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Florida Appeals Court Holds Section 57.105 Does Not Entitle Defendant To Privileged Information

beware-of-dog-sign-on-brown-fence-300x199.jpgJessica Tedrow filed suit in April 2013 against Jimmy Cannon under Florida's dog-bite statute. Tedrow asserted that her daughter was injured by Cannon's dog during a party at Cannon's home in April 2012. The dog bite statute states that "the owner of any dog that bites any person is liable for damages suffered by persons bitten." But it also provides that if the owner "had displayed in a prominent place on his or her premises a sign easily readable including the words 'Bad Dog,' " the owner is only liable if "the damages are proximately caused by a negligent act or omission of the owner . Thus, Cannon responded to the complaint with a motion for attorneys' fees, arguing that Tedrow's complaint had no basis and that Cannon "had displayed in a prominent place an easily readable sign including the words, 'Bad Dog.'" After 21 days, Cannon filed the motion for attorneys' fees with the circuit court, and answered the complaint asserting that he could not be held strictly liable under the statute because he had displayed a "Bad Dog" sign. Discovery was conducted and ultimately in August 2014, Tedrow filed a notice of voluntary dismissal without prejudice, and the circuit court dismissed the case in January 2015. The next month, Cannon filed a motion for attorneys' fees and costs, citing his earlier-filed motion for attorneys' fees pursuant to section 57.105. The motion also asked the court to permit depositions on the issue of whether Tedrow's counsel acted in good faith in filing the lawsuit. Following a hearing, in July 2015 the circuit court granted Cannon's motion, specifically ordering Tedrow's counsel to produce whatever photographs and other documents formed the basis for filing the lawsuit. The circuit court cited Florida Supreme Court case law for the proposition that "the 57.105 motions survive the dismissal of the case." Tedrow and her attorney sought review to the Florida Second District Court of Appeal.

Tedrow and her attorney argued that the law is that only that a circuit court retains jurisdiction to determine whether attorneys' fees are appropriate following a voluntary dismissal, but the law does not authorize the taking of additional discovery. They went on to assert that such discovery violated the attorney-client and work-product privileges.

The appellate court found that case law discussing the relevant section 57.105 allowed the trial court to look to more than just the complaint in determining entitlement to fees. The trial court may look to the record and should hold a full evidentiary hearing if necessary. Even though an evidentiary hearing is appropriate and Cannon may present evidence to support his claim for fees, he is not entitled to privileged information from Tedrow or her counsel in order to prove his claim for fees. Section 90.502, Florida Statutes (2011), protects communications between Tedrow and her counsel. And none of the exceptions to the privilege in Section 90.502 apply in this case.

However, Tedrow did not raise the issues of attorney-client or work-product privileges. And the court noted Tedrow never filed any objection, privilege log, or motion for protective order after Cannon filed his motion to compel depositions. Thus, the Second District Court of Appeal could not conclude that the circuit court made a ruling on the privileged nature of the information or that the circuit court departed from the essential requirements of law in doing so. Subsequently, the court had to treat the circuit court's order as a preliminary ruling that the information is discoverable, and directed Tedrow to assert the privileges prior to the depositions. Accordingly, the court denied Tedrow's and her attorney's petition for a writ of certiorari.

If you or a loved one has been injured by another individual's dog, you should contact us at Brannon & Brannon (850)659-2252 .

Read the opinion here: http://caselaw.findlaw.com/fl-district-court-of-appeal/1726592.html

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