November 1998

Appeals — Transcript

Palomares v. Palomares
23 Fla. L. Wkly. D2378 (Fla. 3d DCA 1998)

The Third District holds that court reporters may not charge more for an appellate transcript than they charge for a non-appellate transcript. A party to an appeal may order only the original and make their own copies, under Fla. R. App. P. 9.200(b)(2).


Neate v. Cypress Club Condominium, Inc.
23 Fla. L. Wkly. D2317 (Fla. 4th DCA 1998) (en banc)

Section 718.1255 provides for mandatory nonbinding arbitration of some condominium disputes prior to filing suit. This court holds that the arbitration is a mandatory condition precedent to suit. Any suit filed without completing arbitration is subject to dismissal, not stay. The statute gives 30 days after the arbitration to file a complaint seeking a trial de novo. The court holds that, if an action has improperly been stayed rather than dismissed, the court’s jurisdiction may be invoked by a timely motion for leave to amend the original complaint to show compliance with the statute. However, the mere fact that the action was pending is not sufficient to give the court jurisdiction. The court analogizes to the sovereign immunity notice cases, such as Hospital Corp. of America v. Lindberg, 571 So.2d 466 (Fla. 1990).

I am concerned that this decision places form over substance, and burdens the right of access to court. It is ironic that the statute is based on the legislature’s claimed concern that condo litigation had become expensive, condo owners were at a disadvantage when litigating against their condo association, and the courts were becoming clogged with condo litigation. The court states that the legislature did not intend the arbitration to “be an empty and mechanical ritual.” But if it is nonbinding, how helpful can it be in resolving the dispute?

Civil Rights — Qualified Immunity

Huerta v. Hillsborough County
23 Fla. L. Wkly. D2388 (Fla. 2d DCA 1998)

A public official is entitled to qualified immunity from suit in the performance of discretionary functions when the official’s conduct does not violate any clearly established statutory or constitutional right of which a reasonable person should have known. Here, the defendant was not entitled to qualified immunity, because the law was clearly established that the plaintiff had a constitutional right to free speech on matters of public concern. The defendant should have known that she was violating that right where she fired him for statements he made to the press about deficiencies in the department where he worked.


Stucchio v. Huffstetler
23 Fla. L. Wkly. D2469 (Fla. 5th DCA 1998)

The “judicial privilege” for defamatory statements is not absolute. It applies only where (1) the statement was made during the course of judicial proceedings and (2) the statement was relevant to the subject of the proceedings. The defendants allegedly made a statement during the course of an unrelated case, and it was irrelevant to the proceedings. The defendants allegedly made another statement to the judge in the hall of the courthouse. The court held that the statements were not privileged.


Rothman v. Hebebrand
23 Fla. L. Wkly. D2355 (Fla. 4th DCA 1998)

A defendant whose only alleged liability was vicarious defaulted. The jury found in favor of the defendant whom the plaintiff alleged was actively negligent. The court held that, if the liability of a defaulting defendant is completely dependent upon the liability of a non-defaulting codefendant, a final judgment should not be entered against the defaulting defendant unless the codefendant has been found liable. A defaulting defendant “may take advantage of a defense which is common to all. See Alls v. 7-Eleven Food Stores, Inc., 366 So.2d 484 (Fla. 3d DCA 1979).

Carbajal v. Paz
23 Fla. L. Wkly. D2442 (Fla. 3d DCA 1992)

An order vacating a default (not a default judgment) is not an appealable order.

Exculpatory Clause

Travent, Ltd. v. Schecter
23 Fla. L. Wkly. D2384 (Fla. 4th DCA 1998)

A pre-accident release that contained a clause releasing the defendant from all liability “whether caused by negligence or otherwise” was adequate to release the defendant from liability for its own negligence. It was error to direct a verdict for the plaintiff; the court should have directed a verdict for the defendant. The court distinguishes Witt v. Dolphin Research Center, Inc., 582 So.2d 27 (Fla. 3d DCA 1991), in which the release did not refer to the defendant’s “negligence” at all.

Experts — Discovery

Levy v. Lilly
23 Fla. L. Wkly. D2356 (Fla. 4th DCA 1998)

Interpreting Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Fla. R. Civ. P. 1.280(b)(4), the court holds that a defendant’s expert may be required to answer specific interrogatories about a specific time period: how many times he was deposed whether he was treating or IME, the number of times he was called to testified, for whom he was called to testify and in what capacity (treating or examining).


Pee v. Aaron
23 Fla. L. Wkly. D2358 (Fla. 4th DCA 1998)

It was a departure from the essential requirements of law for the court to require one attorney to accept faxes from opposing counsel. Rule 1.080(b)(5) authorizes service by fax only if copies are also served by some other method. A court cannot require counsel who does not have a fax machine to get one, and cannot require counsel who has a fax machine to use it.



