent must be given a reasonable time within which to file a return to the alternative writ. Conner, 541 So. 2d at 1256 (“The respondent has the right to plead to the alternative writ and will be prejudiced by the failure to allow a reasonable time within which to do so.”); Southern Realty & Utils. Corp. v. State, 181 So. 2d 552, 554 (Fla. 3d DCA 1966) (“The law requires that a reasonable time be given to file a return to an alternative writ of mandamus . . . .”).

The Third DCA reversed the Trial Court’s decision.


Summary Judgment overturned on finding that material facts in dispute

The case involves the appeal of final summary judgment in a suit for civil forfeiture of $2,470.00.  The currency was seized based on allegations that the currency’s owner (“Owner”) sold cocaine.

The City served the Owner with Requests for Admissions that went unanswered.  The City then filed a Motion for Summary Judgment in which it took the position that the Owner was deemed to have admitted the facts in the unanswered Request for Admissions.  The trial court granted the summary judgment motion.

On appeal, the Second DCA overturned the trial court’s order, finding:

Although a court normally has discretion to rely on a technically deemed admission to support a summary judgment, it is error to do so if the record contains evidence contradicting the admission. Walker v. City of Bartow Police Dep’t (In re Forfeiture of 1982 Ford Mustang), 725 So. 2d 382, 385 (Fla. 2d DCA 1998); see also Mahmoud v. King, 824 So. 2d 248 (Fla. 4th DCA 2002) (holding, and citing like cases that hold, summary judgment is not proper based on a failure to respond to requests for admissions when the record otherwise reveals disputed issues of material fact).

In re forfeiture of: $2470.00 in U.S. Currency, Case No. 2D13-6217 (Fla. 2nd DCA May 8, 2015).



Standard of “Evident Partiality” to Challenge Arbitration Award

In this commercial contract case, the plaintiff received a damages award from an arbitrator.  The defendant challenged the award because of its belief that the arbitrator gave “tips” to the claimant when commenting on the evidence at the final hearing.  The appellate court rejected the claim, holding, “the standard for determining ‘evident partiality’ is whether there was a ‘reasonable impression of partiality.’  We have reviewed the arbitrator’s comments and conclude that they do not show any partiality. During the proceedings the arbitrator was trying to understand the parties’ positions and asked several questions in that regard. The arbitrator’s remarks were an allowable comment on the evidence and/or sought clarification of a party’s position.”

Jomar Properties, L.L.C., and Accredited Surety And Casualty Company, Inc., 40 Fla. L. Wkly D206a (Fla. 4th DCA Jan. 14, 2015).



Mortgage Foreclosure Rules Amendments

Pursuant to an out of cycle amendment,  Rule 1.110 has been modified to remove certain language specific to mortgage foreclosures and Rule 1.115 has been created to address specific pleading requirements for mortgage foreclosures.  The changes are effective as of December 10th. has been updated to reflect the amendments:

1.110 General Rules of Pleading

1.115 Pleading Mortgage Foreclosures

SC13-2384  In Re: Amendments to the Florida Rules of Civil Procedure (pdf)