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!

Previously, I discussed damages recoverable under Florida’s Whistleblower Act (“FWA”).  What is the FWA?  The FWA prohibits an employer from taking retaliatory action against an employee because the employee has “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” § 448.102(3), Fla. Stat. (2005). “ ‘Law, rule, or regulation’ includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4), Fla. Stat. (2005)....

The post Objecting and/or Refusing to Participate in Employer’s Activity in Violation of a Law, Rule, or Regulation under Florida’s Whistleblower Act appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Objecting and/or Refusing to Participate in Employer's Activity in Violation of a Law, Rule, or Regulation under Florida's Whistleblower Act], All Right Reserved. 2020.
Author: David Adelstein

When a defendant does not timely respond to the lawsuit, a plaintiff will move for a default against the defendant.  Sometimes a plaintiff will ask the clerk to issue a default and other times the plaintiff will ask the court to issue a default.  A default serves as an admission of liability by the defendant with the issue then being whether the plaintiff’s damages are liquidated or unliquidated as it pertains to obtaining a default final judgment: Damages are liquidated when the amount to be awarded can be determined with exactness from a pleaded agreement between the parties, by an arithmetical...

The post Quick Note: Obtaining a Default Final Judgment appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Quick Note: Obtaining a Default Final Judgment], All Right Reserved. 2020.
Author: David Adelstein

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari.  I further discussed that this was not an easy appeal, and typically, it is not an easy appeal.   But, what about the scenario where the trial court precludes you from taking a deposition of a material witness?  For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward.  Say the trial court agrees with the opposing party and...

The post Appealing a Protective Order that Precludes You from Deposing Material Witness appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Appealing a Protective Order that Precludes You from Deposing Material Witness], All Right Reserved. 2020.
Author: David Adelstein

A cause of action for tortious interference with an advantageous business relationship requires proof of four elements: (1) the existence of a business relationship under which the plaintiff has legal rights; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional and unjustified interference with the relationship; and (4) damages resulting from the breach of the relationship. Weisman v. Southern Wine & Spirits of America, Inc., 45 Fla. L. Weekly D1140a (Fla. 4th DCA 2020). This tortious interference claim “teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the...

The post Tortious Interference with Business Relationship and Two Defense Privileges appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Tortious Interference with Business Relationship and Two Defense Privileges], All Right Reserved. 2020.
Author: David Adelstein

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers).  It may not occur in every case, but it will occur.  There is no such thing as discovery orders always going in your favor.  Not possible.  Some discovery orders entered against you are understandable.  Others lead to a certain amount of frustration.  And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice.   The appeal of a discovery order, however, is through a petition for writ...

The post Appeal of Discovery Order — Not so Easy! appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Appeal of Discovery Order -- Not so Easy!], All Right Reserved. 2020.
Author: David Adelstein

To prove fraud, a plaintiff MUST prove: 1) a false statement of a material fact by the defendant; 2) the defendant had knowledge that the statement was false; 3) the defendant intended that the statement induce the plaintiff to act on it; and 4) damages by the plaintiff in relying on the defendant’s statement.  Pritchard v. Levin, 2020 WL 2050691, *2 (Fla. 3d DCA 2020).      When a fraud claim concerns nondisclosure–a failure to disclose material information–such claim “exists only when there is a duty to make such disclosure.” Id. (citation omitted).  The court determines, as a matter of law, whether...

The post Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure], All Right Reserved. 2020.
Author: David Adelstein

A party prevailing in a civil action is entitled to recover their costs. Fla. Stat. s. 57.041(1) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment….”).    Florida Rule of Civil Procedure 1.525 provides that a “party seeking a judgment taxing costs…shall serve a motion no later than 30 days after filing of the judgment….”).   Check out this article to understand the type of taxable costs a prevailing party in a civil action is entitled.  A prevailing party’s counsel moving to recover legal costs does not need to...

The post Prevailing Party in Civil Action Entitled to Recover Costs appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Prevailing Party in Civil Action Entitled to Recover Costs], All Right Reserved. 2020.
Author: David Adelstein

It is common for commercial leases or certain real estate transactions to include a right of first refusal.   The right of first refusal can be a valuable option for a party to hold and a worthy option for a party to bargain for and ultimately exercise.  But, if a party exercises the right of first refusal, it does not mean that the third party that lost the transaction will be happy about it.  Many times, they are not happy because it is perceived as a lost deal. When it comes to a right of first refusal: It is true that...

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Copyright © ProveMyFloridaCase.com [Properly Exercising the Right of First Refusal], All Right Reserved. 2020.
Author: David Adelstein

Generally, when an attorney is awarded attorney’s fees, there is a mini-evidentiary hearing to determine the “reasonableness” of those fees.  Another lawyer–the reasonable attorneys’ fees’ expert–opines that the rate and hours expended are reasonable.  The opposing party then has its own expert to opine otherwise. Fairly archaic and ridiculous in my opinion.  The fact that fees/costs need to be expended to have a reasonable attorney’s fees’ hearing has always struck me as a needless task.   Others may disagree. Nevertheless, the reasonable fees’ expert is how it is done with another lawyer testifying that the fees incurred by the prevailing...

The post Reasonable Attorneys’ Fees’ Expert when Attorney’s Fees are the Damages appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Reasonable Attorneys' Fees' Expert when Attorney's Fees are the Damages], All Right Reserved. 2020.
Author: David Adelstein

The purpose of prejudgment interest is to make the plaintiff whole from the date of the loss.  Arizona Chemical Co., LLC v. Mohawk Industries, Inc., 197 So.3d 99, 102 (Fla. 1st DCA 2016) (explaining that Florida applies the loss theory as it pertains to prejudgment interest which is simply to make the plaintiff whole and not to penalize the defendant or give the plaintiff a windfall). A prevailing party is entitled to prejudgment interest on damages that have been liquidated.  Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So.3d 743, 746 (Fla. 3d DCA 2014). Stated differently, “[o]nce liquidated damages...