This new section has been added to really muddle up the hearsay rule. It provides a hearsay exception for former testimony given by the declarant at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the same proceeding, or in another proceeding if the party against whom the testimony is now offered or a predecessor in interest or a person with similar interest had an opportunity and similar motive to develop the testimony by direct, cross or redirect. The court still has to determine relevance under 90.402 and 90.403. This makes almost any deposition in taken in a case admissible in that case, and perhaps in other cases.

I have real due process questions about the “person with similar interest” issue — even if their interest was similar, what if their attorney was not as thorough, or made different tactical decisions than you would have made.

Although, as I pointed out in lastmonth’s Caselaw Update, Rule 1.331 has been amended to allow use of depositions at trial for any purpose allowed by the rules of evidence, the supreme court has not amended the remainder of that rule. Therefore, all the requirements about inability to obtain the witness’ appearance a trial, 100 miles, etc. are still in that rule. My thanks to Judge Juan Ramirez for pointing out this anomaly to me. Perhaps the Civil Rules Committee of the Florida Bar will take another look at this rule. Please.

Insurance — UM

Robinson v. Auto Owners Ins. Co.
23 Fla. L. Wkly. D2326 (Fla. 2d DCA 1998)

There is a presumption of prejudice to the insurer if the insured delays in reporting the accident. However, this court holds that the insured may rebut that presumption by demonstrating that the insurer was not prejudiced by the late notice. The court held that in light of all of the information the insured provided to the insurer, there was a question of fact precluding summary judgment on the prejudice issue.

The court also held that the insurer was not entitled to summary judgment on failure to cooperate. The insurer has the burden of proving prejudice resulting from failure to cooperate. Finally, the company was not entitled to summary judgment on the ground that the statute of limitations had expired on the claim against the tortfeasor, because the insured is not required to sue the tortfeasor as a condition precedent to seeking UM benefits. Moreover, “the expiration of the limitations period as to the tortfeasor, a procedural defense, does not bar an insured’s right to recover UM benefits.”


Doe v. America On Line, Inc.
23 Fla. L. Wkly. D2314 (Fla. 4th DCA 1998)

The court holds that AOL is immune under the Communications Decency Act from a complaint alleging that AOL allowed its chat rooms to be used to market pornographic pictures of the plaintiff’s minor child, along with untrue statements about the child. The court certifies the following questions to the Florida Supreme Court:

Whether section 230 of the Communications Decency Act applies to complaints filed after its effective date where the complaint alleges a cause of action based upon acts occurring prior to its effective date.

If the answer is in the affirmative, whether section 230 of the Communications Decency Act preempts Florida law.

And whether a computer service provider with notice of a defamatory third party posting is entitled to immunity under section 230 of the Communications Decency Act


Jury Instructions

Bullard v. Winn Dixie Stores
23 Fla. L. Wkly. D2375 (Fla. 3d DCA 1998)

Another hazard of bifurcation. In a bifurcated trial on liability, the trial court’s failure to instruct the jury on causation as an element of liability was harmless error where the jury found the defendant was not negligent. I would feel better about this case if I knew whether the verdict form included the issue of causation, such as “was there negligence on the part of the defendant that was a legal cause of injury to the plaintiff?” I don’t understand how you can determine liability in a bifurcated trial without determining causation. How can you apportion fault? If you try only whether the defendant was negligent, then the second half of the bifurcated trial has to include liability issues again. I don’t see how this is fair or how it conserves judicial resources.

Jury Interview

Short v. Abukhdeir
23 Fla. L. Wkly. D2483 (Fla. 2d DCA 1998)

Section 90.607(2)(b), Florida Statutes forbids any judicial inquiry into the emotions, mental processes or mistaken beliefs of jurors. Here, the court instructed the jury to make a collateral source setoff. After the jury returned with a verdict, it was error for the court to inquire of the jurors whether they had followed the instruction and made the setoff, and then to determine that they had not done so, and reduce the judgment by the amount of the collateral source.

Jury Trial

Jaye v. Royal Saxon, Inc.
23 Fla. L. Wkly. S551 (Fla. 1998)

Overruling cases including Spring v. Ronel Refining, 421 So.2d 46 (Fla. 3d DCA 1982), the court holds that certiorari is not available to review a denial of jury trial or an order striking demand for jury trial. In order to invoke certiorari, the petitioner must show irreparable harm. The petitioner here raised the injury involved when a party “shows their hand” in a nonjury trial and then must try the same case again; the age of the parties and witnesses that may make a second trial not feasible; and the time, effort and expense of trying a case twice. The court rejects them. The court distinguishes its own decision in Wincast Assoc., Inc. v. Hickey, 342 So.2d 77 (Fla. 1977), which reversed an interlocutory order denying a jury trial, but which did not state the basis for the appellate court’s jurisdiction. Apparently, according to this case, there was none.

