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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.

Florida Supreme Court amends appellate rule to allow interlocutory review of orders granting or denying a motion for leave to assert a claim for punitive damages.

The Florida Supreme Court has added a new subdivision to Appellate Rule of Civil Procedure 9.130 which allows the district courts of appeal the opportunity to review non-final orders granting, or denying, a motion for leave to amend the complaint to assert a claim for punitive damages. A dissenting Justice Labarga notes that Florida is the only state with a rule like this in place. In re: Amendment to Florida Rule of Appellate Procedure 9.130, SC21-129, 47 Fla. L. Weekly S1 (Fla. Jan. 6, 2022).

Florida Supreme Court amends rules to address out-of-state attorneys working remotely from Florida.

The Florida Supreme Court amended rule 4-5.5 to state that a lawyer who is licensed in another state does not have a regular presence in Florida (for the practice of law) if the lawyer is working remotely while physically located in Florida for an extended period of time, so long as the lawyer is working exclusively on non-Florida matters and neither the firm nor the lawyer is holding him or herself out as having a Florida presence. In re: Amendments to Rule Regulating The Florida Bar 4-5.5, SC21-1379, 47 Fla. L. Weekly S51 (Feb. 17, 2022).

Trial court erred in refusing to award law firm reasonable fees under its charging lien without first determining who bore responsibility in creating the attorney-client rift.

Following a disagreement over whether to accept a settlement offer, the clients filed bar complaints against two lawyers. The lawyers and their firm subsequently withdrew from the representation. The trial court later prevented the firm from recovering reasonable fees pursuant to its charging lien. The Fourth District reversed, finding that the trial court was required to first determine whose conduct made continued representation legally or ethically improper. The court also noted that if the clients’ conduct had caused an ethical conflict, the firm was entitled to a quantum meruit recovery.  The Mineo Salcedo Law Firm, P.A., v. Cesard, 4D20-1761, 47 Fla. L. Weekly D193 (Fla. 4th DCA Jan. 12, 2022).

Following a thorough discussion of Florida’s dram shop statute and derivative liability, the First District concluded that a bar that served alcohol to an underage driver, was nevertheless permitted to assert certain affirmative defenses in the case.

In this complicated and tragic case, the night before the UF/FSU football game in Tallahassee, an intoxicated, underage pedestrian, who had been served alcohol at Bar #1, was struck and catastrophically injured by an intoxicated, underage driver, who had been served alcohol at Bar #2. Following a verdict in favor of the plaintiff, Bar #2 appealed, arguing that it should have been entitled to raise two affirmative defenses: (1) the alcohol defense; and, (2) comparative negligence. The First District agreed, essentially holding that even though Bar #2 was responsible for the actions of the impaired driver to whom it had served alcohol even though he was underage, the Bar should have been permitted to argue that the actions of the plaintiff, or Bar #1, had caused or contributed to the accident and injuries. Main Street Entertainment, Inc. v. Guardianship or Jacqueline Anne Faircloth, 1D19-4058, 47 Fla. L. Weekly D384 (Fla. 1st DCA Feb. 9, 2022).

Even where mental health records are relevant and discoverable because they relate to a plaintiff’s alleged damages, trial court should conduct in camera review.

In a wrongful death action, the decedent’s mental health records can be relevant and discoverable where any party relies upon his or her condition as an element of the claim or defense. However, the trial court is seemingly required to conduct an in camera review of those mental health records to ensure that only relevant records are produced. Lowitz v. South Alabama Brick Co., Inc., 1D21-1555, 47 Fla. L. Weekly D343 (Fla. 1st DCA Feb. 2, 2022).

Private high school did not have a duty to a student who was performing community service at a school-approved center.

After a high school student was injured while performing community service at an equestrian center, her parents sued the archdiocese, the school and the equestrian center. The trial court dismissed the claims against the archdiocese and the school based on a finding that there was no legal duty to the student at the time of her injuries. The Third District agreed. Even though the school had approved the equestrian center as a location where students could perform their community service hours, the school did not have any control over the site where the incident occurred; thus, the school did not owe a duty of reasonable care. Likewise, the school did not owe a duty of supervision where the activity was not sponsored by the school and the injury did not occur on the school premises. Neff v. Archdiocese of Miami, Inc., 3D20-1340, 47 Fla. L. Weekly D292 (Fla. 3d DCA Jan. 26, 2022).

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