Thursday, August 31, 2017

Attorney's fees -- Evidence was insufficient to support fee award where the only evidence detailing work actually completed consisted of affidavit and related documents that were neither introduced into evidence nor stipulated to at hearing


42 Fla. L. Weekly D1884bop of Form

Attorney's fees -- Evidence was insufficient to support fee award where the only evidence detailing work actually completed consisted of affidavit and related documents that were neither introduced into evidence nor stipulated to at hearing

JOEL EDWARD CHANDLER, Appellant, v. KCCS, INC., Appellee. 2nd District. Case No. 2D16-3091. Opinion filed August 30, 2017. Appeal from the Circuit Court for Polk County; John M. Radabaugh, Judge. Counsel: Nathan A. Carney of Carney Law Firm, P.A., Tampa, for Appellant. Brant Hargrove, Tallahassee, for Appellee.

(PER CURIAM.) Joel Chandler appeals from a final order awarding KCCS, Inc., fees pursuant to section 57.105(1), Florida Statutes (2016). We affirm the decision to award sanctions but reverse as to the amount awarded. Although there was evidence presented at the evidentiary hearing as to the hourly rate and the reasonableness of the fees, the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing. The evidence was thus insufficient to support the award. See Saussy v. Saussy, 560 So. 2d 1385, 1386 (Fla. 2d DCA 1990) (“To support a fee award, there must be the following: (1) evidence detailing the services performed and (2) expert testimony as to the reasonableness of the fee.” (citing Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975))); Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So. 3d 958, 960 (Fla. 4th DCA 2014) (“Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee.” (quoting Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th DCA 2006))). Because there was some competent evidence presented to support the award, we remand for further proceedings as to the proper amount of fees. See Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038, 1040 (Fla. 2d DCA 2015) (“[W]here the record includes some evidence supporting the fee . . . award, this court may remand for further proceedings.”); Morton v. Heathcock, 913 So. 2d 662, 670 (Fla. 3d DCA 2005) (reversing fee award because record did “not include the essential evidentiary support” required but remanding for additional hearing because record contained “some competent substantial evidence to support a fee award”); see also Xhelaj v. McCormick 105, LLC, 42 Fla. L. Weekly D1286 (Fla. 2d DCA June 2, 2017).

Reversed and remanded. (VILLANTI, SLEET, and SALARIO, JJ., Concur.)

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Contracts -- Damages -- Award exceeding amount requested and proved at trial and outside the scope of contract at issue


42 Fla. L. Weekly D1883aTop of Form

Contracts -- Damages -- Award exceeding amount requested and proved at trial and outside the scope of contract at issue

TUBBY'S CUSTOMS, INC., a Florida corporation; and LENWARD MARTIN, Appellants, v. CHARLES EULER, Appellee. 2nd District. Case No. 2D16-3878. Opinion filed August 30, 2017. Appeal from the Circuit Court for Pinellas County; Jack Day, Judge. Counsel: Lee M. Pearlman of Pearlman & Clark, P.A., St. Petersburg, for Appellants. Donald C. Anderson, Jr., of The Law Offices of Donald C. Anderson, St. Petersburg, for Appellee.

(LaROSE, Chief Judge.) Tubby's Customs, Inc., (“Tubby's”) and its owner, Lenward Martin, appeal a final judgment for breach of contract entered in favor of Charles Euler.1 We reverse, in part, because the awarded damages exceed those requested and proved at trial. We affirm the final judgment in all other respects without further discussion.

Factual Background

Mr. Euler contracted with Tubby's to restore his 1956 Ford coupe to “run & drive” condition for $15,000. Mr. Euler's friend, Repo Robbie, delivered the car to Tubby's garage. Mr. Euler subsequently made three payments of $5000 each to Tubby's. Later, when indisposed by health issues, Mr. Euler gave Repo Robbie an additional $3500 to pay Tubby's to finish the work. Unfortunately, after Mr. Euler paid Tubby's $18,500 over the course of more than two years, Tubby's never completed the restoration. Mr. Euler had his car towed back to his house.

Mr. Euler sued Tubby's. He alleged that Tubby's breached the restoration contract by failing to complete the work in a reasonable time after Mr. Euler “paid a total of $18,500 to Tubby's as and for a final price.” At trial, Mr. Euler testified that he budgeted $15,000 to get the car running and driving, $3500 for the interior, and $1500 for tires and wheels. Mr. Euler conceded that he never intended that Tubby's would do the interior. The “budget” he testified about was his personal budget, not part of his contract with Tubby's. Mr. Euler testified that when Tubby's was unable to get the car running and driving for $15,000, he paid Tubby's an additional $3500 to “get it running.”

Mr. Euler sought damages for the reasonable cost of completion ($8829.30), a rebate of the difference between the amount paid and the reasonable value of the repairs ($9250), and a towing fee ($44). Without objection, Mr. Euler submitted an estimate from Mahoney Auto Repair into evidence, reflecting that the car required $8829.30 in additional mechanical repairs. Mr. Euler's expert testified that Tubby's had completed only 50% of the work for which Mr. Euler had paid.

The trial court entered a final judgment finding that Tubby's breached the contract. It awarded Mr. Euler $12,329.30 in damages, plus costs of $2899.65, for a total of $15,228.95. The trial court did not elaborate on its damage calculation. Seemingly, the award is a combination of $8829.30 for the reasonable cost of completion and an additional $3500.

