Friending Adverse Witness On Facebook or Myspace Violates Ethics Rules

There was an interesting article in the ABA Journal [here] today about a decision Philadelphia Bar Association’s Professional Guidance Committee stating that a lawyer may be violating ethics rules by "friending" an adverse witness on a social networking site.  The committee's decision can be found here. 

The lawyer requested the committee provide an ethics opinion after he took the deposition of a 19 year old witness.  He asked if he could have a third party "friend" the witness on Facebook and MySpace and indicated the witness accepted everyone who friended her. 

The inquirer has suggested that his proposed conduct is similar to the common -- and ethical -- practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.

Third District Reverses Unauthorized Advisory Opinion

In McMullen v. Bennis (3D08-2849), the Third District reversed the trial court's order as an unauthorized advisory opinion.

We also find the proceeding, as initiated by the parties, an unauthorized request for an advisory opinion. Although the Florida Supreme Court is expressly authorized to issue advisory opinions pursuant to several provisions of the Florida Constitution, see Art. IV, § 10, Fla. Const. (pertaining to citizen’s initiatives); Art. IV, § 1(c), Fla. Const. (pertaining to opinions requested by the governor); Art. V, § 2(a), Fla. Const. (pertaining to questions related to military law), and district courts of appeal are so empowered by the latter, trial courts have no authority to issue advisory opinions to parties. See Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994) (“[P]arties must not be requesting an advisory opinion, except in those rare instances in which advisory opinions are authorized by the Constitution.”) (internal citation omitted); see also Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (quoting May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)) (stating that petitions for declaratory relief “should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts”).

In this case, the validity of the decedent’s will is unresolved. Whether Bennis is a virtually adopted daughter becomes material to the probate proceeding only if the decedent’s will is invalid. Consideration of the validity of the decedent’s will necessarily must be the court’s first order of business. If the court determines the will is invalid, Bennis then may proceed as she deems appropriate.

Third District Reverses Order Finding Improper Service of Process

In Clauro Enterprises, Inc. v. Aragon Galiano Holdings, LLC (3D09-711), the Third District reviewed a decision from the trial court relating to a motion to quash service of process.

The court affirmed as to one defendant but reversed as to the other holding "that Aragon failed to comply with section 48.031(6), Florida’s substitute service statute, when it attempted to serve Rupcich, individually."

First, the court stated: "The statute only permits substitute service at a private mailbox if (1) it is the only address discoverable through the public records, and (2) the process server determines that the person to be served maintains a mailbox at that location...With regard to the first requirement, Aragon did not and could not meet its burden of establishing that the only address for Rupcich discoverable through the public records was a private mailbox. Rupcich’s affidavit clearly demonstrated that a review of the public records showed that since the year 2000 he has owned property in Weston, Florida for which he claims a homestead exemption...Nonetheless, we also conclude that Aragon failed to meet the second statutory requirement because it failed to show that the process server determined that Rupcich maintained a mailbox at the Weston UPS store. In support of its position that service was proper, Aragon points to the return of service. That return of service, however, merely recites that service was in accordance with section 48.031(6), but it does not demonstrate that Aragon met either statutory requirement. “An affidavit [of service] which merely alleges that the service of process statute has been complied with is insufficient to meet the proponent's initial burden of establishing proper service.”

Another Fourth District Decision Relating To Section 718.302

In Jupiter Ocean and Racquet Club Condominium Association, Inc. v. Courtside Properties of Palm Beach, LLC (4D08-3753), the Fourth District released its second decision discussing section 718.302, Florida Statutes in as many weeks.  The first decision was discussed here.  The association filed a declaratory action seeking to have a lease declared invalid.  The trial court applied section 718.302 and held that the unit owners had waited too long to cancel the lease.  The trial court also held the cancellation was barred by the doctrine of laches.  The Fourth District held:

In sum, to apply the cancellation right in section 718.302 to a lease entered into prior to its enactment would b e retroactive, and impermissibly impair the obligation of the contract. Because section 718.302 cannot be applied retroactively, the association never had the right to cancel the contract pursuant to the statute.2 The predecessor judge erred in holding that section 718.302(1) applied to the lease.  Nevertheless, the successor judge entered judgment for the lessee on different grounds. We therefore affirm.

Third District Affirms Dismissal For Lack of Standing

In Greenfield v. Stein (3D08-773), the Third District affirmed the trial court's order dismissing the appellant for lack of standing.  The court stated:

Greenfield was never listed in the chain of title of the real estate, and it is undisputed that he was released as both maker and guarantor of the loan. We therefore conclude that Greenfield lacks standing to prosecute DMS’s claims in his own name and that the trial court correctly granted the motion to dismiss Greenfield as a party plaintiff. See Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) (providing that “[s]tanding depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation. . . . Furthermore, the claim should be brought by, or on behalf of, the real party in interest”); James Talcott, Inc. v. McDowell, 148 So. 2d 36, 37 (Fla. 3d DCA 1962) (noting the general rule that shareholders, officers, and directors do not have standing to prosecute the corporation’s claim in their own name).

