Jeff's November 2023 Legal Roundup

Jeff’s November 2023 Legal Roundup[i]

Happy Thanksgiving! Just a couple cases that have caught my eye this month that I wanted to share. This month’s edition includes a discussion of the irreparable harm requirement to establish a right to certiorari, an interesting debate between judges on the First DCA concerning horizontal stare decisis, a reminder never to coach a witness at deposition, certified conflict over the detail required in an itemized statement under section 627.736(10), several family law decisions, multiple decisions concerning the failure to preserve arguments for appeal, and more. ?

1.?? CPPB, LLC v. Taurus Apopka City Center, LLC, No. 6D23-2649 (Fla. 6th DCA Sept. 15, 2023).

Sometimes I find an interesting case that I missed in an earlier edition I want to share. This is one of them. The Sixth District holds that (1) a petition for writ of certiorari concerning orders denying the dissolution of a notice of lis pendens must establish that the petitioner suffered irreparable harm that cannot be remedied on direct appeal; (2) that such harm is not presumed; and (3) that generalized allegations of harm are insufficient. The Court reasoned that holding otherwise would create a backdoor avenue to automatic interlocutory appeal for a category of cases not specifically listed in Florida Rule of Appellate Procedure 9.130.

In order for a court to grant a petition for certiorari, a petitioner must establish: (i) a departure from the essential requirements of law; (ii) resulting in a material injury for the remainder of the case; (iii) that cannot be corrected on postjudgment appeal. Factors two and three are together referred to as establishing “irreparable harm.” The Sixth District explained that because writ practice is an extraordinary remedy, appellate courts should analyze irreparable harm first to determine if jurisdiction exists before deciding whether the trial court’s order departed from the essential requirements of law.

In this case, the Sixth District found that Petitioner’s petition did not present any argument on whether it will suffer irreparable harm that cannot be remedied on appeal. Instead, Petitioner cited to case law indicating that certiorari review is available to review orders denying a motion to dissolve a notice of lis pendens. The Court construed this citation as an argument that review is automatically available. The Court rejected such an approach holding that presuming review is automatically available in every case would create a new category of interlocutory appeals which are not provided for under Rule 9.130. The Court further held that a petitioner must not only argue irreparable harm but must do so in more than mere generalized terms. In other words, merely because certiorari can be used to review does not mean that in all instances review is per se available.

The case is a great reminder of the importance of establishing all the elements of certiorari in your petition and provides a helpful roadmap for those opposing certiorari when a petition merely presumes irreparable harm.

2.?? Normandy Ins. Co. v. Bouayad, 1D2021-1717 (Fla. 1st DCA Oct. 20, 2023).

This case concerned a workers’ compensation case and the denial of a motion for rehearing en banc. While ordinarily that in and of itself is nothing exciting, the case is interesting due to the concurrence’s and dissent’s discussion of horizontal stare decisis. The issue of whether en banc review is required to overturn a prior panel’s decision under Florida law has long been debated. The concurrence and dissent in this case are a must read for shaping arguments on both sides of the horizontal stare decisis issue.

Judge Tanenbaum’s concurrence argues that, unlike federal law, there is no Florida law or supreme court holding that requires a three-judge panel of a district court of appeal to follow a decision of a prior panel of the same court regarding a point of law. Judge Tanenbaum argues that the doctrine of horizontal stare decisis is a fallacy with no basis in the state constitution or statute. Judge Tanenbaum further noted that when horizontal stare decisis was proposed as a rule of appellate procedure, the Florida Supreme Court rejected the idea mentioning that such an approach might not comport with the constitution. In support, Judge Tanenbaum cited several Florida Supreme Court decisions for the proposition that horizontal stare decisis does not apply. See Little v. State, 206 So. 2d 9, 10 (Fla. 1968) (“If the two [panel] decisions conflicted, the only result would be that the instant decision, being later in point of time, would overrule Allison as the decisional law in the First District.” (emphasis supplied)); R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla. 2017) (“Alternatively, to the extent that these [panel] cases do conflict, the difference could be attributed to a change in the Fourth District’s position regarding implied conflict preemption in tobacco product liability cases.” (citing Little for the proposition quoted above)); State v. Walker, 593 So. 2d 1049, 1050 (Fla. 1992) (citing Little and dispensing with jurisdiction as being improvidently granted after a subsequent panel of the First District Court of Appeal reached a decision that effectively overruled a prior panel decision, thereby obviating a “direct and express conflict” that had existed between the prior panel and the Fourth District Court of Appeal).

