APPEALS Preservation Eagleman, M.D. v. Korzeniowski, 31 Fla. L. Weekly D493a (Fla. 4th DCA Feb. 21, 2006) - affirming verdict in favor of the plaintiffs in a medical malpractice case and holding that issues on appeal were not preserved for appellate review. During opening arguments, the plaintiffs' counsel discussed a prior AHCA complaint against the defendant to the jury. The defendant did not object to the discussion, the AHCA documents were ultimately admitted into evidence, and the defendant's counsel did not object to their admission or request a curative instruction. During the hearing on co-defendant's motion for directed verdict - - which argued that the defendant was not an agent of the co-defendant and that the evidence had failed to establish corporate negligence on the co-defendant's part for failure to supervise - - defendant's counsel indicated that the defendant was not involved with the motion for directed verdict and would not be taking a position on that motion. The trial court denied the motion in part and reserved ruling on the motion in part until after the jury verdict. The trial court later instructed the jury regarding the agency and corporate negligence issue without objection from the defendant. Finally, during the defendant's case, counsel called an expert who testified regarding the availability of governmental aid in Hawaii, where the plaintiffs were considering moving. The trial court sustained the plaintiffs' objection relating to such testimony because it had not been previously disclosed. The jury ultimately found that the defendant was negligent, that the defendant was an agent of the co-defendant, and that the co-defendant was negligent. Following trial, the co-defendant filed a motion for renewed directed verdict, which the trial court granted. Three final judgments were entered against the defendant. On appeal, the defendant argued that the trial court erred by: failing to exclude evidence of a prior AHCA complaint against the defendant in an unrelated matter; failing to rule that he was not an agent of the co-defendant and erroneously instructed the jury on that issue; and improperly excluding evidence that the plaintiffs were entitled to receive free government services for future damages. The Fourth District held that it was unable to review the issues because they were not preserved for appellate review. For an issue to be preserved by a defendant in a case involving co-defendants, that defendant must object or join in the objection of the other defendant. First, the issue regarding the prior AHCA complaint was not preserved. Although the defendant's counsel did object to the use of AHCA records prior to the opening argument in which they were used, the trial court did not rule on their admissibility at that time and had instructed defendant's counsel that he could request a curative instruction when he did rule. However, when the documents were ultimately admitted, defendant's counsel indicated that he had no objection and did not request a curative instruction, thereby abandoning the previous objection. Next, the issue regarding the defendant's status as the co-defendant's agent was not preserved. Both the motion for DV and the proposed jury instruction on agency were filed by the co-defendant. The defendant did not join in the motion, object to the fact that a DV was not granted, object to the trial court's handling of the agency issue, or object to the proposed jury instruction. In fact, defendant's counsel indicated that the defendant was not involved with the motion and would not be taking a position on it. The Fourth District held that "it was incumbent upon [the defendant] to seek to secure a ruling on that issue prior to the jury verdict. It defies logic for a party to expect to be able to take no position on an issue in the trial court and then take whatever position is most advantageous to it on appeal; a party must take some position below in order for [the] court to review how the trial court ruled on that position." Finally, the issue regarding the exclusion of testimony regarding government services was not preserved. In order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court. During trial, the defendant had argued that the plaintiff's cross examination of his expert opened the door for her to testify about the government services available in Hawaii. However, the defendant's argument on appeal was that the door was opened for expert testimony regarding the services available in Hawaii because the defendant's counsel had crossed the plaintiff's expert regarding services that the plaintiff had obtained in the past. Therefore, the specific issue raised on appeal was not raised in the trial court.