Analysis

Tubby's argues that the awarded damages exceeded the “cap” on damages, and erroneously combined inconsistent theories of recovery. Mr. Euler counters that the trial court properly awarded damages based on a benefit-of-the-bargain theory. He argues that the judgment consisted of the $8829.30 required to complete the mechanical repairs and the $3500 to complete the car's interior, which he maintains was necessary to make the car drivable.

We review “[a] trial court's determination as to the method of calculating damages . . . de novo.” HCA Health Servs. of Fla., Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469, 471 (Fla. 4th DCA 2016) (citing Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So. 3d 374, 380 (Fla. 3d DCA 2013)). “[T]here must be some reasonable basis in the evidence to support the amount [of damages] awarded. Furthermore, it is incumbent upon the party seeking damages to present evidence to justify an award of damages in a definite amount.” Camper Corral, Inc. v. Perantoni, 801 So. 2d 990, 991 (Fla. 2d DCA 2001) (alterations in original) (quoting Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989)).

When there is a total breach of contract, the nonbreaching party may affirm the contract, “insist upon the benefit of his bargain, and seek the damages that would place him in the position he would have been in had the contract been completely performed.” Citizens Prop. Ins. Corp. v. Amat, 198 So. 3d 730, 734 (Fla. 2d DCA 2016) (quoting Rector v. Larson's Marine, Inc., 479 So. 2d 783, 784 (Fla. 2d DCA 1985)). Under this benefit-of-the-bargain theory, “the proper measure of damages would be either the reasonable cost of completion, or the difference between the value the [repair] would have had if completed and the value of the [repair] that has been thus far performed.” Rector, 479 So. 2d at 785.

Mr. Euler properly pleaded these alternative measures of damages. The final judgment suggests that the trial court chose to award the reasonable cost of completion. See Liddle v. A.F. Dozer, Inc., 777 So. 2d 421, 422 (Fla. 4th DCA 2000) (providing that the trial court can make “[a]n election between mutually exclusive remedies . . . at any time prior to the entry of judgment”).

But Mr. Euler's evidence established that the reasonable cost of completion was only $8829.30. Mr. Euler never requested $12,329.30 as the reasonable cost of completion, nor did he request $3500 to complete the car's interior. Further, Mr. Euler testified that his contract with Tubby's did not require Tubby's to complete the car's interior. Consequently, Mr. Euler's damages should have been limited to $8829.30 plus costs. See Taylor v. Lee, 884 So. 2d 222, 224 (Fla. 2d DCA 2004) (holding that the trial court erred in awarding an amount of damages that included costs and expenses outside the scope of the breached contract).

Because the damage award exceeded the amount Mr. Euler requested and proved at trial, we reverse the portion of the final judgment awarding Mr. Euler $12,329.30 and remand for the trial court to enter a judgment consistent with this opinion.

Affirmed, in part, reversed, in part, and remanded with directions. (CRENSHAW and ROTHSTEIN-YOUAKIM, JJ., Concur.)

__________________

1The trial court entered the final judgment only against Tubby's.

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Costs -- Expert witness fees -- Trial court erred in excluding from cost judgment fees paid to experts who provided testimony on specific economic losses plaintiff incurred as result of his injuries -- Trial court properly determined that two treating physicians who testified during trial could not be considered as experts for purposes of awarding fees -- Trial court erred in excluding fees for one treating physician who was listed as expert and who provided expert testimony at trial


42 Fla. L. Weekly D1868aTop of Form

Costs -- Expert witness fees -- Trial court erred in excluding from cost judgment fees paid to experts who provided testimony on specific economic losses plaintiff incurred as result of his injuries -- Plaintiff is entitled to recover these fees to extent he can establish fees were reasonable and necessary -- Trial court properly determined that two treating physicians who testified during trial could not be considered as experts for purposes of awarding fees -- Trial court erred in excluding fees for one treating physician who was listed as expert and who provided expert testimony at trial -- Remand for evidentiary hearing to determine amount of reasonable fees to be awarded for experts

RAYMOND C. SANTA LUCIA, Ph.D., Appellant, v. FERNANDO R. DIAZ, M.D.; and FLORIDA GULF-TO-BAY ANESTHESIOLOGISTS ASSOCIATES, P.A., Appellees. 2nd District. Case No. 2D15-4901. Opinion filed August 25, 2017. Appeal from the Circuit Court for Pinellas County; Amy M. Williams, Judge. Counsel: Melissa H. Powers of The Maher Law Firm, P.A., Winter Park; and William E. Hahn of William E. Hahn, P.A., Tampa, for Appellant. Michael R. D'Lugo and Linda S. O'Connor of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellees.

(KELLY, Judge.) In this medical malpractice action, Raymond Santa Lucia appeals from the cost judgment rendered after a jury verdict in his favor. He first contends the trial court abused its discretion in excluding from the cost judgment fees for Lawrence Forman and Dr. Hartley Mellish, the experts who provided testimony on the specific economic losses he incurred as a result of his injuries. The appellees properly concede Santa Lucia is entitled to recover these fees to the extent he can establish the fees were reasonable and necessary. See Payne v. Spier, 562 So. 2d 440, 441 (Fla. 4th DCA 1990) (holding that the plaintiff was entitled to recover reasonable expert fees for a rehabilitation expert and economist).

