Civil Trial Defense Law Firm
La Cava Jacobson & Goodis handles litigation and appeals in all Florida state and federal courts.
4901 NW 17th Way
Fort Lauderdale, FL 33309
Tel: (754) 301-5060
Fax: (754) 551-6884
200 Central Avenue
St. Petersburg, Florida 33701
Tel: (727) 477-1013
Fax: (727) 550-0811
1200 Riverplace Boulevard
Jacksonville, Florida 32207
Tel: (904) 564-1900
Fax: (904) 980-9231
501 East Kennedy Blvd.
Tampa, Florida 33602
Tel: (813) 209-9611
Fax: (813) 209-9511
7700 North Kendall Drive
Miami, FL 33156
Tel: (786) 724-2600
Fax: (305) 847-3788
West Palm Beach
701 Northpoint Parkway
West Palm Beach, FL 33407
Tel: (561) 282-1470
Fax: (561) 689-5013
9150 Galleria Court
Naples, Florida 34109
Tel: (239) 300-9679
Fax: (239) 734-3546
Florida Law Weekly – January 29, 2021/in Case Law
Ferrer v. Jewelry Repair Enterprises, Inc. – 4th DCA
In this case, the Trial Court granted a motion for summary judgment in favor of the franchisor. The plaintiff was injured when he was shot by the owner of the franchisee at the franchise location where he worked. As the Court of Appeal noted, the franchise agreement was typical and merely required standardization of products, services, and contemplates regular and ongoing support to the franchisor. However, the franchise agreement did not provide the franchisor any control over the day-to-day operations. The Court of Appeal cited to Mobil Oil Corp. v. Bransford, where the Florida Supreme Court held that a franchisee’s use of logos and related advertisements doesn’t indicate that the franchisor had actual or apparent control over any substantial aspect of the franchisee business or employment decisions. In affirming summary judgment, the Court of Appeal held that the franchisor had no legal duty to the plaintiff and couldn’t be held liable for the acts of the franchisee’s owner.
Kent v . Diaz-Navedo – 5th DCA
The defendants in an automobile negligent suited sought review of a discovery order that would compel their counsel and her law firm to disclose the amount of money that the firm had paid to their retained trial experts in the case over the last three years. In a similar case, the Court of Appeal denied certiorari relief because the Court believed that production was consistent cases permitting similar discovery, which furthered the truth-seeking function and fairness of a trial. The District Court denied the petition but certified the question to the Florida Supreme Court as one of great public importance. The Florida Supreme Court heard oral argument on a similar issue, but has yet to render an opinion.
Meyers v. Shontz– 2d DCA
In this case, Meyers appealed from the Trial Court’s Order granting a motion for new trial on the grounds that the verdict was against the manifest weight of the evidence. The Court of Appeal initially reversed the Trial Court’s decision because it used the wrong legal standard in making its decision. The Court of Appeal remanded with instructions and specifically advised the Trial Court that the Order needed to address the issue of causation. The Trial Court’s second Order again failed to address this issue. The Court of Appeal reversed the second Order, again noting that because the Trial Court did not specifically state how the verdict was against the manifest weight of the evidence on the issue of causation, the Order was predicated on a legal error.
Florida Law Weekly – January 22, 2021/in Case Law
Citizens Property Ins. Corp. v. Manor House, LLC.et al. – Florida Supreme Court
In this case, an insured brought a first-party breach of insurance contract action against its insurer. The insured sought to recover income from lost rent, which was not covered by the insurance policy, due to the insurance company’s delay in making payments pursuant to the terms of the insurance policy. The Trial Court granted the insurer’s motion for partial summary judgment regarding the claims for lost rent damages claim because the insurance contract did not provide for payment of lost rent. The Fifth District Court of Appeal reversed, noting that parties can ‘contemplate’ remedies outside the insurance policy’s express terms.” The Fifth District Court of Appeal also held that lost rent was available in a breach of contract action because the purpose of the action was to make the insured whole and put it in a position it would have been in but for the breach.
The Florida Supreme Court disagreed and held that effect must be given “to the express terms of the subject insurance policy….” Pursuant to the express terms of the policy, the lost rent damages were not recoverable. Additionally, the Supreme Court held that because the insurance company was immune from any suit for bad faith, the insured could not recover the amounts asserted.