DISCOVERY Protective Order City Group Inc. v. Holtsberg, 2005 WL 347932A (Fla. 4th DCA, Dec. 21, 2005) - investors brought an action against a financial services company for overly favorable stock analysis reports. The plaintiffs subpoenaed for deposition the defendants' former and current CEOs. The defendants moved for a protective order to prevent the depositions, arguing that such depositions were a blatant attempt to harass the defendants because neither CEO had firsthand knowledge of the issues. The defendants argued that before the plaintiffs could depose the defendant's high level executives, they must show that those persons have unique or special knowledge of the facts ­ the "Apex" doctrine. The plaintiffs countered that the Apex Rule has not been expressly adopted in Florida, that in Texas, where it was adopted, the parties seeking a protective order must file an Affidavit of the officials sought to be deposed, denying knowledge of the relevant facts, that in order for the plaintiffs to prove their case, it was necessary to show that the CEOs were intimately involved, that a rigid rule like the Apex doctrine contravenes Florida Rule of Civil Procedure 1.310(and) (allowing deposition of any person), and that it was the defendant's responsibility to prove that the CEOs did not have relevant personal knowledge. The trial court denied the motion for protective order. The Fourth District found that the motion for protective order did not allege that any particularized burden or harassment would result to the CEOs from being deposed, and that the defendants relied on the Apex doctrine itself to supply the irreparable harm factor. The court noted that no Florida court had expressly adopted the Apex doctrine and that Florida discovery rules do not contain a requirement that a party must show that a high level officer has unique or superior knowledge before the officer can be deposed. However, the court did not specifically rule on the applicability of the Apex doctrine, holding that even if Florida courts have implicitly adopted the doctrine, the cases are distinguishable as arising in a governmental context, where there are policy arguments involved, and that even if the doctrine applied, the instant petition would have to be denied because the defendants' motion was not accompanied by the officials' affidavits denying knowledge.

DISMISSAL Personal Jurisdiction Hatfield v. Autonation, Inc., 31 Fla. L. Weekly D20a (Fla. 4th DCA, Dec. 21, 2005) - affirming order denying non-resident defendant's motion to dismiss for lack of personal juridiction. The plaintiff auto dealership filed a complaint against the general manager of a Houston dealership for breach of a confidentiality/non-compete agreement, which provided that it was governed by Florida law and that the parties waived venue and jurisdictional objections. The plaintiff claimed that the defendant was subject to personal jurisdiction in Florida because he maintained regular and systematic contacts in Florida by: traveling to Florida to participate in retail leadership meetings, having regular and frequent interaction with the Fort Lauderdale headquarters, and receiving business related assistance, direction, supervision and support to aid him in operating his dealership. The plaintiff alleged that the defendant committed tortious acts in Florida by misappropriating and converting the plaintiff's trade secrets and confidential proprietary business information by coming to a leadership meeting in Florida under false pretenses to obtain information, knowing that he did not intend to remain a general manager of the plaintiff. Finally, the plaintiff pled that the defendant had contractually agreed to venue in Broward County. The defendant moved to dismiss for lack of personal jurisdiction. A sworn declaration attached to the motion asserted that the defendant was a resident of Texas, has never lived or worked in Florida, did not own any real property or maintain any bank accounts in Florida, and did not regularly transact business in Florida. The defendant also stated that he signed the agreement on the understanding that if he did not, he would lose his job. He had never been to the plaintiff's offices or headquarters in Florida, and only attended a limited number of business meetings at a Fort Lauderdale hotel. Finally, the defendant asserted that at the leadership meeting, he was given, but did not take or copy a binder, and that since leaving employment with the plaintiff, he has been unemployed. The trial court denied the defendant's motion to dismiss, holding that the plaintiff presented sufficient allegations of jurisdictional facts to comply with Florida's Long Arm Statute, that the defendant's affidavit did not refute the allegations that he committed tortious acts in Florida, and that sufficient evidence existed that the defendant had minimum contacts necessary to meet due process requirements. The Fourth District affirmed. Pursuant to Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989), when analyzing a motion to dismiss for lack of personal jurisdiction, the court must determine: (1) whether the complaint pleads jurisdictional facts in order to sufficiently bring the action within the ambit of the Long Arm Statute, Florida Statute §48.193; and if so, (2) whether there exists minimum contacts between Florida and the nonresident. If a defendant contests the allegations of the complaint, he must file an affidavit in support of his position. The burden then shifts to the plaintiff to prove by affidavit the basis for jurisdiction. When the court cannot harmonize the affidavits, an evidentiary hearing is necessary. In the instant case, the Fourth District held that because the defendant alleged that at the leadership meeting, he was given but did not take a copy of the binder and that since leaving the plaintiff's employment, he has been unemployed, the trial court erred in concluding that the defendant's affidavit did not refute the allegations that he committed tortious acts within Florida. These errors, however, were harmless, because the court did not rely solely on the affidavits, but held an evidentiary hearing, which demonstrated that the plaintiff's evidence was sufficient to sustain its jurisdictional allegations. Although simply communicating or transferring documents to or within Florida does not impose jurisdiction per se, the instant case involved more than simple communication ­ the evidence showed that the defendant regularly communicated with the plaintiff's Florida based customer service department, regularly accessed the plaintiff's Florida based computer system, participated in weekly conference calls and e-mails and attended annual leadership meetings. The Fourth District held that the trial court did not err in finding that the defendant had the requisite minimum contacts with Florida to satisfy due process considerations. In considering whether a nonresident satisfies the minimum contacts test, courts consider such factors as the course of dealing and the contractual obligations of the parties. Although a forum selection clause cannot operate as the sole basis for Florida to exercise personal jurisdiction, such clause may be considered as a factor that weighs in favor of exercising jurisdiction where other grounds exist to do so. In the instant case, because the defendant appears to have been engaged in continuous and systematic general business contact with Florida and because the underlying contract contained a forum selection clause selecting Florida as the forum to resolve any disputes, the defendant's conduct and connection with Florida were such that he should reasonably have anticipated being hailed into court in Florida.

