Archive for the ‘Florida Law Updates’ category

Friday Florida Law Update- An Episode of Legal Realism

November 4, 2011


Since I have been so bad to the fans of late, today’s blog is in reality a “two-fer,” as we will have a mini-retro pop review down below!  Today’s case involves a classic case of “legal realism,” a concept I learned and latched onto in my first year “Legal Process” class taught by the great Christopher Yoo at Vanderbilt Law School, who once scolded me in the school parking lot one gusty Friday morning on the way to his class for cutting the Torts class that came immediately before his.  Professor Yoo did not appreciate my response of, “Considering how hung over I am, you should be proud that I’m not cutting YOUR class!”   Fortunately though, he did not call on me that day. 

Ahem, so where were we?  Ah yes, Legal Realism.  This concept stands for when a court considers the facts, arrives at the result it WANTS to reach first, then finds a legal hook for doing so. 

In Georges v. Department of Health, 2011 WL 5169407 (Fla. 2d DCA Nov. 2, 2011), Florida’s Second Circuit Court of Appeals reversed a Board of Nursing decision to revoke a nurse’s license and assess $15,703 in costs against a nurse for stealing $10 from a patient.  The Board of Nursing had reversed the recommended finding of the assigned administrative law judge, which was a $250 fine and probation.  On appeal, the Second DCA cited to Florida’s Administrative Code regulations, which called for a maximum $150 fine, reprimand and suspension followed by probation for a first offense absent proof of aggravating factors.  The appellate court found that Nurse Georges was denied her “due process” rights by having such a lofty fine assessed plus revocation of her license without proof of such “aggravating” factors. 

What exactly are aggravating factors in addition to stealing from a patient?  Hiding their pants so they have to go out in the cold in one of those backless hospital gowns?  Putting a laxative in their Jello? 

I submit that the Court simply said to itself, “You know what?  $15,000 and a lifetime ban from the profession over a $10 ‘mistake’ is a bit harsh.  I think this woman’s learned her lesson!”, and figured out a way to reverse it. 

On another note, any case involving a nurse will likely make me dig for a good picture of Nurse Ratched (see above) from the movie, One Flew Over the Cuckoo’s Nest, Milos Forman’s oscar-winning adaptation of the Ken Kesey novel.  Depending on the mood you’re in, Cuckoo’s Nest can range from the funniest movie you’ve ever seen to the creepiest movie you’ve ever seen to the most depressing movie you’ve ever seen.  If you have never seen it, make it a priority. 

Jack Nicholson plays a walking misdemeanor pretending to be crazy to stay in the otherwise cozy confines of a mental institution as opposed to serving jail time while getting under the skin of the entire hospital staff, most notably the hard Nurse Ratched, played by Louise Fletcher.  Jack Nicholson is the only actor who of our lifetime who could have pulled off this role except for maybe Robert DeNiro, though DeNiro would have spent 2 years studying for the role and probably would have oversold it.  My first watch of this movie came while hanging with my brother Neil, and we were both howling with non-stop laughter for the first hour before things got a little more serious. 

Friday Florida Law Update- Contract Damages

October 21, 2011

TGIF all, and what a gorgeous Friday it is for South Floridians!  Today we discuss a case involving damages for a breach of a commercial contract, but more importantly, a case which kicks off with a snide but humorous comment from the appellate court. 

In Net Results, Inc v. Del Monte Fresh Produce Co., 2011 WL 4949872 (Fla. 3d DCA Oct. 19, 2011), Net Results sued over Del Monte’s wrongful termination of a telecommunications consulting contract.  Under the contract, Net Results was required to examine Del Monte’s telecommunications expenses and scope out means to save money.  Del Monte terminated the agreement on the belief that Net Results had not fully performed under the contract.  At the trial court level, a jury found that Del Monte wrongfully terminated the agreement, and awarded damages of $15.7 million. 

In reversing and remanding the case on the issue of damages only, the Third DCA opened with the comment that “[t]his is a business damages case in which the computation of Net Results’ ‘benefit of the bargain’ losses require grade-school arithmetic rather than a ‘damages model’ long on assumptions and short on facts.” 

The overly complex damage calculation attempted indeed extrapolated significant hypothetical performance in the future but overlooked simple issues like Net Results’ operating expenses for performance under the contract.  In remanding the case for a new trial on damages only, the Third DCA emphasized the concept of “benefit of the bargain” damages, which essentially places the parties back in the position they would have been in if Del Monte had not repudiated the agreement, including all operating expenses.



