Joseph S. Kashi Appellate Practice Law Blog on Lawyers.com

COMPETENCE OF CHILD TO TESTIFY; HEARSAY

 J.B.J. v. State,   ___ So. 2d ___, 34 Fla. L. Weekly D1146 (Fla. 1st DCA 6/9/09)

            A 4 year-old child should not have been permitted to testify that the juvenile defendant made her “suck his wee-wee” because her answers to questions posed during voir dire were “insufficient to demonstrate the she felt a moral obligation to tell the truth. She failed to provide a definite answer as to whether she would be punished for lying and was unable to explain in her own words the difference between the truth and a lie.  Therefore, the trial court erred in permitting the child victim to testify.”

            The trial court also erred in allowing a police officer to testify that the victim’s 6 year-old brother observed the victim performing oral sex on the defendant and that the defendant told the brother he would not be able to play with his toys if he told anyone what happened. The officer’s testimony about what the brother observed was not admissible under Section 90.801(2)(b), which permits a prior consistent statement to rebut an expressed or implied charge of improper influence, motive, or recent fabrication.  In the present case, defense counsel did not accuse the brother of lying or having been subjected to outside pressure to testify in a certain way.  Rather, defense counsel suggested that the brother was repeating what another child had told him rather than testifying what he personally observed.  The officer’s statement about the toys constituted hearsay within hearsay.  The first level of hearsay was the defendant’s threat to the brother, which would have been admissible as an admission by a party opponent if the brother testified to the threat.  The second level of hearsay was the officer’s repetition of what the brother told the officer, and there was no exception for this level of hearsay.

NOTICE

Owens v. Owens, ___ So. 2d ___, 34 Fla. L. Weekly D1149 (Fla. 1^st DCA 6/9/09)

            The court reversed an order dismissing the mother’s claim for child support arrearages because she did not receive notice of the proceeding at which the order was entered.

CIVIL RIGHTS

Muhammad v. McNeil, ___ So. 2d ___, 34 Fla. L. Weekly D1149 (Fla. 1^st DCA 6/9/09)

            A Sunni Muslin serving a life sentence at Florida State Prison stated a prima facie case for declaratory and injunctive relief and for nominal damages under the Religious Land Use and Institutionalized Persons Act and 42 U.S.C. Section 1983 by alleging that he was denied a non-meat diet during Ramadan in violation of the First Amendment.

SLIP AND FALL; SUMMARY JUDGMENT; WAIVER; PRESERVATION

Lomack v. Mowrey, ___ So. 2d ___, 34 Fla. L. Weekly D1150 (Fla. 1^st DCA 6/9/09)

            The trial court erred in granting summary judgment against a plaintiff who tripped and fell over exposed computer cables while cleaning the defendants’ law office.  Even if the defendants did not have a duty to warn because the danger was open and obvious, the defendants still had a duty to maintain their premises in a reasonably, safe condition and, whether they did so, was a question of fact.  The defendants were precluded on appeal from attempting to apply the reduced standard of care due to and independent contractor because this issue was not raised in the motion for summary judgment nor mentioned in the reconstructed record of the hearing.  As a result, the “tipsy coachman” rule was trumped by elementary principles of due process and the express requirements of  Fla.R.Civ.P. 1.510.

APPEALABILITY

Frier v. Frier, ___ So. 2d ___, 34 Fla. L. Weekly D1153 (Fla. 1^st DCA 6/9/09)

            The trial court denied the father’s motion to dismiss based upon lack of personal jurisdiction over him.  In denying the motion, however, the trial court did not rule that it possessed personal jurisdiction but merely that it had jurisdiction “of at least certain issues in the pending action.”  Therefore, the order was not reviewable under Fla.R.App.P. 9.130(a)(3)(C)(i) because it did not determine jurisdiction of the person.

APPEALABILITY

 M.V.-B v. Department of Children & Family Services, ___ So. 2d ___, 34 Fla. L. Weekly D1157 (Fla. 2d DCA 6/10/09)

            After adjudicating that a minor child was dependent as to the father, the trial court rejected the paternal grandparents’ request to transfer custody from a licensed foster care family to the grandparents.  The grandparents and the father appealed.  The appellate court held that the grandparents lacked standing and that it lacked jurisdiction to review the father’s appeal.  “[W]e hold that orders entered in dependency proceedings after the entry of the order adjudicating dependency and before an order terminating supervision or jurisdiction are not appealable pursuant to 9.130(a)(4).  When appropriate, such orders may be challenged by common law certiorari.”  The court dismissed the father’s appeal because he failed to make a showing “that certiorari would provide a possible remedy.”