DISMISSAL Venue John Hall Electrical Contracting, Inc. v. Allstate Construction, Inc., 31 Fla. L. Weekly D49a (Fla. 1s DCA, Dec. 21, 2005) - affirming trial court's denial of defendant's motion to transfer and/or dismiss for improper venue and holding that that venue was proper in the county in which suit was brought. The action for conversion and civil theft arose out of the defendant's alleged unauthorized negotiation of a check. The lawsuit was brought in Leon County. The defendant argued that because it had never resided there, the plaintiff's company did not maintain an office there, the claims accrued in Broward County, where the check was received, negotiated, and where the funds were allegedly improperly retained, venue could not be maintained in Leon County. The First District disagreed. Under Florida Statute §47.011, actions against individuals must be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. Under Florida Statute §47.051, actions against Florida corporations shall be brought only in the county where such corporation has or usually keeps an office for customary business, where the cause of action accrued, or where the property in litigation is located. In the instant case, the only basis for maintaining venue in Leon County would have been for the cause of action to have accrued there. A conversion cause of action is deemed to have taken place where the defendant "effects a withdrawal" (steals the money). In the instant case, because the funds allegedly stolen were paid from an account at the plaintiff's bank in Tallahassee, the claims accrued in Leon County and venue appropriately lied there.

DISMISSAL Attorney Misconduct Rose v. Fiedler, M.D., 31 Fla. L. Weekly D500a (Fla. 4th DCA, Feb. 21, 2006) -affirming directed verdict entered in favor of the defendant physicians as a sanction for trial counsel's misbehavior. Trial court initially directed a verdict as a sanction for the plaintiff's counsel's misbehavior. On review, the Fourth District held that because the record did not support a finding that the plaintiff herself participated in the misconduct, the imposition of a sanction tantamount to dismissal was too extreme. See Rose v. Fiedler, 855 So. 2d 122 (Fla. 4th DCA 2003)(Rose I). Rose I's holding was predicated upon Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000), which interpreted Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) as requiring client participation in the misconduct as a prerequisite to the imposition of dismissal as a sanction. The Fourth District had certified the following question: MAY A TRIAL COURT DISMISS A CIVIL ACTION AS THE RESULT OF THE PLAINTIFF'S ATTORNEY'S MISCONDUCT DURING THE COURSE OF THE LITIGATION WHERE A CONSIDERATION OF ALL OF THE KOZEL FACTORS POINT TO DISMISSAL EXCEPT THAT THERE IS NO EVIDENCE THAT THE CLIENT WAS PERSONALLY INVOLVED IN THE ACT OF DISOBEDIENCE? Subsequent to Rose I, Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) disapproved Schlitt 's holding that client participation was a prerequisite to the imposition of dismissal as a sanction. In Hussamy v. Rose, 916 So. 2d 785 (Fla. 2005), the Supreme Court found that Ham had addressed the essence of the question certified in Rose I, quashed Rose I and remanded for reconsideration in light of Ham. The Fourth District has now reconsidered the matter and affirmed the sanction imposed by the trial court. All of the factors discussed in Kozel, except for personal involvement of the client, weighed heavily in favor of dismissal.

