22 November

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Piercing the Corporate Veil is NO Easy Feat

Piercing a corporate veil to go after principals in their personal capacity is no easy feat. And it should not be viewed as an easy feat. While there are times trying to pierce the corporate veil is warranted, a party still MUST PROVE the requirements to pierce the protections of a corporate structure to go after the principals in charge of the corporate entity. Otherwise, doing business under a corporate structure would be severely emasculated. To pierce the corporate veil, a party must prove the following elements: “(i) [the person] dominated and controlled [the corporate entity] to such an extent that the...

15 November

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3-Step Process to Determine Production of Document under Trade Secret Privilege

Posted by David Adelstein

in Discovery, Trial Perspectives

During the discovery phase of litigation, a party will serve a request for documents on the opposing party. The request for documents will include numerous categories of documents. The responding party will then identify whether it will produce the documents or whether it will not due to a privilege or another legal objection. A hearing will then need to be conducted to determine the merits of the privilege or objection. One such privilege a party may raise is that the requested documents fall within the trade secret privilege. Such documents would be itemized on a privilege log and would identify trade...

07 November

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57.105 Motion for Sanctions

Posted by David Adelstein

in Appeal

In prior postings, I discussed Florida Statute s. 57.105, which provides a statutory basis to serve a motion to seek attorney’s fees against another party (and even their counsel) if they are pursuing frivolous (bad faith) claims, motions, or defenses, or taking action for purposes of unreasonable delay. While this is not a motion I personally like to file, the recent Third District Court of Appeal’s opinion in Lanson v. Reid, 45 Fla. L. Weekly D2479a (Fla. 3d DCA 2020), discusses two important aspects of what is commonly known as a 57.105 motion for sanctions. Any party considering this type...

01 November

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Loss of Future Earning Capacity Damages Must be Proven with Reasonable Degree of Certainty

Posted by David Adelstein

in Trial Perspectives

Loss of future earning capacity can be a difficult damage to recover because of what is seen as the inherent speculativeness of this damages category. Economic damages need to be proven with a reasonable degree of certainty and this can become challenging when dealing loss of future earning capacity damages, especially if the person has no earning capacity or no earning capacity in the area they are claiming they lost future earnings. Importantly, how do you establish with a reasonable degree of certainty the diminished earning capacity and, then, what that figure should be? This difficulty be seen in a recent...

25 October

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Declaration Cannot Take Away Common Elements in a Condominium

Posted by David Adelstein

in Trial Perspectives

The recent case of IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 45 Fla. L. Weekly D2272a (Fla. 3d DCA 2020) is an interesting case discussing the common elements of a condominium where the trial court, affirmed by the appellate court, found that the Declaration governing a condominium violates Florida’s Condominium Act (Florida Statutes Chapter 718) because it “impermissibly divested residential unit owners of their undivided share in the common elements of the condominium.” Because the Declaration took away common elements from residential unit owners, it was determined that doing so was contrary to the law. The...

18 October

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Dealing with a Choice of Law Issue?

Posted by David Adelstein

in Trial Perspectives

Do you have a “choice of law” issue? In other words, does your contract require you to apply Delaware law (or the law of another state) but you will be filing your lawsuit in Florida? In this case, how do you know when to apply the law of another state versus Florida law? The answer depends on whether dealing with a substantive versus procedural issue: When dealing with choice of law matters, Florida adheres to a distinction between substantive and procedural matters. Siegel v. Novak, 920 So. 2d 89, 93 (Fla. 4th DCA 2006); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So....

10 October

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Properly Alleging a Trade Secret Misappropriation Claim under Florida Law

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Is there a cause of action for trade secret misappropriation? Why, why, yes there is under Florida’s Uniform Trade Secret Act, known as “FUTSA”, included in Florida Statute s. 688.001 en seq. FUTSA defines the terms “trade secret” and “misappropriation” as not everything a person claims to be a trade secret is, indeed, a trade secret. Understanding the statutory definitions to “trade secret” and “misappropriation” are important if a party is looking to pursue a claim against another under FUTSA. To successfully state a cause of action under FUTSA, a plaintiff must [identify the trade secrets with reasonable particularity and] allege...

04 October

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Statutory Construction – What does the Statute Mean?

Posted by David Adelstein

in Trial Perspectives

What does this statute mean? As an example of a statute saying what it says and meaning what it means, Florida Statute s. 95.11 (5)(b) provides that there is a one-year statute of limitations for “[a]n action to enforce an equitable lien arising from the furnishing of labor, services, or material for the improvement of real property.” In a recent case, Gabriji, LLC v. Hollywood East, LLC, 45 Fla. L. Weekly D2251a (Fla. 4th DCA 2020), an issue was whether the one-year statute of limitations applied to equitable liens outside the context of “furnishing of labor, services, or material for the...

20 September

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Admissibility of Text Messages

Posted by David Adelstein

in Evidence

In today’s world, we text. We text a lot! In many instances, we text more than we e-mail or talk on the phone to a specific person. At trial, no different than letters or e-mails, texts need to be authenticated for purposes of admissibility. If you want to use text messages at trial, you need to authenticate those texts. In Walker v. Harley-Anderson, 45 Fla. L. Weekly D2116a (Fla. 4th DCA 2020), the sole issue in this appeal was the admissibility of text messages. This case involved an injunction to prevent stalking. The petitioner moving for the injunction claimed the respondent...

06 September

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Personal Jurisdiction and Florida Court’s Two-Prong Analysis

Posted by David Adelstein

in Trial Perspectives

When a defendant is sued, a court needs to have personal jurisdiction over that party. It is a due process consideration to ensure the court has authority over that party. A court’s ruling as to personal jurisdiction over a party will give a right to an immediate appeal. The issue of personal jurisdiction is generally confronted when the defendant is a foreign person or company, i.e., not operating in Florida, being sued in Florida. Making the decision to sue a foreign person or company in Florida needs to consider personal jurisdiction including the appellate right associated with a court's ruling on...