Florida Justice Reform Institute, Logo

Florida Cases To Watch In 2016

 By Carolina Bolado

Law360, Miami (December 24, 2015, 8:37 PM ET) -- Florida appeals courts are set to tackle several broad-ranging issues in 2016 that will affect litigation across the state, including the statute of limitations on mortgage foreclosure suits, damages caps in personal injury medical malpractice cases and how far the attorney-client privilege extends in cases in which plaintiffs attorneys refer clients to physicians.

Here are the key cases attorneys will be watching this year:

Bartram v. US Bank NA and Deutsche Bank v. Beauvais

Real estate attorneys around the state are keeping close tabs on a pair of foreclosure cases that should clarify how the statute of limitations is applied to mortgage foreclosure suits.

“As far as affecting commercial practice, it's right there at the top of the list,” said Hilarie Bass of Greenberg Traurig LLP.

Bartram v. U.S. Bank began with a 2006 foreclosure lawsuit against Lewis Bartram, who, after a divorce, allegedly stopped making payments to the bank or to his ex-wife on a $650,000 mortgage. In April 2011, with Bartram's suit still languishing in the courts, his ex-wife Patricia Bartram filed a suit to foreclose her mortgage, naming her ex-husband, the bank and the homeowners' association as defendants.

One month later, the foreclosure suit against Lewis Bartram was dismissed, and he filed a claim seeking declaratory judgment from the bank because it had been more than five years since his default and the statute of limitations had run out. He argued that the clock began to run when he defaulted in January 2006 and the bank accelerated the loan.

The trial court sided with him, but the Fifth District Court of Appeal reversed the ruling and certified the question of whether the acceleration of payments under a loan triggers the statute of limitations to the Florida Supreme Court. Oral arguments were held in November, and a decision is expected in the coming year.

In the Beauvais case, the Third District Court of Appeal in December ruled that the acceleration of the mortgage debt triggered the start of the statute of limitations. Because there were no new payments due, there was no new default after the lawsuit was dismissed and the later lawsuit was time-barred, according to the appeals court.

That case was reheard en banc last month. The ruling creates a clear circuit split for the Florida Supreme Court to resolve.

“Think of the robosigning scandal where lawsuits were put on ice or dismissed because of paperwork issues,” said Michael Provenzale of Lowndes Drosdick Doster Kantor & Reed PA. “If those were dismissed and haven't been refiled, it could be that many cases will run into this kind of problem.”

Deutsche Bank is represented by William P. McCaughan, Steven R. Weinstein and Stephanie N. Moot of K&L Gates.

Beauvais is represented by Steven M. Siegfried and Nicholas Sigfried of Sigfried Rivera Hyman De La Torre Mass & Sobel and Todd L. Wallen of The Wallen Law Firm.

The case is Deutsche Bank Trust Company Americas v. Beauvais et al., case number 3D14-575, in the Third District Court of Appeal of Florida.

US Bank is represented by Jeffrey C. Sirolly and Michael D. Starks of Baker Donelson Bearman Caldwell & Berkowitz PC and Bill McCaughan of K&L Gates LLP.

Lewis Bertram is represented by Michael A. Wasylik of Ricardo & Wasylik PL, Thomas R. Pycraft Jr. of Pycraft Legal Services, and Dineen Pashoukos Wasylik.

The case is Bartram v. U.S. Bank NA et al., case number SC14-1265, in the Supreme Court of Florida.

Florida Department of Revenue v. American Business USA Corp.

The Florida Supreme Court is expected to rule in a challenge to a state law imposing tax on Florida-based florists' sale of flowers to out-of-state recipients that attorneys say could reach beyond just florists.

“It has the potential for being a broad-reaching issue because you're talking about taxing sales that occur in Florida to out-of-state citizens,” said Charles Lichtman of Berger Singerman LLP.

At oral arguments in November, American Business USA Corp., which runs the online florist 1Vende, argued that the tax was improper because the goods at issue were never brought into Florida.

The state, on the other hand, said the Fourth District Court of Appeal had mistakenly concluded that Florida lacked a nexus to the sales when it declared the law violated the dormant commerce clause in Article I, Section 8 of the U.S. Constitution by burdening interstate commerce.

American Business is represented by Michael D. Sloan, David B. Esau and Dean A. Morande of Carlton Fields Jorden Burt.

Florida is represented by Pam Bondi, Allen Winsor, Jeffrey M. Dikman and Angela L. Huston of the state attorney general's office.

The case is Florida Department of Revenue v. American Business USA Corp., case number SC14-2404, in the Supreme Court of Florida.

Worley v. Central Florida Young Men's Christian Association

The attorney-client privilege is under scrutiny in a closely watched case currently before the Florida Supreme Court involving a woman, Heather Worley, who was injured when she tripped and fell in the parking lot of Central Florida YMCA and was referred to a doctor by her attorneys at Morgan & Morgan PA.

