Jeff's May 2024 Legal Roundup

Jeff’s May 2024 Legal Roundup[i]

Just a couple cases and rules that have caught my eye this month that I wanted to share. This month’s edition includes jurisdictional timeframes and evidentiary burdens associated with attorneys’ fees awards, the interplay between final judgments and supplementary proceedings in family law cases, the ability to “execute” on nonfinal judgments, an expansion of the classes of cases subject to nonfinal appeal, who qualifies as a “surviving spouse” under the wrongful death act, and more.

?1.?????HCA Health Services of Florida, Inc. v. Berlin, No. 4D2022-2652 (Fla. 4th DCA April 17, 2024).

The Fourth District reversed an order denying attorneys’ fees due to the “unreasonable tardiness” in setting a fee hearing. In doing so, the Fourth District held that, Florida Rule of Civil Procedure 1.525 places no jurisdiction time limit on the setting of a fee hearing; instead, the rule only provides a jurisdictional timeframe for the filing of a motion seeking costs and fees.

HCA timely sought statutory attorneys’ fees at both the trial and appellate levels after successful defense of suit. The parties jointly moved to bifurcate fee determination from reasonableness. In the lower court’s order granting bifurcation, the trial court ordered that if entitlement was found, the parties would have 90 days to conduct discovery and set an evidentiary hearing as to the amount. The trial court found entitlement. However, HCA did not set the hearing on amount until over a year later. At the amount hearing, the lower court questioned its jurisdiction because HCA failed to set the fee amount hearing within 90 days of the determination of entitlement. Ultimately, the lower court determined that its jurisdiction was “not never-ending” and that HCA’s “unreasonable tardiness” in setting the fee hearing deprived it of jurisdiction. HCA appealed.

In reversing, the Fourth District held that the only jurisdictional time limit imposed by the rules is Florida Rule of 1.525; however, that rule only applies to the filing of a motion for fees, not the setting of a subsequent fee hearing. Thus, so long as the motion is timely filed, the lower court has continuing jurisdiction to conduct a fee hearing regardless of whether that hearing is set in an “unreasonably tardy” manner.

Practitioners may ask, what about the violation of the lower court order on timely setting a hearing? The Fourth District explained that the lower court has the authority to sanction for violation of its orders and for the failure to adhere to reasonable case management deadlines pursuant to Kozel v. Ostendorf. However, the order denying fees here cannot constitute proper sanctions because the record does not indicate that the lower court considered the Kozel factors or made any explicit findings as to those factors prior to denying fees

2.?????Universal Property & Casualty Ins. Co. v. Santos, No. 3D23-0940 (Fla. 3d DCA April 17, 2024).

The Third District holds a trial court’s attorneys’ fees award is not supported by competent, substantial evidence—thus being arbitrary and necessitating reversal—where the court merely applies an across-the-board flat reduction in hours without any specific factual findings as to the number of hours or the appropriateness of any reductions.

This case concerns the awarding of attorneys’ fees to insureds after prevailing at trial against the insurer. In moving for fees, the insureds’ attorneys submitted affidavits attesting to their hourly rates and a total of 388.2 hours worked on the case. The insurer submitted an itemized reduction and requested a reduction of 182 hours for excessive, cumulative, or ministerial work.

At the evidentiary hearing, the insurer’s expert testified that the rates and hours were grossly excessive. The insureds’ expert did not dispute the total hours but recommended a “general reduction” of 10 hours each for three of the insureds’ attorneys to account for potential excessive time. Such reductions were made without any correlation to the reasonableness of the specific billing records. Instead, the insureds’ expert applied this across-the-board general reduction based on his personal experience as a fees expert. The trial court ultimately awarded $254,525 in fees accounting for the 30-hour reduction suggested by the insureds’ expert. The lower court did not make specific findings as to the reasonableness of rates or the billing records proffered. The insurer appealed.