Raul Parisi v. Maria Isabel Quadri De Kingston – 3rd DCA
In this case, the Court of Appeal reversed the Trial Court’s denial of nonresident defendant’s motion to dismiss for lack of personal jurisdiction. the Court of Appeal opined that the Amended Complaint neither cited nor incorporated the language of Florida’s long-arm statute. Instead, the pleading justified long-arm jurisdiction over a nonresident based on participation “in a civil conspiracy to commit a tortious act in Florida and the alter-ego theory.” The Court of Appeal also instructed the Trial Court to permit the plaintiff leave to amend to correct the pleading deficiencies.
Avatar Property & Casualty Insurance Company v. Gladys Mitchell – 3rd DCA
In this case, the Third District quashed a Trial Court’s Order requiring the production of an insurance company’s claim reports, adjuster notes, and photographs despite the insurance company asserting work product privilege. A coverage dispute arose between insured property owner and insurer after the insured reported a claim. The Third Distict pointed out that, “[i]n the insurance context, a document may be deemed to have been prepared in anticipation of litigation if it was created after the insured tendered its claim for coverage.” The Third District also found that the insured had not presented sufficient reasons to overcome the work product privilege. Finally, The Third District noted that while coverage remains in dispute, an insurer’s claim file is not discoverable.
Terry Joseph Gibson v. State of Florida – 2nd DCA
The Court of Appeal held that a Trial Court erred in allowing a peremptory strike of an African-American potential juror over the defendant’s objection. As per the Florida Supreme Court, once a party timely challenges a peremptory strike on racial grounds and shows that the potential juror “is a member of a distinct racial group,” the Trial Court must receive the striking party’s race-neutral explanation for the strike. The Trial Court then determines whether the explanation is race-neutral based on genuineness, not necessarily on reasonableness.
This case focused on the issue of having a race neutral explanation. As the State argued, the primary reason for the strike was due to the potential juror’s “alleged lack of interest in the jury selection process.” The Court of Appeal opined a lack of interest was not a valid ground for striking a potential juror. The Court of Appeal reversed the conviction and ordered a new trial.
Jonathan Pratus v. Marzucco’s Construction & Coatings, Inc. – 2nd DCA
In this premises liability case, an employee of a subcontractor appealed a Trial Court’s order granting summary judgement in favor of the general contractor. The employee was injured on a construction site when he opened a door to access stairs and stepped into an uncovered drain. The employee had worked intermittently on the construction site. The last time he was on site, the drain had been closed and marked with caution tape. Since the employee knew the drain’s location, the Trial Court concluded that the drain was “open and obvious” and therefore the general contractor was not liable as a matter of law.
The Court of Appeal disagreed, explaining that the test for the obvious danger doctrine “‘is not whether the object is obvious, but whether the dangerous condition of the object is obvious.”’ The Court of Appeal reasoned that while the drain itself was obvious, the dangerous condition was not. The Court of Appeal noted that there was no evidence showing that the employee knew that the drain was uncovered, especially since on the day of the injury the caution tape had been removed. Thus, there was a genuine issue of material fact precluding summary judgement for the obvious danger argument.
Scott Thomas, et al., v. State Farm Florida Insurance Company – 3rd District
In a case addressing a coverage dispute, an insurer sought to disqualify the insured’s allegedly biased appraiser, Mr. Thomas. As reflected in the opinion, the insured moved to disqualify the insurer’s appraiser, Mr. Diaz, and was provided with Mr. Diaz’ financial documents for use in demonstrating that Mr. Diaz worked for the insurer on numerous occasions. In response to this motion, the insurer noticed Mr. Thomas for deposition and requested that he produce his personal financial records at the deposition. Mr. Thomas objected, noting that his records were irrelevant. In response, the Insurer argued that the requested production would establish that Mr. Thomas worked for insureds on numerous occasions (similar to Mr. Diaz working for insurance companies) and therefore, neither appraiser should be disqualified.
Noting Mr. Thomas’ non-party status, the Court of Appeal held that the Trial Court erred in allowing production of Mr. Thomas’ personal financial records. Specifically, the Court of Appeal held that the insurer failed to show a need for a non-party’s personal financial records that outweighs privacy rights. The Court of Appeal further found that Mr. Thomas’s personal financial records were entirely unrelated to the underlying proceeding.
Florida Law Weekly – January 15, 2021/in Case Law
Zachary Deaterly v. Rodney Jacobson – 2nd DCA
In this case, Plaintiff filed suit against the Defendant arising from an incident where the Defendant shot and killed the Plaintiff’s dog. After discovery was completed, Plaintiff sought leave to amend the complaint to add a claim for punitive damages. Defendant argued at the hearing that a clear and convincing evidence standard should be applied by the Judge to determine if the Plaintiff had established a sufficient basis for the punitive damages claim. The Judge denied Plaintiff’s motion after an evidentiary hearing.
