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Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

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Torts — Limited liability companies — Breach of fiduciary duty — Damages — Additur — Inconsistent/inadequate verdicts — Attorney’s fees — Indemnification — Trial court erred in granting plaintiff’s motion for additur of $1 in nominal damages after jury found that defendant had breached his fiduciary duty to plaintiff, but awarded $0 in damages — Jury’s verdict was neither inconsistent nor inadequate — Verdict was not legally inconsistent because jury was instructed that it could, but was not required to, award nominal damages after finding defendant breached a duty that was a legal cause of damage to plaintiff, and because the jury returned a verdict consistent with those unobjected-to jury instructions and consistent with the directions provided on the verdict form — Additionally, given the unobjected-to jury instruction that authorized the jury to award $0 in nominal damages, the jury’s award of zero damages cannot be challenged as inadequate — Because the trial court must reinstate the original $0 verdict, trial court’s order denying defendant’s motion for judgment in accordance with motion for directed verdict is reversed because the return of a proper verdict of $0 in damages means plaintiff failed to prove damages, an essential element of its breach of fiduciary duty claim — Defendant was not entitled to be indemnified by plaintiff for his attorney’s fees under the terms of plaintiff’s operating agreement — Under the relevant statutory scheme, indemnification was available to defendant only if underlying claim did not arise from his breach of fiduciary duties to plaintiff — Plaintiff needed to prove only that defendant breached his duty of loyalty or duty of care, and jury expressly found that defendant had — Trial court erred in relying on provision in operating agreement where provision was expressly prohibited by section 605.0105(3) — Plain language of statute mandates that a manager who violates his duty of loyalty or duty of care is precluded from indemnification, and such statutory preclusion cannot be altered, modified or waived by the operating agreement

48 Fla. L. Weekly D605a AMERICAN SALES AND MANAGEMENT ORGANIZATION LLC d/b/a Eulen America, Appellant/Cross-Appellee, v. LUIS RODRIGUEZ LOPEZ, Appellee/Cross-Appellant. 3rd District. Case No. 3D20-563. L.T. Case No. 14-17706. March 22, 2023. An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Counsel: Greenberg Traurig, P.A., and Joseph Mamounas and Jay A. Yagoda, Read More »

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Rules of Civil Procedure — Amendment — Jury — Request to review testimony — Transcripts — Readback or playback of testimony

48 Fla. L. Weekly S51a IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.453. Supreme Court of Florida. Case No. SC2022-0803. March 30, 2023. Original Proceeding — Florida Rules of Civil Procedure. Counsel: Landis V. Curry III, Chair, Civil Procedure Rules Committee, Tampa, Jason Paul Stearns, Past Chair, Civil Procedure Rules Committee, Tampa, Joshua Read More »

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Civil rights — Employment discrimination — Retaliation — Limitation of actions — No error in granting summary judgment in favor of employer on claim that employer had discriminated against employee on basis of sex and family status and retaliated against employee after she complained of the discrimination — Trial court properly found that action was time-barred under one-year limitation period provided in section 760.11(5) because action was commenced more than a year after date when Equal Employment Opportunity Commission had issued right-to-sue notice — Although the relevant provisions of section 760.11 refer to a determination by “the commission,” which is defined as the “Florida Commission on Human Relations” in section 760.02(2), “the commission” in the context of this case may include the EEOC — Because the EEOC’s right-to-sue notice expressly informed the employee that the EEOC was “unable to conclude” that the information obtained established violations of the statutes and did not certify that the employer was in compliance with the statutes, the scenario provided in section 760.11(8) applied — As such, employee had to commence her civil action no later than one year after the date when the EEOC had issued the right-to-sue notice — Discussion of Woodham v. Blue Cross and Blue Shield of Florida, Inc. and Joshua v. City of Gainesville — EEOC’s use of “unable to conclude” language does not equate to a determination that “there is not reasonable cause” necessitating application of 760.11(7) — Court rejects argument that, under circumstances of case, four-year limitation period in section 95.11(3)(f) should have applied — Conflict certified

48 Fla. L. Weekly D357a AISY ALEU, PHARM. D., Appellant, v. NOVA SOUTHEASTERN UNIVERSITY, INC., a Florida not-for-profit-corporation, Appellee. 4th District. Case No. 4D22-697. February 15, 2023. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No. CACE21-005185(04). Counsel: William R. Amlong, Karen Coolman Amlong, and Jennifer Read More »

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Torts — Premises liability — Dismissal of crossclaims for contractual and common law indemnity — Appeals — Trial court’s misapplication of law regarding premises owner’s right to seek contractual or common law indemnity from another was not preserved for appeal where error first appeared on face of dismissal order and crossclaimant did not move for rehearing or otherwise timely bring error to trial court’s attention

48 Fla. L. Weekly D352a TOPVALCO INC., Appellant, v. MICHAEL A. WOLFF and 1045 LLC, Appellees. 4th District. Case No. 4D21-3143. February 15, 2023. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 50-2020-CA-006508-XXXX-MB. Counsel: Ross D. Bussard and Edward R. Nicklaus of Nicklaus Read More »

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Torts — Damages — Future medical expenses — Evidence — Experts — Life care planner — In awarding damages for future epidural and facet injections, trial court abused its discretion by allowing plaintiff’s life care planner to testify, based on planner’s own medical opinions, that plaintiff would require injections for the rest of his life — Although life care planner has a medical degree and is a practicing neurosurgeon, he was not offered as a medical expert or as an expert acting in a dual capacity — An expert witness, offered as a life care planner, may not infuse his or her own medical opinions in calculating certain costs of future medical care when such future care is not recommended by a treating physician or medical expert — Award of damages reversed where, without life care planner’s testimony, there was no reasonable evidence upon which jury could award challenged damages

48 Fla. L. Weekly D380a DEARTA ANDERSON-MOODY and SANDRA ANDERSON, Appellants, v. BRANDON WILSON, Appellee. 1st District. Case No. 1D21-2560. February 15, 2023. On appeal from the Circuit Court for Alachua County. Donna M. Keim, Judge. Counsel: Michael P. Regan, Jr., and Brian M. Guter, Florida O’Hara Law Firm, Jacksonville; and Warren B. Kwavnick, Cooney Read More »

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