In reversing and remanding for a new evidentiary hearing, the Third District explained that in applying the lodestar method, the lower court must make specific factual findings in determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors. Here, because there was a flat reduction in fees without any particularized findings, the Third District concluded that the lower court’s order was arbitrary and not supported by competent, substantial evidence.

Two other points to note: First, the Court remanded for an evidentiary hearing rather than merely remanding with instructions to apply the reductions proposed by the insurer. Although the general rule is parties are not entitled to a second? bite at the apple after being afforded the opportunity for an evidentiary hearing on fees, the Court explained that where, as here, there remains disputed issues of fact and the record contains some competent, substantial evidence which, if explained, could support the award, remanding for an evidentiary hearing is appropriate.

Second, review footnote one. The Appellee argued that the insurer waived its right to appeal the issue of whether sufficient factual findings exist because it did not move for rehearing under Rule 1.530. The Court rejected the argument explaining that the rule only applies when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order. Here, because insurer challenged the trial court’s reliance on unsupported, or conclusory, expert testimony, in making its ultimate findings of fact, the rule requiring rehearing for preservation of issues does not apply

3.?????Viler v. Universal Prop. & Cas. Ins. Co., No. 4D2023-0447 (Fla. 4th DCA May 1, 2024).

Taking this one out of order because it stays on topic in the land of attorneys’ fees.

The Fourth District reverses an order denying prevailing party attorneys’ fees under section 718.303, Florida Statutes. In so doing, the case provides a great refresher course on the general rule that when a plaintiff takes a voluntary dismissal, the defendant is the prevailing party for the purpose of a statute awarding attorneys’ fees to the prevailing party. The highlights:

• The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the “prevailing party” within the meaning of statutory or contractual provisions awarding attorney’s fees to the “prevailing party” in litigation.
• The general rule applies even where the plaintiff refiles the identical lawsuit and ultimately prevails.
• The general rule applies even where there is limited pre-trial activity that had occurred prior to the voluntary dismissal.
• An adjudication on the merits is not necessary for an entitlement to fees as a prevailing party.
• Exceptions to the general rule apply where a defendant has substantially caved-in to a plaintiff’s demands or where a defendant’s actions have rendered a plaintiff’s lawsuit moot.

Viler is a great case to cite to when drafting a motion for prevailing party fees after a voluntary dismissal.

4.?????Chan v. Addison, No. 6D23-2856 (Fla. 6th DCA April 19, 2024).

Interesting family law case out of the Sixth District. The concurrence provides an excellent overview of how finality and supplemental proceedings play into one another in family law cases.

Here, a final judgment of dissolution was entered that incorporated the parties parenting plan. Neither party moved for rehearing nor appealed that judgment. Subsequently, Former Husband filed a supplemental petition seeking modification of the final judgment because the parenting plan was legally insufficient in that it failed to provide any means of communication between him and the child. Former Wife moved to dismiss the supplemental petition. At the hearing, the lower court denied the motion to dismiss and sua sponte struck the Parenting Plan in full finding the plan did not meet the requirements of section 61.13(2)(b). Former Wife filed a petitioner for writ of prohibition or certiorari within 30 days of the order.

On review, the Sixth District first held that because the lower court order terminated time-sharing rights of both parties by striking the parenting plan in its entirety, the order qualified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii)b as one that determined the rights or obligations of a party regarding child custody or time-sharing under a parenting plan. The ultimate holding here was very limited: where the parties are being heard on a motion to dismiss supplemental petition and the supplemental petition only sought a modification of the parenting plan set by Final Judgment due to legal insufficiency, the lower court errs in sua sponte and without notice striking the plan in its entirety.

Of note, because the petition for writ of prohibition was filed within 30 days of rendition of the order, the Court used its authority under Florida Rule of Appellate Procedure 9.040(c) to treat the petition as an appeal of a nonfinal order. Rule 9.040(c) provides that if a party seeks an improper remedy, the cause must be treated as if the proper remedy had been sought; provided that it will not be the responsibility of the court to seek the proper remedy.

