If This is Not Fraud on the Court, I Don't Know What Is

In Jiang v. Tri-Coumty Repairs LLC, Case No. 2022-010631-CA-01 (Fla. Cir. Ct. Apr. 16, 2026), a cellphone video recording of a conversation between plaintiff and defendant was held not protected from use as evidence by Florida Security of Communications Act, as the Court found the plaintiff did not have s subjective expectation that the conversation was not being intercepted where his statements reveal that he was aware of possibility that he was being recorded. Specifically, the plaintiff stated in the recording “Even you record me, you have no permission…so it’s not going to bring to the judge.” The Court found that any expectation would not be objectively reasonable where conversation between the parties took place while plaintiff was on porch of multi-tenant residence and defendant was standing in a driveway plainly visible and accessible to third parties.

Why would a plaintiff fight so hard to keep the recording out? Because he was facing a motion for sanctions pursuant to Florida Statute Sec. 57.105. The Court found that the case required dismissal to preserve the integrity of the Court where plaintiff's recorded statements revealed an attempt to coerce the defendant not to defend lawsuit so as to enable plaintiff to obtain an insurance recovery and an offer of payout for potential settlement proceeds from the defendant's insurer. The plaintiff stated , inter alia, the following: “…If I win the case, you lose the case, I collect $700,000 from the insurance company…I’m thinking about two options. Either let me win the case and I give you some money back. Or for this case, you take your company to bankruptcy, and I give you the money back…let me win the case and give you some money back…”

The Court rejected plaintiff’s attempt to characterize the discussion as a settlement discussion but rather “a coercive attempt to induce Defendant’s non-participation in the litigation so plaintiff could obtain an insurance recovery.” The Court went further and noted “that dismissal for fraud on the court is warranted even where a party may have some legitimate basis for a claim.” The Court considered lesser sanctions and found that they would be inadequate to address the severity of plaintiff’s misconduct and preserve the integrity of the proceedings.

It is difficult to have a motion for fraud on the court granted in Florida. It appears that a recording or some other solid third-party evidence is required to make such a motion stick. Certainly, if this was not fraud on the court, then it is hard to see what would be. If you are interested in receiving a copy of this decision, please reach out to me by email at blog@miamimaritimelaw.co or admin@miamimaritimelaw.co or by phone at 305.377.3700.

Finally Some Common Sense on the Applicability of the Florida Building Code

In Jackson v. Florida Department of Transportation, 2025 WL 2881680 (Fla. 5th DCA Oct. 10, 2025), an action was brought against the Department of Transportation and the contractor who built a portion of a public sidewalk where plaintiff tripped. When deposed, the plaintiff testified that she tripped on an expansion joint of the sidewalk where one section of concrete was approximately ¾ of an inch higher than the adjacent section. The plaintiff’s retained engineering expert inspected the sidewalk and opined that the uneven sidewalk constituted a tripping hazard because the vertical misalignment at the expansion joint was greater than ½ inch, in violation of the Florida Building Code.

The appellate court found that the trial court did not err by entering summary judgment in favor of defendants based on the conclusion that the less-than-one-inch vertical misalignment in public sidewalk was so open, obvious, and ordinary that it did not constitute a dangerous condition as a matter of law. More importantly, the appellate court also found that the trial court properly rejected plaintiff’s expert's opinion that building code applied to public sidewalk at issue where express scope of the code prohibits its application to the right-of-way sidewalk where plaintiff fell, and expert was unable to provide any support for his novel interpretation applying the building code to a public sidewalk unconnected to any building or structure. The court noted that “[w]hether the Florida Building Code is applicable to this case ultimately is a question of law belonging to the court, not the witness.” See Jackson at *3, quoting Lindsey v. Bill Arflin Bonding Ag., Inc., 645 So. 2d 565, 568 (Fla. 1st DCA 1994) (“The legal effect of a building code presents a question of law for the court, not a question of fact for the jury.”) (citation omitted).

This case is important in defending maritime cases, as we are seeing more and more plaintiffs utilizing engineering experts applying building code standards to non-building code matters, including vessels, docks, boat show ramps and other such places. Many judges choose to refer the matter to the jury rather than address the applicability of the Florida Building Code to a given case, which Jackson confirms is something that the court should decide. Jackson will be important ammunition for the defense, even if a sidewalk is not involved.

If you are interested in receiving a copy of this decision or wish to contact us, feel free to do so at blog@miamimaritimelaw.co or 305.377.3700.