After a successor Judge was assigned to the case, Plaintiff sought reconsideration of the prior Judge’s ruling and renewed the motion for punitive damages. After a hearing, the successor Judge granted Plaintiff’s Motion on the grounds that the previous Judge had applied the incorrect standard in denying the Motion. The Court of Appeal agreed with the successor Judge’s findings, affirming that punitive damages may be sought if the moving party demonstrates a reasonable basis for recovery of such damages. The Court of Appeal also noted that the successor Judge had the authority to “review, vacate, and/or modify the predecessor’s interlocutory rulings” because a final judgment had not been entered in the case.
Glickman and Glickman v. Kindred Hospitals East, LLC – 3rd DCA
In this case, Plaintiffs sued a hospital and its contracted security company after the Plaintiff was shot by a hospital visitor. After discovery, the Security Company moved for summary judgment on the grounds that its contract with the hospital explicitly limited its protection to the hospital and its employees and disavowed a duty to protect others. The Trial Court granted the Security Company’s motion.
The Court of Appeal affirmed the ruling and agreed that the plain terms of the contract between the hospital and the Security Company provided no duty for the Security Company to provide protection to hospital guests and visitors. The Court dispensed with the argument that because the contract between the hospital and the Security Company expired before the incident, and because the hospital continued to pay for the services provided by the Security Company, a new, unwritten contract was formed wherein the Security Company assumed a general duty to protect visitors in addition to employees or, alternatively, voluntarily undertook the duty to protect visitors. The Court of Appeal disagreed, noting that there was nothing done to expand the scope of services set forth in the written agreement.
Alex Nunes v. Valerie Herschman and Brian O’Connell – 4th DCA
In this case, an employee filed suit against his employer after the employee was fired for giving unfavorable testimony against the employer in a deposition. Plaintiff’s complaint asserted violations of § 92.57, Florida Statutes (2017), which bars an employer from firing an employee due to the nature of the employee’s testimony when the employee testified in a judicial proceeding in response to a subpoena. The Trial Court dismissed the claim on the grounds that a deposition is not considered a judicial proceeding that is encompassed by the language of the statute. In affirming the decision, the Appellate Court opined thatdepositions are legal proceedings that occur outside of the court and outside the presence of a Judge. Judicial proceedings are those in the presence of a Judge or Judicial Officer. As such, the Court affirmed that the employer did not violate the statute by firing the employee as a result of his deposition testimony.
Guillermo Cuevas v. State of Florida – 4th DCA
In this criminal case, the Appellate Court opined that a Defendant’s statements to a member of the clergy were not privileged as any privilege was waived. After admitting to his wife that he had had sexual intercourse with a minor, the Defendant admitted his actions to his pastor. The Defendant then informed his wife of the content of the conversation with the pastor. The Defendant then admitted to the actions with the minor during a conversation with his wife and a church volunteer. Prior to trial, the Defendant attempted to prohibit the pastor or the volunteer from testifying, claiming that the conversations were privileged as they were with clergy members. The Trial Court ruled that the privilege was waived because the wife had been told of, or participated in, the conversations.
The Court of Appeal affirmed the admission of both the pastor’s and the church volunteer’s conversation with the Defendant. As to the conversation with the pastor, the Court of Appeal held that the privilege did not apply because the statute requires the communication to be made privately. As to the conversation with the church volunteer, the Court held that the privilege would not apply to this conversation because the Defendant did not reasonably believe that the volunteer was a member of the clergy. Assuming that the Defendant believed the volunteer to be a clergy member, the privilege was waived because the conversation occurred in the presence of his wife and in a public place.
Ethan Elalouf v. School Board of Broward County – 4th DCA
In this negligence action, the Plaintiff (a high school varsity soccer player) sued the Defendant School Board for failing to cover a cement barrier that was near the soccer field after the Plaintiff was knocked into the barrier by another player. Prior to the game, Plaintiff and his father signed a release which barred recovery for any personal injury that resulted from participation in the game. The Trial Court granted the Defendant’s motion for summary judgment based on the language of the pre-injury release.
