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

By Debra P. Klauber, Esq.

What, exactly, is a verified written medical expert opinion?

The Second District Court of Appeal recently clarified the presuit procedures in a medical malpractice case, which requires a medical expert to corroborate that the plaintiff’s lawsuit is based on reasonable grounds. The statute specifically requires a “verified written medical expert opinion.” In this case, the expert provided a corroborating letter which detailed his review of the case, included the opinions he formed in that review, and which was notarized. The defense challenged the sufficiency of the corroborating letter and the trial court found it to be sufficient. The appellate court reversed after explaining that the term “verified” is one of legal significance and highlighting the various methods by which a document can be verified under Florida law. Essentially, the document can be verified in several ways, each of which requires some kind of oath or affirmation or declaration by the person executing the document, none of which was present in this particular case. Al Andary v. Walsh, 2D21-3279, 47 Fla. L. Weekly D1370 (Fla. 2d DCA June 24, 2022).

Party who proves breach of contract is not necessarily the “prevailing” party entitled to an award of attorneys’ fees.

The prevailing party, for the purposes of recovering attorneys’ fees and costs, is the party that wins the “significant issues in litigation.” However, the prevailing party must, at least, secure some relief on the merits of the claim in order to achieve prevailing party status. There is no bright-line rule that a determination of a breach of contract, standing alone, always carries with it a finding that the non-breaching party is the “prevailing” party for the purposes of awarding fees and costs. Where the question of breach is the significant issue, the courts have awarded fees and costs to the party who has established the breach, even where damages have not been shown. However, where the question of damages is the significant issue in the proceeding, and there is no proof of damages, the party who breached can actually be the “prevailing” party when it comes to fees and costs. The Florida Supreme Court has given trial courts broad discretion in determining which party is the prevailing party and the analysis is very case specific. Perera v. Genovese, 4D21-2060 and 4D21-2755, 47 Fla. L. Weekly D1533 (Fla. 4th DCA July 20, 2022).  

Third District addresses the scope of arbitration provision in agreement between attorney and law firm.

When the attorney in this case joined her law firm, she executed an operating agreement that set forth her compensation, budgeting procedures, procedures for the disassociation and expulsion of a partner, and an arbitration clause. When the attorney was later terminated, she filed a lawsuit claiming breach of contract, seeking an accounting, and alleging intentional infliction of emotional distress, fraudulent misrepresentation, and violations of the Florida Civil Rights Act. The trial court concluded that the attorney’s claims for intentional infliction of emotional distress and violations of the Civil Rights Act, which were based on her high-risk pregnancy and request for accommodations, were not based on the terms of the agreement and were not arbitrable with the other claims. The appellate court agreed, finding that those claims lacked a sufficient nexus with the agreement that included the arbitration provision. Navarro v. Varela, 3D21-1791, 47 Fla. L. Weekly D1554 (Fla. 3d DCA July 20, 2022).

Reminder!  The new summary judgment rule requires reasons.

The new version of Florida Rule of Civil Procedure 1.510 requires the trial court to state the reasons for granting or denying a motion for summary judgment on the record. This obligation is considered mandatory. The court cannot simply make a conclusory statement that there is, or is not, a genuine issue of material fact. Rather, the court must state the reasons with enough specificity to provide guidance to the parties and the appellate court. Rkhub Logistics LLC v. Hubbell, 4D21-2665, 47 Fla. L. Weekly D1629 (Fla. 4th DCA Aug. 3, 2022).

Florida joins other states in addressing the legal issues involving the removal of a monument honoring Confederate soldiers.

Madison County, Florida was established in 1827 and named after President James Madison. In 1909, a life-size sculpture of a uniformed Confederate soldier was erected in a county-owned park, which was dedicated to those who fought in the Civil War. In 1926, the property was conveyed by the county to the city. Recently, the monument, like others around the country, became a focal point of local controversy and the city voted to remove it. Eight individuals, who were ancestors of those commemorated by the statue, sued to prevent the removal of the monument. The trial court found, and the appellate court agreed, that the plaintiffs’ various claims could not proceed. Both courts found that the plaintiffs had no standing to challenge the conveyance of the property, the city’s decision did not violate the terms of the conveyance. Likewise, the plaintiffs failed to establish that the monument was a recognized landmark, so their historic preservation claim was subject to dismissal, they did not have authority to enforce a criminal statute, and their free speech and free exercise claims were not actionable. Moreover, the City did not owe a specific duty to the plaintiffs which it had somehow breached, and their efforts at an implied contract claim were barred by sovereign immunity. Similar lawsuits around the country generally resolve in favor of the government. Hall v. Cooks, 1D21-1841, 47 Fla. L. Weekly D1649 (Fla. 1st DCA Aug. 3, 2022).

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