Friday Florida Law Update- Read the Fine Print!

October 14, 2011

TGIF all, and welcome back to the Friday Florida Law Updates portion of the blog!  I’m not gonna lie, about 80% of the fun in this blog is finding a good photo.  Today, we have a case about a poor judgment debtor having his wages garnished.  I punch “garnishment” into the Google image search, and voila!  Look at that beauty above!

Today we look at USAmeribank v. Klepal, 2011 WL 4809107 (Fla. 2d DCA Oct. 12, 2011).  In Klepal, an individual obtained a $43,000 bank loan apparently unsecured by any property.  The promissory note, among what I am sure was about 50 other provisions, included a statement that the borrower consents to the issuance of a continuing writ of garnishment or attachment against my disposable earnings . . . in order to satisfy, in whole or in part, any money judgment entered in favor of the Bank.” 

A writ of garnishment is a tool by which a creditor can obtain a court order requiring a party owing money to the debtor, such as a bank where the debtor holds money or, in this case, the debtor’s employer, to furnish the funds directly to the creditor. 

Sure enough, this $43,000 loan resulted in a $51,000 judgment for the bank after Klepal defaulted.  In its attempt to collect on the judgment, the bank attempted to have a continuing writ of garnishment issued on Klepal’s employer.  At the trial court level, Klepal had the writ dissolved due to the head of family exception to Florida’s garnishment statute, which protects a head of family’s wages from garnishment.  (Florida is a renowned debtor-friendly state). 

On appeal, the Second DCA held that the provision of the note agreeing to a continuing writ of garnishment on Klepal’s disposable earnings constituted a valid and conspicuous waiver of the “head of household” exemption.

The moral, as always, is to READ THE FINE PRINT when signing any significant contract!  


Friday Florida Law Update- Seaworthy Despite Negligent Medical Staff?

September 30, 2011

Hello all, TGIF, and welcome back for your Friday Florida Law Update! Today we look at a tragic incident that occurred aboard a Royal Caribbean cruise ship. In Fleuras v. Royal Caribbean Cruises, Ltd., 2011 WL 4467347 (Fla. 3d DCA Sept. 28, 2011), a deceased woman’s estate brought a claim against the cruise line, alleging that one of its ships was “unseaworthy” due to the negligence of its medical staff.

The sad facts of the case were that a ship photographer, Diana Fleuras, complained to medical personnel multiple times over the course of several days relating to abdominal and back pain.  In the course of treatment, she was diagnosed as pregnant, and days later underwent an abortion procedure from a physician in the Virgin Islands.  Upon her return to the ship after the abortion, she continued to complain of abdominal pains and repeatedly sought medical attention.  She was prescribed multiple medications by the ship’s medical staff.  One evening, while the ship was in port, Fleuras required emergency assistance.  An ambulance was summoned to the port, and Fleuras was transported to a hospital, where she subsequently passed away from complications due to her pregnancy — specifically, that she had an ectopic pregnancy (one where the embryo implants outside the uterine cavity).

Her estate sued Royal Caribbean, complaining that the ship was rendered unseaworthy by its negligent medical staff.  Specifically, Plaintiff alleged that the ship’s staff failed to adequately detect Fleuras’ ectopic pregnancy, failed to adequately document her symptoms, failed to provide sufficient history to the paramedics, failed to establish proper medical procedures or, alternatively, failed to follow them.

At the trial court level, the court granted summary judgment to Royal Caribbean on two grounds — 1) a single act of negligence by the medical staff was insufficient to deem a vessel as “unseaworthy,” and 2) a shipowner has no duty to establish procedures to govern medical emergencies.

On appeal, the Third District Court of Appeal affirmed in part and reversed in part.  Essentially, the Third DCA agreed with the two points above.  However, the appellate court ruled that summary judgment was premature for two reasons.  First, Plaintiff was entitled to further discovery to determine whether the medical staff was incompetent generally (which would qualify a vessel as unseaworthy) or just had a single act of negligence (which does not render a vessel unseaworthy).  Second, Plaintiff was entitled to further discovery as to whether the ship had indeed promulgated emergency procedures because, while an owner has no duty to promulgate such procedures, if indeed they do enact procedures, they must be followed.  This is also known as the “undertaker doctrine.”  You may not have a duty to do something, but if you undertake the duty, you must carry it out in a non-negligent manner.

