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Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration

With the current post-COVID-19 state of affairs with the judicial system, there is attraction to arbitrating disputes as an efficient means to dispute resolution.  Arbitration is a creature of contract and is a binding method to resolve a dispute outside of the judicial system.   Just because there may be an agreement to arbitrate a dispute does not mean parties will concede that their particular dispute falls within the scope of the contractual arbitration provision.  A party may still prefer to litigate certain disputes and preserve the right to appeal the outcome, a right which does not exist in arbitration.  There...

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Appealing a Protective Order that Precludes You from Deposing Material Witness

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari.  I further discussed that this was not an easy appeal, and typically, it is not an easy appeal.   But, what about the scenario where the trial court precludes you from taking a deposition of a material witness?  For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward.  Say the trial court agrees with the opposing party and grants...

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Appeal of Discovery Order — Not so Easy!

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers).  It may not occur in every case, but it will occur.  There is no such thing as discovery orders always going in your favor.  Not possible.  Some discovery orders entered against you are understandable.  Others lead to a certain amount of frustration.  And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice.   The appeal of a discovery order, however, is through a petition for writ of...

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Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument

  A lis pendens serves as a cloud against real property.  A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens...

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Deficient Jury Instruction could Amount to Reversible Error

In a recent case, Cooper v. Federated National Insurance Company, 44 Fla. L. Weekly D2961a (Fla. 5th DCA 2019), involving an insured suing their property insurer for bad faith, discussed in more detail here, a jury returned a verdict in favor of the insurer and against the insured.  The insured appealed arguing that the trial court’s bad faith jury instruction amounted to reversible error.  The trial court refused to present to the jury the jury instruction drafted by the insured and instead went with a standard form bad faith jury instruction.   The appellate court agreed that the standard form jury...

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Code Enforcement Board Appeal

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11: An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of...

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Refuting Affirmative Defenses in Motion for Summary Judgment

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses.   Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency.  Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses.   “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’”  Hurchalla v. Homeowners...

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Party Recovering Judgment Entitled to Recoverable Costs

Florida Statute s. 57.041(1) provides, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.”  Thus, in most cases, when it comes to the recovery of recoverable costs, if you obtain a judgment against the other party, you are entitled to such costs under section 57.041.   There is no analysis as to which party truly prevailed in the case (which is oftentimes the analysis when dealing with attorney's fees). See...

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Amended Complaints and the “Relation Back” Doctrine

There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations.  Assume an original complaint was filed within the applicable statute of limitations.  Assume after the statute of limitations expired, an amended complaint is asserted with new claims.  Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations?  The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1st DCA 2019) explains Florida’s liberal policy in answering this question: Whether...

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Improperly Moving to Set Aside the Verdict

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict: (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall...

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