The concurrence is worth a read for its discussion on the interplay between final orders and supplemental petitions. The concurrence also answers the question fully briefed yet unanswered by the majority: did the lower court have jurisdiction to strike the parenting plan at all? The highlights:

First, the concurrence would have found jurisdiction under 9.100 via petition for writ of prohibition because the striking of the parenting plan in full did not make any determination concerning time-sharing. Instead, the rights of the parties concerning time-sharing would need to be resolved at a later date. The concurrence argues that because of this, the order would not qualify as a nonfinal appealable order and prohibition relief would be proper.

Second, the concurrence argued that it would have granted the petition for writ of prohibition on the grounds that the lower court lacked jurisdiction to strike the parenting plan from the final judgment. The concurrence reasoned that once time for rehearing and appeal have passed the final judgment is…FINAL. The only way to seek relief from a final judgment after the period for rehearing and appeal has expired is via Florida Family Law Rule of Procedure 12.530 where, as here, the final judgment did not expressly reserve jurisdiction over the time-sharing issue.

Third, the concurrence reasoned that rather than striking the parenting plan, it would have been possible for the lower court to modify the parenting plan via a proper supplemental petition. The concurrence explained that supplemental petitions are treated as new proceedings district from the original divorce and that a supplemental petition results in a supplemental final judgment that supplements and, to the extent there is a conflict, supersedes the original final judgment. See Fla. Fam. L. R. P. 12.110(h). Here, however, the concurrence would have found that striking the parenting plan would still have been inappropriate because the lower court did not analyze the issue based on the factors required to grant supplemental relief in matters concerning time-sharing: i) whether circumstances have substantially and materially changed since the original determination; ii) whether the change was reasonably contemplated by the parties; and iii) whether the child’s best interests justify changing custody

5.?????Empire Fire and Marine Ins. Co. v. Chmilarski, No. 3D23-1875 (Fla. 3d DCA April 24, 2024).

The Third District converts an appeal into a petition for certiorari and quashes a nonfinal order granting partial summary judgment that purports to authorize a party to execute on a judgment while other intertwined factual issues exists. The case allows for a helpful reminder on Florida’s partial final judgment rule.

Florida’s partial final judgment rule is found at Florida Rule of Appellate Procedure 9.110(k). The rule states:

(k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition. The scope of review of a partial final judgment may include any ruling or matter occurring before filing of the notice of appeal so long as such ruling or matter is directly related to an aspect of the partial final judgment under review.

Thus, to qualify as a “partial final judgment” the order must either: i) dispose of the case completely as to the party; or ii) dispose of a “separate and distinct” cause of action not “interdependent” with other claims. “Interdependent” has routinely been interpreted as meaning claims that are factually inextricably intertwined. Practitioners should note that the federal rules differ as to the appealability of “partial” final judgments. See Fed. R. Civ. P. 54(b).

Below, the lower court entered partial summary judgment. The order purported to enter partial judgment and allow for that judgment’s execution while not adjudicating two factually related claims. Empire appealed.

On appeal, the Third District found these claims were “inextricably intertwined.” Thus, the Court sua sponte dismissed the appeal on the merits because the order would not qualify as a partial final judgment under Rule 9.110(k) nor a nonfinal appealable order under Rule 9.130. However, the Court treated the appeal as a petition for writ of certiorari. See generally, Florida Rule of Appellate Procedure 9.040(c).

In analyzing the issue, the Court held that the lower court departed from the essential requirements of law when it issued a nonfinal order which purported to allow for execution where factually intertwined claims still remained pending

6.?????In re: Amendments to Fla. Rule of App. Pro. 9.130, No. SC2023-0438 (Fla. May 2, 2024).

The Florida Supreme Court has amended Florida Rule of Appellate Procedure 9.130 to provide for a new category of nonfinal appeals.

Rule 9.130(a)(3)(I) has been added to the rule. The subsection provides for appeals to the district courts of appeal of nonfinal orders that “determine the entitlement of a party to arbitration, confirm or deny confirmation of an arbitration award or partial arbitration award, or modify, correct, or vacate an arbitration award.”

