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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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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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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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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...

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Appealing a Discovery Order Requiring the Production of Work Product

A party moves for a petition for a writ of certiorari when appealing a discovery order.  “To obtain a writ of certiorari, the petitioner must establish that the discovery order was a departure from the essential requirements of law resulting in a material injury that will affect the remainder of the proceedings below and the injury cannot be corrected on appeal.” Onward Living Recovery Community, LLC v. Mormeneo, 46 Fla.L.Weekly D637a (Fla. 3d DCA 2021).  One example of “material injury,” otherwise referred to as “irreparable harm” is when the trial court orders the production of work product material (protected material prepared...

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Dismissal due to Fraud on the Court Post-Jury Verdict — Not Soooooo Fast

Oftentimes, people use the term “fraud on the court” without truly recognizing the difficulties in getting a case dismissed--the harshest of sanctions--especially in a circumstance where the jury already rendered a verdict.  Upon learning of the facts supporting “fraud on the court,” the appropriate motions should be filed during the course of the case because there are a number of remedies that can be employed short of dismissing a case with prejudice. While in appellate court will review a dismissal due to fraud on the court under an abuse of discretion standard of review, this does not mean that a trial...

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57.105 Motion for Sanctions

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...

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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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