Jeff's August 2023 Legal Roundup
Jeffrey Molinaro
Board Certified Specialist in Appellate Practice | Partner and Chair of the Appellate Practice Group at Fuerst Ittleman David & Joseph, PL
Jeff’s August 2023 Legal Roundup[i]
Just a couple cases that have caught my eye this month that I wanted to share. This month’s edition includes cases discussing standing to assert a claim
? The Eleventh Circuit on rehearing en banc held that consumers who received a single unwanted, illegal telemarketing text message suffered a concrete injury in fact sufficient to maintain standing to assert a claim under the Telephone Consumer Protection Act (“TCPA”). In so holding, the Eleventh Circuit appears to have receded from its prior opinion in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019) where it held that a single unsolicited text message did not establish concrete injury in fact sufficient to maintain standing to sue under the TCPA.
An injury is concrete if it actually exists—that is, if it is real and not abstract. These injuries can include both tangible harms, such as financial loss or physical injury, and intangible harms. Where Congress has identified an intangible harm, concreteness turns on whether the harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.
In finding that a single text constitutes concrete injury, the Court explained that the kind of harm associated with receiving an unsolicited text message is similar to the harm associated with the common-law tort of intrusion as both harms represent an intrusion into peace and quiet in a realm that is private and personal. Thus, because the harms are similar in kind, the receipt of an unsolicited text causes a concrete injury sufficient to establish standing.?
The Fourth District struck the portion of a lower court order denying modification of parental responsibility that found the Appellant/Father, in contempt. In so doing, the Court provided a discussion on the interplay between awarding relief not requested in the pleadings and the doctrine of trial by implied consent
As the Fourth District explained, the general rule is that courts are not authorized to award relief not requested in the pleadings. The granting of such unrequested relief is an abuse of discretion and reversible error.
This general rule can be overcome when is an issue is tried by consent. Such consent can be express or implied. An issue may be tried by implied consent where a party raises the issue, and the other party fails to object at the hearing. However, a failure to object cannot be construed as implicit consent to try an unpled theory when the evidence introduced is relevant to other issues properly being tried.
Here, in striking the contempt ruling, the court rejected the argument that Father tried the consent issue by implied consent. Mother argued the issue was tried by consent because Father failed to object to testimony related to his allegedly contemptuous conduct. However, the Fourth District found that this testimony was relevant to the matter properly before the court concerning the Father’s modification petition; thus, the issue of contempt was not tried by consent.
The Fourth District held that section 627.70152, Florida Statutes does not create a separate and independent right to attorney’s fees; instead, the section merely created the process for calculating the amount of attorney’s fees awardable under section 627.428, Florida Statutes. Thus, where no right to fees exists under section 627.428, parties cannot claim an independent basis via section 627.70152.
In this case, the insured suffered damage from an accidental discharge of water and the insurer accepted coverage and issued payment. Subsequently, the insured’s counsel sent a Notice of Intent to Initiate Litigation pursuant to 627.70152. The Notice demanded additional amounts for damages plus attorney’s fees. The insurer tendered the policy limits in response. The insured then filed suit claiming breach of contract based on the initial underpayment of the claim and the insurer’s failure to pay the full settlement demand including attorney’s fees set forth in the Notice of Intent.
Prior to serving the complaint, the insureds moved for attorney’s fees pursuant to section 627.70152. The insureds argued that “[t]he clear intent from [section 627.70152] is to require payment of attorney’s reasonable fees and costs if required to file a Notice of Intent.” The lower court granted the motion and entered final judgment for attorney’s costs and fees. The insurer appealed.
In reversing, the Fourth District relied upon two grounds. First, although the Court recognized that the confession of judgment doctrine authorizes attorney’s fees awards under section 627.428(1), the doctrine does not apply where the lawsuit was not a necessary catalyst to resolving the dispute over the amount of money owed under the policy. Attorney’s fees under section 627.428 cannot be awarded where no suit is filed prior to payment of the full amount of the proceeds due under the insurance policy. Here, because the insurer tendered the policy limits prior to a lawsuit being filed, and plaintiffs did not receive any payment of insurance benefits because of the filing of their lawsuit, attorney’s fees pursuant to 627.428(1) were not authorized.
