dadelstein@gmail.com

954-361-4720

Call Us For Free Consultation

Search

Writ of Prohibition to Prevent Trial Court from Exceeding Jurisdiction

A writ of “[p]rohibition lies to prevent a court from acting in excess of its jurisdiction.” Allstate Fire and Casualty Ins. Co. v. Hoffman, 2022 WL 14681489, *1 (Fla. 4th DCA 2022). An example of an appellate court granting a writ of prohibition can be found in Allstate Fire and Casualty Insurance Company. As an important backdrop, Florida Rule of Civil Procedure 1.530 governs motions for rehearing. A motion for rehearing “must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.”  Fla.R.Civ.P....

Continue reading

Directed Verdict Granted where No View of Evidence Could Support Jury Verdict

In this blog posting, I discussed a case where the appellate reversed a final judgment in favor of a plaintiff on a breach of contract claim and remanded for the trial court to enter judgment in favor of the defendant.  The appellate court found that the trial court should have entered defendant’s motion for directed verdict on plaintiff’s breach of contract claim. There are three interesting points regarding a motion for directed verdict. One, a motion for directed verdict is reviewed under a de novo standard of appellate review. Two: A motion for directed verdict should be granted only where no view of the...

Continue reading

Petition for Writ of Mandamus – Directing Trial Court to Take Action

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.”  “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.”  Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.”  If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.”  Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

Continue reading

Post-Judgment Receiver Appointed to Collect on Behalf of Judgment Creditor

When a plaintiff recovers a monetary judgment against a defendant, the plaintiff becomes a judgment creditor.  In order to collect on the judgment, it’s not uncommon for the judgment creditor to initiate proceedings supplementay, which is a statutory procedure.  See Fla. Stat. s. 56.29.  “Proceedings supplementary provide a judgment creditor with useful remedies to satisfy a judgment.” Williams v. Leali, 47 Fla. L. Weekly D949a (Fla. DCA 2022). One collection mechanism, as discussed in Williams, is for the judgment creditor to get a post-judgment receiver appointed with the duty to obtain funds to satisfy the judgment.  See Fla. Stat. s. 56.10.  ...

Continue reading

Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1).  However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party.  With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party.  Stated differently, the award of attorney's fees is not mandatory. In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court...

Continue reading

Quick Note: Motion for Protective Order Reviewed Under Abuse of Discretion Standard of Review

The ruling on a motion for protective order is reviewed for abuse of discretion.  An abuse of discretion occurs where the trial court's ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022) (internal quotations and citations omitted). In this case, discussed further here, an attorney being deposed on his own attorney’s fees moved for a protective order claiming he was entitled to be paid for his time as an expert witness.  The trial court found the...

Continue reading

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...

Continue reading

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...

Continue reading

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...

Continue reading

Accurate Jury Instructions are Important

Accurate jury instructions that are read to a jury are important.  This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.”  Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff.  The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs.  After the insurer’s contractor...

Continue reading
Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com