Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 04/23/2013
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2013-6
April 23, 2013
Eleventh Circuit Court of Appeals
OPIS Management Services v. Secretary Florida Agency for Healthcare 12-12593
4/9/13
The Federal HIPAA statute preempts Florida Statute which requires the release of nursing home records to a surviving spouse or guardian.
Section 400.145, Florida Statutes requires that nursing homes release the records of deceased residents to a spouse, guardian or attorney in fact. However, several nursing homes refused to release the records because they claimed that the Florida Statutes were in conflict with the federal HIPAA which requires that the records be released to a personal representative. After being cited by the Agency for Healthcare Administration, a number of nursing homes filed an action for declaratory judgment. The district court found that section 400.145 was preempted by HIPAA.
The Eleventh Circuit affirmed the district court. In its analysis, the Eleventh Circuit began by noting that HIPAA contains an express preemption provision. The Court rejected Defendant’s argument that the individuals listed in section 400.145 should be treated as if they were personal representatives. The Court said, “The fatal flaw in the State Agency’s argument is that the plain language of § 400.145 does not empower or require an individual to act on behalf of a deceased resident. The unadorned text of the state statute authorizes sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident’s stead.”
Second District Court of Appeal
Rogan v. Oliver 2D12-3935
4/10/13
The authority of a corporation to exercise or waive its attorney-client privilege rests with the current board members not previous members or officers.
Plaintiff Oliver, the former president of a homeowner’s association, sued other members for defamation. He sued them for making statements that he had used association funds for personal projects. The Defendant members raised the truth as an affirmative defense. When he was deposed, Oliver stated that he had relied on the advice of the association’s prior counsel when he sought to make decisions affecting the association. The Defendants then sought to depose the attorneys that had served as counsel for Oliver. Oliver objected, arguing that the attorney- client privilege applied to his communications with these attorneys. The Defendants then filed a motion to compel but were denied by the trial court. They petitioned the Second District for certiorari.
The Second District noted that the attorney-client privilege applies to corporations as well as individuals. However the court went on to find that the trial court had departed from the essential requirements of the law when it found that Oliver, a former manager, had the authority to waive or assert the attorney-client privilege. The Court stated, “It is the Association, through its current board of directors, which is the entity with the authority to waive or assert attorney/client privilege as to communications between the Association's prior board and its counsel. To the extent that the trial court placed this authority with Oliver, it departed from the essential requirements of the law.”
Fourth District Court of Appeal
Carriage Hill Condominium, Inc v. JBH Roofing & Constructors 4D11-22
3/20/13
Corporation was not strictly bound by testimony of corporate deponent where deposition was not properly noticed or conducted pursuant to Fla. R. Civ. P. Rule 1.310(b)(6).
Parties entered into a contract where JBH was to perform roof repair for Carriage Hill Condominium association. A dispute arose and the board of the condominium association terminated the contract. JBH sued for breach of contract and related claims. Carriage Hill Condominium answered with twelve affirmative defenses. During litigation, JBH sent a notice to Carriage Hill Condominium, seeking to depose the “corporate representative with the most knowledge.” The notice did not mention Fla. R. Civil Pro. 1.310(b)(6) which governs corporate representative depositions. In compliance with the notice, Carriage Hill provided Foley, the former President of the Association who had signed the contract. Apparently, however, she did not agree with the board members who were convinced that JBH was not performing adequately under the contract. She said so in her deposition. JBH took that testimony and filed a motion for summary judgment. Carriage Hill responded to the motion by obtaining affidavits from other former officers in which they stated that Carriage Hill was double billed and that work was substandard and sometimes unauthorized. The trial court determined that Foley was the “corporate representative” and as such, her testimony was dispositive. The trial court struck the affidavits of the two subsequent witnesses and granted JBH’s motion for summary judgment.
The question on appeal was whether Carriage Hill was bound by Foley’s testimony and whether the trial court was correct in striking the two subsequent affidavits. The Fourth District began its analysis by saying that the deposition resulting in Foley’s testimony was not properly noticed or conducted under Rule 1.310(b)(6). The District Court went on to note that Foley testified as to her own beliefs and acknowledged that the other board members did not share her opinions. In finding that the trial court erred, the Fourth District stated, “To summarize, we hold that before a trial judge may strike testimony offered by an entity on the basis that it repudiates or contradicts prior testimony given by a corporate representative, it must find that: (1) the prior deposition testimony was provided by a duly noticed Rule 1.310(b)(6) designee on a matter specified in the deposition notice, see Fla. R. Civ. P. 1.310(b)(6); (2) that the testimony subject to the motion to strike directly contradicts or repudiates unequivocal prior testimony regarding matters of fact,…; (3) that there is no credible and reasonable explanation for the discrepancy,..; and (4) that striking the testimony is necessary in order to protect “the integrity of the judicial process,”…. Absent such findings the alleged discrepancy is a matter to be considered by the trier of fact. As none of these criteria are satisfied here, the trial court erred in striking Carriage Hills’ affidavits.”
Bradshaw v. Boynton–JCP Associates, LTD 4D11-4242
4/11/13
The placement of apostrophes created an ambiguity in the offer of judgment.
The trial court awarded attorney’s fees pursuant to an offer of judgment.
The Fourth District reversed saying that the placement of apostrophes in the proposal created an ambiguity as to whether the drafter was referring to singular or plural defendants.
Navarro v. Castro, Jr 4D11-4809
3/27/13
The court had jurisdiction to after final order of dismissal because party alleged a mutual mistake of parties.
Parties entered into a stock option agreement in which the Plaintiff was to sell his shares of a business to the Defendant. A dispute arose and the Plaintiff brought suit and then the Defendant counterclaimed. Eventually the parties settled and brought a proposed final order with prejudice to the judge for signature. Not long after the judge signed the order the Defendant brought a motion to set aside the order, claiming that there was a mistake. The judge denied the order saying that he did not have jurisdiction.
The Fourth District reversed. The Court said, “On its face, rule 1.540(b) gives a court jurisdiction to consider a motion to set aside a final order of dismissal on the ground of alleged mistake. …The fact that the defendant stipulated to the entry of the final order of dismissal is not relevant to the initial question of jurisdiction… Here, the face of the defendant’s motion alleges he is seeking to set aside the dismissal order not on the ground of a judgmental mistake, but rather on an alleged non-judgmental mistake, that is, the true value of the insurance policy to be paid as part of the settlement. Thus, because the defendant’s motion pled the existence of a ground set out under rule 1.540(b), the circuit court had jurisdiction to consider the motion and should have set an evidentiary hearing on the motion.”
Fifth District Court of Appeal
U.S. Bank v. Wanio-Moore 5D12-1746
4/5/13
Regarding a foreclosure action, Fla. Rule Civ. Pro. Rule 1.110(b) does not require any information about the signer’s positional authority.
U.S. Bank filed a complaint to foreclose. The trial court dismissed the complaint for inadequate verification. The trial court cited the fact that the signed verification did not include signor’s position.
The Fifth District reversed, stating that Fla. Rule Civ. Pro. Rule 1.110(b) does not require any information about the signer’s positional authority. The Fifth District said, “…a court cannot read more into [rule 1.110(b)] than its plain language dictates.”