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! 

 

 

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 […]

The post Incentive for Taking Case on Contingency – the Contingency Fee Multiplier appeared first on .



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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 […]

The post Serving a Florida Statute s. 57.105 Motion for Sanctions appeared first on .



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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

When real property is the subject to a pending foreclosure action where there is a lis pendens, a buyer that purchases the property outside of the foreclosure “does so at his own risk because he is on notice that the property is subject to the foreclosure action [through the lis pendens].”  Bymel v. Bank of […]

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Copyright ©  [Risk in Purchasing Property Subject to a Pending Foreclosure and Lis Pendens], All Right Reserved. 2018.
Author: David Adelstein

There are two different causes of action known as account stated and open account.  Although these are separate causes of action, and have different burdens of proof, they are oftentimes pled together and confused for one another.   These are causes of action that would be asserted when a party / creditor claims another party […]

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Copyright ©  [Account Stated and Open Account -- Separate Causes of Action], All Right Reserved. 2018.
Author: David Adelstein

There are two similarly related legal doctrines known as collateral estoppel and res judicata.   The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata).  These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case […]

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Copyright ©  [General Understanding of Collateral Estoppel and Res Judicata], All Right Reserved. 2018.
Author: David Adelstein

Preserving an objection for appeal.  Preserving an objection for appeal.  Preserving an objection for appeal.  Repeat again and again, because this is important.  The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida,  43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his […]

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Copyright ©  [Preserving an Objection for Appeal], All Right Reserved. 2018.
Author: David Adelstein

Here is a case that may give associations some degree of consternation.  I think it should because it supports permanent injunctive relief against an association to comply with its governing documents when managing or maintaining a surface water management system / stormwater management system.   This case, discussed below, would extend beyond a surface water […]

The post Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association appeared first on .



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Copyright ©  [Injunctive Relief + Attorney's Fees Awarded in Favor of an Owner and Against Her Association], All Right Reserved. 2018.
Author: David Adelstein

I recently discussed a doctrine that applies in negligence cases known as the undertaker’s doctrine.  Some may also call this the no good deed goes unpunished doctrine.  Just kidding; but, this undertaker’s doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a […]

The post Mid-litigation Monetary Settlement with Co-Defendant appeared first on .



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Copyright ©  [Mid-litigation Monetary Settlement with Co-Defendant], All Right Reserved. 2018.
Author: David Adelstein

Florida’s Uniform Trade Secrets Act is contained in Florida Statutes Chapter 688.  This Act authorizes  courts to take reasonable steps to preserve the confidentiality of trade secrets including ordering injunctive relief to prevent a party (such as a former employee) from misappropriating trade secrets.  Norton v. American LED Technology, Inc., 43 Fla.L.Weekly D951a (Fla. 1st DCA […]

The post Florida’s Uniform Trade Secrets Act cannot be used to Restrict Competition appeared first on .



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Copyright ©  [Florida's Uniform Trade Secrets Act cannot be used to Restrict Competition], All Right Reserved. 2018.
Author: David Adelstein