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 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 **

Bell v. Bell,
Case No. 4D10-5122

This was a divorce case with several contested issues regarding the parties’ assets. Our client, the former wife, appealed the final judgment of dissolution of marriage. The former husband cross-appealed. Our client’s main issues were (1) the trial court’s failure to award her half of the husband’s accounts receivable from loans he made to his businesses; and (2) the trial court’s failure to make factual findings before denying her request for bridge-the-gap alimony.

The Fourth District Court of Appeal (“Fourth DCA”) agreed with our position that the trial court had erred in failing to award our client half of the husband’s accounts receivable. The Fourth DCA reversed and remanded. On remand to the trial court, the former husband took the position that the issue required an evidentiary hearing to determine the new equitable distribution of the asset. We opposed the need for an evidentiary hearing, arguing that the Fourth DCA had clearly stated in its written opinion that the value of the omitted account receivable was $660,611 based on undisputed testimony from the trial. The trial court agreed and entered an order denying the former husband’s demand for an evidentiary hearing.

The former husband next argued that the former wife should receive the omitted equitable distribution amount as an in-kind distribution (i.e. in assets of the business such as the notes themselves). We opposed the former husband’s position and argued that the former wife should receive the omitted amount as a cash distribution. The trial court received proposed Final Judgments from the parties reflecting the parties’ positions. On June 7, 2012 the trial court rendered an Amended Final Judgment that conformed to the appellate court’s mandate and also ordered that the omitted amount would be payable to former wife in cash in an amended equalization payment.

This outcome preserved the positive result we achieved in the appellate court for our client, saved her the additional attorney’s fees associated with a lengthy evidentiary hearing following remand, and obtained an order that the former husband must pay her the omitted equitable distribution amount in cash.

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.