Writs, Lies, & Videotape: Law Offices of Robin Bresky Prevails in Certiorari Proceeding Over Timing of Production of Store Video Surveillance Showing Plaintiff’s Injury

Whole Foods Market Group, Inc. v. Classie, 4D13-43

The Law Offices of Robin Bresky successfully defended a petition for writ of certiorari filed by the defendant in a personal injury action. The writ involved important questions about the timing of production of surveillance videos in personal injury cases. Our client, the plaintiff, sued for injuries she alleged occurred in the defendant’s store. The plaintiff sought to compel production of the defendant’s store surveillance video that showed the incident. The defendant refused to provide the plaintiff the video until after the plaintiff’s deposition. The trial court granted the plaintiff’s motion requiring the defendant to provide the video prior to the deposition. The defendant sought certiorari review in the Fourth DCA.

On appeal, the defendant argued that it was not required to turn the video over to the plaintiff prior to her deposition. The defendant articulated its fear that the plaintiff might alter her testimony after watching the videotape, and its position that it was entitled to the plaintiff’s untainted recollection of events in the deposition. The defendant relied upon the Florida Supreme Court’s decision in Dodson v. Persell, 390 So. 2d 704 (1980), where the Court held that video surveillance of a personal injury plaintiff taken by a private investigator after the accident could be withheld until after the plaintiff’s deposition.

We argued in opposition that the case fell squarely under the Fourth DCA’s holding in Target Corp. v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010). We maintained that the Fourth DCA clearly held in Vogel that store surveillance showing a plaintiff’s injury occurring presented a different situation than videos taken by private investigators hired to obtain surveillance of a plaintiff after an accident. We maintained that the Fourth DCA in Vogel had decided that a trial court had the discretion to order production of the store surveillance video prior to the plaintiff’s deposition.

The Fourth DCA entered an order denying the petition for writ of certiorari. This result protected the trial court’s beneficial ruling for our client that she be allowed to view the videotape of her injury prior to her deposition.

Law Offices of Robin Bresky Obtains Disqualification of Judge in Guardianship Case

Fourth DCA Case 4D13-368

The Law Offices of Robin Bresky recently prevailed in an original proceeding, a petition for writ of prohibition, to prevent the trial judge from presiding over further proceedings in a guardianship case where our client is the spouse and designated healthcare surrogate of the ward.

The American judicial system is built upon the principle of an impartial court where every litigant will be heard and treated fairly. A trial judge can be disqualified from further activity in a case if bias or prejudice is shown to a party and places that party in reasonable fear of not getting a fair trial or hearing. That is what happened at a hearing where the court made a critical decision about the guardianship of our client’s husband.

On review by the Fourth District Court of Appeal, the appellate court concluded that the judge’s acts of excluding the spouse from the courtroom, striking (refusing to consider) her testimony on the basis of a perceived insult to the judge, and making negative personal comments about the spouse, would lead any reasonably-prudent person to fear that she would not receive a fair hearing before the judge.

The appellate court also concluded that the judge’s actions and personal comments “far exceeded comments or actions necessary to control his courtroom and were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias.” Thus, the Fourth DCA granted the petition for disqualification and the case was assigned to a different judge.

The Law Offices of Robin Bresky continually fights for justice for our clients. We handle a wide variety of appeals and original petitions in state and federal appellate courts and are available to assist other lawyers with litigation support such as drafting or responding to motions to dismiss, motions for summary judgment, motions for rehearing, and other substantive motions in the trial court.

Law Offices of Robin Bresky Obtains Reversal of Order That Landlord Return “Advance Rent” Following Proper Termination of Tenant’s Lease

Atlantis Estate Acquisitions, Inc. v. DePierro, 4D11-295

The Law Offices of Robin Bresky recently obtained reversal of a final judgment following trial, which ordered a landlord of residential property to return a large sum of rent to a former tenant. The evidence showed that the tenants had made one large lump-sum rent payment intended to cover the entire year rental period. The trial court found that the landlord had properly terminated the tenants’ occupancy of the premises based on damage to the home. However, the trial court found that the large lump-sum rent payment the tenants had made prior to moving in was “advance rent” under Florida Statute 83.43(9). The trial court ordered the landlord to return the “unused portion” of rent based on the court’s finding that the rent was intended as advance rent for monthly payment periods. The trial court found that the landlord would be unjustly enriched if it kept the rent.