DISQUALIFICATION Misconduct Channel Components, Inc. v. America II Electronics, Inc., 31 Fla. L. Weekly D3a (Fla. 2d DCA, Dec. 21, 2005) - affirming judgement in the amount of $79,282 entered against defendants as a sanction for violation of discovery orders. Underlying litigation involved a complaint for tortious interference with a business relationship and breach of employment contracts. After the defendants only partially complied with discovery requests, plaintiff filed a motion to compel. The trial court orally granted the motion and entered a written order specifically detailing what items needed to be produced. When the defendants again failed to produce the requested and now court-ordered documents, plaintiff filed a motion for order to show cause and for the imposition of discovery sanctions, noting in its motion that the documents were critical in its preparation for certain depositions. After a hearing, the trial court held that the defendants were in continuing violation of the order compelling discovery and entered a written order warning the defendants that the court would treat further violation of the order as willful and that in the event of such violation, the court would entertain a motion to strike the defendants' pleadings. When the defendants had still not complied with the discovery requests several months later, the plaintiff filed another motion for contempt and sanctions. After a hearing, the trial court orally pronounced its finding that the defendants had still not complied and were in contempt of court, but allowed the defendants one more week to comply, warning the defendants that if they did not provide the discovery as ordered within the week, a coercive fine of $2,500 per day would be imposed for each day the defendants remained in noncompliance, for a maximum of 30 days, after which the trial court would strike the defendants' pleadings. After a failed attempt at a motion requesting an extension of time, the defendants filed minimal supplemental discovery. However, in regard to a specific request for correspondence evidencing conversations between the defendants, the defendants indicated for the first time that no such documents existed, despite the fact that in deposition, defense witnesses had referred to a software program that tracked such correspondence. The plaintiff thereafter filed a motion requesting an order setting a specific amount of sanctions and an order striking the pleadings. During extensive hearings on this issue, for the first time, the plaintiffs were provided with the correspondence they had sought for over a year and a half ­ documents that the defendants had previously indicated did not exist. The plaintiffs presented evidence that the defendants possessed the documents all along. The defendants countered that when the discovery requests were initially served, their business was in its infancy, few documents existed, the discovery requests were extremely burdensome, and that the imposition a $2,500 per day fine would bankrupt the defendants. The trial court entered judgment against the defendants, nevertheless, in the amount of $70,000 ­ which included the previously ordered fine of $2,500 per day for 30 days, in addition to over $4,000 for attorneys' fees incurred by the plaintiff to obtain the discovery. On appeal, the defendants argued that the fine was a criminal contempt sanction imposed without the required procedural protections and that the severity of the fine was not commensurate with any harm caused. The Second District disagreed. Because Florida Rules of Civil Procedure 1.380 (failure to make discovery; sanctions) does not specifically provide for the imposition of a monetary sanction unconnected to the expenses (such as attorneys' fees) caused by the failure to provide discovery, the assessment of a fine in the discovery context must be predicated upon a finding of contempt. A contempt sanction is considered civil if it is remedial and for the benefit of the complainant. Because civil contempt sanctions are considered avoidable, fewer procedural protections for such sanctions have been required than for criminal contempt sanctions. The key safeguard in civil contempt proceedings is a finding by the trial court that the contemnor has the ability to "purge" the contempt. In the instant case, the trial court entered orders after providing the defendants with notice and an opportunity to be heard on multiple occasions. The defendants were thus provided with a "purge" provision to avoid a fine ­ the defendants always had the ability to comply with the trial court's orders on discovery. Particularly in cases imposing a coercive fine that can be avoided entirely by compliance with a court order, there is no requirement that the amount of a fine coincide with some strict element of proof of damages or losses caused by the noncompliance. The Second District held that although there is no previous case upholding a fine of such a large amount for violation of a discovery order, all of the procedural requirements for the imposition of the fine were met by the trial court, the defendants were given every opportunity to avoid the imposition of the fine, and the defendants' behavior could have been categorized as "contumacious" ­ so as to merit the ultimate sanction of striking the pleadings.