The Fifth District Court of Appeal refused to quash a trial court order requiring Worley to produce any information of a possible referral relationship between the doctors and her attorneys because, in the court's opinion, the YMCA had sufficiently shown that such a relationship could exist. Worley argues that the Fifth District's ruling “erodes the attorney-client privilege.”

The question now is whether information about the potential referral relationship is discoverable and if it is admissible to a jury to prove bias, according to Holland & Knight LLP's Mark Delegal, who said the referral technique can be used by a plaintiffs' lawyer to drive up the cost of medical care and therefore medical damages.

The case has attracted the attention of groups such as the Florida Justice Association, the Florida Justice Reform Institute and the Florida Defense Lawyers Association, all of which have requested permission to file amicus briefs.

Worley is represented by Andrew Parker Felix and W. Clay Mitchell Jr. of Morgan & Morgan PA and Celene H. Humphries and Tracy S. Carlin of Brannock & Humphries.

The YMCA is represented by Lamar D. Oxford, Joseph R. Flood Jr. and Jessica C. Conner of Dean Ringers Morgan & Lawton PA.

The case is Worley v. Central Florida Young Men's Christian Association Inc. et al., case number SC15-1086, in the Supreme Court of Florida.

State Farm v. B&A Diagnostic

In November, U.S. District Judge K. Michael Moore granted summary judgment to State Farm Mutual Automobile Insurance Co. on its claims of unjust enrichment against B&A Diagnostic for allegedly illegal and fraudulent claims for X-rays filed under no-fault personal injury protection policies.

The decision, if upheld at the appellate level, directly impacts about 3,000 active pending lawsuits against State Farm and “creates a real sword for the insurance industry,” according to Lawrence Rochefort, chair of Akerman LLP's national litigation practice group.

Rochefort said the suit is an example of how insurance companies can use litigation to uncover fraud.

“It really handed a sword to the insurance industry, which was the point of bringing the case in the first place,” he said. “We live in a state where insurance fraud is a big issue. This is a very favorable opinion for the industry.”

State Farm is represented by Nicholas James Purvis, Sandra Lynn Heller and David Ira Spector of Akerman LLP.

B&A Diagnostic is represented by Gerald F. Richman, Georgia A. Thompson and Michael J. Napoleone of Richman Greer PA and Munir David Barakat of Barakat Legal PA.

The case is State Farm Mutual Automobile Insurance Co. et al. v. B&A Diagnostic Inc. et al., case number 1:14-cv-24387, in the U.S. District Court for the Southern District of Florida.

North Broward Hospital District v. Kalitan

In 2014, the Florida Supreme Court deemed the state's $1 million statutory cap on wrongful death noneconomic damages from medical malpractice unconstitutional in Estate of McCall v. United States. Now, the court is set to consider the cap on personal injury medical malpractice cases.

The Fourth District Court of Appeal ruled in July in Susan Kalitan's case against the North Broward Hospital District that the McCall case should be extended to include personal injury cases as well.

The case stems from a botched outpatient surgery in 2007 to treat Kalitan's carpal tunnel syndrome. The surgery required general anesthesia, and during intubation, her esophagus was perforated, according to court documents. She later needed additional surgery to repair her esophagus and was in a drug-induced coma for several weeks. Kalitan had to undergo intensive therapy to be able to eat again and to regain mobility.

A jury found in her favor and awarded $4.7 million in total damages, including noneconomic damages of $2 million for past pain and suffering and $2 million for future pain and suffering.

Delegal said that since the McCall ruling came out in March 2014, there has been a slight uptick in the frequency of medical malpractice lawsuits.

“When McCall was decided, there was concern that it would open the floodgates,” he said. “For the first year, there was not much of a change at all, and now there's been a slight uptick in the frequency.”

A similar concern exists if the Fourth District's decision is upheld by the Supreme Court, though Delegal said it was difficult to predict what would happen.

“If the caps are thrown out on personal injury, there's one less hurdle that a plaintiffs lawyer would have in deciding to pursue a case or not,” Delegal said.

Kalitan is represented by Crane Johnstone of Schlesinger Law Offices PA and Philip M. Burlington and Nichole J. Segal of Burlington and Rockenbach PA.

The hospital is represented by Dinah Stein and Gary Magnarini of Hicks Porter Ebenfeld & Stein PA, Heath & Carcioppolo, and Jeffrey R. Creasman and Thomas A. Valdez of Quintairos Prieto Wood & Boywer PA.

The case is North Broward Hospital District et al. v. Kalitan et al., case number SC15-1858, in the Supreme Court of Florida.

http://www.law360.com/articles/732226/florida-cases-to-watch-in-2016