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Declaratory Judgment / Relief Considerations

There are a number of lawsuits where a party will assert a claim for declaratory judgment/relief.  This is a claim oftentimes included in insurance coverage disputes, but is also asserted in a plethora of other types of civil disputes where a party asks the trial court to issue a declaration. To be legally sufficient, a complaint for declaratory relief must allege that: (1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of...

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Affidavit Used to Support or Defend Against Summary Judgment

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact.  A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay.  The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate.   This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...

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Calculating the Judgment Obtained in Determining Proposals for Settlement

There are numerous prior postings discussing proposals for settlement / offers of judgment.  As discussed, they create an argument to recover attorney’s fees from the date of the proposal on forward.  A recent case discusses the thorny issues of determining whether the “judgment obtained” by the plaintiff meets the threshold to recover attorney’s fees when serving a proposal for settlement under Florida Statute s. 768.79. In this case, the plaintiff served a proposal for settlement on March 21, 2019. The defendant did not accept the proposal.  The case proceeded to trial and the jury returned a verdict in favor of the...

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Establishing Punitive Damages Against a Corporation

“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...

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Premise Liability Claims and Case Example of Slip on Uneven Floors

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...

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Ruling on a Privilege Objection

When a party receives a discovery request, the party may assert an objection under a privilege such as the attorney-client privilege or work product doctrine.  If a trial court orders the production of privileged materials, the appropriate appellate mechanism is to file a petition for a writ of certiorari.  Brinkmann v. Petro Welt Trading, 46 Fla.L.Weekly D1644a (Fla. 2d DCA 2021). Notably, a party is not “required to provide a privilege log when first responding to the requests for production and that the typical procedure was to hear the motion to compel and then to require a privilege log before the...

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Discussion on the Difference Between Replacement Cost Value and Fair Market Value

This post discusses an interesting, but fairly complex decision dealing with the difference between replacement cost value and fair market value (actual cost value).  The decision also discusses the set-off when suing a defendant after being paid the replacement cost value limit under the policy. In Five Solas, Inc. v. Ram Realty Services, LLC, 46 Fla.L.Weekly D1255a (Fla. 4th DCA 2021), a brick wall collapsed falling on a neighboring building damaging the building and rendering it untenantable.  The owner of the building had a replacement cost value property insurance policy with a liability limit and deductible.  The insurer paid the liability limit...

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FINANCIAL DISCOVERY FROM EXPERT WITNESSES TO SHOW BIAS

It is not uncommon for experts to work with the same law firm on numerous cases.  Does this mean an expert can be subjected to discovery to produce a list of cases and money received (financial records) from the law firm on unrelated matters to show the expert is biased?  The Third District Court of Appeals held that a party cannot pursue such documentation without a showing “of the most unusual or compelling circumstances,” a potentially challenging showing.  See Hidalgo v. Citizens Property Ins. Corp., 46 Fla.L.Weekly D1437a (Fla. 3d DCA 2021). This does not mean a party cannot seek discovery...

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Venue for Defamatory Social Media Post

A defamatory social media post can lead to…you guessed it…a defamation claim asserted against the author of the post.   Think about this the next time you post something on social media for the world to see.  Once you post something on social media, there are many persons that receive and read the post. A question becomes where is the right venue to sue someone for a defamatory social media posting.   The recent decision in Lowery v. McBee, 46 Fla.L.Weekly D1337b (Fla. 4th DCA 2021) answered this question.  In this case, the plaintiff sued the defendant for posting a defamatory post on...

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The Bench Trial and Competent Substantial Evidence

In another posting, I discussed the doctrine referred to as the anticipatory repudiation of a contract.  The anticipatory repudiation of a contract amounts to a breach of the contract as a party is prospectively repudiating their obligations in the contract. However, for purposes this article, that same case explains the difficulty in overturning a judgment from a non-jury (or bench) trial.   This is because of the competent substantial evidence burden where a trial court will be affirmed if there is competent substantial evidence. If you are appealing a judgment from a bench trial, you are dealing with a harder standard or...

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