In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner’s use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018).  This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own.  

For example, in Vale, a group of homeowners purchased property in a planned used development next to a golf course.  The golf course was part of the planned unit development but the homeowners did not own the golf course.  The development of the golf course was unsuccessful and it was rezoned for residential development.  The homeowners sued the County under the Act claiming that the rezoning inordinately burdened their property by diminishing the value of their homes, which they anticipated to be next to a golf course.  The trial court, as affirmed by the appellate court, dismissed this argument because the homeowners did not own the golf course: “As it is undisputed that plaintiffs do not hold legal title to the former golf course, they are not ‘property owners’ as contemplated under the Act.”  Vale, supra.  Hence, the homeowners did not have standing under the Act to sue the County based on the rezoning of the golf course. 

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During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of appellate review a trial court’s ruling on a motion for involuntary dismissal.  In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant.  Why?

Well, this case involved a member of a limited liability company (LLC), the plaintiff, filing a lawsuit against a third-party, the defendant, due to a real estate transaction.  The overriding problem for the plaintiff was that the damages he was suing for were damages associated with his LLC, and not him individually. “Generally, a shareholder of a corporation or a member of an LLC may not maintain an action in his or her own right if the cause of action is derived from the right of the corporation or the LLC to bring the action.” Home Title Co. of Maryland, Inc. v. LaSalla, 43 Fla.L.Weekly D2561a (Fla. 2d DCA 2018).  Because the plaintiff (member of the LLC) was suing for damages that directly belonged to the LLC, the cause of action rested with the corporation.  Id. (“The property belonged to the LLC, and thus, the LLC suffered the direct harm when Home Title [third-party] transferred the property…Even though LaSalla [plaintiff-member] is the only other member of the LLC who suffered as a result of the transfer, the harm to him individually was indirect and the result of the harm to the LLC.”). 

The moral of this case is make sure you have standing to sue for the damages/injuries you are suing for.  

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There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions.  One method is known as the Daubert test.  The other as the Frye test.  Both are named after respective cases.    The Daubert test is used in federal court.  The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test.  

The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this article here).   The trial court looks at whether the expert testimony is based on sufficient facts or data, is the product of reliable principles or methods, and whether an expert witness has reliably applied the principles or methods to the facts of the given case.

The Frye test, on the other hand, is widely considered less stringent because it only requires the court look at whether the expert testimony / opinion is based on methods generally accepted in the scientific community.   

Under Frye, “the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.”  Significantly, Frye applies only to “new or novel scientific evidence.” 

Delisle v. Crane Co., 43 Fla.L.Weekly S459a (Fla. 2018) (internal quotations omitted) (Pariente, J., concurring).

Recently, however, the Florida Supreme Court in Delisle ruled that the less stringent Frye test, and NOT the Daubert test, is to applied in Florida:

We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

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If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!  

In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant than filed a motion for prevailing party attorney’s fees.  However, the defendant NEVER pled an actual entitlement to attorney’s fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time period to withdraw the filing before sanctions (attorney’s fees and costs) can be imposed.  The defendant withdrew its motion, albeit too late–after the safe harbor period expired.  

The trial court denied the plaintiff’s Florida Statute s. 57.105 motion for sanctions. The plaintiff appealed and the appellate court reversed finding that the defendant’s motion for attorney’s fees without a basis was frivolous and its withdrawal of the motion was too late since it came after the expiration of the safe harbor time period: 

Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, “[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Motions for attorney’s fees count as “claims.” 

Typically, a party seeking attorney’s fees must specifically allege and request the award in the pleadings…. However, Appellees’ counsel failed to withdraw the meritless motion until well after the safe harbor period had passed….

Mark W. Rickard, P.A. d/b/a Law Guard, supra (internal citations omitted).

Frivolous filings are a big deal. A filing is deemed frivolous if a party or its counsel knew or should have known that a claim or defense was not supported by the facts or application of existing law.  In this case, the defendant and its counsel should have known the motion was frivolous under existing law.  The fact that the defendant’s counsel ultimately recognized this and withdraw the motion was of no moment because it was too late–after the expiration of the safe harbor period.  

Thus, if you file a frivolous motion of pleading: BEWARE. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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