 SANCTIONS

 Laurore v. Miami Automotive Retail, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1160 (Fla. 3d DCA 6/10/09)

            The trial court erred by dismissing with prejudice for fraud upon the court a personal injury case.  The plaintiff allegedly sustained four cervical herniated discs as a result of a rear-end motor vehicle accident.  In answers to interrogatories and his deposition, the plaintiff concealed the fact that before the accident, his employer determined that he was totally disabled as a result of job related mental stress.  Because the plaintiff’s undisclosed condition related to his mental health and there was no evidence that his physical injuries did not exist or predated the accident or were caused by some other event, dismissal of the entire case was too harsh a sanction.  As a result, the appellate court reversed and remanded with instructions to determine which, if any of the plaintiff’s damage claims should be stricken.  Judge Shepherd dissented on the ground that the trial court’s ruling was not clearly erroneous.

 TRIAL RESOLUTION JUDGES; LIMITATION OF LIABILITY; ALLOCATION OF FAULT

 Witt v. La Gorce Country Club, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1161 (Fla. 3d DCA 6/10/09)

            Witt undertook to provide hydrogeologic consulting services and ITT undertook to design and build a reverse osmosis water treatment plant for La Gorce’s golf course.  The system failed, and La Gorce sued Witt, his corporation, and ITT.  The parties submitted their case under Section 44.104, Florida Statutes to a trial resolution judge, whose findings were incorporated by the circuit court in rendering a final judgment.

            The contract between Witt’s corporation and La Gorce contained a limitation of liability provision.  The trial court determined that the limitation of liability did not extend to Witt, and the appellate court affirmed.  An action for professional liability is based on tort law rather than contract law.  As a result the limitation of liability provision in a contract may not operate to reduce the liability of the professional.

            The trial court did not err in failing to allocate fault against ITT because (1) there were no findings of fact or conclusions of law by the trial resolution judge as to the existence or degree of any fault on the part of ITT, and (2) Witt did not request an allocation of fault before the final judgment was rendered.  As a result, the trial resolution judge did not err by failing to make a Fabre allocation against ITT.

            The trial resolution judge’s findings that (1) ITT did not make the misrepresentations of fact alleged by La Gorce, and (2) reliance upon the alleged misrepresentations would not have been justified, were not rendered ineffectual merely because they were included with the judge’s conclusions of law.  The same was true of the trial resolution judge’s finding that Witt’s corporation and ITT did not engage in deceptive or unfair trade practices.  Under Section 44.104(11), Florida Statutes, the trial resolution judge’s factual findings were binding upon both the trial and appellate courts.

ACCOUNTING MALPRACTICE; EXCULPATORY CLAUSES

 Tropical Glass & Construction Co. v. Gitlin, ___ So. 2d ___, 34 Fla. L. Weekly D1163 (Fla. 3d DCA 6/10/09)

            Tropical alleged that its bookkeeper succeeded in embezzling funds because its accountants negligently performed monthly bank reconciliations.  The accountants obtained a summary judgment in the trial court because their engagement letters contained exculpatory clauses.  The appellate court reversed because the engagement letters related to the preparation of tax returns, and an issue of fact existed whether the preparation of monthly bank reconciliations was necessary in order to prepare the returns. 

APPEALS; TIMELINESS

 United Automobile Insurance Co. v. Buchalter, ___ So. 2d ___, 34 Fla. L. Weekly D1166 (Fla. 4^th DCA 6/10/09)

            The county court struck United’s pleadings and entered a default judgment against it as a sanction or discovery violations.  United appealed after the county court entered a final judgment.  The circuit court dismissed the appeal as untimely on the premise that the time to appeal began to run when the default judgment was entered.  The district court of appeal granted second-tier certiorari and quashed the decision of the circuit court.  “[T]here is no authority for a non-final appeal from an order striking a defendant’s pleadings and entering a default, even under Rule 9.130(a)(3)(C), since the rule was amended in 2000 resulting in removal of the provision for appeals of orders determining liability in favor of a party seeking affirmative relief.  As a result of the amendment, orders determining the issue of liability in favor of a party seeking affirmative relief are not appealable until final judgment.”

