Jeff's January 2025 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 January 2025 Legal Roundup[i]
Happy New Year. The Roundup is back for 2025. Just a couple of cases that caught my eye. This month’s edition includes what evidence is needed to establish a question of fact on actual agency between a treating physician and a hospital in a medical malpractice case, whether unsupported factual allegations are sufficient to grant leave to amend a complaint to add a claim for punitive damages, when a nonfinal order regarding entitlement to arbitration is not subject to the nonfinal appeals process under 9.130, the ability to bind a non-signatory minor to an arbitration agreement, whether the words “without prejudice” is enough to conclude an order is nonfinal, and whether an administrative law judge can find that an exhibit already admitted into evidence is inadmissible without giving the parties notice or an opportunity to be heard on the issue. We cover medical malpractice, arbitration, punitive damages, finality, administrative law, and more in this one.
?1.?????????? Moore v. Toub, No. 5D2024-0114 (Fla. 5th DCA Dec. 27, 2024).
The Fifth District discusses what evidence is needed to establish a question of fact on actual agency between a treating physician and a hospital in a medical malpractice case in this one.
Here, the decedent died after having surgery performed at Florida Hospital. Decedent’s estate sued the hospital for vicarious liability based upon an alleged actual agency relationship between the treating physician and the hospital.
The hospital moved for summary judgment. The lower court granted summary judgment in favor of the hospital explaining there was no contract or other employment relationship between the physician and the hospital, nor was there evidence of an acknowledgement by the hospital that the physician would act on its behalf when providing healthcare services to the decedent or the physician’s acceptance of any such undertaking. The Estate appealed.
In affirming, the Court explained that generally a hospital will not be liable for the negligence of a physician working in the hospital as an independent contractor or where the independent physician is merely granted staff privileges. Liability may attach, however, if the physician is an actual or apparent agent of the hospital. Towards that end, under agency theory the right to control rather than the relationship between the parties’ determines whether an agency relationship exists.
The Court held that the Estate did not establish control by the hospital. In support of its actual agency claim, the Estate relied upon language in the employment agreement between the physician and a third-party entity. The hospital was not a signatory to this agreement nor explicitly referenced by name.
?Instead, the Estate relied on section 1.3.4.1, the “Patients” paragraph contained in the “Practice” subsection of the agreement, providing that the physician “shall treat all patients as determined by Hospital,” that the hospital “reserves the right to determine who will be accepted as a patient,” and that physician could not deny services to a patient based on race, age, etc., unless certain exceptions applied, to argue that the physician “does not determine his nor choose[s] his patients . . . but that the hospital chooses the patients.”
In rejecting the Estate’s position, the Court explained the provision neither required the physician to receive permission from the hospital regarding who to treat nor gave the hospital the ability to control the means by which the doctor rendered medical services to his patients. Rather, the provision informed the physician that the hospital reserved the ability to admit or not admit patients. Further, the Court made clear that a hospital’s granting of staff privileges, without more, is insufficient to create a jury question on whether a healthcare provider was acting as an agent of a hospital.
2.?????????? Palm Bay Towers Condo. Ass'n, Inc. v. Marrazza, No. 3D23-1952 (Fla. 3d DCA Jan. 2, 2025).
The Third District reverses an order granting leave to amend to add punitive damages. In so ruling, the Court again makes clear that allegations alone, unsupported by proffered evidence, are insufficient to allow leave to amend to add a claim for punitive damages.
This case involved a condo association’s failure to repair or demolish a dock pursuant to an unsafe structures notice by the City of Miami and the subsequent lawsuit by unit owners alleging gross mismanagement when the association failed to act. After discovery, the plaintiffs moved to amend to add punitive damages. Plaintiffs proffered evidence in support of their motion and the association proffered counterevidence in response. Following a non-evidentiary hearing, the lower court granted leave and the association appealed.
In reversing, the Court explained that leave to amend is permitted where the plaintiff makes “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” In making this determination, the Court considers both the factual allegations and the proffered evidence in support.
Here, because plaintiffs sought to hold the association directly liable for gross negligence, plaintiffs must ultimately prove at trial gross negligence on the part of the association’s agent and prove that the association “either actively or knowingly participated in such conduct; knowingly condoned, ratified or consented to such conduct; or engaged in conduct that constituted gross negligence which contributed to plaintiffs’ damages.”
Upon reviewing the complaint and the proffered evidence in support, the Court found that although the complaint made allegations of self-dealing or fraudulent conduct, these allegations were not supported by the proffered evidence; thus, standing alone, the allegations could not meet the standard for leave to amend.