Legal Malpractice

Rowe v. Schreiber
23 Fla. L. Wkly. D2311 (Fla. 4th DCA 1998)

In a legal malpractice action against a criminal defense attorney (here the public defender), the plaintiff, as part of the causation element of his cause of action, is required to prove that he was innocent of the crimes charged in the underlying criminal proceeding. Where the client has been released pursuant to post conviction proceedings, when the statute of limitations began to run is a question of fact; here the court finds that the client did not have knowledge or notice of the accrual of the malpractice until the date the trial judge in the criminal case granted his motion for post conviction relief.

Med Mal — Statute of Limitations

Hankey v. Yarian
23 Fla. L. Wkly. D2365 (Fla. 5th DCA 1998)

If anyone can now figure out the med mal statute of limitations, please let me know. Section 766.106(4) provides that the statute of limitations is tolled during the 90 day presuit period and any extended period, and also allows, “upon receiving notice of termination of negotiations in an extended period,” for 60 days “or the remainder of the period of the statute of limitations, whichever is greater” to file suit.

Certifying conflict with Rothschild v. NME Hospitals, Inc., 707 So.2d 952 (Fla. 4th DCA 1998), the court holds that the time periods provided in 766.106(4) “are not simply tacked on to the end of the limitations period” and do not “provide a windfall extension of time to claimants who filed a notice of intent soon after the malpractice was discovered.”

I’m not sure what all this means, except the court seems to hold that, if you complete presuit before the statute runs, you don’t get the benefit of either the 60 day period or the 90 day automatic extension, or possibly either.

I hope the Supreme Court will accept this case and resolve the confusion, once and for all.

Offer of Judgment

DiPaola v. Beach Terrace Assoc., Inc.
23 Fla. L. Wkly. D2328 (Fla. 2d DCA 1998)

In an action seeking both damages and injunctive relief, the defendants’ offer of judgment was defective where it did not specify whether the defendants were agreeing to the entry of an injunction. If the plaintiffs had accepted the offer, they might have had to keep litigating the injunction issue. Since the purpose of 768.79 is, among other things, “the early termination of litigation[,] [a]n offer ... that would not allow immediate enforcement on acceptance is invalid.”


Book v. City of Winter Park
23 Fla. L. Wkly. D2334 (Fla. 5th DCA 1998)

Where issues not raised by the pleadings are tried by consent, Fla. R. Civ. P. 1.190(b) provides that they shall be treated as if they had been pled, and allows amendment of thepleadings, even after judgment. Here, even though the defendant did not plead the affirmative defense of settlement, it was tried by implied consent. Therefore, the defendant was entitled to judgment on the defense, where the plaintiff did not show that he was prejudiced by the failure to plead.

The moral of this sad story is to study the pleadings before the trial starts, and object to any evidence that may support a defense that has not been pled. You can even move in limine to exclude the evidence, although there is a risk that you may just prompt the defendant to move to amend the answer at a time when the court will allow the amendment.


Lynx Transp. v. Atkinson
23 Fla. L. Wkly. D2434 (Fla. 5th DCA 1998)

It was error for the trial court to instruct the jury that a rebuttable presumption of negligence was created when the defendant hit the rear of the plaintiff’s car. The presumption exists when the trial court considers a motion for directed verdict, but then disappears and the jury must deliberate without the aid of the presumption and must determine whether the defendant was negligent from all the evidence presented. However, the defendant did not make the proper objection to the instruction; therefore, the error was waived.

Privilege — Peer Review

Columbia Park Medical Center Inc. v. Gibbs
23 Fla. L. Wkly. D2362 (Fla. 5th DCA 1998)

Following the Second District’s decision in Hillsborough County Hospital Authority v. Lopez, 678 So.2d 408 (Fla. 2d DCA 1996), the court holds that peer review material is still privileged even after the hospital provides it to doctors who are not on the peer review committee, for the purpose of advising those doctors of what privileges they may have at the hospital.

This case does not hold that the peer review privilege can never be waived.

Privilege — Press

State v. Davis
23 Fla. L. Wkly. S557 (Fla. 1998)

Morris Communications Corp. v. Frangie
23 Fla. L. Wkly. S566 (Fla. 1998)

Florida recognizes a qualified reporter’s privilege against the disclosure of both confidential and nonconfidential information gathered in the course of the reporter’s employment. The privilege does not apply to eyewitness observations or physical evidence, including recordings, of a crime. Once the privilege attaches, a court must apply the following three-prong balancing test.

