October 20, 2016: Florida Supreme Court Quashes First District Court of Appeal Decisions Requiring Language of Florida Rule of Civil Procedure 1.442 (c)(2)(F) Be Strictly Construed
- In Kuhajda v. Borden Dairy Co. of Al., LLC, SC15-1682, the Florida Supreme Court issued a decision holding that Florida Rule of Civil Procedure 1.442 (c)(2)(F)’s provision requiring a proposal for settlement state “whether attorney’s fees are part of the legal claim” is procedural and “totally irrelevant” to enforcement when the complaint does not seek attorneys’ fees. The Supreme Court’s decision approves the Fourth District decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003), and quashes two First District Court of Appeal decisions: Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015), and Colvin v. Clements & Ashmore, P.A., 182 So.2d 924 (Fla. 1st DCA 2016).
- Florida Rule of Civil Procedure 1.442 and section 768.79 Florida Statutes, govern service of proposals for settlement in Florida, and provide a means to obtain attorneys’ fees but, given their punitive effect, must be “strictly construed.” The Florida Supreme Court in Kuhajda, explained that rule is the procedural framework implementing the statute and, therefore, provisions which do not implement a substantive requirement of the statute need not be strictly construed. Therefore, when attorneys’ fees are not sought by a party in their pleadings, it is no longer necessary to include the language of Rule 1.442 (C)(2)(F), providing a proposal “state whether attorney’s fees are part of the legal claim. It is a logical ruling, but one that is significant given the overarching mantra that Rule 1.442 must be “strictly construed.”
October 17, 2016: BRPC Proves Plaintiff’s Fraud on the Court Obtaining Dismissal of All Claims and Final Judgment In favor Of BRPC’s Clients
- BRPC successfully defended its clients in an auto negligence case obtaining a Final Order of Dismissal on BRPC’s Motion to Dismiss for Fraud upon the Court. Plaintiff brought a negligence suit against BRPC’s clients seeking to recover damages for personal injuries. In deposition Plaintiff provided sworn testimony that that she has a permanent limp which required her to use a cane at all times when she walked, that she needed a cane or handrail to walk up and down steps otherwise she was unable to do it, that she was unable to carry large boxes, heavy or bulky items, and that she cannot walk straight because her leg moves out to the left. BRPC produced video surveillance evidence in direct conflict with this testimony and successfully showed that Plaintiff failed to testify truthfully in a manner than was more than a mistake, neglect, or inadvertence. The Court found that BRPC, on behalf of its’ clients had proven, clearly and convincingly, that Plaintiff implemented a deliberate scheme calculated to subvert the judicial process, warranting dismissal and final judgment in favor of BRPC’s clients.
April 2016: The Eleventh Circuit Makes Clear Employer’s Do Not Have to Allow Employees to Remain on Light Duty Status in Perpetuity or Create a New Job for Them
- In Frazier-White, the Eleventh Circuit held that an employer did not discriminate (hence, the plaintiff failed under prong (3) set forth above) under the ADA or the Florida Civil Rights Act by failing to provide a reasonable accommodation where the employee proposed two accommodations: to allow the employee “an indefinite extension of her light-duty status and reassignment to some other, unspecified position.” Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th 2016). Because of the nature of the plaintiff’s medical condition in Frazier-White v. Gee, the plaintiff did not know and did not suggest a time frame for when she was able to return to her full-duty position. The court found that such an indefinite extension was unreasonable as a matter of law as the ADA is intended to cover people who perform the essential functions of their jobs “presently or in the immediate future.” Wood v. Green, 323 F. 3d 1309, 1314 (11th Cir. 2003). The Eleventh Circuit made clear in Frazier-White v. Gee that while employers are required to make reasonable accommodations under the ADA when doing so they do not, as a matter of law, have to allow an employee to remain on light duty status in perpetuity or create a new job for them. Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016).
August 24, 2016: The Fourth District Court of Appeals of Florida Withdraws Opinion Granting Appellate Attorney’s Fees in Lawsuit Alleging Violation of FDUPTA AND FCCPA and Substitutes with Opinion Denying Appellate Attorney’s Fees
- The Fourth District Court of Appeal withdrew its initial Opinion Granting Appellate Attorney’s Fees in a lawsuit involving claims brought against the defendants alleging violation of the Florida Deceptive and Unfair Trade Practice Act §§ 501.201-.213, Florida Statutes (2014)(“FDUPTA”) and the Florida Consumer Collection Practices Act (“FCCPA”) and substituted with an Opinion denying appellate attorney’s fees. The Fourth District Court of Appeal aligned with the First District Court of Appeals in Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 270 (Fla. 1st DCA 1985)(“In summary, we hold that to recover attorney’s fees a must (1) recover judgment on the chapter 501, part II claim, and (2) recover a net judgment in the entire case.” Because Appellant Banner prevailed solely on his FCCPA claim but did not prevail on his FDUPTA claim the Court found that under the Heidel approach Banner was not entitled to appellate attorney’s fees because he did not prevail on the entire case and a section 501.205 recovery requires that a party recover a net judgment in the entire case not just the FDIPTA claim or another theory of liability.
- The Court made clear that “The goal of consumer protection statutes like FDUPTA and FCCPA is to deter various types of anti-consumer conduct. To allow attorney’s fees where a plaintiff does not prevail under one consumer protection statute-but obtains judgment under a different consumer law or a common law cause of action-would discourage consumers from using statutes designed for their own protection.”