On appeal, we argued that the tenants’ rent payment could not be considered advance rent under the statute because there was only one rental period, rather than the multiple “future rent payment periods” discussed in the advance rent statute. We argued that the only “rent payment period” was the current rent payment period of one year for which the tenants paid. We also argued that the landlord was legally entitled to retain the “unused” portion of the rent money regardless, because the landlord’s termination of the lease was proper. Finally, we argued further that unjust enrichment was inapplicable since a written lease governed the agreement between these parties.

The Fourth DCA agreed with our position. The Fourth DCA held that the rent payment did not constitute advance rent and that, even if it was advance rent, the landlord should still not have been required to repay it where the landlord properly terminated the lease. The Fourth DCA also held that unjust enrichment did not apply. This reversal allows our landlord client to retain the $38,500 in rent that it was ordered to repay the client, and also affirmed that our client is not liable for the tenants’ attorney’s fees.
** At this time, the time for a motion for rehearing has not expired and the court’s mandate has not yet issued. **

Jonathan Mann of Law Offices of Robin Bresky Obtains Reversal in Fifth District Court of Appeal of Final Judgment Modifying Timesharing Entered After Judge Disqualified Himself

Parnell v. Parnell, 5D12-785

Jonathan Mann of the Law Offices of Robin Bresky recently obtained reversal, in the Fifth District Court of Appeal, of a final judgment of modification of timesharing of a minor child. The parties’ son was two years old in 2008 at the time of the parties’ divorce. Two years after the divorce, the father sought to modify the timesharing schedule regarding the son. The trial court held a hearing on the father’s petition and at the end of the hearing made an oral ruling granting the modification.

However, the trial judge later disqualified himself from the case, and all cases involving the mother’s trial attorneys, shortly after the hearing due to a motion by the mother’s trial attorneys alleging fears they would not receive fair treatment. The parties then disagreed over the details of the final written judgment granting modification. The mother objected to the father’s proposed final judgment. The trial court rendered a written final judgment two months later granting the father’s petition for modification, despite the judge having disqualified himself.

On appeal to the Fifth DCA, Mann argued on behalf of the mother that the trial court’s final judgment was void because the trial judge rendered the written final judgment after disqualifying himself. Mann acknowledged the existence of the “ministerial act” exception that allows a disqualified trial judge to reduce a prior oral ruling to writing. However, the exception does not apply where the judge exercises any further discretion prior to rendering the written order. Mann argued that the exception was inapplicable in this case because the trial court had used further discretion regarding the parties’ disagreement over the proposed final judgment before rendering the written final judgment.

The Fifth DCA agreed that the ministerial act exception to the disqualification rule did not apply in this case. The Fifth DCA issued a written per curiam opinion reversing the final judgment of modification. This beneficial result in the appellate court undid the final judgment that was detrimental to our client.

Law Offices of Robin Bresky Obtains Affirmance of Final Judgment Based on Verdict for Plaintiff in Personal Injury Automobile Accident Suit

Garcia Rojas v. Aristizabal, 3D12-384

The Law Offices of Robin Bresky recently won an affirmance of a final judgment awarding our client damages for personal injuries he sustained in an automobile accident. Our client went to trial in his personal injury suit and obtained a jury award of $185,277 in the trial court in Miami. No medical expert testified at the trial, but our client testified about his injuries, his treatment, and the resulting medical bills. The trial court admitted the medical bills into evidence over defense counsel’s objection. The trial court later entered a final judgment in our client’s favor based upon the jury verdict.

The defendant appealed the final judgment, arguing that our client had not provided sufficient testimony to admit the medical bills into evidence. We argued that our client’s testimony was sufficient under Florida law to make the reasonableness and necessity of medical bills a question for the jury. We stressed that Florida law does not require expert medical testimony in order to prove the reasonableness of a personal injury plaintiff’s medical bills.