Santa Lucia also argues the trial court erred by excluding expert witness fees for three physicians who testified during the trial. The trial court determined the doctors could not be considered experts because they had treated Santa Lucia. A treating doctor can be considered an expert where he provides expert opinion testimony. See Field Club, Inc. v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (citing Clair v. Perry, 66 So. 3d 1078, 1079 n.1 (Fla. 4th DCA 2011)). Here, as the appellees properly concede, the trial court erred when it found that one of the treating doctors, Dr. John Bach, could not be considered an expert for the purposes of awarding fees. Dr. Bach was listed as an expert and in fact provided expert testimony. Accordingly, the trial court should have allowed Santa Lucia to recover a reasonable expert witness fee for his testimony. We agree with the appellees, however, that the trial court properly determined that Santa Lucia's remaining treating doctors could not be considered as experts for the purposes of awarding expert fees.

Accordingly, we reverse the final cost judgment and remand for an evidentiary hearing to determine the amount of reasonable fees to be awarded for Lawrence Forman, Dr. Mellish, and Dr. Bach.

Affirmed in part; reversed in part; and remanded with directions. (LUCAS and BADALAMENTI, JJ., Concur.)

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Civil procedure -- Dismissal -- Dismissal with prejudice was proper because plaintiff's fifth amended complaint failed to state a cause of action, and it appears giving the plaintiff another opportunity to amend the complaint would be futile


42 Fla. L. Weekly D1852aTop of Form

Civil procedure -- Dismissal -- Dismissal with prejudice was proper because plaintiff's fifth amended complaint failed to state a cause of action, and it appears giving the plaintiff another opportunity to amend the complaint would be futile

JAMES C. DOW, Appellant, v. FIDELITY INVESTMENTS a/k/a FIDELITY BROKERAGE SERVICES, LLC, CONNOR EVERS, JACOB EVERS, ERICA EVERS, GLORIA EVERS, and MICHAEL EVERS, Appellees. 4th District. Case No. 4D17-436. August 23, 2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward Artau, Judge; L.T. Case No. 2014CA003327XXXXMB. Counsel: James A. Herb and Jennifer L. Fulton of Herb Law Firm, Chartered, Boca Raton, for appellant. Gregory S. Sconzo of Kaplan & Sconzo, P.A., Palm Beach Gardens, for appellees Gloria Evers and Michael Evers.

(GERBER, C.J.) The plaintiff appeals from the circuit court's final order granting with prejudice defendants Gloria Evers' and Michael Evers' motion to dismiss the plaintiff's fifth amended complaint against them. In the motion, Gloria Evers and Michael Evers argued that the plaintiff's fifth amended complaint failed to establish personal jurisdiction over them, and failed to state a cause of action against them.

The circuit court granted the motion, finding: (1) the plaintiff failed to satisfy Florida's long-arm statute, section 48.193, Florida Statutes (2016), because Gloria Evers' and Michael Evers' “alleged communications are not tortious in and of themselves and do not give rise to a cause of action to which a Florida court has jurisdiction”; and (2) “even if Plaintiff had satisfied the requirements of the long-arm statute . . . Plaintiff has failed to establish adequate minimum contacts for this Court to exercise jurisdiction” over Gloria Evers and Michael Evers.

We agree with the plaintiff's argument on appeal that Gloria Evers and Michael Evers waived their argument that the plaintiff's fifth amended complaint failed to establish personal jurisdiction over them, because they failed to raise that ground in response to the original complaint against them. See Solmo v. Friedman, 909 So. 2d 560, 564 (Fla. 4th DCA 2005) (“It is well established that if a party takes some step in the proceedings which amounts to a submission to the court's [personal] jurisdiction, then it is deemed that the party waived [their] right to challenge the court's jurisdiction regardless of the party's intent not to concede jurisdiction.”) (citation, brackets, and internal quotation marks omitted).

However, we conclude without further discussion that the circuit court should have granted Gloria Evers' and Michael Evers' motion to dismiss on the ground that the plaintiff's fifth amended complaint failed to state a cause of action against them. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

Based on the numerous opportunities which the circuit court gave to the plaintiff to attempt to state a cause of action against Gloria Evers and Michael Evers, and because it appears that giving the plaintiff another opportunity to amend the complaint would be futile, we affirm the circuit court's final order granting with prejudice Gloria Evers' and Michael Evers' motion to dismiss the plaintiff's fifth amended complaint against them. See McCray v. Bellsouth Telecommunications, Inc., 213 So. 3d 938, 939 (Fla. 4th DCA 2017) (“Refusal to allow an amendment is an abuse of the trial court's discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”) (emphasis added; citation and internal quotation marks omitted).

Affirmed. (LEVINE and CONNER, JJ., concur.)

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Torts -- Premises liability -- Discovery -- Incident report prepared in anticipation of litigation -- Incident report prepared by defendant after plaintiff was allegedly injured when chair collapsed in defendant's restaurant was protected by work product privilege where report was made in accordance with company policy to report incidents of injury to patrons


42 Fla. L. Weekly D1862bTop of Form

Torts -- Premises liability -- Discovery -- Incident report prepared in anticipation of litigation -- Incident report prepared by defendant after plaintiff was allegedly injured when chair collapsed in defendant's restaurant was protected by work product privilege where report was made in accordance with company policy to report incidents of injury to patrons

RUBY TUESDAY, INC. AND CATHERINE ANDERSON, Petitioners, v. KAREN METALONIS, Respondent. 5th District. Case No. 5D17-1158. Opinion filed August 25, 2017. Petition for Certiorari Review of Order from the Circuit Court for Lake County, Mark J. Hill, Judge. Counsel: Michael R. D'Lugo, of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Petitioners. Kurt Zaner, of Zaner Harden Law, LLP, Denver, CO, and Charles T. Douglas, of Douglas & Hedstrom, P.A., Palatka, for Respondent.

