Requests for Admissions are one of my favorite discovery tools in litigation. Requests for Admissions are designed to narrow the disputed facts by requiring the recipient of the request to admit or deny the requested fact. These should be served with the objective of having the recipient admit the requested fact.   If the recipient does admit the fact, then the fact is a stipulated fact – it does not need to be proved at trial because it is stipulated to.  

Florida Rule of Civil Procedure 1.380(c) provides:

(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees. The court shall issue such an order at the time a party requesting the admissions proves the genuineness of the document or the truth of the matter, upon motion by the requesting party, unless it finds that (1) the request was held objectionable pursuant to rule 1.370(a), (2) the admission sought was of no substantial importance, or (3) there was other good reason for the failure to admit.

Under this rule, if a recipient denies a request for admission and the requester proves the truth of the matter, the requester is entitled to expenses inclusive of attorney’s fees. You would think this rule is designed to motivate a party to truly admit a fact versus denying a fact to avoid the stipulation. But, not so fast…

In a recent case, R.J. Reynolds Tobacco Co. v. Ward, 43 Fla.L.Weekly D252b (Fla. 1^st DCA 2018), the court awarded the requester $981,116.23 in attorney’s fees and costs under this rule by proving the truth of the matter of the recipient’s denials to requests for admissions. The appellate court, however, reversed maintaining that if the recipient has a good reason to deny the request, such fees and costs cannot be awarded.  For instance, if the recipient denies a hotly contested fact in the case and is later proved wrong, fees and costs cannot be awarded under this rule because the recipient had a good reason to deny the request.

There really is not a bright line standard as to what constitutes a good reason to deny and what does not, potentially watering down the sanction for a party’s denial of a fact. Nevertheless, this rule is not designed to shift fees and costs to the recipient simply because the party does not stipulate to a contested fact.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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I recently talked about the burden of proof when it comes to an all-risk property insurance policy.  This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury.  Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions.  This issue is reviewed under a de novo standard of appellate review.  See Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) citing Daniels v. State, 121 So.3d 409, 413 (Fla. 2013).  

The appellate court found the the trial court’s jury instructions were erroneous meaning the case was remanded back to the trial court for a new trial (with correct jury instructions regarding the burden of proof).

It is important to note that at the charging conference between counsel and the judge to discuss the jury instructions that will be read to the jury, the insured’s lawyer objected to the jury instructions that the judge was going to read to the jury.  This charging conference is important and, as the insured’s lawyer did in this case, it is crucial to object to any jury instruction that is incorrect and/or applies the wrong burden of proof. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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One affirmative defense to a breach of contract claim is the defense known as “unilateral mistake.” This is not an easy defense to prove and the party asserting this as a defense has the burden to prove it. Under this defense, the argument is that the contract cannot be enforced because there was a unilateral mistake that induced the party into entering into the contract.

To prove the affirmative defense of unilateral mistake, the party asserting this defense must prove the following four elements:

“(1) [T]he mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust. ”  DePrince v. Starboard Cruise Services, Inc., 43 Fla. L. Weekly D171b (Fla. 3d DCA 2018) quoting Rachid v. Perez, 26 So.3d 70, 72 (Fla. 3d DCA 2010).

The first element – the inducement element—requires making a false statement of a material fact or some other action that induced the mistake. DePrince, supra. Notably, the other party’s knowledge of an error is not enough and is different than inducement. See id.

The second element – the negligence element—requires the party that made the mistake (and acted on the inducement) not to have acted negligently in making the mistake.

For example, in DePrince, a cruise ship’s jewelry store sold a diamond for $235,000 when the diamond was actually worth millions. The ship sought to avoid the transaction and the buyer sued. The ship asserted unilateral mistake as an affirmative defense, meaning the ship needed to prove the aforementioned four elements required for this defense.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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When it comes to pursuing a claim against a public body in Florida, you need to consider the application of sovereign immunity. This stands for the premise that the “king can do no wrong.”  Sovereign immunity is an important issue and will dictate the types of claims you pursue against a public body, whether you pursue a claim against a public body, and the conditions precedent to pursuing such a claim against a public body.

Public bodies are afforded sovereign immunity with a limited waiver of sovereign immunity set forth in Florida Statute s. 768.28.   The limited waiver of sovereign immunity applies to common law tort claims (e.g., negligence-type claims). See Curcio v. State Dept. of Lottery, 164 So.3d 750, 754 (Fla. 1^st DCA 2015). There is no limited waiver of sovereign immunity for statutory claims such as unfair and deceptive trade practices and misleading advertising. See id. (“[S]overeign immunity has not been waived for the unfair and deceptive trade practices and misleading advertising claims….These claims are not common law tort claims subject to the waiver of sovereign immunity in section 768.28, Florida Statutes….”). Ultimately, this means sovereign immunity applies to bar such statutory claims against a public body. See id. (finding that public body was entitled to sovereign immunity for statutory claims of unfair and deceptive trade practices and misleading advertising).

Notwithstanding the above, sovereign immunity does not apply to breach of contract claims against a public body. See id. “[W]here the state [public body] has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state’s breach of that contract.” Pan-Am Tobacco Corp. v. Dept. of Corrections, 471 So.2d 4, 5 (Fla. 1984).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal.

Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to parties or even practitioners that receive an order with no reasoning. It certainly does not bring me any comfort.

The plaintiff appealed and argued that the trial court erred in entering an unelaborated order. The appellate court disagreed on this point: “‘[w]hile it might be desirable for the trial judge to specify his reasons for granting or denying a summary judgment there does not appear to be any rule or decision that requires him to do so.’” Lago, supra, quoting Newman v. Shore, 206 So.2d 279, 280 (Fla. 3d DCA 1968). Irrespective of the lack of stated reasoning in the order, the appellate court found that the reasoning was clear when reviewing the defendant’s motion for summary judgment, the plaintiff’s response, and the transcribed summary judgment hearing. (Remember, a summary judgment is reviewed on appeal with a de novo standard of appellate review.)

My guess is the transcribed summary judgment hearing was important and it underscores the importance of having a court reporter at a hearing for this purpose. If the trial court does not provide its reasoning in an order, it is not always clear what the reasoning is that led to the ruling. Having a court reporter at the hearing allows the appellate court to review the arguments raised at the hearing including any pronouncements by the trial court at the hearing.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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