ANTI-SPAM INFORMATION TECHNOLOGY (IT) ERROR INDUCES LEGAL MALPRACTICE


Emerald Coast Utilities Authorities v. Bear Marcus Pointe, LLC, A Florida Limited Liability Company, # 1D15-5714 (Fla. 1st Dist. Court of Appeals, decided August 10, 2017)

Roughly speaking, a Florida law firm used a “very unreliable” server system that did not warn it of incoming messages what might not be spam, did not save them in some sort of archive, and actually eliminated them without there being a log.  


Significantly, experts had warned the firm against doing this. The firm did not follow this advice in order to save money–$1200.00 a year at most. 

The firm “missed” an order from a trial court regarding attorney fees and, as a result, failed to file proper opposition papers with a trial court and so an adverse order regarding attorney fees was entered. 

In addition and for the same reason, the required time passed to file an appeal.  The appellate court affirmed the decision of the district court. 


The opinion is rather interesting chastening. Citations are omitted, except for the applicable Florida Rule of Civil Procedure 1.540(b), here mentioned. 


The law firm has applied to the trial-level court to set aside its order regarding attorney fees. There was hearing. Several experts testified as to what happened. The trial court refused to set its order aside. 


“Florida courts have discretion to set aside a final judgment, decree, order, or proceeding based on ‘mistake, inadvertence, surprise or excusable neglect. . . . A conscious decision  not to compy wit the requirements of the law cannot be ‘excusable neglect’ under the rle or any other equivalent requirement. . . . Likewise, gross neglect is not excusable.”


Unfortunately for the law firm, its conscious decision not to obtain a proper law firm server was a “conscious decision to use a defective email system without any safeguards or oversight in order to save money.” Moreover, “there was an absence of ‘any meaningful procedure in place that, if followed, would have avoided the unfortunate events hat resulted in a significant judgment against’ appellant.”


Thus, the trial court did not abuse its discretion in not denying the Rule 1.540(b) order.


*Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn
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Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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