Second District Reverses Denial of Directed Verdict

In St. Joseph's Hospital v. Cox (2D07-1038, 2D07-1471), the Second District reversed the trial court's denial of the hospital's motion for directed verdict.

In moving for a directed verdict, the hospital and ER doctor argued that the Coxes failed to prove that Mr. Cox more likely than not would have benefitted from tPA. We review this issue de novo, evaluating the evidence and inferences therefrom in the light most favorable to the nonmoving party. Sims v. Cristinzio, 898 So. 2d 1004 (Fla. 2d DCA 2005); see also Hancock v. Schorr, 941 So. 2d 409 (Fla. 4th DCA 2006).

***

It has been said that the more-likely-than-not standard for causation is satisfied with evidence of a "fifty-one percent or better chance." Jackson County Hosp. Corp. v. Aldrich, 835 So. 2d 318, 328 (Fla. 1st DCA 2002).

***

In negligence actions, Florida courts follow the "more likely than not" standard of causation, i.e., they require proof that the negligence "probably caused" the plaintiff's injury. Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). " 'A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' " Id. (quoting Prosser, Law of Torts § 41 (4th Ed.1971) (footnotes omitted)).

***

In the absence of competent evidence to prove that the failure to treat Mr. Cox with tPA more likely than not affected his outcome, the trial court should have granted the defense motion for a directed verdict. Under these circumstances, we must reverse the judgment.

First District Dismisses Premature Appeal

In Pauls v. Blank (1D09-1232), the First District dismissed the appeal as premature. The Court held that "the order on appeal is not an appealable order because there is a 'factual overlap between the claim resolved by the order and a pending claim'."

Florida Urges Supreme Court to Find Animal Cruelty Not Protected by First Amendment

The State of Florida filed a brief in the United States Supreme Court arguing as follows:

"This Court should reverse the Third Circuit Court of Appeals and hold that 18 U.S.C. § 48 is facially constitutional. States have a compelling interest in § 48 because it vitally assists efforts to deter and enforce their own animal cruelty laws by keeping perpetrators (and downstream distributors) from advertising, selling, and profiting from depictions of their vile crimes in any market...In sum, animal cruelty is a serious menace that demands tools like § 48 to assist state enforcement efforts. Also, the adage that crime should not pay has special importance in this context. The amici states urge this Court to reverse the Third Circuit and to recognize a compelling state interest in § 48. The states’ limited purpose in filing this brief is to show how 18 U.S.C. § 48 critically assists in the enforcement of the states’ longstanding animal cruelty laws. The Third Circuit erred by finding that no compelling governmental interest underlies the law. The amici states view the law as vital in support of their efforts to stamp out acts of animal cruelty that inflict much harm in their communities nationwide."

The brief can be found here.

At the Supreme Court...

The Supreme Court granted certiorari in United Student Aid Fund v. Espinosa (08-1134). The Court will decide: whether an individual who owes a student loan may wipe out the debt — at least partly — in a bankruptcy without showing that the debt posed an “undue hardship.” [From the SCOTUS Blog].

The Supreme Court also granted certiorari in Stop the Beach Renourishment v. Florida (08-1151). SCOTUS Blog described the issue in Stop the Beach as follows: "the Court will consider putting constitutional limits on states’ authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines." The decision under review, from the Supreme Court of Florida, can be found here.

The Court also agreed to hear a case "it had agreed to decide, but did not resolve, six years ago: when two companies agree to send their disputes to arbitration, may a court order that process to go forward as a class action, if the contract says nothing on that issue. The issue arises anew in Stolt-Nielsen S.A., et al., v. Animalfeeds International Corp. (08-1198)." [From the SCOTUS Blog].

A couple other orders from the Supreme Court are described by the SCOTUS Blog and quoted below:

"The Court, in another of Monday’s orders, invited the U.S. Solicitor General to offer the federal government’s views on an issue under the bankruptcy law’s Chapter 13 — what is the formula bankruptcy courts are to use in deciding how much a Chapter 13 debtor has available to pay creditors who hold no security, when a repayment plan is being fashioned. There is no deadline for the S.G.’s response. The case is Hamilton, Trustee, v. Lanning (08-998).

Among the cases the Court refused to hear on Monday was a constitutional dispute over the federal government’s powers to set aside federal and state laws that interfere with the building of the long fence on the U.S.-Mexico border, part of an effort to restrict drug traffic and thwart terrorist movements. The Court had turned aside that controversy a year ago (07-1180). This time, the Justices examined the new case at eight separate private meetings, then still came to the conclusion that it would not rule on it. The case is El Paso County, et al., v. Napolitano (08-751). As usual, the Court offered no explanation for denial of review.

In another denial, the Court refused to hear a claim that anti-Castro sentiment was so rampant in the Miami, Fla., area that a group of five Cubans could not get a fair trial there on charges of spying for that government. The case had stirred a strong international reaction. It was Campa, et al., v. U.S. (08-987)."

Insured Not Entitled to Fees for Certiorari Petition

In Grider-Garcia v. State Farm Mutual Automobile (5D08-3793), the Petitioner sought certiorari review of an order denying leave to amend the complaint and an order denying a motion to strike discovery requests. The Fifth District denied the petition for certiorari "because any error would be fully remediable on plenary appeal."