The case is also noteworthy for the final paragraph. Keep this string cite in mind when opposing a motion for leave to amend to add punitive damages:
As the Florida Supreme Court has reaffirmed: “The character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.' ” Valladares v. Bank of Am. Corp., 197 So. 3d 1, 11 (Fla. 2016) (quoting Ballard, 749 So. 2d at 486). Plainly stated, the showing by plaintiffs in the instant case, “falls short of meeting that standard.” Estate of Blakely et al. v. Stetson Univ., Inc., 355 So. 3d 476 (Fla. 5th DCA 2022). See Dominguez, 295 So. 3d at 1206 (reiterating that “punitive damages are only warranted if there is evidence of negligence on [defendant's] part ‘equivalent to the conduct involved in criminal manslaughter.' ”) (citation omitted). See also Tiger Point Golf & Country Club v. Hipple, 977 So. 2d 608, 610 (Fla. 1st DCA 2007) (holding Club's notice of badly deteriorated condition of handrail several weeks prior to plaintiff's injury was a breach of its duty to invitees but not enough to support a punitive damages claim because conduct for such damages “properly condemns and hopefully deters . . . willful and wanton misconduct of a character no less culpable than what is necessary to convict of criminal manslaughter.”); Crump, 383 So. 3d at 887 (allegations in proposed amended complaint that movie theater inadequately trained employees to prevent stampede fell short of the gross negligence necessary for punitive damages claim to proceed); Friedler v. Faena Hotels & Residences, LLC, 390 So. 3d 186 (Fla. 3d DCA 2024) (evidence insufficient to demonstrate that Faena “knew that it had anything more dangerous than the apparently slippery condition of a wet spa floor” and thus, that its conduct “was so willful or wanton as to warrant the punishment of punitive damages. Punitive damages are reserved for only the most egregious cases.”); Ebsary Found. Co. v. Servinsky, 378 So. 3d 625 (Fla. 4th DCA 2023) (holding that breaches of a professional standard of care cannot be converted to a claim for punitive damages simply by labeling them grossly negligent; Pinnacle Prop. Mgmt. Servs., LLC v. Forde, 372 So. 3d 292, 296 (Fla. 4th DCA 2023) (holding property manager's “alleged conduct in failing to fix the gate or take other security measures is not ‘so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.' ”); Hospital Specialists v. Deen, 373 So. 3d 1283 (Fla. 5th DCA 2023) (assigning nurse practitioner to after-hours call for doctor's patients “did not rise to a willful and malicious level” to expose hospital to punitive damages.).
The Third District explains when a nonfinal order regarding entitlement to arbitration is subject to the nonfinal appeals process under 9.130. In short, the answer depends on who is doing the ordering.
This case stemmed from a nonfinal administrative order regarding entitlement to arbitration. Appellants sought review pursuant to Rule 9.130(a)(3)(I). The issue before the court was whether the filing should be treated as a nonfinal appeal under 9.130(a)(3)(I) or as a petition for writ of certiorari seeking review of nonfinal agency action under Rule 9.100(c).
领英推荐
In holding that 9.100(c) governed, the Court provided detailed discussion of the sources of their jurisdiction to review such decisions. Jurisdiction to review nonfinal orders of the trial courts stems from the Florida Supreme Court’s power to promulgate rules pursuant to Article V, section 4(b)(1) of the Florida Constitution. Rule 9.130 is an exercise of the Florida Supreme Court’s power to grant jurisdiction over nonfinal trial court orders.
Jurisdiction to review administrative orders derives from the Legislative’s power to enact general law pursuant to Article V, section 4(b)(2) of the Florida Constitution. Pursuant to that power, the Legislature enacted section 120.68(1)(b), Florida Statutes that states “A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”).
The Court further explained that although the term “nonfinal orders” is “somewhat ambiguous” in 9.130, the rule states that “[r]eview of other nonfinal orders in such courts and nonfinal administrative action shall be by the method prescribed by rule 9.100.” The Court held that the phrase “in such courts” and the distinction between “nonfinal orders in such courts” and “nonfinal administrative action” clarifies that 9.130 only applies to nonfinal orders of the trial courts. Thus, Rule 9.130 providing the method for review of nonfinal orders “in such courts” and Rule 9.100 providing the method for review of “nonfinal administrative action.”
