Fifth DCA
King v. Farah & Farah, P.A.
5th DCA
4/6/23, (Per Curiam MAKAR, EDWARDS and HARRIS).
Topics: Summary Judgment Standard
Wow! The DCA reversed summary judgment in this legal malpractice case related to an underlying negligent security action because the trial court adopted the law firm’s proposed order without making any changes.
Terrell King hired Farah and Farah as his lawyers in the negligent security case. (Farah & Farah has locations all over Florida and Georgia and lists over 100 lawyers on its website. https://farahandfarah.com/). After the conclusion of the case, Mr. King sued the Farah firm for alleged legal malpractice.
The Farah firm moved for summary judgment, and the merits of the case are not summarized or ruled upon in the opinion. After the summary judgment hearing, the Farah firm filed a 40-page proposed order. The trial court adopted the proposed order word for word, and King appealed.
The DCA cited Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004), wherein the Florida Supreme Court held that the verbatim adoption of one party’s twenty-five page proposed final judgment created an appearance that the trial judge did not exercise independent judgment. That case held that appellate courts should examine the length and detail of the proposal, whether the parties were given an opportunity to object to each other’s submissions, how long it took for the trial judge to adopt the proposal, and whether the trial judge made findings of fact and conclusions of law on the record to guide the parties’ preparation of their respective submissions.
While the judge took six months to enter the order here (which weighed in favor of showing that it took time to consider the order, unlike in Perlow, where the order was entered two hours after it was submitted), other factors outweighed the six-month delay. First, the proposed order cited ‘the wrong standard for summary judgment.” Second, the order contained “language that could be interpreted as overly harsh and injudicious,” which showed that the court did not engage in independent judgment.
More importantly, the judge had a weird instruction for the parties. He told both parties to submit orders, and he instructed them not to show each other their proposed orders. He instructed them not to respond to each other’s proposed orders.
As Perlow stated, proposed orders should be a starting point, but when a judge accepts a proposed order verbatim without opportunity for comment or objection by the other party, there is an appearance that the trial judge did not exercise independent judgment. This is especially true when the judge did not make oral findings on the record to guide the party in drafting the proposed order. The judge ran afoul of all of these factors.
The court reversed and remanded with instructions to the judge to engage in further consideration to include a thoughtful and independent analysis of the facts, issues, and law.
https://supremecourt.flcourts.gov/content/download/865371/opinion/230020_DC13_04062023_ 081854_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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