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ProveMyFloridaCase.com > Standard of Review

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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Ruling on a Privilege Objection

When a party receives a discovery request, the party may assert an objection under a privilege such as the attorney-client privilege or work product doctrine.  If a trial court orders the production of privileged materials, the appropriate appellate mechanism is to file a petition for a writ of certiorari.  Brinkmann v. Petro Welt Trading, 46 Fla.L.Weekly D1644a (Fla. 2d DCA 2021). Notably, a party is not “required to provide a privilege log when first responding to the requests for production and that the typical procedure was to hear the motion to compel and then to require a privilege log before 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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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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Discovery Appeal by Non-Party in Dispute

Discovery disputes do not always go your way.  You win some. You lose some. In losing a discovery dispute, it could give rise to an appeal through a petition for a writ of certiorari.  Obviously, this is not an easy appeal but, certainly, there are instances where the trial court issues a discovery ruling that gives rise to irreparable harm supporting the basis for certiorari.  This discovery ruling may be against a party, or in certain cases, a non-party. “To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which...

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Properly Alleging a Trade Secret Misappropriation Claim under Florida Law

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...

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Work Product Document and Withholding of Documents Based on Doctrine

When it comes to the protection of information in litigation, there are generally two doctrines that apply.  First, there is the attorney-client privilege.  Makes sense.  The second is what is known as the “work product” doctrine.  This doctrine stands for the proposition that what a party does in anticipation of litigation is protected from disclosure during discovery.  This could include a party’s legal or mental impressions, or strategic decisions and organization relative to a pending or ongoing dispute. Typically, when a document is withheld under either the attorney-client privilege or work product doctrine, it will be identified on a privilege log. ...

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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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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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Striking an Affirmative Defense

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

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