08 January

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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...

28 November

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

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

31 October

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

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

29 August

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Establishing Punitive Damages Against a Corporation

Posted by David Adelstein

in Appeal, Standard of Review

“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...

18 July

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Ruling on a Privilege Objection

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

12 June

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The Bench Trial and Competent Substantial Evidence

Posted by David Adelstein

in Appeal, Standard of Review

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...

20 February

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

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

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...

16 January

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Discovery Appeal by Non-Party in Dispute

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

10 October

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Properly Alleging a Trade Secret Misappropriation Claim under Florida Law

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

12 July

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Work Product Document and Withholding of Documents Based on Doctrine

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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. ...