Despite some of the draconian features of this ruling, keep in mind that this also has a lot more to do with Royal Caribbean’s deep pockets.  Plaintiff is also of course free to pursue the physician directly for redress.

Have a great weekend!!

Friday Florida Law Update- The Seatbelt Defense

August 19, 2011

TGIF all!  Before you get on home for the weekend, here is your Florida law update.  It was a tough week to find a water cooler case in Florida’s appellate courts, so my apologies in advance. 

The case involves the “seat belt defense,” which allows a defendant in a car accident case to shift blame to the plaintiff if the plaintiff was not using their seat belt at the time of the accident.  In Russell v. Beddow, 2011 WL 3558154 (Fla. 1st DCA August 15, 2011), Florida’s First District Court of Appeal reversed in part a verdict assigning 35% of the blame to Plaintiff Russell for failing to use her seat belt at the time of her rear end collision by the defendant.  The 35% assignment of fault diminished her damage claim by the same total.

On appeal, the First DCA held that Defendant did not meet her burden of proof on the seat belt defense, which in most cases requires the movant to prove, by expert testimony, that failure to use a seat belt was the cause of the injury complained of.  In this case, Plaintiff complained of a herniated disc.  The appellate court held that a lay jury is incapable of determining whether or not the plaintiff still would have sustained a herniated disc even if she had been wearing a seat belt. 

Assignment of fault is a huge issue, especially in a clear cut liability case such as this one (rear end collision).  It appears the court got this one right and it was surprising to see the defense go to trial without an expert on this issue.


DISCLAIMER:  This blog is written for entertainment purposes only and does not create an attorney-client relationship, nor does it constitute legal advice. 

Friday Florida Law Update

July 29, 2011

The photo above is dedicated to the fact that we are about to discuss Florida’s Proposal for Settlement statute for the umpteenth time!  I think soon I am going to approach local law schools about being an adjunct professor on this topic!

Ok, for you new fans, here’s a quick refresher.  The Proposal for Settlement is a statutory procedure allowing either party the chance to tender a written settlement offer that remains open for 30 days.   If the offeree does not accept the offer in 30 days, it expires, and if the matter proceeds to trial and the offeree does more than 25% worse at trial than they would have had they accepted the offer, the trial court is supposed to require the offeree to pay the offeror’s attorney’s fees from the date of the offer. 

As we have discussed at length, this seemingly simple statute has killed a lot of trees in legal opinions on it.  In today’s case of Andrews v. Frey, 2011 WL 3206882 (Fla. 5th DCA July 29, 2011), the Fifth DCA held that an offer made by one of two defendants which required, as a condition of settlement, that BOTH defendants be released, was valid under the circumstances.

In the case, a minor passenger was injured in a car accident.  The minor’s mother sued the driver of the vehicle for negligence, as well as the driver’s spouse (the minor’s father) vicariously as the owner of the vehicle.   (Under Florida’s dangerous instrumentality doctrine, the owner of a vehicle is liable for the negligence of the vehicle’s driver — think about that next time you lend someone your car keys!).  During discovery, the driver issued an Offer of Settlement to the minor and her mother on her own behalf only, but conditioned the offer on dismissal of both she AND the vicariously liable owner.

Plaintiffs rejected the offer and, predictably, underachieved at trial, causing the trial court to award fees to the defendants pursuant to the proposal for settlement. 

On appeal, the Fifth DCA affirmed the judgment, finding significance in the fact that 1) the omitted vehicle owner was only vicariously liable; and 2) the owner’s vicarious liability was undisputed.  In other words, the failure to include the owner in the offer should have had no effect on the strategical consideration by the offerees in considering the offer.

I never get tired of cases on this statute!

Hope to keep catching up on more posts that I owe you soon!  If we don’t get to it today, have a wonderful and safe weekend all!

Belated Friday Florida Law Update- Today’s Lunch Special: Roadkill Milanese

July 27, 2011

Hello all, and welcome back to your “I’m posting whenever I possibly can!” blog.   We’re woefully behind but determined to to work through it! 

