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ProveMyFloridaCase.com > Posts tagged "abuse of discretion" (Page 2)

Enforcing Non-Compete Agreement with Injunctive Relief

There are numerous employers that want employees to sign a non-compete, non-disclosure, and non-solicitation agreement (collectively, the “non-compete agreement”).   For good reason, they don’t want to train employees to learn the business’ trade secrets and business practices (e.g., marking strategies, pricing, techniques, customer lists, etc.) only to then compete with the employer and solicit its clients.   The non-compete agreement will allow the employer to move for injunctive relief if a former employee violates the agreement to maintain the status quo and prevent the irreparable harm to the employer. An example is as follows. In Allied Universal Corp. v. Given, 42 Fla....

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context - check out this article as an example.) “If the injunction rests on factual findings, then a trial court's order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review...

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Improperly Admitting Hearsay can still be Harmless Error

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

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“Other Products” Evidence to Support Alternate Causation Theory

The recent case of Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 41 Fla. L. Weekly D1213a (Fla. 1st DCA 2016) is a case I discussed regarding lost profit damages. Check out that article here. But, this case also raised an interesting trial and appellate issue involving “other products” evidence to support an alternate causation argument, such as when a specific product or manufactured component fails. This case involved a manufacturer of a specific brand of carpet suing the manufacturer of resin that was used in manufacturing the failed carpet brand. The carpet manufacturer claimed that the resin failure caused an...

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Prejudicial Closing Argument Could Result in Mistrial / New Trial

Closing argument is a very, very important part of jury trials to sum up the evidence in the context / theme of your case based on the applicable law. It is your last opportunity to talk directly to the jury about the theme of your case. Check out this article for the purpose of closing argument. While lawyers are afforded latitude in presenting closing argument, improper and prejudicial argument could result in an appellate court granting a new trial. The opposing party must, however, timely object to the improper and prejudicial argument in order to properly preserve this objection for...

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims. For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims...

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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

The trial court allowed certain testimony / evidence to be introduced at trial.  I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial.  I am considering an appeal based on the trial court's admissibility of this evidence. "Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review]."  Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015).  This discretion, however, is limited by the Florida Rules of Evidence.   Johnston v. State, 863 So.2d 271, 278 (Fla. 2003).  For...

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Purpose of Closing Argument

  We talked about the purpose of opening statements. Now, let’s talk about the purpose of closing argument. One of my favorite all-time shows is Law and Order. Jack McCoy can certainly deliver a closing argument like no other where the purpose of his closing argument always seems abundantly clear.  The purpose of closing argument is to help the jury understand the evidence presented to the law. See Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).   It serves as the final opportunity for the lawyer to fully connect his/her client’s theme of the case (possibly explained during opening) based on...

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Purpose of a Motion in Limine to Exclude Evidence

In order to avoid prejudicial or irrelevant evidence from being introduced to the jury by the adverse party, a party will file a motion in limine to exclude this evidence. “Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Buy-Low Save Centers, Inc. v. Glinert, 547 So.2d 1283, 1284 (Fla. 4th DCA 1989). Stated differently: “The purpose of a motion in limine is to exclude irrelevant and immaterial matters, or to exclude evidence when its probative value is outweighed by the danger of...

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Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof.  On the other hand, the standard of review for the trial court’s...

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