PRELIMINARY INJUNCTIONS

Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC, ___ So. 2d ___, 34  Fla. L. Weekly D1167 (Fla. 4^th DCA 6/10/09)

            An employer sought a preliminary injunction against a former employee who set up a competing business.  The employer alleged that the employee took patient files, proprietary information, and personal property.  The trial court issued an injunction, but the appellate court reversed because of the absence of clear evidence that the information was proprietary and the absence of specific findings regarding the four elements that must be established before a preliminary injunction may be entered.  The court reversed and remanded for the trial court to make the required findings and to take additional evidence, if necessary.

PERSONAL JURISDICTION

 Jetbroadband W.V., LLC v. Mastec North America, Inc., ___ So. 2d ___, 34 Fla. L Weekly D1170 (Fla. 3d DCA 6/10/09)

            Under Sections 685.101 and 685.102, Florida Statutes, “if certain requirements are met, parties may, by contract alone, confer personal jurisdiction on the courts of Florida.  To satisfy the statutory requirements, the contract, agreement, or undertaking must (1) include a choice of law provision designating Florida law as the governing law, (2) include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida, (3) involve consideration of not less than $250,000.00, (4) not violate the United States Constitution, and (5) either bear a substantial or reasonable relation to Florida or at least have one of the parties be a resident of Florida or incorporated under its laws.”  The due process prong of the statutes is satisfied if the agreement has been freely negotiated and is not unreasonable or unjust. 

RECORD ON APPEAL

Cueto v. Mendoza, ___ So. 2d ___, 34 Fla. L. Weekly D1173 (Fla. 3d DCA 6/10/09)

            An injunction for protection against repeat violence was affirmed because the appellant failed to provide the appellate court with a transcript of the hearing that culminated in the entry of the injunction.

PEREMPTORY CHALLENGES; REHEARING

Braggs v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1175 (Fla. 3d DCA 6/10/09)

            Initially, the appellate court reversed a criminal conviction because the trial court denied a preemptory challenge although the defendant proffered a race-neutral reason for exercising it, and the transcript of the voir dire examination failed to reveal that the trial judge conducted an evaluation of the genuineness of the challenge.  On motion for rehearing, the State provided a corrected transcript, which revealed that the trial judge had in fact conducted the required analysis and determined that the race-neutral justification proffered by the defendant was pretextual.  As a result, the appellate court affirmed the defendant’s conviction.  The court acknowledged “the general proscription against considering new claims raised for the first time on rehearing,” but concluded, “The issue of an accurate transcript is not so much a ‘new claim’ raised for the first time on rehearing, . . .  but rather a correction of a misleading record that is critical to the clarification and disposition of the legal claim originally put to this court on appeal.”

COMPARATIVE FAULT

 San Marco Realty, Inc. v. Dopieral, ___ So. 2d ___, 34 Fla. L. Weekly D1179 (Fla. 2d DCA 6/12/09)

            The jury in a personal injury case found that the defendant was only 5% at fault and that the Fabre defendant was 95% at fault.  The trial court granted the plaintiff’s motion for judgment notwithstanding the verdict as to the Fabre defense.  The appellate court reversed because conflicting evidence existed on the issue of who was at fault, and the “trial judge is not authorized to act as a ‘seventh juror’ or to substitute his judgment for that of the jury on disputed questions of fact.”

HEARSAY; STATE OF MIND

 Krampert v. State, ___ So. 2d ___, 34 Fla. L. Weekly D1179 (Fla. 2d DCA 6/12/09)

            Krampert was charged with failing to re-register as a sexual predator.  Scienter is an element of this offense.  At trial, Krampert sought to testify that he did not believe that he had to re-register because of statements made to him by a deputy sheriff.  The trial court erroneously excluded the proffered testimony as hearsay because it was not offered to prove the truth of the statements made by the deputy but to explain Krampert’s state of mind.