The distinction is important because of the differences in how and when the appeal is presented. Rule 9.130 nonfinal appeals are commenced with the filing of a notice of appeal within 30 days of rendition of the order. Rule 9.130(b). The initial brief is due within 20 days of the filing of the notice. Rule 9.130(e). An appendix is required to be submitted with the initial brief. Id. Additionally, the format of the brief is the same as that required for appeals of final orders. Rule 9.210. Review of nonfinal agency action is commenced by filing the petition itself within 30 days of the rendition of the order. The format of the petition is governed by 9.100(g).
Just something practitioners must keep in mind when evaluating an appeal or review of an order regarding entitlement to arbitration.
Interesting case on arbitration and the ability to bind a non-signatory minor out of the Fourth District.
Plaintiff was a minor when he was allegedly injured by equipment which his mother had rented from U-Haul. Plaintiff sued U-Haul for negligence. U-Haul sought to compel arbitration pursuant to the arbitration agreement in the mother’s rental contract. Plaintiff argued that the agreement was not valid and even if it was, it could not be enforced against a non-party to the rental contract. The lower court granted U-Haul’s motion to compel arbitration and ruled that questions as issues of arbitrability are to be handled by the arbitrator under the terms of the agreement. Plaintiff appealed.
In reversing, the Fourth District held that although the lower court was correct in finding that issues of arbitration were to be decided by the arbitrator; however, it erred in finding that the arbitration agreement applied. The Fourth District explained that generally, nonparties cannot be bound by an arbitration agreement and that, although an exception allowing arbitration exists when a parent signs a contract on a minor’s behalf, that did not occur in this case. Instead, the mother signed the contract containing the arbitration agreement on her own behalf.
The Third District provides an important reminder that an order can be final even where the language of the order states it was entered “without prejudice.”
Here, the appeal arose from orders concerning service on the Defendant. Below, Plaintiff initially served Defendant; however, the lower court quashed this service in a June 10, 2020 order. Plaintiff attempted to re-serve Defendant and filed a motion with the lower court seeking an order finding that service was perfected. On August 11, 2023, the lower court entered a written order that denied Plaintiff’s service motion. The order stated “[t]his case is Dismissed without prejudice.” Plaintiff did not move for rehearing and did not appeal this August 2023 order.
Instead, without leave of court, Plaintiff filed an amended complaint against Defendant and a motion to reissue summons. On November 8, 2023, and November 9, 2023, the lower court denied Plaintiff’s summons motion and ore tenus motion for an extension of time to effectuate service. Plaintiff moved for rehearing on these orders and subsequently appealed seeking review of the June 10, 2023 order, November 8 and 9 orders, and the March 21, 2024 order denying rehearing.
In dismissing the appeal for lack of jurisdiction, the Third District rejected Plaintiff/Appellant’s that the June 10, 2020 order was nonfinal because it contained the words “without prejudice.” The Court explained that an order dismissing for failure to effectuate service is a final order—regardless of language stating it is without prejudice—because the dismissal order ends the judicial labor in that action. The Court explained that the “without prejudice” language “simply means that the dismissal was not on the merits and that [Plaintiff] could therefore file a new lawsuit.” Slip Op. at 5 (emphasis removed).
This case stands for the proposition that when reviewing an order, practitioners must go beyond mere language of nonfinality or finality and answer the question of whether the order in question ends the judicial labor in the case. If so, the order is final. If not, the order is nonfinal.
Can an ALJ sua sponte find an exhibit already admitted into evidence inadmissible without giving the parties notice or an opportunity to be heard on the issue? The First District holds no.
This case stems from an administrative complaint before the Board of Massage Therapy. At the administrative hearing, the parties jointly offered court documents from the massage therapist’s criminal case. The ALJ admitted these exhibits into evidence. No objections were made by either party and neither raised concerns about the authenticity or admissibility of the joint exhibit.
Subsequently, in her recommended order, the ALJ sua sponte found the admitted exhibit was unauthenticated and hearsay. Thus, the ALJ concluded the Department failed to prove a violation and recommended that the Board dismiss the administrative complaint. Towards that end, the Board entered a final order dismissing the case.
In reversing, the First District held that neither the evidentiary standard under the Administrative Procedure Act nor the Florida Rules of Evidence—which were invoked at the hearing—authorize an ALJ to: i) admit an exhibit at a hearing, then later raise and rule on her own evidentiary objection sua sponte, and then exclude the already admitted exhibit; or ii) exclude an admitted exhibit without first providing the parties an opportunity to be heard. The First District explained, “[o]nce an exhibit is admitted a factfinder cannot refuse to consider it. A factfinder should decide what weight to assign a piece of evidence, but it cannot decline to consider the evidence altogether, even if the factfinder believes the evidence should not have been admitted.” Slip op at p. 3.
[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.