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The below content previously appeared in the February/March 2022 issue of the Broward County Bar Association’s Barrister magazine.

By Debra P. Klauber, Esq.

Successor judge does have the authority to rule on a motion to vacate an order granting summary judgment.

A successor judge may revisit a final judgment entered by a predecessor judge when there is a motion filed under Rule 1.540. A legally sufficient motion under that Rule is supposed to, by definition, address matters which were not presented to or considered by the predecessor judge. As such, the successor judge is not reconsidering the merits of the prior judge’s ruling, but is instead ruling on the appropriateness of setting that prior order aside. Samoilova v. Loginov, No. 3D21-1144, 46 Fla. L. Weekly D2664 (Fla. 3d DCA Dec. 15, 2021).

Even where a condition is open and obvious, the possessor or owner of land can still be liable for failing to exercise reasonable care to prevent foreseeable injuries.

There are multiple theories of liability against the owner or possessor of land to invitees, and a determination that a condition is open and obvious does not necessarily entitle the owner or possessor to a summary judgment. Even if a condition is considered open and obvious, it often remains a question of fact for the jury to determine whether that condition was, in fact, obviously dangerous. Likewise, if the owner or possessor of the land did not exercise reasonable care in order to prevent foreseeable injuries, there can still be liability for an open and obvious condition. Conrad v. The Boat House of Cape Coral, LLC, No. 2D20-0227, 46 Fla. L. Weekly D2675 (Fla. 2d DCA Dec. 17, 2021).

A statement in an incident report does not qualify as a “witness statement” under the rules of procedure.

The trial court ordered a grocery store to produce portions of its incident report which included the plaintiff’s own statements about her injury on the basis that it constituted a discoverable witness statement. The appellate court granted certiorari and quashed the order, finding that in order to qualify as a witness statement, it had to be signed or otherwise adopted or approved by the person making it, or recorded or transcribed. Since the plaintiff was not the author of the statements, and they were not otherwise authenticated or adopted by her, the incident report remained protected as work product. Winn-Dixie Stores, Inc. v. Lopez, No. 3D21-1878, 46 Fla. L. Weekly D2570 (Fla. 3d DCA December 1, 2021).

Proposal for settlement allows recovery for fees that are incurred on the party’s behalf; thus, a party need not pay the fees out of pocket in order to recover.

In a legal malpractice suit against an attorney and his law firm, the attorney served a proposal for settlement. At the conclusion the litigation the court entered a final judgment in favor of the attorney and the firm and determined that the attorney was entitled to his fees even though the law firm paid those fees. Because the statute allows a prevailing party to recover fees incurred “by her or him or on the defendant’s behalf” the appellate court affirmed the award. Avra Jain v. Buchanan Ingersoll & Rooney, PC, N. 3D20-1529, 46 Fla. L Weekly D2575 (Fla. 3d DCA Dec. 1, 2021).

Party is not entitled to disqualification of trial judge who confines his or her remarks to the issue pending.

After the trial judge limited the testimony of an expert witness which the judge found to be an effort to introduce inadmissible hearsay, the party sought to disqualify the judge based on comments that she allegedly prejudged the case. The appellate court held that the party did not have a well-founded fear that he would not get a fair trial because of the judge’s rulings because the judge limited her comments to the scope of witness testimony and the pending motion in limine in an effort to streamline the issues in the case. While she explained the rationale for her decisions, she did not prejudge the ultimate issues in the case and any argument regarding possible prejudice or bias was, therefore, unfounded. Schmelzer v. Frankel, No. 3D21-1689, 46 Fla. L. Weekly D2517 (Fla. 3d DCA Nov. 24, 2021).

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