Judge Thomas’s dissent challenges the propositions made in the concurrence. Judge Thomas argued that the First District has previously held that “each panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc.” Judge Thomas reasoned that there is no room for discretion and that a single panel of judges cannot move the goalposts independently.

3.?? Costco Wholesale Corp., etc. v. Vargas, No. 3D22-585 (Fla. 3d DCA October 25, 2023).

The Third District holds the lower court did not abuse its discretion in awarding plaintiff attorney’s fees and costs based on conduct of defense counsel and defendant’s corporate representative during deposition. In doing so, the Court provides a gentle reminder to counsel not to coach their witnesses at deposition.

Costco was sued for negligence as a result of a slip and fall. During Costco’s corporate representative’s deposition, the representative testified that the only document he reviewed in preparation was one of the trial court orders. As the deposition continued, the corporate representative read answers from a document that was prepared by Costco’s attorney and emailed to him pre-deposition. The document had not been previously identified. The document was then marked as an exhibit and the representative testified that he intended to answer certain questions by merely reading what was on the document. While testifying, Costco’s attorney interrupted the corporate representative to state that he had read the wrong answer to one of the questions. Plaintiff’s counsel terminated the deposition and sought sanctions. Costco argued that it provided the pre-written answers, in part, because the document tracked Costco’s answers to interrogatories and it “wouldn’t expect the corporate representative to say something different than what the corporation already said.”

In upholding the sanctions award, the Third District held that the sanctions award was justified for two reasons: (1) although a corporate representative does not need personal knowledge of the information requested, the document from which he read was not disclosed when Plaintiff’s counsel asked for such documents; and (2) Cosco’s attorney coached the representative to provide only the answers the lawyer had written down. In rejecting Costco’s argument that it would not expect testimony to differ from the company’s interrogatory answers, the Court noted that one of the purposes of a corporate representative deposition is to explore inconsistencies between a corporate representative’s testimony and the company’s written interrogatory answers.

4.?? Mercury Indemnity Company of America v. Central Florida Medical & Chiropractic Center, Inc. d/b/a Sterling Medical Group a/a/o Sthefany Santiago, No. 5D22-603 (Fla. 5th DCA October 27, 2023).

The Fifth District holds that section 627.736(10), Florida Statutes requires an itemized statement to list “each exact amount” as billed. In doing so, the Fifth District certified conflict with Rivera v. State Farm Mut. Auto. Ins. Co., 317 So.3d 197, 204 (Fla. 3d DCA 2021) and Chris Thompson, P.A. v. Geico Indemnity Co., 347 So.3d 1, 2 (Fla. 4th DCA 2022).

This case involved the PIP Statute’s notice of intent and itemized statement requirement. Section 627.736(10)(b)3 states that the notice of intent provide “an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.” On appeal, Mercury argued that the itemized statement must include “each exact amount” remaining due after adjusting the claim and account for previous payments. Mercury argued the statute requires the disclosure of “each exact amount claimed to be due” because the clause “claimed to be due” applies to all three antecedents, and not only the last antecedent—the type of benefit. Mercury also argued that its interpretation is necessary to accomplish the purpose of the statute of putting an insurer on notice of the actual amount for which it will be sued. In support, Mercury relied upon the Rivera and Chris Thompson, P.A. decisions. Both arguments were rejected.

As to Mercury’s grammatical construction, the Court applied the doctrine of the last antecedent. The doctrine of the last antecedent is a rule of grammatical construction providing that relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote. A corollary to the rule provides that where the modifier is set off from two or more antecedents by a comma, the supplementary “rule of punctuation” states that the comma indicates the drafter’s intent that the modifier relate to more than the last antecedent. In applying the doctrine, the Court held that the phrase “claimed to be due” applies only to the phrase immediately preceding it—“type of benefit.”

As to Mercury’s reliance on Rivera and Chris Thompson, P.A., the Fifth District disagreed with those decisions as being based on an overly broad understanding of the statute’s purpose. The Court held that there was nothing in section 627.736(10)’s text requiring a notice of intent to put the insurer on notice of the “exact amount for which it will be sued,” and Mercury’s reasoning attempts to expand the purpose of the statute beyond its text.

The Fifth District further held that the phrase “each exact amount” as used in the statute means each exact amount as billed in the claim sent to the insurer pursuant to section 627.736(4)(b).

Thus, the Fifth District held that section 627.736(10), Florida Statutes requires an itemized statement to list “each exact amount” as billed and not “each exact amount claimed to be due” or “each overdue amount,” after adjusting the claim and subtracting any prior payments made by the carrier.