NURSING HOMES Arbitration Agreements Prieto v. Healthcare & Retirement Corp. Of America, 31 Fla. L. Weekly D10a (Fla. 3d DCA, Dec. 21, 2005) - reversing an order enforcing an arbitration and limitation of liability agreement because the agreement was found to be unconscionable. A urinary infection ultimately resulted in a nursing home resident's death. The decedent's daughter filed an action against the home for negligence, wrongful death, and violations of Chapter 400. The nursing home demanded arbitration and moved to stay based on an agreement signed by the decedent's daughter in connection with her father's admission. The evidence revealed that as her father was being transported from the hospital, the decedent's daughter went to the home, where she was given a package of forms which she was told to sign in order to have her father admitted. The forms included an arbitration and limitation of liability agreement requiring mandatory arbitration and placed limits on any damages recovered and discovery. In opposition to the demand for arbitration, the plaintiff argued that the agreement was substantively and procedurally unconscionable because she was hurried into signing numerous documents which were not explained to her, she was unable to fully read the documents because her father was en route, and she was advised the documents must be executed before he arrived at the home. The nursing home countered that the arbitration provision was clearly labeled in bold print and capital letters, that the plaintiff was never under force to sign the documents immediately, and that the agreement further provided a three-day period during which the plaintiff had the opportunity to review the documents and rescind. Although the trial court found that the agreement was procedurally and substantively unconscionable, it found that the unconscionability did not rise to a level sufficient to invalidate the agreement. Where a contract is found to be unconscionable, a trial court may properly decline to enforce it. Most courts consider both the procedural component ­ involving the circumstances surrounding the entering of the contract ­ i.e., whether the parties had a reasonable opportunity to understand the terms of the contract and had a meaningful choice in accepting it ­ and substantive unconscionability ­ concerning the actual terms of the contract ­ i.e., whether the terms are so outrageously unfair as to shock the judicial conscience. In the instant case, the trial court erred in finding that the arbitration agreement was enforceable. Sufficient irregularity in the circumstances surrounding the execution of the contract amounted to some degree of procedural unconscionability. The limitations found in the agreement diminished the statutory rights granted under Chapter 400 by depriving the nursing home resident of significant remedies.

TRIAL New Trial Ottley, D.M.D. v. Kirchharr, 30 Fla. L. Weekly D2767a (Fla. 1st DCA Dec. 19, 2005) - Reversing and remanding trial court's order granting defendant a new trial due to purported jury misconduct because defendant failed to demonstrate that juror concealed material and relevant information. Dental malpractice case involving extensive reconstructive surgery. Early in voir dire, defense counsel asked the jury whether anyone ever had "facial reconstructive surgery." None of the potential jurors responded to the question. Counsel did not explain, describe, or define "facial reconstructive surgery." The jury returned a verdict in favor of the plaintiffs. After discovering that the pertinent juror failed to disclose that she had underwent cosmetic facial reconstructive surgery in the recent past, defense counsel filed a motion for a new trial and motion to interview. The interview revealed that the juror had had a facelift, excess skin removed from her eyes, a cheek lift, a chin implant, and laser skin treatment. The juror testified that she did not consider her procedures to be "facial reconstructive surgery" because the procedures were done for purely cosmetic reasons. The De La Rosa test for juror misconduct requires: (1) The complaining party must establish that the information is relevant and material to jury service in the case; (2) that the juror concealed the information during questioning; and (3) that the failure to disclose the information was not attributable to the complaining party's lack of diligence. Concealed Information There can be no juror misconduct regardless of materiality, when a juror correctly answers a voir dire question. Neither a facelift nor a chin augmentation is reconstructive surgery as defined or as commonly understood. Reconstructive surgery is defined as "surgery that aims at restoring function or normal appearance by remaking defective organs or parts," whereas elective cosmetic surgery aims to improve appearance. The evidence revealed that the juror desired to improve her appearance; she had not suffered any injuries or disease that impaired function or appearance. Without any further elaboration by defense counsel, the phrase "reconstructive surgery" would ordinarily be understood to mean remedial surgery to rebuild or restore injured bones, body parts, or skin. While a potential juror cannot and should not conceal information or fail to answer questions completely, where a juror correctly answers a question, it is counsel's responsibility to inquire further if more information is needed. Because in the instant case, counsel's question was ambiguous at best, a juror's answer to an ambiguous question could not constitute juror misconduct necessitating a new trial. Due Diligence Any failure by the juror to disclose information was attributable to counsel's lack of diligence. In Roberts v. Tjada, 8147 So.2d 334 (Fla. 2002), the Florida Supreme Court explained that the due diligence test requires that counsel provide a sufficient explanation of the type of information which potential jurors are being asked to disclose, particularly if it pertains to an area about which an average lay juror might not otherwise have a working understanding. No factual support existed for the trial court's conclusion that defense counsel provided a sufficient explanation of what he meant by the phrase "facial reconstructive surgery" that would have been reasonably understood by the potential juror to include her cosmetic surgery. Accordingly, the trial court abused its discretion in finding that defense counsel demonstrated adequate due diligence to justify its order granting a new trial.

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