The Third DCA issued a per curiam affirmance of the trial court’s order. This result in the appellate court preserved our client’s hard-won jury verdict.
** The mandate has not yet issued **

Law Offices of Robin Bresky Obtains Affirmance of Order Limiting Successor Mortgagee’s Liability Following a Foreclosure Sale

The Sterling Villages of Palm Beach Lakes v. The Bank of New York, 4D11-3008

The Law Offices of Robin Bresky recently won an affirmance of an order limiting a successor mortgagee’s liability to the homeowner’s association (“HOA”) following a foreclosure sale. Our client held a mortgage on property located within the HOA. The unit owner defaulted. Our client foreclosed on the property, and joined the HOA in the foreclosure suit. Our client purchased the unit at foreclosure sale and obtained a certificate of title.

Following the foreclosure sale, our client sought to determine its liability to the HOA for the outstanding unpaid assessments on the unit. Our client took the position that it was a successor mortgagee whose liability for unpaid assessments was limited by the operation of section 718.116(1)(b), Florida Statutes, to the lesser of the preceding twelve months’ assessments prior to taking title, or one percent of the mortgage debt. The HOA sought discovery on the issue of whether our client was a successor mortgagee. The HOA also argued that our client was required to initiate a separate proceeding in which to determine the amounts due to the HOA. The HOA also sought various amounts for interest and other charges accruing prior to the time our client took title. The trial court rendered an order in our client’s favor denying discovery and limiting our client’s liability pursuant to the statute. The HOA appealed.

We argued on appeal that the trial court had already determined in its Final Judgment of Foreclosure that our client was a successor mortgagee and the HOA had failed to appeal the Final Judgment, so discovery on that issue would not be appropriate. We also argued that our client’s liability was limited by the statute and the statute did not include the various additional amounts sought by the HOA. The Fourth DCA issued a per curiam affirmance of the trial court’s order. This result in the appellate court preserved the beneficial outcome for our client.

Law Offices of Robin Bresky Obtains Reversal of Temporary Attorney’s Fees Award in Modification of Alimony Proceedings

Giorlando v. Giorlando, 4D12-1220

The Law Offices of Robin Bresky recently won reversal of a trial court’s award of temporary attorney’s fees and costs in a petition for modification of alimony. The parties’ marriage was previously dissolved and a marital settlement agreement (“MSA”) was incorporated in the Final Judgment of Dissolution. The MSA imputed $40,000 of yearly income to the former wife for purposes of determining alimony and child support.

The former wife filed a petition for modification of alimony and child support six years after the dissolution of marriage, alleging that substantial changes had occurred in both parties’ financial situations that warranted an increase in the alimony and child support she received. The trial court held a hearing at which both parties testified. The trial court later awarded the former wife $79,333.71 in total professional fees and costs without imputing the $40,000 in yearly income to the former wife pursuant to the MSA.

On appeal, we argued that the trial court should have imputed $40,000 in yearly income to the former wife as provided in the Final Judgment of Dissolution and MSA. The Fourth DCA agreed, and held that the $40,000 must be taken into account in the trial court’s determination of whether to award temporary fees. The Fourth DCA noted that the former husband had testified on the record to the decline in his construction business due to the economy, and that there had been no explanation for why the former wife’s need had increased. The Fourth DCA stated that the former wife should have the burden of explaining why the imputed income should not be considered.

Bovino v. MacMillan, 4D11-3105

The Law Offices of Robin Bresky recently won reversal of a trial court’s erroneous order finding that our client/Appellant, a Colorado attorney, engaged in the unauthorized practice of law. The Appellant had a broad power of attorney (POA) relating to the financial affairs of a man that he represented in Colorado. That man’s mother later initiated a guardianship proceeding over her son in Broward County, alleging that her son was unable to manage his own affairs. Our client filed an objection to the guardianship petition based on the existence of the POA that he held. The trial court struck our client’s filing based on a finding that it constituted the unauthorized practice of law because our client was not licensed as a Florida attorney.

On appeal, we argued that our client/Appellant had intervened in the guardianship proceeding as an interested person pursuant to the guardianship statutes rather than in his capacity as the proposed ward’s attorney. We called the appellate court’s attention to the fact that Appellant had clearly stated in his objection in the guardianship case that he was filing the documents on his own behalf. We argued it was error for the lower tribunal to find this attorney was engaging in the unauthorized practice of law and that our client believed it was his fiduciary duty to bring the existence of the POA to the attention of lower tribunal. We further argued public policy should encourage this disclosure.