The court must determine (1) that the reporter possesses relevant information; (2) the same information is not available from alternative sources; and (3) the movant has a compelling need for any information the reporter may have.

This balancing test is also set out in 90.5015, Florida Statutes, which also provides that a professional journalist does not waive the privilege by publishing or broadcasting information.

The privilege applies in both civil and criminal cases.


Tomlinson-McKenzie v. Prince
23 Fla. L. Wkly. D2386 (Fla. 4th DCA 1998)

The trial court erroneously excluded a surveillance tape from evidence on the ground that it was not listed in the pretrial witness and exhibit list, where the trial was continued and the defendant filed a motion to amend the list several months before the actual trial date and there was no evidence of bad faith. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

Service of Process

Vidal v. Perez
23 Fla. L. Wkly. D 2447 (Fla. 3d DCA 1998)

The plaintiff attempted to serve the defendants at the address on the accident report, but the defendants had moved. The plaintiff hired an investigator, who checked all kinds of records but still could not locate the defendants. The plaintiff obtained two extensions of time for service, and finally amended the complaint to provide for service on the Secretary of State. Plaintiff finally served the Secretary of State 31 days after the last extension expired. The court held it was error to dismiss the complaint under rule 1.070(j) because the plaintiffs demonstrated good cause for failure to serve within 120 days. A driver is required by statute to keep his or her address current with the DMV. Even though plaintiff served the defendants a month beyond the last extension, the record shows diligence over an extended period of time.

Please note that the filing of the amended complaint in this case did not extend the time, because the amendment did not add a new party. An amendment to add a new party is an “initial pleading” that starts the running of the time for service. Eldridge v. Multi-Resource, Inc., 695 So.2d 1320 (Fla. 4th DCA 1997).

Workers Comp Immunity

Maxson Constr. Co. v. Welch
23 Fla. L. Wkly. D2324 (Fla. 2d DCA 1998)

One of the more unpleasant developments of the modern work world is the employee leasing company (not to be confused with temp agencies). Employee leasing companies lease long term employees to employers like pieces of machinery, pay their workers comp, and then, according to this case, everyone gets immunity.

Section 440.11(2) provides comp immunity to employers who use leased employees, treating the employee as a “borrowed employee of the employer and, for the purposes of this section, ... treated as any other employee of the employer.” Here, the employer had the employee sign a document that said the employee was an employee of the leasing company, not of the employer. The court held that, nevertheless, the employer was entitled to comp immunity where the leasing company provided comp coverage to the employee.

Williamson v. Water Mania, Inc.
23 Fla. L. Wkly. D2429 (Fla. 5th DCA 1998)

The plaintiff’s allegations were not sufficient to overcome a worker’s comp immunity defense where they did not demonstrate a deliberate intent by the employer to injure the employee or that the employer intended a course of action virtually certain to result in injury or death. See Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla. 1986). The plaintiff alleged that the employer deliberately removed the safety guards from the blades of its wave machines and directed the plaintiff to dismantle one of the wave machines while the other one was still operating, sucking him into the blades. The plaintiff alleged that the employer did this to save money, and that death or injury was a virtual certainty. The court limits its holding in Myrick v. Luhrs Corp., 689 So.2d 416 (Fla. 5th DCA 1997), to situations where the employer not only intentionally creates a dangerous situation, but covers it up, intentionally misleading or deceiving the employee about the safety of the equipment. The court also notes that a plaintiff who alleges a cover up but does not have a factual basis for it should be subject to sanctions “in order to preserve the integrity of the Workers Compensation Act”.

Turner v. PCR, Inc.
23 Fla. L. Wkly. D2475 (Fla. 1st DCA 1998)

This case involved an explosion at a chemical company. The survivors sued the employer, which asserted comp immunity. The court held that the mere knowledge and appreciation of a risk, short of substantial certainty, is not sufficient to overcome workers’ comp immunity. Here, the plaintiff offered two expert witness affidavits expressing their opinion that, based on their review of the circumstances and history of the fatal explosion, the defendant exhibited a deliberate intent to engage in conduct which was substantially certain to result in injury or death.

The court held that the expert affidavits do not overcome the defense, but certified the following question to the Supreme Court:

Is an expert’s affidavit, expressing the opinion that an employer exhibited a deliberate intent to injure or engaged in conduct substantially certain to result in injury or death to an employee, sufficient to constitute a factual dispute, thus precluding summary judgment on the issue of worker’s compensation immunity?