Second, the Fourth District held that section 627.70152, Florida Statutes does not create a separate and independent right to attorney’s fees; instead, the section merely created the process for calculating the amount of attorney’s fees awardable under section 627.428, Florida Statutes. The Fourth District explained that it reads 627.70152(2)(d), “requiring a presuit settlement demand to ‘include the amount of reasonable and necessary attorney fees and costs incurred by the claimant’ as a notice provision designed to alert the insurer of its possible exposure to presuit attorney’s fees if it rejects the settlement offer and the insured later obtains a judgment or confession of judgment.” Ultimately, the Fourth District held that “[n]othing in the 2021 version of section 627.70152 created an independent right to attorney’s fees or otherwise changed the law requiring an insured to obtain a judgment or a confession of judgment to trigger entitlement to attorney’s fees under section 627.428."
The Eleventh Circuit clarified who must provide expert reports under Fed. R. Civ. P. 26(a)(2)(B). More specifically, the Court clarified what it means to be “retained or specially employed to provide expert testimony” under Rule 26(a)(2)(B).
Rule 26(a)(2) provides for disclosures related to expert testimony. Under 26(a)(2)(B), “if the witness is one retained or specially employed to provide expert testimony in the case…,” then the expert must provide a written report containing the information required at 26(a)(2)(B)(i)-(vi). If the witness is not required to provide a report under 26(a)(2)(B), then 26(a)(2)(C) merely requires that the expert disclosure state: (i) the subject matter on which the witness is expected to present evidence under Fed. R. Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.”
Cedant involved whether treating physicians who were first hired by their patients to treat rather than to testify are required to provide a report under Rule 26(a)(2)(B). In finding that no report was required, the Eleventh Circuit explained that the term “retained” does not simply mean paying a witness in exchange for expert testimony. Such a “hyper-literalist approach…would render Rule 26(a)(2)(C) a virtual nullity….”
Instead, the “retained” v. “nonretained” distinction depends on when and why an expert witness was hired. “A retained expert witness typically will get involved in a case to provide expert testimony and will derive her knowledge of the case from preparation for trial. A non-retained witness, on the other hand, will have at least some first-hand factual awareness of the subject matter of the suit.” Moreover, “[t]he expert’s job title, the subject or scope of his testimony, and the way that he formed his opinions are irrelevant inquiries for Rule 26(a)(2) purposes.” Instead, “[t]he only question presented by the Rule’s text is whether the witness was retained as an expert or otherwise employed as described in Rule 26(a)(2)(B).” As succinctly summarized, “whether an expert was ‘retained’ hinges on how she formed her relationship with the party she will testify for—not on the content of the testimony.”
However, the Eleventh Circuit expressly pointed out that this approach is merely the default rule under Rule 26. The text of Rule 26(a)(2) offers flexibility to adjust the initial rules for each category of experts: subsections (B) and (C) each contain a caveat that reports and disclosures must include the specified components “[u]nless otherwise stipulated or ordered by the court.” Fed. R. Civ. P. 26(a)(2)(B)–(C) (emphasis added). So the Rule explicitly empowers district courts (through orders or local rules) and parties (through written stipulations) to modify the usual disclosure requirements. Accord 1993 Committee Notes on Rule 26(a)(2). This allows for adjustments to the default rules as the circumstances of a case demand. Modifications of the default rule would be reviewed for abuse of discretion.
Here, because the case involved treating physicians and no modification to the default rule occurred, the lower court’s exclusion of these experts for failure to file reports was erroneous. The Eleventh Circuit vacated the order excluding Cedant's experts and remanded. On remand, the district court may evaluate his filings under Rule 26(a)(2)(C) as written. Or it may modify those requirements by issuing a new order requesting Rule 26(a)(2)(B) reports for causation witnesses.
5.?????????? Stiwich v. Progressive American Ins. Co., No. 2D22-1505, --So.3d-- (Fla. 2d DCA August 4, 2023).
The Second District held that an insurer’s tendering of the policy limits in response to a civil remedy notice can constitute a confession of judgment entitling a plaintiff to attorney’s fees under Florida’s Offer of Judgment statute—section 768.79(1), Florida Statutes—in a related case concerning uninsured motorist benefits. In so holding, the Second District clarified its own precedent. The case also demonstrates the interplay between coverage and bad faith litigation that insurance practitioners on both sides should be aware of.
In December 2020, Stiwich, the personal representative of decedent’s estate, filed suit against Progressive seeking to recover the $10,000 policy limits under decedent’s UM policy alleging the carrier issued the policy but failed and refused to pay. Progressive filed an answer and affirmative defenses denying the allegations. On July 14, 2021, Stiwich served a demand for judgment in the amount of $7,999.99. Progressive did not respond and the offer expired.
