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! 

 

 

Caveat Emptor.  Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the […]

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Copyright ©  [Caveat Emptor = Buyer Beware = Watch Out!], All Right Reserved. 2017.
Author: David Adelstein

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of […]

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Copyright ©  [Writ of Certiorari to Remedy Pre-Trial Discovery Order], All Right Reserved. 2017.
Author: David Adelstein

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential […]

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Copyright ©  [Florida Statutory Cause of Action for Misleading Advertisement], All Right Reserved. 2017.
Author: David Adelstein

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you […]

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Copyright ©  [Not All Non-Final Orders are Immediately Appealable], All Right Reserved. 2017.
Author: David Adelstein

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with […]

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Copyright ©  [Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent], All Right Reserved. 2017.
Author: David Adelstein

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to […]

The post Insurance Policy Construction is a Question of Law appeared first on .



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Copyright ©  [Insurance Policy Construction is a Question of Law], All Right Reserved. 2017.
Author: David Adelstein

Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable […]

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Copyright ©  [Courts do Not Favor the Technical (Oops!) Wins], All Right Reserved. 2017.
Author: David Adelstein

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that […]

The post Civil Conspiracy – Not Just a Claim in the Criminal Context appeared first on .



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Copyright ©  [Civil Conspiracy - Not Just a Claim in the Criminal Context], All Right Reserved. 2017.
Author: David Adelstein

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis. Florida Rule of Appellate Procedure […]

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Copyright ©  [Timely Move for Appellate Attorney's Fees (if You have a Basis!)], All Right Reserved. 2017.
Author: David Adelstein

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too.   This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because […]

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Copyright ©  [Seller's Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith], All Right Reserved. 2017.
Author: David Adelstein

Business relationships are important.  It is all about relationships in all walks of life!  What if someone interferes with your business relationship?  What if that interference is intentional or unjustifiable? There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st […]

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Copyright ©  [Cause of Action for Tortious Interference with a Business Relationship], All Right Reserved. 2017.
Author: David Adelstein

Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal? There […]

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Copyright ©  [Restrictive Language in Employment Agreement], All Right Reserved. 2017.
Author: David Adelstein

There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution.   […]

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Copyright ©  [Malicious Prosecution Arising from Judicial Proceedings--There are Consequences], All Right Reserved. 2017.
Author: David Adelstein

A motion for summary judgment is a dispositive motion that is popularly filed before trial. However, it is a motion that is denied far more than it is granted because of the burden imposed on the party moving for summary judgment in order to prevail on the motion.   “Summary judgment is appropriate ‘if the pleadings, […]

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Copyright ©  [Motion for Summary Judgment - No Genuine Issue of Material Fact], All Right Reserved. 2017.
Author: David Adelstein

Claims for fraudulent inducement and fraudulent misrepresentation are claims that are oftentimes pled despite there being a contract being the parties. Besides these claims being fact-based and challenging to prove in certain instances, they are harder when there is a contract between the parties. Fraud is only actionable if it is separate and distinct from […]

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Copyright ©  [Fraud in the Performance of a Contract], All Right Reserved. 2017.
Author: David Adelstein

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it.   The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in […]

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Copyright ©  [Admitting a Business Record Under the Hearsay Exception], All Right Reserved. 2017.
Author: David Adelstein

Restrictive covenants are to be strictly construed.   Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner’s) use to do something with his/her property.   Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, […]

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Copyright ©  [Strict Construction of Restrictive Covenants], All Right Reserved. 2017.
Author: David Adelstein

Depositions are an integral part of a dispute’s “truth seeking” discovery process. This is where parties can depose a witness under oath and explore key factual issues and parties’ positions, both from a liability and damages perspective.   Certain depositions can be introduced for purposes of substantive evidence at trial.   Other depositions can be used for […]

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Copyright ©  [Denial of Right to Depose Material Witness], All Right Reserved. 2017.
Author: David Adelstein

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action.   This oftentimes results in litigating the amount of fees. There is authority that when parties […]

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Copyright ©  [Litigating the Amount of Contractual Attorney's Fees], All Right Reserved. 2017.
Author: David Adelstein

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated […]

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Copyright ©  [Designating a Representative(s) to Serve as the Corporate Representative for Deposition], All Right Reserved. 2017.
Author: David Adelstein