We owe you a Florida law case and this one is great for water cooler fodder so here goes.  In Milanese v. City of Boca Raton, 2011 WL 2848628 (Fla. 4th DCA July 20, 2011), the Fourth District Court of Appeal reversed dismissal of a wrongful death claim against the City of Boca Raton after Decedent Milanese was released from custody and run over by a nearby train.  Milanese had been driving with a blood alcohol level of .24, three times Florida’s legal limit, even though his cousin had his own vehicle and was apparently not intoxicated.  Milanese was pulled over after he was spotted swerving badly and hitting curbs.  After he was pulled over and blew a .24, Milanese was detained and issued five traffic tickets, though police spared him a DUI charge.  He was released approximately 2 hours after he was detained and a cab was called for him.  Instead of waiting for the cab, the drunkard stumbled off and took a nap next to some train tracks.  You know the rest.

Milanese’s estate sued for wrongful death, claiming that the police placed Milanese in a “zone of risk” by releasing him instead of detaining him until his blood alcohol level came down. 

The trial court dismissed the case with prejudice for failure to state a claim.  On appeal, however, the Fourth DCA reversed.  The appellate court relied on a statute relating to the police’s duties in handling a suspect arrested for DUI, stating the circumstances under which the suspect may be released from custody (even though no DUI was issued in this case).  The Court did not declare Plaintiff victorious, but merely ruled that enough was presented to let the case proceed past the pleading stage. 

This case disgusts me on many levels, including how 1) an attorney could hear these facts and decide he wants to get behind suing the City;  but more importantly; 2) the growing lack of accountability in this society.  Here we have a drunk-off-his-ass idiot whose cousin lets him get behind the wheel cause they’re too selfish and lazy to scoop up the car the next day.  He gets pulled over, somehow is spared a DUI when he was driving so recklessly he easily would’ve killed anyone who would’ve been unfortunate enough to be in his way, is released after 2 hours and a cab is called for.  Somehow in there the police were negligent?  I guess the lesson for the cops next time is to throw the book at these morons from the beginning.



 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.

Belated Friday Florida Update- Bond…… Sufficient Bond

July 18, 2011

Hello all, hope you had a great weekend.  This one seemed a little short!  Today we will hopefully get two blog posts in, starting with this Florida Law Update that you have been waiting on since Friday!

You know that whenever I blog about a case involving a constitutional analysis, it was a slow week in the appellate courts!  Last week virtually every decision was a 1-page per curiam affirmance, meaning the lower court’s decision was upheld without the need for an opinion.   To the appellant (the losing party who took up the appeal), the PCA is the legal equivalent to this famous part of the Adam Sandler movie “Billy Madison:”

Florida’s First District Court of Appeal did write an opinion in RJ Reynolds Tobacco Co. v. Hall, 2011 WL 2685609 (July 12, 2011), in which a tobacco victim’s wife challenged the size of a bond posted by RJ Reynolds on appeal.  The issue on appeal stems from a 1995 suit brought by the State of Florida against 5 big tobacco companies, a suit that resulted in a settlement that required the settling companies to pay $13 billion to the State over a 25 year period.  The revenue generated by the settlement is intended to fund various statewide tobacco education and prevention programs. 

In order to avoid threatening the tobacco companies’ abilities to fund the settlement, the Florida legislature passed a statute regulating the size of the bond that a participating company would have to post while appealing an individual judgment.  Under the normal rules of procedure, an appellant must post a bond equal to the size of the judgment.  Under the statute, however, a matrix was established regulating the size of the bond depending on certain factors. 

As a result of the statute, while appealing, a $15.7M judgment, defendant only had to post a $5M bond.  Plaintiff appealed, arguing that the statute limiting the size of the bond was unconstitutional.

On appeal, the First DCA affirmed, finding that the statute was entitled to a presumption of constitutionality and that the statute did not shift the balance of power between the legislature and the judiciary, who writes the rules of procedure.

The bond is intended to protect the judgment holder in the event that the defendant goes bankrupt during the pendency of the appeal, so I could see the argument raised by the individual in seeing the bond get reduced by 2/3’s.  However, as a citizen, I prefer to see the government funding preserved even if it means that one tobacco victim has to take on “only” a $5M verdict rather than a $15M one. 


 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.

Friday Florida Law Update- Re-weighing Expert Testimony on Appeal

July 8, 2011

TGIF all, and welcome back for your Florida law update!

Yesterday’s winner for most interesting/absurd search engine term that led someone to this blog is “Lil Jon Flop.”

Today we discuss an opinion from the Florida Supreme Court which should adjust the layperson’s view of what occurs during an appeal.  In Cox v. St. Joseph’s Hospital, 2011 WL 2637421 (Fla. July 7, 2011), the Florida Supreme Court quashed a decision from the Second District Court of Appeal and reinstated a jury verdict in Plaintiff’s favor in a medical malpractice action.