After disposing of the issue on appeal in the first paragraph, the Fifth District then addressed whether "Petitioner is entitled to a provisional award of fees for this proceeding tied to the ultimate determination whether she is the prevailing party in the suit against her insurer pursuant to section 627.428, Florida Statutes."

"Given the courts' narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins."

Order that Reduced Fees Awarded to Counsel Reversed by Fourth District

In Glantz and Glantz, P.A. v. Chinchilla (4D07-3279), the Fourth District reversed the trial courts reduction of an attorney fee award.

The personal representative of the estate was a member of a prepaid legal services program. The prepaid program provided legal services at a 51% discounted rate, or $115 per hour [in this situation]. The attorney worked 123 billable hours and an expert testified that - with the discount - $13,500 was a reasonable rate for the services. The trial court entered an order awarding 50% of the reasonable rate.

On appeal, "The law firm argues that the trial court abused its discretion in applying the 51% discount to the reasonable fee attested to by the expert without considering that the reasonable hourly rate had already been discounted by 51% pursuant to the prepaid legal services program."

Reviewing for abuse of discretion, the Fourth District reversed.

"Attorneys representing probate estates are entitled to receive reasonable compensation. § 733.6171, Fla. Stat. (2007). '[A] probate court should consider the nature of the services rendered and the necessity for their performance, together with the reasonableness of the charges'.

The trial court accepted the expert’s affidavit that $13,500 was a reasonable, already discounted fee. The trial court did not find the hours or the discounted rate to b e unreasonable. Nevertheless, the trial court inexplicably reduced the reasonable fee by another 51%. In doing so, it abused its discretion.

We therefore reverse and remand the case to the trial court to award the law firm $12,400 in attorney’s fees plus costs."

First District Reverses Disqualification of Counsel

In Walker v. River City Logistics, Inc. (1D09-0780), the First District reversed the JCC's disqualification of the petitioner's counsel.

The court held:

This court will grant a certiorari petition when an interlocutory order "departs from the essential requirements of law, causing material injury of an irreparable nature which cannot be remedied on appeal from a final order."

As Claimant points out, because disqualification of counsel denies a party its counsel of choice, such disqualification constitutes a material injury not remediable on plenary appeal...Disqualification of counsel is an extraordinary remedy...Accordingly, this court reviews an order of disqualification by certiorari and, upon a showing that the order departed from the essential requirements of law, this court may issue the writ.

The employer/carrier [E/C] argued that claimant's counsel should be disqualified because the employer "disclosed privileged documents to Claimant’s public defender in another proceeding. The E/C has not argued that this disclosure was inadvertent. The E/C’s voluntary disclosure of the documents
waived the privilege."

Rule 1.540 Does Not Apply to Non-Final Order

In Hollifield v. Renew & Co., Inc. (1D08-3677), the First DCA held the trial court improperly entered an order in an attempt to remedy counsel's admitted error in failing to file a notice of appeal. The court distinguished the error by counsel from "Pompi v. City of Jacksonville, 872 So. 2d 931 (Fla. 1st DCA 2004), whose holding applies to cases where the court or court staff substantially contributed to counsel’s failure to file a timely notice of appeal."

"We grant the petition because the circuit court departed from the essential requirements of law in utilizing Florida Rule of Civil Procedure 1.540 to allow an otherwise untimely notice of appeal.

***

As an alternative ground for issuance of the writ, our review discloses that Rule 1.540(b), under which the trial court granted relief, does not authorize relief from the type of order involved in this case. Rule 1.540 authorizes a trial court to grant relief "from a final judgment, decree, order, or proceeding" – not from a non-final order such as that at issue here. Fla. R. Civ. P. 1.540(b)."

Second DCA Reverses Directed Verdict

In San Marco Realty, Inc. v. Dopierala (2D08-1928), the Second District reversed the circuit court's order granting a judgment notwithstanding the verdict.

The court held:

"We conclude that the trial court improperly granted the Dopieralas' posttrial motion. The record reflects that there was conflicting evidence as to whether San Marco or FWS was responsible for maintaining the sewer system and manhole cover. Accordingly, based on the evidence presented at trial, the jury was entitled to conclude that FWS was responsible for maintaining the sewer system, was responsible for the defective manhole cover, and thus was responsible for David Dopierala's injuries. " '[U]nless the evidence as a whole, with all reasonable deductions to be drawn therefrom, points to one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury or in setting aside the jury's determination on conflicting evidence and substituting therefor his own evaluation of the evidence.' " Pahucki v. Armster, 161 So. 2d 719, 722 (Fla. 2d DCA 1964) (quoting Cash v. Gates, 151 So. 2d 838 (Fla. 2d DCA 1963)); see also N. Dade Golf, Inc. v. Clarke, 439 So. 2d 296, 298 (Fla. 3d DCA 1983) ("[A] trial judge is not authorized to act as a 'seventh juror' or to substitute his judgment for that of the jury on disputed questions of fact.") (citations omitted)."