The post Prejudgment Interest for Economic Damages is Predicated on the Loss Theory appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Prejudgment Interest for Economic Damages is Predicated on the Loss Theory], All Right Reserved. 2020.
Author: David Adelstein

If you need a lawyer, I would strongly suggest you start moving towards video conference consultations.   You need a computer, tablet, or smartphone and access to the internet.  Video conferences are a productive tool to discuss your issues with a lawyer, particularly in today’s current climate as we all deal with the coronavirus.  Don’t delay consulting with a lawyer merely because you think you do not have the right access or opportunity.  Take advantage of video conference consultations so that you are proactively getting in front of your issues.   It is always advisable to address issues or problems...

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Copyright © ProveMyFloridaCase.com [Take Advantage of Video Conference Consultations with an Attorney], All Right Reserved. 2020.
Author: David Adelstein

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim.   Another way to resolve a dispute is through binding arbitration.  Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs.   The key with arbitration is that it is a creature of contract.  This means there needs to be an arbitration provision in an agreement for...

The post Arbitrability of a Dispute – Does a Judge or Arbitrator Decide? appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Arbitrability of a Dispute - Does a Judge or Arbitrator Decide?], All Right Reserved. 2020.
Author: David Adelstein

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract.  Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self:  when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity.  See Fla. R. Civ. P. 1.120. Second note to self:  a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach...

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Copyright © ProveMyFloridaCase.com [A Misrepresentation is Not the Same as a Breach of Contract], All Right Reserved. 2020.
Author: David Adelstein

With all of the uncertainty going on right now in the world, and there is a lot, it may be the time to consider alternative fee arrangements with your attorney.  This can be any fee arrangement that is not hourly billing that is a creative way to meet your needs in light of cash flow constraints.  Not every case merits an alternative fee arrangement, but many cases do.  Perhaps it is  time to explore the possibility of an alternative fee arrangement to see if one can be reached.  There is nothing wrong with an innovative way to resolve your issues....

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Copyright © ProveMyFloridaCase.com [Consider Alternative Fee Arrangements], All Right Reserved. 2020.
Author: David Adelstein

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff–a guest of a condominium unit owner–sued the association and the association’s dock contractor after she injured herself on an unfinished dock.  The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages.   The appellate court agreed because the...

The post Owner Jointly and Severally Liable for Nondelegable Duty appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Owner Jointly and Severally Liable for Nondelegable Duty], All Right Reserved. 2020.
Author: David Adelstein

There used to be an argument that if a corporation becomes administratively dissolved for failing to to file a routine annual report, the corporation cannot prosecute a lawsuit, or even defend itself in a lawsuit, until it becomes reinstated.   Not so much anymore. The Second District Court of Appeal in Hock v. Triad Guaranty Ins. Corp., 45 Fla. L. Weekly D493g (Fla. 2d DCA 2020) held that a corporation that becomes administratively dissolved for failing to file an annual report may prosecute or defend an action “in order to wind up its business and affairs.”    This means that any administratively...

The post Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action], All Right Reserved. 2020.
Author: David Adelstein

In an earlier posting, I wrote about the defense concept known as the non-party Fabre defendant.  This is an affirmative defense raised by a defendant in negligence scenarios to get a non-party on a jury verdict form so that the jury assigns a percentage of fault / liability for the plaintiff’s damages to this non-party.   By assigning a percentage of fault to the non-party, the defendant’s liability for the plaintiff’s damages is reduced.   By way of example, if the plaintiff has $100,000 in damages and sues the defendant for these damages, the defendant may claim that “X” should be...

The post Application of the Non-Party Fabre Defendant appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Application of the Non-Party Fabre Defendant], All Right Reserved. 2020.
Author: David Adelstein

  A lis pendens serves as a cloud against real property.  A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis...

The post Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument], All Right Reserved. 2020.
Author: David Adelstein

Many contracts contain a venue provision also regarded as a forum selection provision – the jurisdiction where lawsuits are to take place.   In analyzing these provisions, the initial consideration should always be whether the provision is mandatory or permissive.   Mandatory forum selection clauses “require or unequivocally specify … that a particular forum be the exclusive jurisdiction for litigation concerning the contract.”  Whereas, permissive forum selection clauses “constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Hence, forum selection clauses that “lack mandatory or...

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Copyright © ProveMyFloridaCase.com [Mandatory or Permissive Forum Selection Provision], All Right Reserved. 2020.
Author: David Adelstein

  Here is the scenario? A commercial owner enters into an exclusive listing agreement with a real estate broker that gives the broker the exclusive right to sell or lease property within 1 year in exchange for 6% commission.   The exclusive listing agreement provides that the broker is entitled to the commission “if the property was sold or leased within twelve months after termination of the agreement to any buyer to whom the property was submitted for sale during the continuance of the agreement.”  This is the broker’s protection period. The broker introduces the commercial owner to a couple.  However,...

The post Limitation on Real Estate Broker’s Procuring Cause Doctrine appeared first on ProveMyFloridaCase.com.



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Copyright © ProveMyFloridaCase.com [Limitation on Real Estate Broker's Procuring Cause Doctrine], All Right Reserved. 2020.
Author: David Adelstein
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