Carlin v. Javorek

The issue was whether the Supreme Court should exercise its discretionary jurisdiction to review of the Fourth District Court of Appeal’s reversal of a trial court’s order denying an award of attorney’s fees to our client.

The Fourth District Court of Appeal recently reversed a trial court decision holding that our client was not entitled to attorney’s fees despite finding that the opposing party was in breach of the parties’ settlement agreement. The trial court found that the opposing party breached the settlement agreement by failing to produce the required medical forms and failing to execute a medical release. However, the trial court held that the breach was not material and denied both parties’ requests for attorney’s fees. The Fourth District Court of Appeal reviewed the issue de novo and held that the trial court did not err in denying the opposing party’s request for attorney’s fees, but erred in finding that the opposing party’s breach was immaterial and in denying our client’s request for reasonable attorney’s fees pursuant to the parties’ settlement agreement. The Fourth District Court of Appeal found that the opposing party materially breached the settlement agreement and that the settlement agreement’s clear and unambiguous terms mandated an award of attorney’s fees to our client as the prevailing party. The opposing party petitioned the Supreme Court for discretionary review claiming that the Fourth District Court of Appeal’s decision expressly and directly conflicted with other district court and Supreme Court decisions. Our law firm continued representation of our client in the Supreme Court. Jurisdictional briefs were filed by both parties.

In agreement with the arguments in our jurisdictional brief, the Supreme Court declined to exercise its discretionary jurisdiction, denied opposing party’s petition for review, and awarded additional attorney’s fees to our client.

Marcline v. Florida Insurance Guaranty Association, 4D09-4948
May 25, 2011

The Fourth DCA recently reversed a trial court order dismissing the appellants’ case with prejudice entered following a status conference. The appellants had filed a claim with the Florida Insurance Guaranty Association (“FIGA”) after their insurer became insolvent. The appellants eventually sued for breach of contract and were awarded $47,616.79 following an appraisal of the loss. The appellants sought to add claims for additional living expenses and to adjudicate their claim for attorney’s fees, but the trial court dismissed these additional claims following a status conference, on the basis that the case had been directed to appraisal and the appraisal award paid.

On appeal, the Fourth District Court of Appeal found that the trial court violated the appellants’ due process rights when it dismissed their additional claims following the status conference. Citing Hagen v. Fla. Drug, Inc., 402 So. 2d 57, 57 (Fla. 4th DCA 1981), the Court stated: “Dismissal should be predicated on a properly filed and noticed motion to dismiss or other dispositive motion to protect the parties’ rights to due process.” The Court noted that the hearing had been noticed only as a status conference. The Court also pointed out that, in addition to the fact the hearing was only noticed as a status conference, FIGA’s motion for summary judgment had been filed less than the twenty days prior to the hearing required by Florida Rule of Civil Procedure 1.510 and the documentary evidence in support of the motion was not authenticated.

The Fourth District reversed and remanded based on the insufficient notice.

NITV, L.L.C. v. Baker, 4D10-1503
May 25, 2011

NITV appealed an adverse jury verdict in the amount of $575,000, based upon Baker’s defamation claim. Baker and NITV were in competition, as they both distributed and provided training for similar “truth verifier” software programs used by law enforcement agencies. NITV prepared two documents, one of which was entitled “Law Enforcement Scam Alert” in reference to Baker’s business, and published them to Baker’s actual and potential customers. This triggered Baker’s defamation suit. At trial, the jury gave Baker an award for the loss of the ability to earn money in the past and future, as well as for the injury to Baker’s reputation.

On appeal, the Fourth District reversed the former and affirmed the latter. Citing State, Dep’t of Children & Family Servs. v. Amora, 944 So.2d 431, 435 (Fla. 4th DCA 2006), the Court held that Baker’s damages award for the past and the future lost earnings were not supported by competent substantial evidence. The Court noted that Baker’s testimony regarding his economic damages was “vague and ill-defined.” Baker provided no documentation or specificity that would support his testimony of his actual loss. The court also noted that his tax returns show that his income actually increased from 2003-2006.

Despite reversing the economic damages, the court affirmed the damages for injury to Baker’s reputation. The court cited Hood v. Connors, 419 So.2d 742, 743 (Fla. 5th DCA 1982) holding that general damages are presumed in slander per se actions. The court concluded that the jury certainly could have reasonably inferred that NITV intended the publications to cause damage to Baker’s reputation. Since the jury was properly instructed on causation and damages, and in the absence of a fixed standard on general damages, the Court affirmed the $250,000 award for injury to Baker’s reputation.

D.F.J. v. State of Florida, 4D10-1763
May 25, 2011

The Fourth District addressed a juvenile defendant’s appeal of conviction for aggravated battery and robbery with a weapon. The evidence showed that the defendant and codefendant were present in the victim’s backyard, drinking beer with the victim and another man. At some point, the victim was grabbed from behind and struck. He did not witness who grabbed or struck him, although D.F.J. and the codefendant were witnessed fleeing the scene by jumping over a nearby fence. The victim could not identify who of the other three men may have committed the crime.

The defendant made a motion for judgment of dismissal, arguing that the only evidence presented against him showed that he was present at the scene and that he fled. The trial court denied the defendant’s motion. On appeal, the Fourth District agreed with the defendant that the State’s circumstantial evidence failed to exclude the reasonable hypothesis of innocence that the defendant was present at the scene and merely a witness to the crime. The Court cited J.R. v. State, 671 So.2d 278, 279 (Fla. 2d DCA 1996) and held that a motion for judgment of dismissal should be granted in cases where all of the evidence is circumstantial and the State fails to present evidence that excludes every reasonable hypothesis except guilt: “No matter how strongly the circumstantial evidence points toward guilt, the evidence must, nonetheless, rebut any hypothesis of innocence, including that D.F.J. was present at the scene, and was merely a witness to the crime.”

The Court reversed and remanded for dismissal of the charges.

Dedmon and Kelly v. Kelly, 4D09-3572
May 18, 2011

The Fourth District wrote to address an appeal from an order of dismissal of appellants’ complaint for failure to appear at a case management conference. A clerk’s default was entered in favor of appellants, and the appellee’s motion to set aside default was denied by the magistrate on September 3, 2008. On July 1, 2009 appellants’ new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee’s counsel and to appellants’ former counsel at an address different from the one used by former counsel in earlier pleadings.  The trial court set a case management conference was set for July 30, 2009, which stated that there had been no record activity since September 3, 2008.  The order was sent to appellants’ former counsel. Appellants’ new counsel failed to show up, and the trial court dismissed without prejudice pursuant to Fla. R. Civ. P. 1.200(c), which allows a court to dismiss for failure to attend a case management conference, and upon Fla. R. Civ. P. 1.420(e), which provides for dismissal for failure to prosecute an action.

On appeal, the Fourth District agreed with appellants that, under First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997), the trial court erred in imposing the harsh sanction of dismissal without finding that the party’s conduct was “willful and contumacious.”  The trial court’s order failed to include an express finding of willful and contumacious behavior. Without considering the lack of notice requirement to the appellants, the court also held that appellants’ alleged inaction for a period of time less than one year was insufficient cause for dismissal under Fla. R. Civ. P. 1.420(e). The court reversed and remanded.