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ProveMyFloridaCase.com > Standard of Review

Mandatory Forum Selection Provisions

When reviewing a contract, check to see if there is a forum selection provision.  This provision will dictate where a dispute shall or may be brought.  Forum selection provisions are construed as either mandatory forum selection provisions (the dispute has to be brought in this exclusive forum) or permissive forum selection provisions (the dispute may be brought in this forum, but other forums would work too).  Be mindful of forum selection provisions because they will come into play if a dispute unfolds. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and...

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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...

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

The affirmative defense of waiver is a commonly pled affirmative defense.  A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions.  (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

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Bert Harris Act and Competing Motions for Summary Judgment

In previous articles, I have discussed the Bert J. Harris, Jr. Private Property Rights Protection Act also known as the Bert Harris Act.  (See here and here.) A recent case, Brevard County, Florida v. Waters Mark Development Enterprises, LC, 47 Fla.L.Weekly D1863c (Fla. 5thDCA 2022), discusses the Bert Harris Act when there are competing motions for summary judgment. In this case, the plaintiff purchased land in Brevard County with plans to develop a residential subdivision.  After the plaintiff purchased the land, the County amended its comprehensive land use plan that lowered the developmental density. Whereas the comprehensive land use plan originally...

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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...

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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...

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To Pierce Corporate Veil, there Needs to be Sufficient Findings of Improper Conduct

A trial court’s decision whether to pierce the corporate veil is reviewed under a de novo standard of appellate review because it presents a pure issue of law.  Flooring Depot FTL, Inc. v. Wurtzebach, 2021 WL 5348903, *2 (Fla. 4th DCA 2021). The recent decision in Flooring Depot FTL demonstrating that piercing a corporate veil is not so easy, and really, far from it.  In this case, homeowners did not receive approximate 1,912 square feet of purchased flooring.  The homeowners sued the flooring company for not providing all of the flooring they paid for and claimed fraud. The homeowners attempted to...

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Dismissal of Complaint (Action under Florida’s Public Whistleblower Act) for Failure to State Cause of Action

A trial court’s dismissal of a complaint for failure to state a cause of action is reviewed under a de novo standard.  Henley v. City of North Miami, 46 Fla.L.Weekly D2296c (Fla. 3d DCA 2021). An example of a trial court dismissing a complaint for the failure of the plaintiff to state a cause of action can be found in Henley where the trial court dismissed with prejudice the plaintiff’s claim under Florida’s Public Whistleblower Act per Florida Statute s. 112.3187.   In this case, a public employee (plaintiff) alleged that he was terminated after sending emails and texts to the City...

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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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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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