(PER CURIAM.) Petitioners challenge an order compelling the production of an incident report prepared after Respondent allegedly was injured when a chair collapsed at a Ruby Tuesday restaurant. Although the trial court's order compelling production of the incident report does not provide the court's reasoning, Respondent argued below that the report was not made in anticipation of litigation and that she had a demonstrated need for the report nevertheless.

The determination of whether an incident report was prepared in anticipation of litigation turns on whether “the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of the reporter in making the report might be relevant to this determination, it is by no means dispositive because an objective standard applies. Here, the reporter testified that she made the report in accordance with company policy to report incidents of injury to patrons. The fact that the reporter did not personally foresee the potential claim and did not know the purpose for the company policy did not negate a finding that the report was work product. It was clear that the alleged injury was caused by an object in Petitioners' control and there was some evidence to suggest that Petitioners had prior knowledge of the defective condition of the chair. Under the circumstances presented here, it was foreseeable that the event might form the basis for a claim. Accordingly, the incident report was protected work product.

As for Respondent's argument regarding need, we conclude without elaboration that the present record demonstrates that Respondent did not meet her burden on this issue.

ORDER QUASHED. (COHEN, C.J., ORFINGER and TORPY, JJ., concur.)

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Thursday, August 24, 2017

Judges -- Disqualification -- Prohibition -- Fact that trial judge is a Facebook “friend” with lawyer representing a potential witness and potential party in pending litigation is not valid basis for disqualification of judge -- Conflict certified


42 Fla. L. Weekly D1830aTop of Form

Judges -- Disqualification -- Prohibition -- Fact that trial judge is a Facebook “friend” with lawyer representing a potential witness and potential party in pending litigation is not valid basis for disqualification of judge -- Conflict certified

LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent. 3rd District. Case No. 3D17-1421. L.T. Case No. 15-15825. August 23, 2017. A Case of Original Jurisdiction -- Prohibition. Counsel: Herssein Law Group, and Reuven Herssein, for petitioners. Shutts & Bowen LLP, and Frank A. Zacherl and Patrick G. Brugger, for respondent.

(Before FERNANDEZ, LOGUE, and SCALES, JJ.)

(LOGUE, J.) The Law offices of Herssein and Herssein, P.A. (Herssein Firm) and Reuven Herssein, petition this court for a writ of prohibition to disqualify the trial court judge below. We deny the petition. Although Petitioners raise three grounds, we write only to address the petitioners' argument that the trial court judge should be disqualified because the judge is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

The Herssein Firm sued its former client, United Services Automobile Association (USAA), for breach of contract and fraud. In the course of the litigation, Herssein accused one of USAA's executives of witness tampering and has indicated that the executive is a potential witness and a potential defendant. In response, USAA hired Israel Reyes, an ex-circuit court judge, to represent the executive.

On June 8, 2017, the Herssein Firm filed a motion to disqualify the trial judge. The motion is based in part on the fact that Reyes is listed as a “friend” on the trial judge's personal Facebook page. In support of the motion, Iris J. Herssein and Reuven Herssein, president and vice president of the Herssein Firm, signed affidavits in which they swore, “[b]ecause [the trial judge] is Facebook friends with Reyes, [the executive's] personal attorney, I have a well-grounded fear of not receiving a fair and impartial trial. Further, based on [the trial judge] being Facebook friends with Reyes, I . . . believe that Reyes, [the executive's] lawyer has influenced [the trial judge].” The trial court denied the disqualification motion, and the Herssein Firm filed this petition for writ of prohibition.

The test for determining the legal sufficiency of a motion for disqualification is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Molina v. Perez, 187 So. 3d 909, 909 (Fla. 3d DCA 2016) (quoting Brofman v. Fla. Hearing Care Ctr., Inc., 703 So. 2d 1191, 1192 (Fla. 4th DCA 1997)). Our review of the facts focuses on “the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.” Haas v. Davis, 37 So. 3d 983, 983 (Fla. 3d DCA 2010) (quoting Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252, 1253 (Fla. 4th DCA 2001)).

The issue in this case is therefore whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit. At the outset, we note as a general matter, that “allegations of mere ‘friendship' with an attorney or an interested party have been deemed insufficient to disqualify a judge.” Smith v. Santa Rosa Island Auth., 729 So. 2d 944, 946 (Fla. 1st DCA 1998). Indeed, the Florida Supreme Court has noted:

There are countless factors which may cause some members of the community to think that a judge would be biased in favor of a litigant or counsel for a litigant, e.g., friendship, member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations have been found legally insufficient when asserted in a motion for disqualification.

MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990). And as Justice Overton explained in denying a request for recusal, “[i]f friendship alone with a lawyer or member of a firm is a basis for disqualification, then most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases.” Hayes v. Rogers, 378 So. 2d 1212, 1220 (Fla. 1979).

Nevertheless, this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. Indeed, in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012), the Fourth District held that recusal was required when a judge was a Facebook “friend” with the prosecutor. The Fourth District based its holding on a 2009 Judicial Ethics Advisory Committee Opinion. Fla. JEAC Op. 2009-20 (Nov. 17, 2009). In its Opinion, the Committee advised that judges were prohibited from adding lawyers who appear before them as “friends” on their Facebook page or from allowing lawyers who appear before them to add them as “friends” on the lawyers' Facebook pages. The Committee focused on the fact that a judge on Facebook has an active role in accepting or rejecting potential “friends” or in inviting another to accept them as “friends.” Id. “It is this selection and communication process,” the Committee advised, “that violates Cannon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.” Id.

