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! 

 

 

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, […]

The post Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury appeared first on .



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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 […]

The post Condominium’s Declaration is a Contract appeared first on .



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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 […]

The post Value of Severability Clause appeared first on .



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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 […]

The post Risk in Purchasing Property Subject to a Pending Foreclosure and Lis Pendens appeared first on .



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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 […]

The post Account Stated and Open Account — Separate Causes of Action appeared first on .



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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 […]

The post General Understanding of Collateral Estoppel and Res Judicata appeared first on .



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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

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions.  Sure, sometimes they definitely do.  But it is also true that sometimes they do not.  Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff’s damages were relatively […]

The post A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict appeared first on .



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Copyright ©  [A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict], All Right Reserved. 2018.
Author: David Adelstein

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim.   The article also discusses the application of equitable subrogation dealing with an actual fact pattern. Equitable subrogation, you say?  In an equitable subrogation claim, a party pays […]

The post Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim appeared first on .



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Copyright ©  [Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim], All Right Reserved. 2018.
Author: David Adelstein

Lawyers get it.  Generally, people do not like to spend money on lawyers.  There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees.  Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice […]

The post Attorney’s Fee Arrangements can be Creative or Innovative appeared first on .



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Copyright ©  [Attorney's Fee Arrangements can be Creative or Innovative], All Right Reserved. 2018.
Author: David Adelstein

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be.  It is also not a motion commonly granted.  But, this does not mean there are no appellate rights if a court denies a motion for directed […]

The post Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence appeared first on .



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Copyright ©  [Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence], All Right Reserved. 2018.
Author: David Adelstein

If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract.  Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute.  For instance, the provision may […]

The post Forum Selection / Venue Provisions in Contracts are Enforceable appeared first on .



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Copyright ©  [Forum Selection / Venue Provisions in Contracts are Enforceable], All Right Reserved. 2018.
Author: David Adelstein

Lawsuits oftentimes involve multiple parties.  This could include multiple defendants or third-party defendants, whatever the case may be.  During the course of the dispute, there are avenues for settlement.  With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out.  Sometimes, a party needs to settle with some, but not […]

The post Set-Off when Entering into Settlements in Multi-Party Disputes appeared first on .



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Copyright ©  [Set-Off when Entering into Settlements in Multi-Party Disputes], All Right Reserved. 2018.
Author: David Adelstein

There is a Florida statute not universally known called the “Bert J. Harris, Jr., Private Property Rights Protection Act” and oftentimes called the “Harris Act” for ease of reference.   The Harris Act is embodied in Florida Statute s. 70.001 (found here) and it deals with the protection of private property rights.  More specifically, it […]

The post The Not Widely Known Harris Act: Protection of Private Property Rights appeared first on .



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Copyright ©  [The Not Widely Known Harris Act: Protection of Private Property Rights], All Right Reserved. 2018.
Author: David Adelstein

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case.  This is a common motion after the plaintiff in a bench trial […]

The post Moving for an Involuntary Dismissal in a Nonjury Bench Trial appeared first on .



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Copyright ©  [Moving for an Involuntary Dismissal in a Nonjury Bench Trial], All Right Reserved. 2018.
Author: David Adelstein