On November 12, 2021, Stiwich filed a civil remedy notice with the Florida Department of Financial Services as a prerequisite to filing a separate bad faith action. Within the sixty-day window provided by section 624.155(3)(c), Progressive paid the $10,000 policy limits.
After payment, Stiwich filed her motion seeking entry of “an order of Confession/Final Judgment” and requested attorney’s fees and costs under 768.79. Stiwich argued that Progressive’s payment of the UM policy limits was the functional equivalent of a confession of judgment or verdict in favor of the insured. Progressive opposed arguing that because it never denied coverage, its payment in response to a civil remedy notice could not be a confession of judgment but rather was a settlement. Progressive argued that because no judgment was entered in the underlying action, Stiwich was not entitled to fees under 769.79. The lower court agreed and denied the motion.
In reversing, the Second District held that Progressive’s tendering of the policy limits in response to a civil remedy notice while the underlying lawsuit was pending was an acknowledgment that the estate was entitled to benefits sought in that action. Thus, Progressive “confessed” judgment in the underlying action. The Second District explained that the confession of judgment entitled the estate to a final judgment that would entitle it to fees pursuant to 768.79(1).
The Second District also rejected Progressive’s argument that tendering the policy limits cannot be deemed a confession of judgment in the underlying suit because it never denied “coverage”; therefore, the underlying suit was not necessary to resolve any dispute between the parties. The Second District explained that its prior precedent stated that the existence of a bona fide dispute was the crucial condition precedent to treating a post-suit payment as a confession of judgment. Here, because Progressive’s answer in the underlying action denied “each and every allegation not specifically admitted,” including allegations the decedent was due UM coverage not paid, a genuine dispute over coverage existed.? In so holding, the Second District further explained that the case law does not support a distinction between a carrier’s denial of “coverage” and its denial of “liability.” Thus, where an insured filed a claim and the insurer failed to pay benefits on that claim, a genuine dispute arises.
6.?????????? State Farm Mut. Automobile Ins. Co. v. Advanced X-Ray Analysis, Inc., No. 3D22-739 (Fla. 3d DCA August 9, 2023).
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Another opportunity to explore the bounds of the “new” summary judgment standard. The Third District held that the continuance of a summary judgment hearing does not reset the time in which a nonmovant has to file its response and supporting factual position under Fla. R. Civ. P. 1.510(c)(5). Thus, the lower court did not abuse its discretion in striking additional evidence filed by the nonmovant between the continued hearing.
Below, the original summary judgment hearing was scheduled for October 21, 2021. During that hearing, the scheduled time ended before the parties could finish their arguments. As a result, the trial court continued the hearing. The continued hearing was scheduled for November 9, 2021. On October 28, 2021, State Farm, the nonmoving party, filed a new pleading attaching previously unfiled evidence, which it asserted was in response to Advanced’s motion. At the November 9, 2021 hearing, the lower court struck this evidence as untimely under Rule 1.510(c)(5). State Farm appealed arguing that the continuance of the originally scheduled hearing tolled the time for it to file a response because the trial court did not rule on the merits of Advanced’s summary judgment motion prior to the continued hearing.
In rejecting this argument, the Third District noted that Rule 1.510(c)(5) provides that the nonmovant has twenty days “before the time fixed for the hearing,” here October 21, 2021, to file a response. The trial court’s discretionary decision to continue the scheduled hearing does not automatically reset the clock for a nonmovant to file a response under 1.510. Put simply, “[a] party cannot evade the requirement to timely file based on a trial court’s discretionary choice to continue a hearing and allow more time for argument.” Moreover, the Third District found that even if the clock had been reset, State Farm’s evidentiary submission would still have been untimely because it was filed twelve days before the November 9, 2021 continued hearing. Under either reading, State Farm’s submission would be untimely.
On August 9, 2023, in Preston v. The Estate of Romanoff, No. 4D23-282 (Fla. 4th DCA August 9, 2023), Florida’s Fourth District Court of Appeal granted a petition for writ of certiorari and quashed the trial court’s order denying dismissal of plaintiff’s claims of negligence and wrongful death for plaintiff’s failure to comply with the mandatory requirements of section 400.023, Florida Statutes, i.e., the statute governs nursing home negligence actions in Florida.
This case is valuable for trial and appellate practitioners alike. For trial counsel, the case helps explain the requirements for nursing home negligence matters under 400.023, and for appellate attorneys, the case clarifies that certiorari is the proper avenue to seek review.