A minority of the Committee disagreed. The minority believed that “the listing of lawyers who may appear before the judge as ‘friends' on a judge's social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge.” Id. They reasoned “the term ‘friend' on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a ‘friend' in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard.” Id.

In 2010, the Committee advised that candidates for judicial office may add lawyers as “friends” on a social networking site even if those lawyers would later appear before them should the candidate be elected. Fla. JEAC Op. 2010-05 (March 19, 2010). It also reaffirmed, however, the advice in its 2009 advisory opinion that a judge may not be Facebook “friends” with a lawyer who appears before her, although a minority believed the committee should recede from its 2009 opinion. See Fla. JEAC Op. 2010-06 (March 26, 2010).

More recently, the Fifth District signaled disagreement with the Fourth District's Domville decision. In Chace v. Loisel, 170 So. 3d 802, 803-04 (Fla. 5th DCA 2014), the Fifth District held that, in a dissolution of marriage case, a judge who sent the wife a Facebook friend request during the proceedings, which the wife rejected, made an ex-parte communication and was required to recuse himself. In so ruling, however, the Fifth District noted, “[w]e have serious reservations about the court's rationale in Domville.” Id. Defining the word “friend” on Facebook as a “term of art,” the Fifth District explained:

A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville's logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.

Id.

We agree with the Fifth District that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” We do so for three reasons. First, as the Kentucky Supreme Court noted, “some people have thousands of Facebook ‘friends.' ” Sluss v. Commonwealth, 381 S.W.3d 215, 222 (Ky. 2012). In Sluss, the Kentucky Supreme Court held the fact that a juror who was a Facebook “friend” with a family member of a victim, standing alone, was not enough evidence to presume juror bias sufficient to require a new trial. In Sluss, the juror in question had nearly two thousand Facebook “friends.” Id. at 223. Another recent out-of-state case involved a trial judge with over fifteen hundred Facebook “friends” who was allegedly a Facebook friend with a potential witness, a local university basketball coach, who himself had more than forty-nine hundred Facebook “friends.” State v. Madden, No. M2012-02473-CCA-R3-CD, 2014 WL 931031, at *1-2 (Tenn. Crim. App. Mar. 11, 2014) (holding trial judge did not abuse his discretion under Tennessee law in refusing to recuse himself because he was allegedly Facebook “friends” with potential witness).1

Second, Facebook members often cannot recall every person they have accepted as “friends” or who have accepted them as “friends.” In a recent case, a student, who had over one thousand Facebook “friends,” did not know he was a Facebook “friend” with another student he was accused of assaulting. Furey v. Temple Univ., 884 F. Supp. 2d 223, 241 (E.D. Pa. 2012). In another case, a juror did not recognize a victim's name even though a member of the victim's family was one of her over-a-thousand Facebook “friends.” Slaybaugh v. State, 47 N.E.3d 607, 608 (Ind. 2016) (affirming trial court's denial of mistrial when “juror testified she was a realtor, had more than 1000 ‘friends' on Facebook -- most of whom she had ‘friended' for networking purposes -- but she had not recognized the victim's name during voir dire, did not recognize the victim when she testified, and did not know the victim or her family”).2

Third, many Facebook “friends” are selected based upon Facebook's data- mining technology rather than personal interactions. Facebook data-mines its members' current list of “friends,” uploaded contact lists from smart phones and computers, emails, names tagged in uploaded photographs, internet groups, networks such as schools and employers, and other publicly or privately available information. This information is analyzed by proprietary algorithms that predict associations. Facebook then suggests these “People You May Know” as potential “friends.”3

The use of data mining and networking algorithms, which are also revolutionizing modern marketing and national security systems, reflects an astounding development in applied mathematics; it constitutes a powerful tool to build personal and professional networks; and it has nothing to do with close or intimate friendships of the sort that would require recusal. This common method of selecting Facebook “friends” undermines the rationale of Domville and the 2009 Ethics Opinion that a judge's selection of Facebook “friends” necessarily “conveys or permits others to convey the impression that they are in a special position to influence the judge.”

To be sure, some of a member's Facebook “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook “friends” probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a “friend of a friend;” or even a local celebrity like a coach. An assumption that all Facebook “friends” rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.

In fairness to the Fourth District's decision in Domville and the Judicial Ethics Advisory Committee's 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook “friend” with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook “friend.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.

Petition denied.

__________________

1See, e.g., Mocombe v. Russell Life Skills & Reading Found., Inc., No. 12-60659-CIV, 2014 WL 11531914, at *1 (S.D. Fla. Oct. 31, 2014) (noting “Plaintiff had more than 5,000 Facebook friends.”); Banken v. Banken, No. A11-2156, 2013 WL 490677, at *9 (Minn. Ct. App. Feb. 11, 2013) (noting a party had “more than 1000 friends” on Facebook).

2Because Facebook members sometimes cannot be expected to know everyone they have accepted as “friends” or who have accepted them as “friends,” the American Bar Association, when advising judges that they should disclose Facebook friendships when appropriate, expressly advised that a judge need not review his or her list of “friends” when doing so. American Bar Association, Judge's Use of Electronic Social Networking Media, Formal Opinion 462 (Feb. 21, 2013) (“[N]othing requires a judge to search all of the judge's ESM [electronic social media] connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”).

3Facebook, Where do People You May Know suggestions come from? https://www.facebook.com/help/163810437015615?helpref=search&sr=1&query=how%20does%20facebook%20come%20up%20with%20friend%20suggestions (visited August 2, 2017).