5.?? Alarcon v. Dagen, No. 3D22-2027 (Fla. 3d DCA Nov. 1, 2023).

The Third District clarifies that need and ability to pay are the primary considerations when authorizing attorney’s fee awards under section 61.16, Florida Statutes and Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).

This case involved a “contentious and protected” paternity dispute. Below, the trial court entered final judgment granting the father’s majority timesharing and sole parental responsibility. The father moved for attorney’s fees under Rosen which was granted. In granting the motion and ordering the mother to pay $25,000, the court made no findings of the father’s need or the mother’s ability to pay. Instead, the court found that the mother’s conduct was “hypocritical, without merit and contrary to the best interests of the child” and that her position was “largely meritless.”

In reversing the award, the Third District held that a trial court awarding fees under Rosen and section 61.16 must make findings on the parties’ respective financial resources, the movant’s need, and the nonmovant’s ability to pay. Here, the lower court’s order did not contain such findings. Additionally, the Court explained that although Rosen allows for the consideration of other factors such as the merits of the respective positions and whether litigation was brought primarily to harass, these factors do not abrogate the requirement that the nonmovant have the ability to pay in run-of-the-mill custody cases. Instead, fee awards in derogation of the traditional rubric of need and ability to pay should only be reserved for the most egregious of litigation conduct such as bad faith. Here, “[w]hile the trial court viewed the mother’s actions as selfish and contrary to the best interests of the child,” such findings are insufficient, in and of themselves, to justify an award of fees.

6.?? Murphy v. Suarez, No. 4D2022-0359 (Fla. 4th DCA Nov. 1, 2023).

The Fourth District holds that the lower court abused its discretion in failing to make its judgment terminating alimony retroactive and by offsetting the resulting alimony arrearage with the Former Husband’s child support arrearage. The case provides an overview of: (i) presumption of retroactivity of alimony termination; and (ii) the conditions under which a child support arrearage may be offset.

Regarding the retroactive application of an alimony termination, the Court explained that when a trial court modifies an alimony obligation, the presumption is the trial court will do so retroactively to the date of filing of the petition for modification unless the circumstances of the case dictate otherwise. Below, the trial court failed to provide reasons why this presumption should not apply and nothing in the record supported the trial court’s decision to depart from the general presumption. Thus, the lower court abused its discretion.

As to offsetting child support arrearages, the Court explained that child support belongs to the child even though the right to receive such support on the child’s behalf vests in the payee parent when the support becomes due in accordance with the terms of a court order obligating the payor parent to contribute to supporting the child. A parent who owes child support arrearage may successfully offset that amount against a separate unpaid support obligation owed by the other parent “in those limited circumstances where that party can show ‘compelling equitable criteria and considerations’ justifying such set off.” However, a trial court must specify what circumstances justify an equitable offset. In this case, the trial court erred by not making any findings that justified the offset.

7.?? Aguilera v. Agustin, No. 4D2022-2833 (Fla. 4th DCA Nov. 1, 2023).

The Fourth District reminds us when a motion for rehearing is and is not required under Florida Family Law Rule of Procedure 12.530(a).

Challenges to the lower court’s failure to make statutorily required findings requires that a party file a motion for rehearing to preserve those issues for appeal.

However, rule 12.530(a) does not require a motion for rehearing to challenge whether the trial court’s order was supported by competent substantial evidence.

Here, the Court found that challenges made to the lower court’s failure to make certain statutorily required findings were waived. However, the challenges made to findings based on the lack of competent substantial evidence were preserved for review.

In analyzing the issue concerning whether the lower court’s findings on the valuation of the parties’ motor vehicle was supported by competent, substantial evidence, the Court found that the trial court erred in relying upon former husband’s financial affidavit to set the value of the motor vehicle in light of him testifying to an agreed-upon different amount at the hearing.

Note, as we reported last month, 12.530(a) was recently amended to better clarify when a motion for rehearing is required.

8.?? Alarcon v. Dagen, No. 3D22-140 (Fla. 3d DCA Nov. 8, 2023).

The Third District affirmed the trial court’s final judgment of paternity awarding the parties shared parental responsibility but providing the Father with ultimate-decision making authority and majority time sharing. The case provides us with a reminder of when issues are tried by consent.

