27 February

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Business Judgment Rule Designed to Shield Directors from Personal Liability

A recent case out of Florida’s Third District discussed the business judgment rule and ultra vires acts. Of importance, the Third District held that the business judgment rule was not required to be raised as an affirmative defense. Hence, the business judgment rule could be relied on notwithstanding a board/manager/director not raising it as an affirmative defense in a lawsuit asserted against them. The business judgment rule is a critical rule for anyone serving on a board to appreciate because it is designed to benefit them, i.e., to shield them for personal liability for their decisions. Without such a rule, who...

11 February

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Homestead Protection does Not Attach to Corporation (as Judgment Debtor Found Out!)

Posted by David Adelstein

in Trial Perspectives

There are times where (potential) judgment debtors try to be way to crafty. And, guess what, it doesn’t always work! A recent case exemplifies this point. In DeJesus v. A.M.J.R.K. Corp., 43 Fla. L. Weekly D331a (Fla. 2d DCA 2017), a plaintiff sued a defendant corporation in a personal injury action. During the litigation, the defendant corporation transferred residential property it owned to its sole shareholder. This was done through a quitclaim deed and was obviously done as a down and dirty asset protection technique. Of course, the quitclaim deed lacked consideration and was defective – the transfer was invalid. The plaintiff...

13 January

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Trial Court / Judge Cannot Act as the Seventh Juror

Posted by David Adelstein

in Appeal, Evidence

The trial judge cannot act as the seventh juror. What does this mean? Read on...

29 August

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Establishing Punitive Damages Against a Corporation

Posted by David Adelstein

in Appeal, Standard of Review

“In Florida, there are two methods for establishing a claim for punitive damages against a corporation: ‘(1) vicarious liability based on the willful and malicious actions of an employee with a finding of independent negligent conduct by the corporation; or (2) direct liability based on the willful and malicious actions of managing agents of the corporation.’" Wells Fargo Bank, N.A. v. Electronic Funds Transfer Corp., 46 Fla.L.Weekly D1824e (Fla. 5th DCA 2021) In Wells Fargo Bank, a defendant bank was being sued for punitive damages. At the conclusion of the evidence, the defendant bank moved for a directed verdict as to the...

21 May

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Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein

in Evidence, Standard of Review

After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.) The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for...

15 January

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Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

Posted by David Adelstein

in Appeal, Evidence

Moving for a directed verdict is a standard procedure in a jury trial. Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v....

08 August

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Premise Liability Claims and Case Example of Slip on Uneven Floors

Posted by David Adelstein

in Trial Perspectives

In premises liability cases, the plaintiff must show the defendant had actual or constructive notice of the dangerous condition on its premises, the defendant owed a duty to protect the plaintiff from the dangerous condition, the defendant breached that duty, there was a causal connection between the defendant's breach and the plaintiff's fall, and the plaintiff suffered damages as a result. “[A] business owner owes two ‘separate and distinct' duties to business invitees: ‘1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through...

18 August

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Standard for Petition for Writ of Certiorari

Posted by David Adelstein

in Appeal

To invoke an appellate court's certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal. State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). This is the standard for a petition for writ of certiorari. An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s...

06 May

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Admitting a Business Record Under the Hearsay Exception

Posted by David Adelstein

in Evidence

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 mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment. The recent opinion in Evans v....

11 February

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein

in Trial Perspectives

Florida Rule of Civil Procedure 1.525 provides: Any party seeking a judgment taxing costs, fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party. This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made...