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Wrongful death -- Collision between motorcycle and truck -- Evidence -- Trial court did not abuse its discretion by permitting introduction of lay witness testimony regarding speed decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; evidence of weight of truck, which was used by defense expert to calculate motorcycle's speed at impact; and statements made by motorcyclist's child regarding argument between decedent and his girlfriend shortly before accident -- Trial court's determination that lay witnesses' observations regarding speed of motorcycle were close enough in time to be relevant was within trial court's broad discretion -- With regard to witness who did not see motorcycle, but based his opinion on sound of motorcycle, this witness's testimony was based on personal ordinary experience hearing sounds motorcycle engines make when a driver accelerates and not on a methodology requiring something beyond everyday reasoning -- Psychotherapist-patient privilege -- Because plaintiff's suit sought damages for “pain and suffering” on behalf of motorcyclist's surviving children, trial court properly granted defense motion to compel production of records from psychotherapist who treated one of the children


42 Fla. L. Weekly D1857aop of Form

Wrongful death -- Collision between motorcycle and truck -- Evidence -- Trial court did not abuse its discretion by permitting introduction of lay witness testimony regarding speed decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; evidence of weight of truck, which was used by defense expert to calculate motorcycle's speed at impact; and statements made by motorcyclist's child regarding argument between decedent and his girlfriend shortly before accident -- Trial court's determination that lay witnesses' observations regarding speed of motorcycle were close enough in time to be relevant was within trial court's broad discretion -- With regard to witness who did not see motorcycle, but based his opinion on sound of motorcycle, this witness's testimony was based on personal ordinary experience hearing sounds motorcycle engines make when a driver accelerates and not on a methodology requiring something beyond everyday reasoning -- Psychotherapist-patient privilege -- Because plaintiff's suit sought damages for “pain and suffering” on behalf of motorcyclist's surviving children, trial court properly granted defense motion to compel production of records from psychotherapist who treated one of the children -- Although plaintiff's counsel stated that she was no longer seeking mental anguish damages and that psychotherapist-patient privilege should be reinstated, trial court properly ruled that the therapist's records were admissible when plaintiff subsequently requested jury instruction on pain and suffering

MARGARET SAJIUN, as Personal Representative of the ESTATE OF JOSE ALBERTO SOTO SANTIAGO, Appellant, v. DANIEL HERNANDEZ, Appellee. 4th District. Case No. 4D16-589. August 23, 2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jaimie Goodman, Judge; L.T. Case No. 502012CA019229XXXXMB. Counsel: Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr., Boca Raton, for appellant. Todd R. Ehrenreich and Noel F. Johnson of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.

(CIKLIN, J.) After a wrongful death jury trial, the personal representative of the decedent's estate recovered nothing. She believes that certain improper evidence resulted in the defense verdict, and she challenges several of the trial court's rulings. We find the trial court did not abuse the wide and sound discretion afforded to trial judges in these types of evidentiary rulings, and we affirm.

This case arose from a collision between a motorcycle driven by the decedent, Jose Alberto Soto Santiago (“motorcycle driver”), and a truck driven by the defendant, Daniel Hernandez (“truck driver”), resulting in the death of Santiago. During trial, the trial court permitted the introduction of the following evidence over the plaintiff's objection: 1) witness testimony regarding the speed the decedent motorcycle driver traveled on his motorcycle in the moments preceding the accident; 2) evidence of the weight of the truck, which was used by the defense expert to calculate the motorcycle's speed at impact; and 3) statements the motorcycle driver's child made to a psychotherapist regarding an argument between the decedent and his girlfriend shortly before the accident.

“A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court's ruling on evidentiary matters will not be overturned.” Kellner v. David, 140 So. 3d 1042, 1046 (Fla. 5th DCA 2014) (citation omitted). “The trial court's discretion, however, is limited by the rules of evidence.” Wyatt v. State, 183 So. 3d 1081, 1084 (Fla. 4th DCA 2015). “[A] trial court's decision does not constitute an abuse of discretion ‘unless no reasonable person would take the view adopted by the trial court.' ” McCray v. State, 71 So. 3d 848, 862 (Fla. 2011) (quoting Peede v. State, 955 So. 2d 480, 489 (Fla. 2007)). Stated another way, “[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged evidentiary issues in turn, applying this limited -- and very well established -- scope of review.

Testimony Regarding Speed of Motorcycle

Before trial, the plaintiff moved in limine to exclude the testimony of three witnesses the defense had listed but who did not actually see the accident, arguing that their testimony was not relevant, and that if it was, any probative value was substantially outweighed by the prejudicial effect of the testimony. The trial court deferred ruling on one witness, and denied the motion without prejudice with respect to the other witnesses.

One of the witnesses testified at trial that he had operated motorcycles since 1980. Based on his familiarity with motorcycles, he could tell the difference between the sounds emitted by the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson engine has a distinct sound which has been patented.

Shortly before the accident, the witness was sitting in his backyard. A fence blocked his view of the street, but he heard the sound of a motorcycle engine. Defense counsel asked the witness what he heard, and he responded, “A motorcycle traveling at a high rate of speed, revved up.” The court denied plaintiff's motion for mistrial. During a voir dire of the witness, he explained that his testimony was based on his years of experience with hearing motorcycles, and that he did not have any specialized training in the sounds of motorcycle engines. The court ruled that the witness may “say based on what he heard and based on his familiarity with the motorcycles that it was going at a high rate of speed,” but that he may not “speculate or guess what the speed was.” The witness then testified that he had previously heard “a Japanese motorcycle rev its engine real high . . . [Y]ou can hear him going through his gears. And when it's revving really loud . . ., that means [it is] traveling at a high rate of speed.” He equated that sound to the sound he heard the day of the accident. The witness testified that shortly after he heard the sound of a motorcycle revving its engine, he heard a “popping” noise, as if the motor shut off. He went to investigate and observed that a Japanese motorcycle had been involved in an accident.

