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!
What is a covenant running with the land? A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land: “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate’ . . . [and] are divided into two […]
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Tags: arbitration, covenant, covenant running with land, personal covenant, subsequent purchaser
- Statutory Construction Subject to De Novo Standard of Appellate Review
- Malicious Prosecution Arising from Judicial Proceedings--There are Consequences
- Illegality of Contract as Affirmative Defense
- You Can't Sue Someone for Unjust Enrichment when there is a Contract
- Stay Money Judgment Pending Appeal
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Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation. It provides: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting […]
Tags: defamation, defamatory statement, Florida Statute 770.01, Florida Statute 770.02
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Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit? This concept is known as “fees on fees.” It depends. Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but […]
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Tags: amount of attorney's fees, amount of fees, attorneys' fees, entitlement to fees, fees on fees, reasonable fees
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I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy. Yet, in a different context, this case deals with a trial court striking a defendant’s (insurer) affirmative […]
The post Striking an Affirmative Defense appeared first on .
Tags: abuse of discretion, affirmative defenses, standard of review
- Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer
- Stormwater Runoff from Upper Landowner to Lower Landowner and "Reasonable Use" Rule
- Expert Opinion Testimony and the Standard of Appellate Review
- Avoiding the Mistrial
- Timely Move for Appellate Attorney's Fees (if You have a Basis!)
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A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019). What about a party’s statement within a medical record (double hearsay – hearsay within hearsay)? Well, that hearsay statement may be admissible if another exception permits its admissibility. Once such […]
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Tags: admission by a party opponent, business record, double hearsay, hearsay, medical record
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In the premise liability context: [T]he obvious danger doctrine provides that a landowner “is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party….” However, this protection does not extend to situations where the landowner “should anticipate the harm despite the fact that […]
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Tags: dangerous conditions, known or obvious danger, obvious danger, obvious danger doctrine, premise liability
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I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign. Such documents are intended to have legal effect. By way […]
The post Exculpatory Clauses MUST be Clear and Unequivocal appeared first on .
Tags: exculpatory, exculpatory clause, release, waiver and release
- Authentication of Document and the "Reply Letter Doctrine"
- Quick Note: Competent Substantial Evidence to Support Mitigation of Damages
- The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony
- Impeachment as to Prior Crimes in Civil Trials
- Expert Opinion Testimony and Understanding Daubert's Gatekeeping Test
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A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days. In certain circumstances, such as when there is there is no basis to recover attorney’s fees, […]
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Tags: attorneys' fees, proposal for settlement
- Attorney's Fee Arrangements can be Creative or Innovative
- Proving Your Case Through Circumstantial Evidence
- Cause of Action for Tortious Interference with a Business Relationship
- Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer
- Trial Court's Responsibility is NOT to Rewrite a Contract
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General releases, unfortunately, are not absolute. A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling. In this case, the Court held that the term “unknown” in a general release […]
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Tags: fraud, general release, known and unknown, release, unaccrued
- Serving a Florida Statute s. 57.105 Motion for Sanctions
- Incentive for Taking Case on Contingency - the Contingency Fee Multiplier
- Yes, There is Such a Thing Called Apparent Authority
- Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action
- Appealing Trial Court's Interpretation of Contract
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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 […]
The post Asserting Basis for Punitive Damages against Corporate Entity appeared first on .
Tags: 768.72, defamation, employer defamation, Florida Statute 768.72, punitive damages
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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 […]
The post Mutuality of Obligation when it comes to Contractual Attorney’s Fees appeared first on .
Tags: 57.105, 57.105(7), attorneys' fees, mutuality of obligation
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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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Tags: first-party spoliation, spoliation, spoliation of evidence, third-party spoliation
- Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition
- Arbitration Clause - Narrow or Broad
- Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore...
- Proposals for Settlement ONLY Apply to Claims for Monetary Relief
- Two Proposal for Settlement Considerations
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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 .
Tags: arbitration, arbitration waiver, right to arbitrate, waiver, waiver of arbitration
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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 .
Tags: lis pendens, lis pendens bond, lis pendens damages, loss of investment return, lost opportunity
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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 .
Tags: competing experts, expert affidavit, expert affidavits, summary judgment
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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 […]
The post Proving Entitlement to a “Trade Secret” appeared first on .
Tags: Florida Statute 812.081, public records act, trade secret
- Introducing Character Evidence of Prior Bad Acts in a Civil Case
- Hearsay within a Medical Record (Double Hearsay)
- Actions for Declaratory Relief / Declaratory Judgment
- Collateral Source Rule - Prohibiting an Injured Plaintiff from having Its Cake and Eating It too
- Laying the Foundation of Photographic Evidence
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“’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 .
Tags: commercial landlord, commercial tenant, de novo, implied co-insured, motion to dismiss, subrogation
- Recipient of Trial Court's Error Needs to Prove Harmless Error
- Referral Sources can be a Protected Legitimate Business Interest
- If You File a Frivolous Motion or Pleading: BEWARE
- Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another's Records
- Civil Conspiracy - Not Just a Claim in the Criminal Context
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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 .
Tags: attorneys' fees, Florida Statute 768.79, jointly and severally, offer of judgment, proposal for settlement, Rule of Civil Procedure 1.442
- I Lost the Appeal. Should I File an Appellate Motion for Rehearing???
- Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake
- How the Defense of Set-Off Applies
- Verdict Forms (General or Special) and the Two-Issue Rule
- Considerations Involving Proposals for Settlement / Offers for Judgment
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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 […]
The post Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition appeared first on .
Tags: duty to maintain, negligence, open and obvious, premise liability
- Timely Filing Motion for Attorney's Fees and Costs
- Must be a "Property Owner" to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act
- Striking / Excusing a Prospective Juror for Bias during Voir Dire
- The Certiorari Standard of Review
- Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence
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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 .
Tags: lower landowner, lower landowner stormwater, reasonable use rule, stormwater runoff, upper landowner, upper landowner stormwater
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