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

Plaintiff Jessica Tedrow filed suit in April 2013 against Jimmy Cannon under Florida’s dog-bite statute. Tedrow alleged that her daughter was injured by Cannon’s dog during a party at Cannon’s home in April 2012. The statute provides that “[t]he 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” a sign 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.”

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Cannon responded with a motion for attorneys’ fees, alleging that Tedrow’s complaint had no basis in law 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, asserting that he could not be held strictly liable under the statute because he had displayed a “Bad Dog” sign.

In August 2014, Tedrow filed a notice of voluntary dismissal without prejudice, and the circuit court accordingly dismissed the case in January 2015. The next month, Cannon filed a motion for attorneys’ fees and costs, and for the court to permit depositions on the issue of whether Tedrow’s counsel filed the lawsuit in good faith. Following a hearing, in July 2015 the circuit court granted Cannon’s motion, specifically compelling Tedrow’s counsel to produce whatever photographs and other documents formed the basis for filing the lawsuit. The circuit court cited Florida Supreme Court precedent for the proposition that “the 57.105 motions survive the dismissal of the case.” Tedrow and her attorney sought certiorari review of the July order.

Tedrow and her attorney contended that precedent dictates only that a circuit court retains jurisdiction to determine whether attorneys’ fees are appropriate following a voluntary dismissal, but precedent does not authorize the taking of additional discovery. They argued that such discovery violates the attorney-client and work-product privileges.

The appeals court first found that attorneys’ fees may be available to Cannon because Tedrow did not voluntarily dismiss her complaint within 21 days of Cannon’s first motion. But the case did not address whether the circuit court may allow additional discovery based on a 57.105 motion.

The appeals court next stated that case law discussing section 57.105 allows the circuit court to look at more than just the complaint in determining attorneys’ fees. The trial court may look to the record and should hold a full evidentiary hearing if necessary. However, this evidentiary hearing does not entitle Cannon to privileged information from Tedrow or her counsel in order to prove his claim for fees. Florida Statutes Section 90.502 protects communications between Tedrow and her counsel. (“A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.”) And none of the exceptions to the privilege in Section 90.502 apply in this case.

Tedrow, however, did not raise the issue of attorney-client or work-product privileges before the circuit court, nor did the circuit court make a ruling on the record based on the privileged nature of the information. The appeals court therefore treated the circuit court’s order as a preliminary ruling that the information is discoverable, noting that Tedrow and her attorney may assert the privileges prior to any depositions. Accordingly, the court denied Tedrow’s and her attorney’s petition for a writ of certiorari.

If you or a family member has been injured by another’s dog, you should contact a dedicated personal injury attorney as soon as you are able. To discuss your right to pursue damages with a hardworking South Florida personal injury lawyer, call the experienced advocates at Friedman, Rodman & Frank, P.A. at (305) 448-8585 or contact us through our website today.

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