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! 

 

 

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend […]

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Copyright ©  [Asserting Basis for Punitive Damages against Corporate Entity], All Right Reserved. 2019.
Author: David Adelstein

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees.  Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that […]

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Copyright ©  [Mutuality of Obligation when it comes to Contractual Attorney's Fees], All Right Reserved. 2019.
Author: David Adelstein

  There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim […]

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Copyright ©  [Suing Third-Party for Spoliation of Evidence], All Right Reserved. 2019.
Author: David Adelstein

Arbitration is a form of dispute resolution.  Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator.  Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute.  The parties either agree to an arbitrator or an arbitrator […]

The post The Contractual Right to Arbitrate a Dispute Can be Waived appeared first on .



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Copyright ©  [The Contractual Right to Arbitrate a Dispute Can be Waived], All Right Reserved. 2019.
Author: David Adelstein

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)?  These are damages that should be accounted for in […]

The post Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute) appeared first on .



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Copyright ©  [Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)], All Right Reserved. 2019.
Author: David Adelstein

  Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidenceto determine if there is sufficient evidence at issue to justify a trial or formal hearing […]

The post Affirming Summary Judgment when there are Competing Expert Affidavits appeared first on .



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Copyright ©  [Affirming Summary Judgment when there are Competing Expert Affidavits], All Right Reserved. 2019.
Author: David Adelstein

A recent case, Managed Care of North America, Inc. v. Florida Healthy Kids Corp., D735a (Fla. 1st DCA 2019), discusses the standard in proving entitlement to a “trade secret,” as defined by Florida law (below).   In this case, bidders submitted proposals to a public body in response to an Invitation to Negotiate. In responding to […]

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Copyright ©  [Proving Entitlement to a "Trade Secret"], All Right Reserved. 2019.
Author: David Adelstein

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.”Zurich Am. Ins. Co. v. Puccini, LLC, […]

The post Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease appeared first on .



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Copyright ©  [Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease], All Right Reserved. 2019.
Author: David Adelstein

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on […]

The post Considerations when Multiple Proposals for Settlement are Served on Separate Defendants appeared first on .



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Copyright ©  [Considerations when Multiple Proposals for Settlement are Served on Separate Defendants], All Right Reserved. 2019.
Author: David Adelstein

  Even with an open and obvious dangerous condition, there may still exist a duty to maintain the property and repair that same condition.  In Middleton v. Don Asher & Associates, Inc., 44 Fla.L.Weekly D301d (Fla. 5th DCA 2019), the plaintiff was a unit owner in a condominium for 15 years. She slipped and fell while […]

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Copyright ©  [Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition], All Right Reserved. 2019.
Author: David Adelstein

The recent decision in Coachwood Colony MGP, LLC v. Kironi, LLC, 44 Fla.L.Weekly D340a (Fla. 5thDCA 2019) discusses the burden an upper landowner owes to a neighboring lower landowner when it comes to stormwater runoff / drainage.  The upper landowner is at a higher elevation than the lower landowner so the issue becomes the flow […]

The post Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule appeared first on .



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Copyright ©  [Stormwater Runoff from Upper Landowner to Lower Landowner and "Reasonable Use" Rule], All Right Reserved. 2019.
Author: David Adelstein

What is disgorgement and what are the proper measure of damages when seeking disgorgement?  If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2019), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of […]

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Copyright ©  [Disgorgement for WRONGDOING], All Right Reserved. 2019.
Author: David Adelstein

When it comes to disability discrimination, there are two key federal statutes.  The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act.  Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities.  There are numerous federal cases discussing both the ADA […]

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Copyright ©  [Disability Discrimination: Synopsis], All Right Reserved. 2019.
Author: David Adelstein

Arbitration, as a method of dispute resolution, is a creature of contract.  If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract.  If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified […]

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Copyright ©  [Arbitration Clause - Narrow or Broad], All Right Reserved. 2019.
Author: David Adelstein

In a recent article I discussed the importance of an expert’s qualifications — hiring an expert witness to render an opinion within his or her qualifications (training, knowledge, or expertise).  If an expert is not qualified to render an opinion, a trial court has the discretion to preclude that witness from offering the opinion at […]

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Copyright ©  [Abuse of Discretion Standard of Review when Expert Deemed Unqualified], All Right Reserved. 2019.
Author: David Adelstein

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of […]

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Copyright ©  [Then-Existing State of Mind Hearsay Exception], All Right Reserved. 2019.
Author: David Adelstein

Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period. […]

The post Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment appeared first on .



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Copyright ©  [Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment], All Right Reserved. 2019.
Author: David Adelstein

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate […]

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Copyright ©  [Proposals for Settlement ONLY Apply to Claims for Monetary Relief], All Right Reserved. 2019.
Author: David Adelstein

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner’s use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach […]

The post Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act appeared first on .



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Copyright ©  [Must be a "Property Owner" to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act], All Right Reserved. 2019.
Author: David Adelstein

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. 2019.
Author: David Adelstein