Question As To Whether Legislature Can Limit Attorneys Fees in Claims Bill Sent To Florida Supreme Court

In July, the Fourth District issued an opinion discussed HERE in a post titled "Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill." Today, in THIS opinion, the court granted the Appellant's motion for certification as a question of great public importance and certified the following question to the Florida Supreme Court:

AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND THE ADOPTION OF FLORIDA SENATE RULE 4.81(6), IS IT CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO LIMIT THE AMOUNT OF ATTORNEYS’ FEES PAID FROM A GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL?

 All three members of the panel concurred in the certification order.

Fourth District On The Retroactive Application of Section 768.0755 (Conflict Certified), Jury Interviews, & Non-Delegable Duty of Care

 In Pembroke Lakes Mall LTD v. McGruder (4D11-4005), the Fourth District affirmed in part, reversed in part, and certified conflict with the Third District’s decision in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013). The court “conclude[d] the trial court properly denied the Mall’s motion for directed verdict and the court did not abuse its discretion by denying the motion for mistrial following McGruder’s improper arguments. We also affirm the trial court’s decision to not apply section 768.0755 retroactively, and we certify conflict with the Third District on that issue. We reverse on the issues of the juror interviews and the cross-appeal, and remand for the court to allow Pembroke Lakes and Millard to conduct interviews of the jurors.”

Retroactive Application of Statute

The court first addressed “whether section 768.0755, Florida Statutes (2010), applies retroactively.” In 2001, in a slip and fall case, the Florida Supreme Court held that “all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 320 (Fla. 2001). The Fourth District stated that “in 2002, apparently in response to Owens, the Florida Legislature enacted section 768.0710, Florida Statutes (2002), establishing the ‘burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.’” However, in 2010, the legislature again amended the statute in a substantial way. "The legislature repealed section 768.0710 and replaced it with section 768.0755, Florida Statutes (2010) and therein provided an effective date of July 1, 2010. In revising the law and repealing section 768.0710, the legislature did not state the new statute should apply retroactively. Section 768.0755 is entitled ‘Premises liability for transitory foreign substances in a business establishment’.”

The issue was whether the 2002 version of the law, or the 2010 version enacted after the alleged incident, would apply to this claim. To determine whether a statute can be applied retroactively:

The Florida Supreme Court has set a two-prong test for determining whether a statute applies retroactively: “‘First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.’” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So. 3d 187, 195 (Fla. 2011) (quoting Menendez v. Progressive Express Ins. Co., 35 So. 3d 873, 877 (Fla. 2010)).

“As to the first prong, legislative intent, the legislature gave no indication in section 768.0755 that the statute was to be applied retroactively.” However, “the general rule against retroactive application of statutes does not apply to procedural or remedial changes.” "Thus, the issue is whether section 768.0755 is procedural or substantive. ‘ S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.' Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citation omitted).”

As to this specific change, and contrary to the Third District’s conclusion in Kenz, the court stated that “the shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof.” The court also “respectfully disagree[d] with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiff’s cause of action.” Therefore, the statute could not be applied retroactively.and held that “for these reasons, we affirm the trial court’s decision to apply the 2002 statute (section 768.0710) rather than the 2010 law (section 768.0755), and certify conflict with the Third District’s Kenz decision.”

Post-Trial Jury Interviews

The court also addressed the trial court’s denial of a motion to conduct post-trial jury interviews. "Where, as here, the basis of a request for post-trial interviews is the jurors’ alleged nondisclosure of information during voir dire, “the motion should demonstrate entitlement to a new trial under the three-part test” of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995).” The court stated that:

Applying these principles to the instant case, we must conclude that the trial court abused its discretion by denying the motion to interview the jurors. “Although generally post-verdict juror interviews are disfavored, where there is adequate proof that a juror may have failed to disclose material information on voir dire, a party is entitled to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono, 112 So. 3d 620, 624 (Fla. 4th DCA 2013).

The court stated that while the disclosure of prior litigation by a juror is always relevant, it is not always material. "Here, the prior litigation was potentially material to this slip and fall litigation. At least one of the jurors, Jorge, was involved in a personal injury protection lawsuit and may have participated in other litigation that was relevant and material to the instant case.” 

After establishing the information was material, the movant was still required to establish that the juror concealed the information and that the concealment was not the fault of the movant. On those issues, the court stated: 

The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth…. The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. … The nondisclosure need not be intentional to constitute concealment. Here, the concealment prong was met because the court unambiguously asked the challenged jurors whether they or their families were involved in or had been involved in any litigation apart from divorces, and all four categorically answered that they had not.