Two other defense witnesses, a mother and daughter traveling together, encountered the motorcycle and testified about their observations. The daughter recalled that the “noise of [the] engine” drew her attention to the motorcycle. The motorcycle was “go[ing] by really fast” and “cutting off cars.” Within minutes of losing sight of the motorcycle, she came upon the accident scene. The mother testified that the motorcycle was “making a very zoom noise, you know, as in accelerating very quickly,” that the motorcycle driver “sped off very rapidly,” and that he was traveling at a “much higher” rate of speed than the mother was driving, which was somewhere between 30 and 45 miles per hour. She and her daughter were so startled by the motorcycle that they commented to one another regarding “the noise, the speed, the closeness to our car.” After the motorcycle passed her, it took between thirty and ninety seconds before she came upon the accident scene.

The parties' experts disputed the speed the motorcycle was traveling. The plaintiff's accident reconstruction expert testified that the motorcycle driver was traveling an average of fifty-five miles per hour, but going about sixty miles per hour at the time of impact. The defense expert opined that the motorcycle driver was going about ninety to ninety-five miles per hour at the time he braked, but could have been going faster before that point. He believed the motorcycle was going between eighty and eighty-five miles per hour at impact.

On appeal, the plaintiff argues that the three lay witnesses should not have been permitted to testify regarding their perceptions of the motorcycle's operation because their observations before the accident did not correlate to the operation of the motorcycle at the time of the accident.

“As a general rule, the decision of whether to permit evidence of a driver's conduct at a point some distance from the scene of the accident is left to the sound discretion of the trial judge.” Russ v. Iswarin, 429 So. 2d 1237, 1240 (Fla. 2d DCA 1983); see also Hill v. Sadler, 186 So. 2d 52, 55 (Fla. 2d DCA 1966) (“Whether evidence should be admitted tending to show the rate of speed of a vehicle at a time and place other than that at the instant of, or immediately prior to, the accident depends upon the facts in the particular case, and rests largely in the discretion of the trial Judge.”). Here, the mother and daughter testified as to the decedent's speed somewhere between thirty seconds (according to the mother) and two minutes at most (according to the daughter) before the accident. The other witness's testimony indicates that he heard the motorcycle engine revving up moments before the accident. The trial court's determination that the witnesses' observations were close enough in time to the accident to be relevant was within the trial court's broad discretion. See Russ, 429 So. 2d at 1240-41 (affirming exclusion of testimony regarding erratic driving more than a mile from accident site and three or four minutes before accident, but finding court erred in excluding testimony about the driving pattern and speed only three blocks before the accident); Baynard v. Liberman, 139 So. 2d 485, 487 (Fla. 2d DCA 1962) (finding that witnesses' testimony that defendant ran the two red lights south of the intersection where the crash occurred was relevant).

With respect to the witness who was sitting in his backyard, the plaintiff also argues that the trial court erred in permitting the witness to give what amounted to expert testimony when he testified that he could determine the speed from the sound of the motorcycle. This court has elaborated on lay witness opinion testimony:

“Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury. The jury's function is to determine the credibility and weight of such testimony.” Floyd v. State, 569 So. 2d 1225, 1231-32 (Fla. 1990) (citation omitted), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991). However, a lay witness is permitted to testify in the form of an opinion or inference as to what he perceived if two conditions are met:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (1991). “Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience.” Floyd, 569 So. 2d at 1232.

Opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived. § 90.701, Fla. Stat. (1991); Nationwide Mut. Fire Ins. Co. v. Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). Acceptable lay opinion testimony typically involves matters such as distance, time, size, weight, form and identity. Vosburgh, 480 So. 2d at 143. Before lay opinion testimony can be properly admitted, a predicate must be laid in which the witness testifies as to the facts or perceptions upon which the opinion is based. Beck v. Gross, 499 So. 2d 886, 889 (Fla. 2d DCA 1986), rev. dismissed by 503 So. 2d 327 (Fla. 1987). “[B]efore one can render an opinion he must have had sufficient opportunity to observe the subject matter about which his opinion is rendered.” Albers v. Dasho, 355 So. 2d 150, 153 (Fla. 4th DCA), cert. denied, 361 So. 2d 831 (Fla. 1978).

Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994) (alteration in original) (footnote omitted); see also § 90.701, Fla. Stat. (2015).

This court has recognized that a vehicle's speed “is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object.” Lewek v. State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997) (citation omitted). The subtle twist in this case, of course, is that the witness testified to a “high rate of speed” based on sound rather than sight.

Although the witness's testimony was based on sound rather than sight, his opinion was based on his personal ordinary experience hearing the sounds that Japanese and non-Japanese motorcycle engines make when a driver accelerates. The witness's testimony was not based on a methodology requiring something beyond everyday reasoning. That makes this case akin to L.L. v. State, 189 So. 3d 252, 259 (Fla. 3d DCA 2016) (finding no error in law enforcement officer's lay opinion testimony that substance was marijuana, where the opinion was based on officer's personal knowledge gleaned from his ordinary police experience and his reasoning process did not involve a methodology beyond his ordinary reasoning). To the extent that the plaintiff is arguing that witnesses cannot testify about the significance of sounds they heard, this argument is not consistent with the statute governing lay opinion testimony, which permits a witness to testify as to what he has personally perceived. See § 90.701, Fla. Stat. (2015). The statute does not limit perception to visual perception. Id. Indeed, in L.L., the officer's opinion was based in part on the odor of the substance. L.L., 189 So. 3d at 259-60 (“Officer Munecas's testimony was admissible lay opinion testimony under Section 90.701 because it was based on sufficient personal knowledge and his senses of sight and smell . . . .”). We find that the trial court did not abuse its broad discretion in permitting the witnesses' testimony regarding the speed of the motorcycle.