Amendment of Complaint for Punitive Damages Should Not Be So Easily Granted

In Marshall Milton Corp v. Petit-Homme, No. 3D24-762, 2025 WL 1819149 (Fla. 3d DCA July 2, 2025), Florida’s Third District Court of Appeal had the opportunity revisit when a trial court can grant a plaintiff's motion for leave to file an amended complaint to assert a claim for punitive damages. In Florida, this is done by statute. Pursuant to section 768.72(1), Florida Statutes (2023), “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Section 768.72 “requires the trial court to act as a gatekeeper,” which means that the trial court cannot “simply accept[ ] the allegations in a complaint or motion to amend as true.” Napleton's N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1105 (Fla. 4th DCA 2023) (quoting Bistline v. Rogers, 215 So. 3d 607, 610–11 (Fla. 4th DCA 2017)).

The trial court allowed the plaintiff in the case to amend his complaint to assert punitive damages. However, the appellate court, reviewing that grant de novo, found there was insufficient evidence in the record showing willful, callous, or egregious conduct by defendant in investigating plaintiff's claim and terminating his maintenance and cure benefits. The appellate court set out the factors used to determine whether punitive damages are warranted in maintenance and cure cases and include: 1) the shipowner’s laxness in investigating claim; 2) the termination of benefits in response to seaman's retention of counsel or refusal of settlement offer; and 3) the shipowner’s failure to reinstate benefits after diagnosis of ailment previously not determined medically. After reviewing the evidence proffered, the appellate court found the evidence was insufficient to support plaintiff's claim that his benefits were wrongfully terminated after he retained counsel and declined a settlement offer. The court also found that the plaintiff could not claim that defendant showed laxness by refusing to investigate the impact of injury to plaintiff's index finger where defendant relied on physician's testimony that injury was “remarkably benign” and that potential impairment rating for index finger was five percent . The court also noted that the remaining factor was not at issue in plaintiff's case and thus, reversed the trial court and remanded for further proceedings.

This court again sets out the requirements for trial courts to test the plaintiff’s allegations before granting a motion to amend to assert a claim for punitive damages. This requires the seafarer to provide reasonable evidence of willful, callous, or egregious conduct by the shipowner.

If you are interested in receiving a copy of this ruling or wish to discuss this case or one like it further, please feel free to reach out to us at admin@miamimaritimelaw.co or by phone at 305.377.3700.

Florida Court Clarifies Personal Jurisdiction Over Non-Residents

In Pianezza v. Mia Collection Servs.. LLC, 2024 Fla. App. LEXIS 1784 (Fla. 3d DCA March 6, 2024), an action against non-resident principal and employee of foreign limited liability company alleging claims of fraud in the inducement, negligent misrepresentation, breach of express warranty, and conspiracy stemming from LLC's provision of counterfeit merchandise was not dismissed for lack of personal jurisdiction and the defendants appealed. The appellate court found that the corporate shield doctrine did not protect defendants from the trial court's exercise of personal jurisdiction where the complaint sufficiently alleged that defendants committed a tortious act within Florida by directing telephonic and electronic communications into Florida in which they allegedly fraudulently misrepresented the authenticity of merchandise sold to the plaintiff. The appellate court explained that the corporate shield doctrine will not operate to bar personal jurisdiction in Florida over an individual defendant that commits a tortious act in Florida, regardless of whether it was on behalf of a corporate employer.

The appellate court also found that defendants' affidavits were insufficient to shift the burden back to the plaintiff to demonstrate why jurisdiction was proper where, although both defendants denied in their declarations that they directed a phone call, text message, or e-mail to anyone in the state of Florida, they qualified these statements by stating they never did so on their own behalf . The qualification by these defendants failed to negate the allegation that they committed tortious acts in Florida by sending and/or directing telephonic and electronic communications into Florida. This, the court explained, leaves open the inference that they did direct phone calls, text messages, and/or emails into Florida in their capacity as employees of the LLC. The appellate court also found that principal's declaration as a corporate representative on behalf of LLC contained nothing more than legal conclusions, which plaintiff was not required to refute.

The appellate court therefore found that the trial court properly concluded that sufficient minimum contacts existed because defendants knew plaintiff was located in Florida and, therefore, knew their alleged misrepresentations would impact a Florida resident and would cause injuries in Florida. Thus, these non-resident defendants are required to defend the case brought against them in Florida.

If you are interested in receiving a copy of this decision or wish to learn more about the impact of this decision, please feel free to reach out to us at admin@miamimaritimelaw.co or blog@miamimaritimelaw.co.