Finally, the third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party. If a juror mentions involvement in litigation and the complaining party does not ask follow-up questions, the party cannot then obtain a new trial because of undisclosed information relating to the litigation. … However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. Here, the jurors categorically answered that they had not been involved in prior litigation, in response to a clear question posed by the court. The parties were entitled to rely on the sacrosanct underpinnings of voir dire. The jurors’ answers and nondisclosures were not due to the fault of Pembroke Lakes or Millard.

Non-Delegable Duty of Care

The final issue addressed in the court’s 16 page opinion relates to “McGruder’s claim that the trial court erred by refusing to hold Pembroke Lakes liable for the negligence attributed to Millard.” The court’s opinion provides more analysis than is included here but, generally, the court held as follows:

Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees ….The premises owner cannot avoid liability for the breach of its statutory duty by contracting the maintenance and cleaning function at the [premises] to others. …. When an owner owes a non-delegable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner is jointly and severally liable for the negligence attributed to the contracted party. …. Pembroke Lakes raises numerous arguments in opposition to imposing liability against it for the negligence attributed to Millard. We reject each argument

One of the three arguments discussed, and rejected by the court relates to the difference between a non-delegable duty and vicarious liability. Because it is apparently a source of confusion, the court’s clarification is copied below:

Pembroke Lakes’ argument that a finding of agency is required to impose liability against a premises owner for a breach of a non-delegable duty is incorrect. Pembroke Lakes, like many parties and some courts, erroneously conflates the concepts of non-delegable duty and vicarious liability. … Vicarious liability is a form of indirect liability in which a party, who may have not been negligent, can be held liable for the acts of another party. … In contrast, a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.  

Second DCA Certifies Question Regarding Standing In Foreclosure Suits to Florida Supreme Court

In Focht v. Wells Fargo Bank, N.A. (2D11-4511 & 2D11-4980), which was released a few weeks ago, the Second District certified the following question to the Florida Supreme Court as one of great public importance:

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?

In the opinion, written by Judge Silberman, the Court "reverse[d] the final judgment of foreclosure because a genuine issue of material fact exists regarding Well's Fagro's standing to enforce the note and mortgage."

At a summary judgment hearing, "Wells Fargo asserted that it had standing by virtue of an assignment of the note and mortgage dated September 2008, which was several months after the complaint was filed. Wells Fargo alternatively asserted that it had standing as the holder of the original note endorsed in blank. In opposition to Focht's cross-motion for summary judgment, counsel for Wells Fargo addressed Focht's affirmative defenses and argued that each was either factually or legally insufficient."

The court concluded that "A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note….But standing must be established as of the time of filing the foreclosure complaint….Thus, Wells Fargo's submission of a postfiling assignment of the note and mortgage does not establish that it had standing when it filed the lawsuit." 

In this case, "Wells Fargo alternatively argues that it established standing by submitting the original note endorsed in blank….As with the assignment, however, Wells Fargo did not submit the original note until several months after it had filed the complaint. To establish standing as the holder of a note endorsed in blank, a party must be in possession of the original note…..Thus, Wells Fargo was required to submit evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint to establish standing."

In this case, the blank endorsement, which is apparently located on the back of the note, did not get copied for the record….Although Wells Fargo alleged in its unsworn complaint that it was the owner and holder of the note and mortgage, it asserted that the original note had been lost or destroyed and 'is not now in the custody and control of [Wells Fargo].' Notably, the affidavit of indebtedness filed in support of summary judgment relies on the postfiling assignment for standing." Therefore, the judgment was reversed.

The court "also certif[ied] a question based on some of the same concerns articulated by Judge Altenbernd in his concurrence."  The court stated:

For our part, appellate courts have seen a recent influx of appeals in which defendants have successfully argued that the trial court erred in entering a foreclosure judgment in favor of the plaintiff because the plaintiff failed to establish standing at the time of filing. ...In many of these cases, the plaintiff presented unrefuted proof of standing acquired after filing but prior to the final hearing. … The appellate courts are nonetheless compelled to reverse based on the district courts' application of a long line of supreme court cases applying the general principle that "the plaintiff's lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed."… 

We note that the supreme court has not applied this standing principle inthe exact context presented in this case. And we question whether, in light of the ongoing foreclosure crisis in this State, the supreme court would adhere to this principle in cases in which a plaintiff has acquired standing by the time judgment is entered. Accordingly, we certify the following question as one of great public importance:

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?