The rules previously provided for nonfinal appeals of orders that determine the entitlement of a party to arbitration at Rule 9.130(a)(3)(C)(iv). That reference has been stricken and is included in the expanded new language at 9.130(a)(3)(I).

The amendment is effective July 1, 2024.

7.?????Desbrunes v. US Bank N.A., No. 4D2022-2647 (Fla 4th DCA May 8, 2024).

The Fourth District withdrew its prior opinion and granted US Bank’s motion for rehearing in this case concerning foreclosure, homesteaded property, and the death of the property owner.

The case below concerned a foreclosure of homesteaded property where the property owned died. A suggestion of death was filed below. The lower court did not substitute in the personal representative and granted the Bank’s motion for summary judgment. The withdrawn opinion reversed summary judgment for the Bank on the grounds that because the personal representative was not substituted in pursuant to Florida Rule of Civil Procedure 1.260(a), all proceedings after the suggestion of death were filed—including summary judgment—were nullified.

On rehearing, the Fourth District withdrew that opinion and held that because the property was homesteaded and passes outside of the probate estate, a legal representative/personal representative does not have to be appointed for the foreclosure to continue.

8.?????Ripple v. CBS Corp., No. SC2022-0597 (Fla. May 9, 2024).

The Florida Supreme Court resolved an express and direct conflict between the Fourth and Fifth Districts on who is a “surviving spouse” under section 768.21(2). The Florida Supreme Court unanimously held that a spouse who married the decedent after the injury occurred can recover damages as a “surviving spouse” under section 768.21(2). In so holding, the Court rejected the argument that the common law “marriage before injury” rule bars recovery.

The decedent’s negligence and strict liability case derived from asbestos exposure and later diagnosis with mesothelioma. On May 22, 2015, decedent was diagnosed. On July 4, 2015, decedent married Ripple who he lived with for decades. On July 23, 2015, decedent filed his complaint. On November 1, 2015, decedent passed.

After decedent’s death, Ripple—as personal representative—amended the complaint replacing the claims with the estate’s wrongful death claims and sought damages under 768.21(2). The statute provides that “the surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” The defendant moved for judgment on the pleadings relying on Fourth District precedent based on the common law rule that a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium. Ripple argued the cases were wrongly decided and that the court should adopt the position of the Fifth District that adopted a “common and ordinary meaning of the term ‘surviving spouse’” as used in the statute. The lower court granted the motion and the Fourth District affirmed.

In reversing and resolving the inter-district split, the Court first held that a spouse who married a decedent after the onset of the injury that caused the decedent’s death was a “surviving spouse” under the statute. Because the term “surviving spouse” is not defined in Act, the Court looked to the plain and ordinary meaning of the term. The Court concluded that a “surviving spouse” as used in 768.21(2) “is a spouse at the time of the decedent’s death because the ordinary meaning of ‘surviving spouse’ is a spouse who outlives the other spouse.” Slip Op. at 12.

The Court further held that the common law “marriage before injury” rule does not bar recovery because the Wrongful Death Act created an independent cause of action that does not derive from either the decedent’s common law personal injury claim or the survivor’s common law loss of consortium claim. The Court held that allowing the “marriage before injury” rule to serve as a defense under the Wrongful Death Act risks upsetting the Act’s logic and structure.

Respondent raised the argument that the failure to adopt the “marriage before death” rule under these facts results in an anomaly: petitioner would be barred from recovery for loss of consortium at common law because she was not married to the decedent at the time of the injury; however, the decedent’s death as a result of the same injury would allow Petitioner to recover for loss of decedent’s companionship and protection from the date of the injury—the very damages she would otherwise be barred from recovering at common law. The Court’s response was twofold; i) it is for the legislature, not the Court, to close the loophole; and ii) jury’s have the ability to weigh whether a party married into a claim and they are entrusted with determining a proper award under section 768.21(2).

The opinion was unanimous.

[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.