The Appellate Court affirmed, finding that the pre-injury release clearly stated that the Defendant would be held harmless for injuries suffered from athletic participation. The Court of Appeal also opined that the pre-injury release signed by the Plaintiff’s father was for a “noncommercial activity” and therefore, Florida law prohibiting the enforcement of commercial activity pre-injury releases was inapplicable to the Defendant School Board.
Joshua Steven Tanner v. State of Florida – 2nd DCA
In this criminal case, the Trial Court admitted cellphone and text message evidence. The Defendant was convicted on all counts. The Court of Appeal overturned the conviction finding that the Trial Court improperly admitted the cellphone and text message evidence.
The Court of Appeal first opined that the Trial Court committed error by admitting detective testimony relating to a cellphone found at the scene. While the Defendant provided a passcode for the phone, the code did not unlock it. The Defendant argued that the testimony was inadmissible because the State called the detective to testify for the sole purpose of creating an inference that the Defendant was hiding incriminated evidence by giving an incorrect passcode. The Court of Appeal held that because there was no evidence no evidence establishing that the phone belonged to the Defendant, the testimony was inadmissible.
The Court of Appeal also opined Trial Court committed error when it admitted testimony regarding text messages a detective viewed on the victim’s phone. The detective testified as to the threatening nature of the messages and that the victim had told him they were from the Defendant. Because neither the victim’s phone nor the text messages themselves were admitted into evidence, the the Court of Appeal held that the testimony was inadmissible hearsay.
Sally Tanner and Tropical Music Services, Inc. v. Danielle Hart – 2nd DCA
In this automobile accident case, a Plaintiff sought production of ten years’ worth of medical records from the Defendant driver after learning of the Defendant’s inability to be deposed due to her memory loss associated with dementia. The defense opposed this request as being overbroad, a seeking irrelevant information and as a violation of her constitutional right to privacy. After initially sustaining the Defendant’s objection, the Trial Court ultimately ordered the records produced.
In reversing the Trial Court’s ruling, the Court of Appeal reiterated that medical records enjoy a confidential status via the right to privacy in the Florida Constitution. As such, Courts must balance privacy interests with the need for the information contained in the medical records. In doing so, the Trial Court was required to conduct an in camera inspection to determine if the records were relevant before ordering their production. Because the Trial Court did not do so, its ruling was reversed.
The Court of Appeal also reversed because the request for ten years of records “cast too wide a net.” The Court opined that because the accident occurred in 2014 and the litigation began in 2018, the ordering of production of records dating back to 2011 was improper without a Court determination of relevancy.
Florida Law Weekly – January 8, 2021/in Case Law
Signal Hill Golf Course, Inc. v. Robert and Tammy Womack – 1st DCA
In this slip and fall case, Plaintiff Tammy Womack filed a claim for loss of consortium stemming from an incident involving her husband at the Defendant’s golf course. At the conclusion of trial, the jury awarded damages to Mr. Womack but none to Mrs. Womack the loss of consortium claim. Following trial, Defendant sought to recover attorneys’ fees and costs “incurred in its overall defense of both claims,” pursuant to a rejected proposal for settlement. The Defendant argued that the two claims were so interrelated that it was entitled to recover all of its costs in defense of both claims. The Trial Court disagreed, awarding fees it believed were related to the defense of the consortium claim.
In affirming the Trial Court’s ruling, the 1st District agreed that there was no blanket rule establishing that a loss of consortium claim is “inextricably intertwined” with a negligence claim so as to render an allocation between the claims infeasible. Rather, the 1st District opined that the because the burden of proof is on the party seeking fees, it is up to that party to either allocate the fees associated with the consortium claim or present evidence that allocation Is not possible. Ultimately, the 1st District opined that the Trial Court was correct in finding that the Defendant had not met its burden and affirmed the fee award.
James Herrell and Joan Rudick v. Universal Property & Casualty Ins. Co. – 2nd DCA
In this subrogation case, an insurance company sued two of its insureds for negligence. A proposal for settlement was filed by the insureds and was rejected. Thereafter, the insurance company filed a voluntary dismissal without prejudice. As this was done after the expiration of the statute of limitations, the insureds sought their attorneys’ fees and costs, arguing that the voluntary dismissal was effectively a dismissal with prejudice. The Trial Court denied the Motion for Fees, a decision the 2nd District affirmed. In doing so, the 2nd DCA opined that the voluntary dismissal was not an adjudication on the merits for which attorney’s fees may be recovered under section 768.79 of the Florida Statues or Florida Rule of Civil Procedure 1.420(a)(1).
Florida Law Weekly – Nov. 27, 2020/in Case Law
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.”