Judge Altenbernd wrote a concurring opinion that began:

I concur in this decision because existing precedent requires me to do so. A requirement that the plaintiff prove that it owned or possessed a promissory note at the commencement of a foreclosure action may have made sense during earlier periods of economic downturn,3 but in this era of securitization of mortgage debt and computerized banking, it has proven to be a restriction that often provides a windfall to a borrower who can prove no harm by the fact that the plaintiff obtains possession of the note after the filing of the lawsuit but before the entry of judgment. So long as there is no dispute that the borrower received the money and defaulted on the note, the law should not use "standing" to require the dismissal of a lawsuit. If the defendant raises this issue at the inception of the lawsuit this affirmative defense may warrant a delay in the proceedings while the plaintiff establishes that it can enforce the note. But especially when the original note in default has already been filed in the court record, the law should generally permit a plaintiff to obtain a judgment of foreclosure if the plaintiff establishes that it has a right to enforce the note at the time it seeks to obtain a final judgment…. 

Second District Certifies Conflict Regarding Jurisdiction To Review Partial Final Judgments

In Universal Underwriters Insurance Co. v. Stathopoulos (2D12-2412, 2D12-3606), the Second District granted a motion to dismiss, concluding that review of the partial final judgment appealed would constitute improper piecemeal review. The court certified conflict to the Florida Supreme Court.

In the case, an underlying lawsuit relating to a car accident had been resolved. The second lawsuit ws described as follows:

In the subsequent lawsuit underlying this appeal, Ms.Stathopoulos and Western General filed a three-count amended complaint againstUniversal for declaratory relief and for breach of contract and bad faith for Universal'sfailure to defend and indemnify the driver in the wrongful death lawsuit. The order onappeal declares that the driver was an insured under Universal's policy and notes thatthe other two counts remain pending.

After discussing its jurisdiction and the various rules, the Second District stated:

Because the amended complaint reflects that the three counts are based on the samefacts and are intertwined, we conclude that allowing an appeal of the declaratory countat this stage would foster impermissible piecemeal review. See Mendez v. W. FlaglerFamily Ass'n, 303 So. 2d 1, 5 (Fla. 1974).

After concluding jurisdiction as a final order or non-final order was inappropriate and that it did not have certiorari jurisdiction, the Second District dismissed the consolidated appeals. However, they also certified conflict to the Florida Supreme Court which was included in a footnote. The issue certified is below:

We note that other courts have resolved appeals in similar postures under rule 9.110(m) or Reed, albeit without explicit jurisdictional analysis. See, e.g., Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So. 3d 975 (Fla. 4th DCA 2011); Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998). To the extent that the present case is in conflict with these decisions, we certify the conflict. We reach the same conclusion as did the First District in Mercury Insurance Co. of Florida v. Markham, 938 So. 2d 607 (Fla. 1st DCA 2006), although by a somewhat different analysis.

 

Facebook Friends With The Judge? Fourth DCA Certifies Question

In Domville v. Florida (4D12-556), the Fourth District addressed the issue of a judge being Facebook friends with a lawyer appearing before the Judge (see below as Florida's Judicial Ethics Advisory Committee issued an opinion on the issue in 2009). The court certified the following question to the Florida Supreme Court:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

In a special concurrence, Judge Gross stated that "recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook...[but]Judges do not have the unfettered social freedom of teenagers." (emphasis is mine).

Judge Gerber dissented as to certification and stated:

The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.

The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”

Related, but not discussed, is a 2009 Florida's Judicial Ethics Advisory Committee opinion that addresses this exact issue and concludes the answer is NO. A judge cannot be Facebook friends with the lawyers that practice before that Judge. See a prior post on the issue HERE. That opinions summary of issues stated, in part:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

Issue Relating To Collection Of Judgment Against The State Certified To Florida Supreme Court

In Florida Department of Agriculture And Consumer Services v. David Mendez (4D11-4644), the Fourth District stated: "Pursuant to Florida Rule of Appellate Procedure 9.125, we certify the following question to be of great public importance:

Are property owners who have recovered final judgments against  the  State  of  Florida  in  inverse  condemnation proceedings  constitutionally  entitled to invoke the  remedies provided  in  section  74.091,  Florida  Statutes,  without  first petitioning  the  Legislature  to  appropriate  such funds pursuant to section 11.066, Florida Statutes?

The court's opinion in the case, released on July 25, 2012, can be viewed HERE. In the July 25th opinion, the court held: "We  reverse  that  portion  of  the  Palm  Beach  County  order  allowing execution against the Department and remand to the  circuit  courts for further  proceedings  consistent  with this  opinion.   We  also  reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe."