I’ve received quite a number of inquires regarding the recent posting concerning the split of authority between Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 466 (Fla. 3d DCA 2013) and Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 426 (Fla. 4th DCA 2014) on the Fla. Stat. §768.0755 issue.  Specifically, clients who are in the First, Second and Fifth District(s) respectively have asked…well what about us? To clarify, trial courts, i.e. Circuit Courts, in the Third DCA must follow Kenz while trial courts in the Fourth DCA must follow McGruder.  As to trial courts in the other districts, the Kenz and McGruder decisions would be persuasive authority only as the trial courts. The trial courts would be bound to follow either. The Supreme Court could resolve the conflict between the two. Please note, however, that if there are no relevant cases decided by a Court in the same district and no disagreement among other districts, a DCA opinon could be binding on the trial court.  This predicate is not available in the Kenz and McGruder issue. See, State v. Hayes, 333 So. 2d 51, 54 (Fla. 4th DCA 1976). Thus, it is not accurate to state that in every case a District Court would not be binding on a trial court in a different district.   Call/email if you have further questions.

 

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