The Fourth DCA held in a written opinion that Appellant’s objection in the guardianship proceeding did not constitute the unauthorized practice of law because Appellant did not purport to represent the client as his attorney in the proceeding. The Fourth DCA reversed the order on appeal and remanded for further proceedings. The reversal of the erroneous order finding that our client engaged in the unauthorized practice of law vindicates our client’s professional reputation.

Michele K. Feinzig, along with Plaintiff’s trial counsel, Scott Sheftall of Sheftall & Torres, P.A., represented the Plaintiff/Appellant in an appeal of a defense final judgment following a zero verdict in a negligent security case (Third DCA Case No. 3D10-975). The Plaintiff was robbed and then raped at gunpoint while working the graveyard shift as a retail cash clerk early Christmas morning. She brought a negligent security action against the store due to its failure to provide adequate security despite a history of previous violent crimes, both on the premises and in the vicinity. During the trial, the Defendant store admitted that the Plaintiff was not negligent and in no way contributed to her being robbed and raped. Also, the Defendant store’s expert testified that had he been advising the store before the attack on the Plaintiff, he would have recommended that the store add an unarmed security guard to its security measures. The defense expert admitted that if such an unarmed security guard had been in place, the Plaintiff more than likely would not have been raped. Despite this and other compelling evidence supporting the Plaintiff’s case against the store, the jury came back with a zero verdict because it was allowed to hear improper, prejudicial testimony from the defense’s expert that this was a “victim-targeted crime” which could neither be foreseen nor prevented by any reasonable security measures. 

In February 2012, the Third DCA reversed for a new trial, finding that the store’s expert’s testimony that this was an unforeseeable, unpreventable “victim-targeted crime” was beyond the scope of his expertise, and should not have been admitted. The store moved for rehearing and rehearing en banc, and in November 2012, the Third DCA denied both motions. All of the appellate judges at the Third DCA, including those on the original panel, joined in the denial of rehearing en banc. With respect to rehearing, one Judge who was on the original panel change her mind and wrote a dissent, stating that she would grant rehearing and affirm the jury’s zero verdict. Nonetheless, the majority’s reversal and denial of rehearing, along with the entire Court’s denial of rehearing en banc, ensured Plaintiff’s entitlement to a new trial at which she could seek fair compensation for the damages she has suffered due to the store’s negligence, without being tainted by the store’s expert’s “victim-targeted crime” theory. The parties have since reached a confidential settlement.

Miller v. Bohan, 4D11-1169

The Law Offices of Robin Bresky recently won an affirmance of a final judgment in our client’s favor in an appeal involving a trust amendment. Our client’s remaining living sister brought a lawsuit against our client contesting the trust amendment their deceased sister had executed in favor of our client. Our client’s remaining living sister argued that our client, who had helped care for her ill sister at the end of her life, had exercised undue influence over her sister in the execution of the trust amendment prior to her death. The trial court found that our client had successfully rebutted the legal presumption of undue influence arising from her involvement in the execution of the trust amendment. The trial court found after listening to all of the evidence at trial that the deceased sister knew what she was doing when she amended her trust, that she had her own valid reasons for amending the trust, and that she knew what she was doing on the day she executed the amendment.

On appeal, our client’s remaining living sister argued that the trial court had failed to correctly apply the burden-shifting procedure required by section 733.107, Florida Statutes, to evaluate whether our client successfully rebutted the presumption of influence. Our firm argued that the trial court had diligently applied the evidence to the appropriate legal framework established by the statute and had properly concluded that there was no undue influence. We also argued that competent substantial evidence in the record supported the factual findings made by the trial court in the final judgment.

The Fourth DCA issued a per curiam affirmance (“PCA”) affirming the trial court’s final judgment in favor of our client. The Fourth DCA also awarded our client attorney’s fees in connection with the appeal. This result preserved the final judgment in favor of our client and maintained the trust amendment in accordance with the wishes of her deceased sister.