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The below content previously appeared in the July/August issue of the Broward County Bar Association’s Barrister magazine.
Defendant and its counsel may be held jointly and severally liable for attorney’s charging lien where they issue settlement check without requiring lienor’s endorsement.
Once an attorney provides timely notice of a charging lien to the parties, the lien is perfected. Thereafter, the paying party has a duty to notify the lienor law firm of a settlement and to protect the law firm’s interest in the settlement proceeds. If that duty is breached, the paying party, along with the former client and subsequent counsel, may be jointly and severally liable for the lienor law firm’s fees. Placing the lienor law firm’s name on the settlement check, without requirement endorsement, was insufficient to protect the lienor, subjecting the defendant and its counsel, to a judgment against them for the amount claimed in the notice of charging lien. Kaster, Lynch, Farrar & Ball, LLP v. Clyde & Co., 3D2023-1747, 50 Fla. L. Weekly D906 (Fla. 3d DCA April 23, 2025).
Appellate court reverses trial court order allowing personal injury plaintiff’s personal cell phone to be searched and data extracted.
In this case, after being injured while riding a one-wheeled, battery-powered transportation device, the plaintiff sued the manufacturer for injuries. In his deposition, the plaintiff testified that he had not emailed or texted anyone about the accident, had not posted anything about it on social media, had not recorded the ride that was the subject of the lawsuit, and was not using his phone at the time of the incident. After the trial court issued an order allowing the defendant to inspect the plaintiff’s phone, he sought certiorari review. The appellate court concluded that the defendant’s general assertions that people tend to capture and share every aspect of their lives on their phones was insufficient to justify an intrusion into the plaintiff’s privacy. Absent a finding that some relevant information was likely to be found on the cell phone, the appellate court quashed the order allowing the inspection. The case includes an in-depth discussion of when this privacy right should bend in litigation, providing insight for practitioners seeking such information in discovery. Holikoytakis v. Future Motion, Inc., 2D2024-1499, 50 Fla. L. Weekly D919 (Fla. 2d DCA April 23, 2025).
In determining whether a party is entitled to attorneys’ fees and costs pursuant to a proposal for settlement, the “judgment obtained” should include the net judgment and any attorneys’ fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the day of the offer.
In determining whether a defendant is entitled to attorneys’ fees and costs after a proposal for settlement is rejected by the plaintiff, the court must calculate whether the “judgment obtained” is at least 25 percent less than the amount offered. When attorneys’ fees and costs are part of the underlying claim at issue, the judgment obtained is not just the amount of the net judgment. Instead, the court must also include the value of the attorneys’ fees and costs that had been incurred as of the time of the offer. In other words, the “pre-offer” attorneys’ fees and costs must be included in the judgment that is compared to the amount of the offer in the proposal for settlement. SFR Services, Inc. v. Florida Dept. of Financial Services, 6D2023-1050, 50 Fla. L Weekly D1129 (Fla. 6th DCA May 16, 2025).
Can the owner of the premises be included in a slip-and-fall suit where it is the tenant who maintains control of the premises?
In this case, the plaintiff sustained injuries after slipping and falling while exiting an elevated shower on the premises which were leased by a massage therapy business. The trial court granted summary judgment in favor of the owner of the premises, but the appellate court reversed, finding that there were questions of fact about the owner’s responsibilities. Under the lease, the tenant was required to obtain the owner’s consent before making changes to the premises. Additionally, although the lease made the tenant responsible for most repairs, the owner also retained the right to enter the premises to inspect, maintain, repair or alter the premises. Because the lease language created a question of material fact over the degree of control the premises owner continued to exercise, and because of questions about whether the owner had notice of the allegedly dangerous condition, the summary judgment was reversed. Hu v. Hua, 4D2024-1364, 50 Fla. L. Weekly D1087 (Fla. 4th DCA May 14, 2025).
Award of attorneys’ fees in unpaid wage case should not have included attorneys’ fees for the other claim at issue in the litigation.
Where a party is entitled to an award of attorneys’ fees only on some claims involved in the litigation, it is that party’s responsibility to allocate fees between those claims upon which fees can be claimed and those which do not allow fees. This case involved a deep dive into the discussion of claims that are considered inextricably intertwined, which requires both a common core of facts and related legal theories. Ultimately, the appellate court determined that the other claims and the vast majority of the counterclaims in the suit (for unjust enrichment, partition of real property, misappropriation of trade secrets, tortious interference, defamation and breach of the duty of loyalty) were not inextricably intertwined with the unpaid wage claim and concluded that the trial court erred in awarding fees related to the other theories and remanded for a new fee hearing. Carl Domino, Inc., v. Dixon, 4D2024-0646, 50 Fla. L. Weekly D1155 (Fla. 4th DCA May 21, 2025).