This case was the subject of my recent blog post and JD Supra article. The blog can be found on our firm’s website here. The JD Supra article can be found on their website here.
The Fifth District holds that the evidence required to sufficiently plead a claim for punitive damages based on a general business practice is different than that to survive a motion for directed verdict.
Below, after prevailing in a first-party lawsuit, the insured moved for leave to amend to assert a claim for punitive damages and a bad faith claim against the insurer. The amended complaint alleged that in the underlying lawsuit, the insurer ignored information in its own file confirming coverage for her claim, used faulty data when it denied the claim, failed to conduct a proper investigation of the claim, misrepresented the policy and coverages afforded under the policy, and refused to issue payment for coverage under the policy to restore the property to its pre-loss condition. The amended complaint further alleged that, as a general business practice, the insurer, “misrepresented pertinent facts or insurance policy provisions relating to coverages at issue, intentionally omitted language to mislead insureds and avoid paying claims, and failed to properly investigate claims.” To support these allegations, the insured detailed the insurer’s handling of her own claim and examples of three other similar claims.
In denying the insured’s motion for leave to amend, the trial court found that there had to be a showing of frequency of a general business practice of more than three other claims for punitive damages to be asserted. In making this finding, the lower court relied upon Howell-Demarest v. State Farm Mutual Automobile Insurance Co., 673 So.2d 526 (Fla. 4th DCA 1996).? The insured appealed.
In reversing, the Fifth District explained that the Howell-Demarest addressed the evidence required to establish a general business practice sufficient enough to withstand a motion for directed verdict, not a motion for leave to amend to assert punitive damages. Thus, Howell-Demarest’s “three is not enough standard” does not apply to motions for leave to amend.
Instead, the Fifth District explained that “[t]here is no magic number for other evidence required to show frequency of a general business practice in order to assert a claim for punitive damages—at a minimum it is the plaintiff’s own claim and at least one more. What is required 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.’” (quoting § 768.72(1), Fla. Stat.; citing Fla. R. Civ. P. 1.190(1)(f)). The Fifth District further explained that “[w]ithin the framework of this standard, [the court] view[s] the record evidence and the proffer in the light most favorable to the [complainant] and accept[s] it as true.”
Under this standard, the Fifth District held that, based on the actual and proffered evidence, a reasonable basis could be formed to allow the insured to plead a claim for punitive damages.
The Seventh Circuit held that the standard of review of a district court’s disposition of a pleading amendment under the “relation-back” provision of Federal Rule of Civil Procedure 15(c) is abuse of discretion. The case provides us with an overview of the interplay between Rule 15 and the relation-back doctrine. Criminal practitioners should also pay attention to the case due to the merits holding concerning allegations of ineffective assistance of counsel.
Pursuant to Rule 15(a)(2), district courts should freely give leave to amend when justice so requires when a party seeks to amend its pleading. This rule has been interpreted to allow amendments unless there is a good reason to deny such an amendment, such as futility, undue delay, undue prejudice, or bad faith. However, when a party seeks to amend a pleading after the expiration of the statute of limitations, the amendment is governed by relation-back doctrine described in Rule 15(c). Rule 15(c) allows for an amendment if the amendment “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
In the Seventh Circuit, although it was settled that the standard of review of a district court’s disposition of a motion to amend under Rule 15(a) is abuse of discretion, the standard of review of a district court’s disposition of a motion to amend under the relation-back doctrine was in dispute with the Circuit previously applying both the abuse of discretion and the de novo standards.
In holding that the abuse of discretion standard applied, the Court explained that the determination of whether a proposed amendment asserts a claim arising from the same conduct, transaction, or occurrence involves more than a facial comparison of the original and amended pleadings; the district court must also consider whether, under the particular circumstances of the litigation, the opposing party has been put on notice as to the claim raised in the proposed amendment. The district court’s familiarity with and proximity to the parties and proceedings will help it decide whether a defendant would (or reasonably should) be surprised by the amplification of the plaintiff’s originally asserted claims. Such decisions immerse the trial court in case-specific factual issues the type of which are typically reviewed under the abuse of discretion standard. Thus, because the relation-back doctrine under Rule 15(c) requires a district court to consider whether a nonmoving party would have been on notice of the amended claims based on all relevant circumstances, review of those decisions is subject to an abuse of discretion standard.
