Buck v. Chin, 34 Fla. L. Wkly. D2100 (Fla. 3d DCA Oct. 14, 2009)

In this med mal case, the 3d DCA, on certiorari review, found that the record did not justify an expanded discovery search into the financial records of the defendant’s medical expert. At his deposition, the defendant’s expert testified that 50% of his work was for defendants and 50% was for plaintiffs. The expert’s interrogatory answers revealed that 2/3’s of his expert testimony income came from giving testimony on behalf of med mal defendants, and most of the defense work in cases insured by State Farm.

The DCA found that the inconsistency between the deposition and interrogatory answers did not rise to the level of “unusual or compelling circumstances.” As such, the DCA found that the party seeking discovery was limited to the discovery set forth in Fla. R. Civ. Pro. 1.280 (b)(4)(A)(iii).
The opinion downplays the inconsistencies noted above; stating that essentially (1) it is not surprising that answers formed “in the serenity of a lawyer’s office” differ from answers solicited during a deposition, and (2) that the evidence solicited already is sufficient to show the jury that the expert is a “hired gun.”
Buck v. Chin, 34 Fla. L. Wkly. D2100 (Fla. 3d DCA Oct. 14, 2009)

Jose Milton vs. John Reyes, 34 Fla. L. Wkly D2050a (Fla 3d DCA Oct. 7, 2009)

In this personal injury case, the trial court denied plaintiff’s motion for attorneys’ fees pursuant to an offer of judgment because it did not include a certificate of service, although it was accompanied by a “Notice of Service of Proposal for Settlement” that did in fact include a proper certificate of service.  Citing Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007), the appellate court held that proposals for settlement are in derogation of the common law and therefore must be strictly construed.  Because Rule 1.442 requires that the proposal itself contain a certificate of service, the order denying the fee award was affirmed.

Jose Milton vs. John Reyes, 34 Fla. L. Wkly D2050a (Fla 3d DCA Oct. 7, 2009)

Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009)

Entry of Summary Judgment order pursuant to Fla. R. Civ. Pro. 1.510, in case seeking possession
of real property, by itself, is not an appealable, non-final order as set forth
in Fla. R. App. Pro. 9.130(a)(3)(c)(ii) because the Summary Judgment order did not
provide for the “immediate” right to possession of the property.

The Trial Court reiterated that Summary Judgment is “interlocutory in
character” as it does not automatically result in the entry of final
judgment.

Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009)

Challenger Investment Group, LC v. Jones, et. al., 34 Fla. L. Wkly. D1990 (Fla. 3d DCA Sept. 30 2009)

Even after judgment has been satisfied a Defendant can move to set aside the satisfaction and
judgment using
 Fla. R. Civ. Pro. 1.540(b) to recapture a purported overpayment to the
Plaintiff based on alleged fraud by the Defendant.  The decision distinguishes between motions
to set aside satisfaction brought by the Plaintiff versus the Defendant.

This case involved a loan to a nightclub which was secured by a second mortgage on the owner’s
residence and a security interest in the club’s liquor license.  The
nightclub closed leading to this lawsuit and another case in which the club
owner was never served.  After having judgment entered in this case and
satisfying that judgment, the club owner learned of the second case, through
which his investor had already taken ownership of the liquor license.  

By taking the liquor license in a separate action, the club owner argued that the investor was
overpaid for his debts.  And, as the investor had not notified the Court
of the second action, the club owner argued that the investor had committed fraud
on the Court.

Challenger Investment Group, LC v.
Jones, et. al., 34 Fla. L. Wkly. D1990 (Fla. 3d DCA Sept. 30 2009)

Bauer v. Dilib et al., 2009 WL 2949296 (Fla. 4th DCA Sept. 16, 2009)

In this non-compete case, an employer obtained an injunction against its former employee and her new employer for aiding and abetting a breach of a restrictive covenant.  The trial court taxed attorneys’ fees against the new employer under Section 542.335(1)(k), Fla. Stat.  The appellate court reversed, holding that the statute authorized a fee award only against the party to the restrictive covenant (the former employee).  Because there was no independent contractual or statutory basis to award fees against the new employer, the fee award was invalid.

Bauer v. Dilib et al., 2009 WL 2949296 (Fla. 4th DCA Sept. 16, 2009)

Bothe v. Hansen (U.S. Oct. 05, 2009)

The Florida Courts have been light on rules cases lately, so today’s post is about the U.S. Supreme Court, which just denied a Petition for Certiorari on the following issues:

QUESTIONS PRESENTED

1. Florida’s intermediate appellate courts decide over 80% of the appeals
they hear with per curiam orders issued without opinions and the losing
party has no right to seek further review of these summary dispositions by the
Florida Supreme Court. Does this procedure deny the losing party due process or
the equal protection of the laws?

2. Is an appellant denied procedural due process when Florida’s Second
District Court of Appeal, a court of last resort, refuses to include in the
record and consider evidence relevant to the her claim of error by the lower
court?

The Petition was brought by Sarasota attorney Carl J. Robie, III and Massachusetts attorney Dennis P. Derrick.  In opposition was another Sarasota attorney Susan J. Silverman.

Ironically the U.S. Supreme Court’s opinion stated in full: “The petition for writ of certiorari is denied.”

I am not surprised that the Supreme Court declined to wade into this issue, but I think it is a problem that needs to be addressed at the State level.  The Florida Supreme Court’s docket is presently dominated by death penalty cases, leaving a gap in authoritative Florida Supreme Court decisions on many issues.

The briefs are not publicly available, but I will post them here if they are sent to me.

Rule Updates

The Florida Supreme Court has made two minor changes to the Rules.

First, the Court revised the Lis Pendens Form Number 1.918. The revised form is available here.
Second, the Court revised Rule 1.985, addressing Standard Jury Instructions, to reflect the fact that the Jury Instructions shall be accessed through the Supreme Court’s website, rather than through a dead tree publication.  The change is available here.