VACATING DEFAULTS

 Pierce Hardy Limited Partnership v. Harrison Brothers Contracting, LLC, ___ So. 2d ___, 34 Fla. L. Weekly D1181 (Fla. 5^th DCA 6/12/09)

            The trial court abused its discretion in denying the defendant’s motion to vacate a clerk’s default and final default judgment.  Excusable neglect existed because defense counsel’s legal assistant contacted the clerk and was told a default would not be entered for 48 hours to enable to defense counsel to file a notice of appearance and motion for enlargement of time.  Nevertheless, the clerk defaulted the defendant that day.  In addition, defense counsel was operating under the mistaken belief that she had obtained an enlargement of time because she had received one for the same client in another case.  In addition, defendant acted diligently by moving to vacate within two days after learning of the final default judgment.

 VISITATION; REHABILITATIVE ALIMONY; ATTORNEY’S FEES

 Lovell v. Lovell,  ___ So. 2d ___, 34 Fla. L. Weekly D1182 (Fla. 5^th DCA 6/12/09)

            The final judgment of dissolution of marriage prohibited the husband’s new wife from being present during visitation until the children’s therapist deemed it appropriate.  Although the children blamed the new wife for break-up of their family, the appellate court reversed this limitation on visitation because of the absence of evidence or findings that exposure to the new wife would be detrimental to the best interest of the children and because the trial court could not delegate the duty to decide on the details of visitation.

            The appellate court also reversed an award of rehabilitative alimony that was “sparse on details, but rich in aspiration.”  Although the court agreed that the wife would benefit by obtaining advanced degrees, it disapproved of the amount or time period for which rehabilitative alimony should be awarded because of the absence of a specific rehabilitative plan, which it directed the trial court to fashion on remand.

            Finally, the court reversed an award of attorney’s fees to the wife because the trial court’s distribution of assets provided both parties with similar ability to secure competent legal counsel.

 ATTORNEY’S FEES; SECTION 627.428; CERTIORARI PROCEEDINGS

 Garcia v. State Farm Mutual Automobile Insurance Co., ___ So. 2d ___, 34 Fla. L. Weekly D1185 (Fla. 5^th DCA 6/12/09)

            The court held that an insured is not entitled to a provisional award of attorney’s fees, contingent upon ultimately prevailing in the case, for pursuing an unsuccessful writ of certiorari.  Section 627.428, Florida Statutes, provides for an award of attorney’s fees “in the event of an appeal in which the insured or beneficiary prevails.”  Based upon this language, the insured might not be entitled to attorney’s fees even in a successful certiorari proceeding because certiorari is not an appeal.

 SANCTIONS:  SECTION 57.105

 Kenniasty v. Bionetics Corporation, ___ So. 2d ___, 34 Fla. L. Weekly D1187 (Fla. 5^th DCA 6/10/09)

            On July 1^st, 2002, the Florida legislature added a safe harbor provision to Section 57.105, Florida Statutes.  Under this provision, the party seeking sanctions must serve its motion for attorney’s fees 21 days before filing it.  This provision applies to motions filed after the effective date of the amendment even if the lawsuit was filed before the effective date.  Notice given by letter, rather than motion, is insufficient because the statute must be strictly construed.  Fees are not awardable if the allegations of a complaint are prolix and messy, but nevertheless state a claim.

 DISQUALIFICATION OF COUNSEL

  Walker v. River City Logistics, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1194 (Fla. 1^st DCA 6/12.09)

            The court quashed an order disqualifying the claimant’s worker’s compensation counsel based upon his possession of privileged documents because the employer disclosed privileged documents to the claimant’s public defender in another proceeding, and the employer did not argue that the disclosure was inadvertent.  As a result, the privilege was waived and the disqualification of counsel departed from the essential requirements of law. 

 APPEALS; TIMELINESS

 Hollifield v. Renew and Co., Inc., ___ So. 2d ___, 34 Fla. L. Weekly D1196 (Fla. 1^st DCA 6/12/09)

            The court granted a petition for writ of certiorari and quashed an order that was re-entered under Fla.R.Civ.P. 1.540(b) to enable the respondent to file a timely notice of appeal because (1) the respondent’s predicament was caused by its lawyer’s mistake rather than the trial court or the clerk, and (2) the reissued order was interlocutory, but Rule 1.540(b) does not apply to non-final orders.

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This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.