Third District Reverses Summary Judgment Against Progressive In Dispute Relating To Section 627.727, Florida Statutes

In Progressive American Insurance Company v. Gregory, Inc. (3D08-2238), the Third District reversed a grant of summary judgment because disputed issues of fact exist.  The court stated:

Section 627.727 of the Florida Statutes expressly provides that no motor vehicle policy for bodily injury coverage may be written in this state without also providing UM coverage, unless a written rejection of such coverage has been provided...While these facts confirm that Lon Worth violated the provisions of its agency agreement with Progressive, an issue remains as to whether Progressive sustained any injury as a consequence of that breach...This issue turns on whether Goff, the insured, did or did not want UM coverage. If he did, then Progressive suffered no harm as a consequence of Lon Worth’s breach; that is, Progressive incurred no harm flowing from Lon Worth’s failure to either secure a UM waiver or to advise Progressive that it had no UM waiver. If, however, Goff did not want UM coverage or decided after learning of its cost not to take it, then Progressive was injured because of Lon Worth’s failure to secure a UM waiver from Goff...We agree with Progressive that a factual dispute exists on this issue. As Progressive points out, a UM form was sent to Goff along with an application for motorcycle insurance on October 5, 1995. That form gave Goff the option to either reject UM coverage entirely or to select UM coverage at an amount less than the bodily injury liability limits of the policy. However, had Goff, as both he and Lon Worth claim, always wanted full UM coverage, there would have been no need to include this UM form in the application package.

Verdict Against NOVA Upheld -- Prejudgment Interest Reversed

In Nova Southeastern University of the Health Sciences, Inc., d/b/a College of Osteopathic Medicine v. Sharick (3D08-2507), the Third District held that "we agree that the court below correctly refused to award prejudgment interest on the loss of past earnings award because the jury failed to fix a date of that loss," however, "Because no prejudgment interest was appropriate in this case, awarding such interest between the date of the verdict and the date of the judgment was error."

See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985) (finding that prejudgment interest is awardable based on a mathematical computation “[o]nce a verdict has liquidated the damages as of a date certain”); cf. Herrero v. Pearce, 571 So. 2d 96, 97 (Fla. 1st DCA 1990) (where a monetary judgment was entered against a father requiring him to pay back child support, ordering that prejudgment interest be calculated at the statutory rate “from each monthly date of loss when [the father] should have made each payment”); Metro. Dade County v. Bouterse, Perez & Fabregas Architects Planners, Inc., 463 So. 2d 526, 527 (Fla. 3d DCA 1985) (where a party breached a contract calling for progress payments over a period of time, finding that prejudgment interest should be calculated on each progress payment from the date it would have become due). We also agree that no such interest was proper in this case as to the loss of future earnings. See Mission Square, Inc. v. O’Malley’s, Inc., 783 So. 2d 1151, 1152 (Fla. 1st DCA 2001) (finding that prejudgment interest is not recoverable where a judgment awards the present value of lost future damages, explaining that “[b]ecause present value actually replaces future losses, and takes into account an interest rate, it would be incongruent to tack onto the present value figure an additional interest rate representing a time prior to the time future losses begin to occur”).

Prior appeals in the same underlying disputes can be found at Sharick v. Southeastern University of Health Sciences, Inc., 780 So. 2d 136 (Fla. 3d DCA 2000).  A retrial took place in January 2008 which led to the most recent dispute.  An article in the SunSentinel titled "Appeals court upholds $4.3 million judgment against Nova Southeastern" can be found here.

Grandparents In Dependency Proceeding Do Not Have Constitutional Right To Counsel

In Justice Administrative Commission v. Stanford (1D09-2360), the First District reiterated that "grandparents of a juvenile in a dependency proceeding...do not have a constitutional or statutory right to such counsel and there is no authority to compel the JAC to effect payment of these fees."

First District On Punitive Damage Claims

Today in Wayne Frier Home Center of Pensacola, Inc. v. Cadlerock Joint Venture, LP, et al (1D08-1599), the First District reversed the trial court's denial of a motion to amend to add a claim for punitive damages.  The court stated:

To plead a claim for punitive damages, a party must comply with section 768.72, Florida Statutes...Section 768.72(1) provides that in any civil action no claim for punitive damages shall be permitted “unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Section 768.72(2) provides that after a claim for punitive damages is made, a defendant may be held liable for those damages only if the trier of fact finds based on clear and convincing evidence that defendant was personally guilty of intentional misconduct or gross negligence. In the case of an employer, a principal, corporation or other legal entity, section 768.72(3) provides that punitive damages may be imposed for the conduct of an employee if the employee was personally guilty of intentional misconduct or gross negligence, and (a) the employer actively and knowingly participated in such conduct; (b) officers, directors or managers of the employer knowingly condoned, ratified or consented to such conduct; or (c) the employer engaged in gross negligence which contributed to the injury suffered by the party making a claim for punitive damages.

***

Here, the Hartleys proffered evidence that the mobile home delivered was not the home which Ms. Hartley agreed to purchase when the purchase contract was signed. The Hartleys never lived in the home that was delivered and contacted Wayne Frier promptly to reject delivery. Ms. Hartley informed Roberson, Wayne Frier’s manager, who met Ms. Hartley after the delivery, that the home delivered was not the home she agreed to purchase. Further, Roberson testified that, as a matter of company practice, in the sale of repossessed mobile homes the homes could be switched and serial numbers changed on the sale documents without the purchaser signing the amended purchase contract. The purchase contract proffered by the Hartleys shows a change in the serial number. Under these proffered facts, when viewed in a light favorable to the Hartleys, there was a showing of a reasonable basis for the recovery of punitive damages. The evidence could support a finding that the management of Wayne Frier participated in the substitution of a mobile home without the consent of the buyer or condoned or consented to such practice. See § 768.72(3)(a) and (b), Fla. Stat.