Evidence of Truck's Weight

Before trial, the defense arranged for the weighing of the truck driven by the defendant truck driver during the accident. A receipt of the weigh-in was made, reflecting the weight of the truck. Shortly before trial, the defense noticed its intent to seek admission of the weight receipt into evidence and filed an affidavit by the person who weighed the truck, attesting to the creation of the receipt.1 The plaintiff did not file an objection. During trial, the weight receipt was admitted into evidence over plaintiff's “foundation” and “hearsay” objections. The defense expert testified at trial that he used the weight of the truck in calculating the speed the motorcycle was traveling.

In her initial brief, the plaintiff argues that the weight receipt should not have been admitted based on the affidavit, because the affidavit was filed shortly before trial and the defense did not make the evidence available for inspection, in violation of section 90.803(6)(c), Florida Statutes. However, the defense provided notice of its intent to rely on the affidavit in its “Trial Brief”2 filing and thus complied with section 90.803(6)(c). The plaintiff waived any objection to admission of the evidence by not filing an objection to the defendant's notice. Additionally, the plaintiff does not dispute that she was aware of the weight receipt well before trial. We find that the plaintiff has not established that the trial court abused its broad discretion in admitting the weight receipt into evidence and permitting testimony based on the weight receipt.

Testimony Regarding Statements Made by

Decedent's Child to Psychotherapist

The plaintiff's suit sought damages for “pain and suffering” on behalf of the two children who survived the motorcycle driver. The trial court entered an agreed order which granted the defense motion to compel production of records from a psychotherapist who had treated one of the children. Subsequently, the plaintiff listed the records as a trial exhibit. In a joint trial exhibit list with objections filed by the parties, the plaintiff indicated that she had no objection to the defense admitting the records and deposition transcripts related to the child's treatment.

During trial, plaintiff's counsel stated that she was no longer seeking mental anguish damages and thus the psychotherapist privilege should be reinstated.3 Inexplicably, however, she requested the jury be instructed on pain and suffering. The trial court ruled that the therapist's records were admissible as the plaintiff sought an instruction on pain and suffering.

During closing argument, the defense asserted that the child told his therapist that he blamed his father's girlfriend for the accident, because she and the decedent argued before the decedent left the house, and that the decedent drove recklessly because he was blowing off steam after the argument. The jury was instructed on pain and suffering damages.

The plaintiff argues that the trial court should have restored the psychotherapist privilege once she withdrew the claim for pain and suffering damages, as her other claims did not relate to mental injury.

Section 90.503(2), Florida Statutes (2015), provides the following in pertinent part:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition . . . between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

The privilege may be claimed by, among other persons, the patient or the patient's attorney on the patient's behalf. § 90.503(3)(a), Fla. Stat. (2015). The statute further provides that the privilege does not apply to “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense.” § 90.503(4)(c), Fla. Stat. (2015).

Section 90.507, Florida Statutes (2015), governs waiver of privileges by voluntary disclosure and provides in pertinent part:

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person . . . consents to disclosure of, any significant part of the matter or communication.

The waiver of the psychotherapist privilege is not irrevocable. See Garbacik v. Wal-Mart Transp., LLC, 932 So. 2d 500, 503 (Fla. 5th DCA 2006); Sykes ex rel. Sykes v. St. Andrew's Sch., 619 So. 2d 467, 469 (Fla. 4th DCA 1993). However, a revocation of a waiver will not reinstate the privilege as to already disclosed information. See Bolin v. State, 793 So. 2d 894, 898 (Fla. 2001) (recognizing that “information revealed after a privilege is waived cannot be concealed by reinvoking the privilege”); Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111, 1114 (Fla. 4th DCA 1982) (“It is black letter law that once the privilege is waived, and the horse out of the barn, it cannot be reinvoked.”).

The parties do not dispute that the plaintiff initially put the son's mental condition at issue. Additionally, the record indicates that the plaintiff did not actually withdraw the claim, as she requested a jury instruction on pain and suffering. Even if the plaintiff withdrew the claim in the midst of trial, this would not reinstate the privilege as to records already disclosed. As such, the trial court did not abuse its broad discretion in admitting the records and allowing testimony regarding the records.

We find that under the abuse of discretion standard of review, the plaintiff has not established error, and we affirm.

Affirmed. (TAYLOR and MAY, JJ., concur.)

__________________

1Section 90.803(6)(c), Florida Statutes (2015), provides in pertinent part:

A party intending to offer evidence [of a business record] by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. . . . A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party's failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.

2It does not appear that the “Trial Brief” was filed in response to any order entered by the trial court. In any event, the plaintiff does not argue on appeal that the notice was defective based on the manner in which it was provided, other than to complain that it was provided shortly before trial. On the record before us, we are not able to find that the notice was not “reasonable” notice. See § 90.803(6)(c), Fla. Stat.

3As discussed further below, the privilege does not apply insofar as communications between a psychotherapist and the patient regarding the patient's mental or emotional condition are related to a patient's claim or defense in any proceeding.

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