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 **

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.

Arafat v. U-Haul Center Margate, 4D10-1179
June 22, 2011

The Fourth District addressed a writ of certiorari challenging a circuit court’s dismissal of an appeal as untimely. Arafat filed a complaint in small claims county court for $5,000 based on a statement of claim for items that were removed from her storage unit. The court entered judgment for the defendants on May 21, 2009. Arafat filed a motion for rehearing on June 1, 2009 but did not actually serve it until June 3, 2009.  The trial court denied the motion but ruled the denial would not take effect until September 1, 2009.  On September 24, 2009 Arafat filed a notice of appeal.  The defendants moved to dismiss the appeal, arguing that Arafat’s motion for rehearing was untimely and that because the judgment came from a nonjury trial, Florida Rule of Civil Procedure 1.530 mandates that a motion for rehearing be filed within ten days of the final judgment.  The circuit court agreed and dismissed the appeal.
On appeal, the Fourth District noted that Florida Small Claims Rule 7.180 provides that a motion for new trial must be filed within ten days. Florida Rule of Civil Procedure 1.530 provides that a motion for new trial or rehearing must be served within ten days. Because this case originated in small claims, and because the Florida Small Claims Rules do not incorporate Florida Rule of Civil Procedure 1.530, the Fourth District held that the motion for rehearing was timely. Florida Small Claims Rule 7.230 provides that appeals from small claims court shall be governed by the Florida Rules of Appellate Procedure. Under Florida Rule of Appellate Procedure 9.020(h), an authorized and timely motion for new trial or rehearing tolls rendition of the order of the trial court until disposition of the motion. The Fourth District quashed the dismissal of the appeal and remanded the case to be decided on the merits.