Prove My Florida Case

 

 

Prove My Florida Case is my blog discussing Florida appellate, evidentiary, and trial issues and perspectives.  This blog focuses on issues that are important to proving YOUR case! 

 

 

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of […]

The post Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member appeared first on .



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Copyright ©  [Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member], All Right Reserved. 2018.
Author: David Adelstein

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions.  One method is known as the Daubert test.  The other as the Frye test.  Both are named after respective cases.    The Daubert test is used in federal court.  The Frye test was used in Florida until 2013 when the Florida Legislature […]

The post The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony appeared first on .



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Copyright ©  [The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony], All Right Reserved. 2018.
Author: David Adelstein

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!   In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant […]

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Copyright ©  [If You File a Frivolous Motion or Pleading: BEWARE], All Right Reserved. 2018.
Author: David Adelstein

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor.  This does not mean arguments cannot and should not be made.  It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer. In a recent post-judgment […]

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Copyright ©  [Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer], All Right Reserved. 2018.
Author: David Adelstein

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of […]

The post A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause appeared first on .



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Copyright ©  [A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause], All Right Reserved. 2018.
Author: David Adelstein

  What is a spoliation of evidence claim?  Let’s find out… The recent decision in Amerisure Insurance Company v. Rodriguez, 43 Fla.L.Weekly D2225b  (Fla. 3d DCA 2018) involved a case where an employee was injured.  While he was collecting worker’s compensation benefits, he sued the the party responsible for his injuries in a premise liability […]

The post Spoliation of Evidence Claim Against Third-Party appeared first on .



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Copyright ©  [Spoliation of Evidence Claim Against Third-Party], All Right Reserved. 2018.
Author: David Adelstein

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence.  In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and […]

The post Appealing Correct Measure of Damages appeared first on .



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Copyright ©  [Appealing Correct Measure of Damages], All Right Reserved. 2018.
Author: David Adelstein

Economic damages must be supported by substantial competent evidence.  Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable.  Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim.  If damages cannot be proven, there […]

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Copyright ©  [Economic Damages Must be Based on Competent Substantial Evidence], All Right Reserved. 2018.
Author: David Adelstein

I recently discussed the defense of mitigation of damages as it applies to contract cases.  An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract.  In the case referenced in the article, the trial court did not award the owner certain […]

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Copyright ©  [Quick Note: Competent Substantial Evidence to Support Mitigation of Damages], All Right Reserved. 2018.
Author: David Adelstein

You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties.  You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability).   For example, in Sterling Breeze […]

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Copyright ©  [You Can't Sue Someone for Unjust Enrichment when there is a Contract], All Right Reserved. 2018.
Author: David Adelstein

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees?  The owner or occupier […]

The post Premise Liability Claims and Duties of Owners to Invitees appeared first on .



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Copyright ©  [Premise Liability Claims and Duties of Owners to Invitees], All Right Reserved. 2018.
Author: David Adelstein

A recent appellate decision came out regarding contingency fee multipliers–the incentive for taking a case on contingency.   I included a thorough discussion on the requirements establishing a contingency fee multiplier here.  Check out this discussion that goes into establishing reasonable attorney’s fees and then the contingency fee multiplier. Notably, in this case, the appellate […]

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Copyright ©  [Incentive for Taking Case on Contingency - the Contingency Fee Multiplier], All Right Reserved. 2018.
Author: David Adelstein

“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.”  XIP Technologies, LLC v. Ascend Global Services, LLC,  […]

The post Sufficient Factual Detail to Support Four Prongs of Temporary Injunction appeared first on .



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Copyright ©  [Sufficient Factual Detail to Support Four Prongs of Temporary Injunction], All Right Reserved. 2018.
Author: David Adelstein

Earlier this year I wrote an article regarding proving the defense of unilateral mistake.  In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake.  Based on this opinion, a party […]

The post Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake appeared first on .



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Copyright ©  [Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake], All Right Reserved. 2018.
Author: David Adelstein

Appellate courts have been all over the place regarding how to serve a motion for sanctions under Florida Statute s. 57.105 that it has become borderline ridiculous.  Of course, this is my opinion, but the ridiculousness prompts the question mark in the photo.    A motion for sanctions under s. 57.105 is served when a […]

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Copyright ©  [Serving a Florida Statute s. 57.105 Motion for Sanctions], All Right Reserved. 2018.
Author: David Adelstein

Recently, I have received a spate of phone calls relating to filing a lawsuit for declaratory relief to establish ownership of a motor vehicle.  As a result of these calls, I decided to write a quick note about this subject. This issue is prompted by a person going to Florida’s Department of Highway Safety and […]

The post Quick Note: Action for Declaratory Relief to Obtain a Certificate of Title appeared first on .



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Copyright ©  [Quick Note: Action for Declaratory Relief to Obtain a Certificate of Title], All Right Reserved. 2018.
Author: David Adelstein

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract. While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed. In a recent property insurance coverage dispute, […]

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Copyright ©  [Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury], All Right Reserved. 2018.
Author: David Adelstein

A condominium’s declaration is a contract.  As a unit owner, it serves as your contract and will govern your rights with your condominium association.  Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration.  And, no different than any contract, the interpretation of a declaration is […]

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Copyright ©  [Condominium's Declaration is a Contract], All Right Reserved. 2018.
Author: David Adelstein

Arbitration is a creature of contract, meaning if you want your disputes to be resolved by arbitration through an arbitrator (as opposed to litigation with a judge and/or jury), you need to include an arbitration provision in your contract.   A trial court granting or denying a party’s motion to compel arbitration is a non-final order […]

The post Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration appeared first on .



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Copyright ©  [Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration], All Right Reserved. 2018.
Author: David Adelstein

      Severability clauses have become fairly commonplace in contracts.  Cut and paste provisions.  However, these clauses can provide tremendous value.  A sample of a severability clause is as follows: If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor […]

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Copyright ©  [Value of Severability Clause], All Right Reserved. 2018.
Author: David Adelstein