Below, Mother filed a petition to establish paternity, parental responsibility, timesharing, and child support. Prior to trial, Father filed his proposed parenting plan, requesting shared parental responsibility and decision-making authority for educational decisions and non-emergency healthcare. During opening statements at trial, Father requested majority timesharing with the minor child. Thereafter, the trial judge expressly asked Father to confirm that he was seeking majority timesharing and ultimate decision-making authority, and Father confirmed that he was. During closing, both parties argued for majority timesharing. Critically, at no point in time did Mother object to Father’s request for majority timesharing and ultimate decision-making authority or argue that Father had not requested such relief in his pleadings. The trial court ultimately ordered that the parties have shared parental responsibility and confer on major decisions, such as the education, medical, and religious needs of the child, but that Father have ultimate decision-making authority. The trial court further ordered that Father have majority timesharing.

On appeal, Mother argued that lower court erred in awarding Father majority timesharing and ultimate decision-making authority because he did not seek such relief in his pleadings. In rejecting this argument the Court provided an excellent summary of when issues are tried by consent.

The general rule is that relief is limited to the matters pled. See generally, Fla. R. Civ. P. 1.110. However, this rule can be waived. Florida Rule of Civil Procedure 1.190(b) provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Where a party fails to object to the introduction of evidence raised on an unpled issue, the issue shall be treated as if it had been raised in the pleadings, so long as the opposing party had an opportunity to respond and oppose the issue with additional evidence.

Here, although Father did not raise the issues in his pleadings, because Mother did not object and had ample opportunity to respond and oppose the issues with evidence, the issues were deemed to be tried by consent and Mother waived any argument that the relief requested was barred as beyond the scope of the pleadings.

9.?? Citizens of the State of Florida v. Clark, No. SC2022-0094 (Fla. Nov. 9, 2023).

The Florida Supreme Court provides insight on when a motion for rehearing or reconsideration (in cases governed by the Florida Administrative Code, a “motion for reconsideration” is the functional equivalent to a “motion for rehearing” under the Florida Rules of Civil Procedure 1.530) is required to preserve error. For sake of simplicity we will refer to the motion at issue as a motion for rehearing.

This case involved a decision of the Public Service Commission (“PSC”) to allocate partial replacement power costs to operator of coal-fired steam power plant which unexpectedly went offline and which could not be brought back online without synchronizing generator's electrical parameters to the power grid. Subsequent to its ruling, the Office of Public Counsel (“OPC”) filed a motion for reconsideration with the PSC arguing that the Commission’s decision to consider mitigating factors was not authorized by law. OPC further argued that insufficient evidence and factual findings existed to support the decision. However, prior to obtaining a ruling on its motion, OPC appealed to the Florida Supreme Court and withdrew its motion. On appeal, OPC raised a series of interrelated legal challenges questioning the authority of the PSC to assign partial costs and consider mitigating factors in making its decision. Appellee argued that these issues were not preserved below.

In agreeing with Appellee, the Court explained that issues not properly preserved are waived absent fundamental error. Where, as here, a final order addresses substantive issues or reaches legal conclusions that have not been previously raised or challenged, a party must file a motion for rehearing to preserve those errors for appellate review. The purpose behind the preservation rule is to allow the lower tribunal to consider and resolve errors when they arise.

Here, because the errors complained of on appeal first appeared in the PSC’s final order, OPC was required to file a motion for rehearing. Although OPC did so, it withdrew its motion prior to the lower tribunal ruling on the merits. Due to the motion being withdrawn, the Commission was not given a fair opportunity to correct the alleged error raised in the motion. As a result, OPC failed to preserve these issues for appeal. Where no fundamental error exists, those issues cannot serve as the basis for a reversal.

10. Aileen v. Universal Property and Casualty Insurance Company, No. 4D2022-2256 (Fla. 4th DCA Nov. 15, 2023).

The Fourth District provides a reminder of how to preserve error in challenges to verdict forms. Below, the trial court rejected Appellants proposed verdict form as confusing. The trial court proposed its own form at the charge conference. Appellants did not object and suggested minor changes. After verdict and judgment in Appellee’s favor, Appellants challenged the verdict form as incomplete.

In affirming, the Court explained that Appellants waived any challenge to the verdict form by consenting or failing to object to the use of the verdict form. The waiver in this instance is a species of the invited error doctrine. See Bachman v. Oliveros, 293 So. 3d 555, 559 (Fla. 5th DCA 2020) (“The fault should not be laid upon the trial judge; rather, it must be placed upon the [appellant’s] trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury.”) (alteration in original) (quoting Keller Indus., Inc. v. Morgart, 412 So. 2d 950, 951 (Fla. 5th DCA 1982)).

[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.