Criminal practitioners should note that this decision arose from an appeal of a denial of a motion to amend in a section 2255 habeas proceeding. Coleman sought to amend his 2255 motion to assert a new theory of ineffective assistance of counsel based on counsel’s failure in 2014 to raise an argument concerning the categorical approach to prior state-law cocaine convictions, despite there being no circuit precedent on the issue at the time.
After finding that the lower court abused its discretion in falling to allow leave to amend, the Seventh Circuit went on to hold that it would have been objectively unreasonable for defense counsel to not have considered a categorical challenge to the government’s reliance on prior state cocaine convictions to enhance Coleman’s sentence because: (1) despite there being no circuit precedent on the matter, the analytical framework to make such a challenge had been established prior to Coleman’s case; (2) there was no adverse precedent foreclosing such a challenge in 2014; and (3) applying a categorical approach would not have been considered too novel in 2014 to be recognized by competent defense counsel. However, if counsel did consider the argument and had credible strategic reasons for rejecting it, such conduct may not be considered unreasonable.
The Court further held a reasonable probability for prejudice existed because it is presumed that prejudice exists where a lower court relies upon an improperly calculated sentencing guideline. The lower court decision that Coleman’s amended motion did not relate back was reversed and the case was remanded to hold an evidentiary hearing.
The dissent agreed that the standard of review to be applied should be abuse of discretion but disagreed that remand was required. The dissent’s concern was that the majority’s ruling could imply that counsel can be found to be ineffective for failing to investigate arguments with no support in decided cases: “The proper measure of attorney performance remains simply reasonableness under the prevailing professional norms. Did ‘professional norms’ in 2014 require lawyers to investigate a potential legal argument with zero support in decided cases? I don’t think so.”
10.??????? Whitlow v. Tallahassee Memorial Healthcare, Inc., No. 1D21-3413 (Fla. 1st DCA August 16, 2023).
This opinion is not groundbreaking in terms of making new law on the summary judgment standard. However, the case is interesting because the First District explained how the summary judgment process comports with the constitutional right to trial by jury. I found the case interesting from a jurisprudential standpoint and a great read.
In describing the right to a trial by jury, the Court explained that the “right was a matter of substance, not one of procedure.” Thus, “[t]he aim of the guarantee ‘is not to preserve mere matters of form and procedure, but substance of right’; it simply ‘requires that questions of fact in common-law actions shall be settled by a jury, and that the court shall not assume, directly or indirectly, to take from the jury or to itself such prerogative.’” (quoting Walker v. N.M. & S P R Co., 165 U.S. 593, 596 (1897)) (emphasis supplied by First District).
As a result of this procedural and substantive distinction, historically, a trial judge “was free to determine whether the evidence presented was sufficient to warrant a jury determination as a matter of law, provided the judged limited the assessment to the quantum of evidence and not the weight of it.” The summary judgment process allows for this analysis to take place. Importantly, under the “new” standard (i.e. the federal standard), the trial judge evaluates a motion for summary judgment as they would a motion or directed verdict. In this way, “the trial judge now operates as a gatekeeper for use of a jury to resolve factual disputes both before and during trial.” (emphasis supplied).
When then is a non-movant guaranteed the constitutional right to trial by jury? “The non-movant’s right to a jury trial extends only to ‘factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If the trial court, upon review of the evidence produced by the party bearing the burden of proof at trial, concludes that there is no substantive evidence (rather than ‘merely colorable’ or ‘not significantly probative’), from which a jury reasonably could ‘return a verdict for that party,’ then it may grant summary judgment against the party without running afoul of the constitution’s jury-trial guarantee.” (quoting Anderson, 477 U.S. at 249–50).
The First District also provided an excellent analysis of when a summary judgment motion is defeated:
“To defeat summary judgment, then, there must be ‘some alleged factual dispute between the parties’ shown to be both ‘material’ and ‘genuine.’ (quoting Anderson, 477 U.S. at 247, 248). “Something is ‘material’ if it relates to the substantive law…. A material fact dispute is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” (quoting Anderson, supra). “While it is true that ‘inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion,’ the burden is on the non-movant to show that any such inference ‘is reasonable in light of [] competing inferences.’” (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).
[i] Jeffrey J. Molinaro, B.C.S., is board certified in appellate practice and chairs the appellate practice group at Fuerst Ittleman David & Joseph. Mr. Molinaro represents clients throughout Florida and the United States on various appellate matters. He can be reached at [email protected] or 305-350-5690.