In the underlying case, a 69-year old gentleman suffered an ischemic stroke due to a blood clot.  Though the paramedics were able to ascertain the time of the stroke, emergency room staff failed to obtain this information from the paramedics.  Without knowledge of the time of the stroke, emergency room physicians were unable to treat Plaintiff with “tissue plasminogen activator” (tPA), a drug that dissolves blood clots, but which MUST be administered within 6 hours of the stroke.  Plaintiff alleges that due to Defendants’ failure to administer tPA, he suffered permanent paralysis and aphasia from the stroke. 

At trial, Plaintiff’s causation expert testified that based on Plaintiff’s medical history, her experience and her review of the pertinent medical literature, administration of tPA would have more likely than not permitted him a full recovery.  Defendants cross-examined Plaintiff by pointing out a scientific study that purportedly showed tPA to have a less than 50% success rate.

After the jury found for Plaintiff, Defendants appealed, claiming that Plaintiff’s expert did not adequately rebut the information in the scientific study, reducing her opinion to speculation.  The Second DCA agreed, reversing the trial court judgment with instructions for the trial court to direct a verdict for the defense.  

The Florida Supreme Court held that the Second DCA opinion amounted to an improper “re-weighing of the evidence” by an appellate court, which incorrectly took the matter from the jury.  The Court held that Plaintiff’s expert gave sufficient testimony in response to questions about the study to present a question to the jury of whether the administration of tPA would have more likely than not prevented Plaintiff’s permanent injuries.

The lesson from this case is that an appeal is far from a second bite at the apple.  An appeal is strictly a review of whether one or more issues of law were misapplied at the trial level.  It’s always an uphill climb for the appellant.


Have a great weekend everyone!




 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.


Friday Florida Law Update- Offers of Judgment (Again!)

July 1, 2011

Hello all, and welcome to your Friday Florida Law Update and our second post today! 

Well, it’s back.  Our favorite Florida legal issue — the Offer of Judgment statute! (Sec. 768.79).  We have discussed this well-intentioned but impossible to implement creature at least three times in previous weeks, and it has reared its ugly head again.  As another refresher, the offer of judgment is a statutory settlement tool whereby either party may tender an unconditional settlement offer which remains open for 30 days, and if the other party declines and ultimately does 25% worse at trial (or on summary judgment) than what the offer was, they have to pay the offeror’s attorney’s fees from the date of the offer.

Case law over the years has done its share to take almost all of the teeth out of this statute.  Today’s case is no different.  In Winter Park Imports, Inc. v. JM Family Enterprises, 2011 WL 2581758 (Fla. 5th DCA July 1, 2011), the Fifth District Court of Appeal held that monetary offers of judgment to settle the entire case are inapplicable in cases where the Plaintiff seeks both monetary and injunctive relief.  In Winter Park, Lexus of Orlando sought injunctive relief to prevent Defendant from opening JM Lexus dealerships in Orange County, Margate, or to open any unlicensed dearlership anywhere in Florida.  Plaintiff also sought monetary damages pursuant to Florida’s Motor Vehicle Dealer Act.

During discovery, JM Lexus served an Offer of Judgment for monetary relief which purported to settle the entire claim, which Plaintiff declined.  JM Lexus ultimately prevailed on summary judgment.  After JM Lexus sought to collect its attorney’s fees, the trial court refused, holding that an offer of judgment for monetary relief only could not be applied to a claim for both monetary and non-monetary relief. 

On appeal, the Fifth DCA agreed, aligning itself with a 4th DCA opinion from 2009, reasoning that the attorney’s fee award is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer.  Because the statute is penal in nature, it must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction.

In this case, to require a party to accept a monetary offer and abandon its injunction claims to avoid the risk of a penal attorney’s fee award would create an injustice in the eyes of the Court.  However, the Court did not forego the possibility of a valid Offer of Judgment in this scenario if the offer did not require the Plaintiff to dismiss its injunction claims as well.  Of course, you are more likely to see pigs fly than to see the defendant serve an offer of judgment that does not completely resolve the case. 

Honestly, if the drafters of this statute knew all the litigation it would create, there’s no way it ever would have passed!  Have a great long weekend, all.  We’ll be back on Tuesday with the rest of ya!



 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.