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By Debra P. Klauber, Esq.

IS IT THE RECEIPT OF THE MEDICAL MALPRACTICE NOTICE OF INTENT (OR THE MAILING OF IT) THAT IS RELEVANT FOR THE PURPOSES OF DETERMINING WHETHER THE STATUTE OF LIMITATIONS HAS BEEN TOLLED?

Boyle v. Samotin, 45 Fla. L. Weekly D1577, 2D18-2932 (Fla. 2d DCA July 1, 2020).

Where the plaintiff mailed her notice of intent one day before the statute of limitations expired, and the defendant did not receive the notice of intent until three days after the statute of limitations expired, the trial court held that the claim was barred. The Second District affirmed based on precedent, but recognized and certified a conflict with the Fourth and Fifth Districts on this issue and the dissenting judge sided with those districts, noting that the mailing or service of the notice of intent should suffice as the trigger date under the statute of limitations. This is one to watch.

ATTORNEY CANNOT WAIVE A PRIVILEGE OBJECTION THAT IS HELD BY THE CLIENT.

Ins. Co. v. Armour, 45 Fla. L. Weekly D2105, 2D18-4385 (Fla. 2d DCA Sept. 9, 2020).

In a declaratory judgment action, the appellate court upheld the trial court’s decision to allow limited depositions of the insurance company’s representatives to address whether the carrier was on notice of the claim. However, the appellate court ruled that the trial court had gone too far in allowing the depositions to include topics such as claims handling and business practices. Even though the carrier’s coverage counsel had consented to allow questioning on topics that should have remained protected, the court held that the attorney’s communications had not waived the client’s privilege objection. Owners

EVEN WHEN A DANGEROUS CONDITION IS OPEN AND OBVIOUS, THE OCCUPIER OF THE PREMISES IS NOT EXCLUDED FROM ITS DUTIES TO PROTECT AND WARN INVITEES OF THE UNREASONABLE RISK OF HARM. 

Greene v. Twistee Treat, USA, LLC, 45 Fla. L Weekly D2101, 2D18-4064 (Fla. 2d DCA Sept. 4, 2020).

See also, Echevarria v. Lennar Homes, LLC, 45 Fla. L. Weekly D1567, 3D19-1422 (Fla. 3d DCA July 1, 2020)(finding factual issue as to whether defendant’s uncommon design or mode of construction created a hidden danger).

In this premises liability claim, the trial court granted summary judgment in favor of the defendant based on a finding that a depression in the pavement was open and obvious. The appellate court reversed on several grounds.  First, based on the testimony, a jury could have reasonably concluded that the hole in the pavement was not open and obvious. Second, given the novel architecture of the ice cream shop and the patrons’ need to watch for other vehicles in the parking lot, a jury also could have concluded that an invitee negotiating the parking lot might not see the impending danger.

WHAT HAPPENS ON APPEAL IF THERE IS NO TRANSCRIPT?

Waites v. Middleton, 45 Fla. L. Weekly D2130, 1D19-414 (Fla. 1st DCA Sept. 10, 2020).

The appellant has the burden of demonstrating that there was an error by the trial court and, without a transcript of the proceedings, the appellate court is unable to resolve factual issues and the trial court gets the benefit of the doubt. The appellate rules allow for a statement of evidence to be filed with the appellate court. However, it is critical to note that the statement, and any objections or proposed amendments from the opposing party, are to be filed with the trial court for its approval before it can be considered a proper substitute for a transcript.

APPELLATE COURT SUGGESTS RECONSIDERATION OF THE EFFECT OF A BANKRUPTCY STAY DURING THE PENDENCY OF AN APPEAL BY THE DEBTOR.

Nat’l Medical Imaging, LLC v. Lyon Financial Servs., Inc., 45 Fla. L. Weekly D2071 3D20-730 (Fla. 3d DCA Sept. 2, 2020).

Under Florida law, an automatic stay is imposed on litigation when bankruptcy is filed. However, under the existing case law, that automatic stay provision does not apply in appellate court where it is the debtor who is seeking bankruptcy protection is the appellant. The rationale behind this policy is that the bankruptcy stay “acts as a shield” to protect the debtor who has already lost and should not continue to benefit from the stay. Recognizing that this earlier decision has created confusion and “mischief,” the appellate panel suggested that the court should reconsider and recede from that holding.

WHERE THERE IS NO SHOWING OF CRIMINAL INTENT, IT IS REVERSIBLE ERROR FOR TRIAL COURT TO DENY A DEFENDANT’S MOTION FOR ATTORNEYS’ FEES FOR DEFENDING A CIVIL THEFT CLAIM.

Island Travel & Tours, Ltd. v. Hauf, 45 Fla. L. Weekly D2071, 3D16-2085 (Fla. 3d DCA Sept. 2, 2020).

This litigation arose after a dispute over the distribution of funds collected during a brief joint venture. The plaintiff was eventually successful on the breach of contract claim, but the trial court granted a directed verdict on the civil theft claim, finding no evidence of criminal intent. Thereafter, the court denied the defendants’ motion for attorneys’ fees in defending the civil theft claim. The appellate court reversed, holding that when the trial court determined that there was no evidence presented in support of an essential element of the civil theft claim that was tantamount to a determination that the claim was without any factual or evidentiary support, warranting an award of the fees expended on the civil theft claim.

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