06 June

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Demonstrating the Difficult Burden in PIERCING the Corporate Veil

Trying to pierce the corporate veil to go after principals/owners/members is extremely difficult. Although parties make a run at such arguments, this by no means diminishes the difficulty of actually prevailing on the arguments. In order to pierce the corporate a veil, a party has to prove three elements: (1) the person dominated and controlled the company to such an extent that the company had no existence independence of the person, and the company was the mere instrumentality or alter-ego of the person; (2) the person used the company’s corporate form fraudulently or for an improper purpose; and (3) the person’s fraudulent or improper...

30 May

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Vicarious Liability and the Going and Coming Rule

Posted by David Adelstein

in Trial Perspectives

When is an employer vicariously liable to a third-party for the conduct of its employees? “In Florida, an employer is vicariously liable for an employee's tortious conduct where the conduct occurs within the scope of the employment.” An employee's “[c]onduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master.” Indoneisia Peterson v. Cisco Systems, Inc., 46 Fla.L.Weekly D1248a (Fla. 2d DCA 2021) (internal citations omitted). Is an employer liable for conduct of its employees driving to and from work? The answer...

16 May

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Courts are not Here to Rewrite Bargained for Contractual Provisions

Posted by David Adelstein

in Trial Perspectives

“Courts cannot disregard agreed-upon, contractual provisions between parties. To do so would be to strike the…[contractual] obligations from the contract ‘by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage.’” Peoples Trust Ins. Co. v. Amaro, 46 Fla.L.Weekly D1025a (3d DCA 2021). Courts are not here to rewrite negotiated contracts between the parties when, after-the-fact, one of the parties realizes they don’t like the terms of the contract. Doing so would be rendering certain terms or language as surplusage or unilaterally striking terms that had been bargained. Frankly, that would not be fair and defeat the very...

08 May

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A Defamation Claim of a Public Figure

Posted by David Adelstein

in Trial Perspectives

Stating a defamation claim of a public figure is different and more rigorous than stating a defamation claim of a private figure. Florida employs a two-step process to determine if a person is a public figure: “First, the court must determine whether there is a public controversy. Second, the court must…determine whether the plaintiff played a sufficiently central role in the instant controversy to be considered a public figure for purposes of that controversy.” Reardon v. WPLG, LLC, 46 Fla.L.Weekly D836a, n.1 (Fla. 3d DCA 2021) (internal quotations and citations omitted). To assert a claim for defamation of a public figure, a...

02 May

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Civil Theft has a Rigorous Burden of Proof

Posted by David Adelstein

in Trial Perspectives

Florida has a cause of action known as civil theft. It is a statutory cause of action under Florida Statute s. 772.11 (referenced at the bottom of this article) that, just like criminal theft, requires a party to prove criminal intent with clear and convincing evidence. See Bailey v. Covington, 46 Fla.L.Weekly D776a (Fla. 3d DCA 2021) (“To establish a claim for civil theft, a party must prove 1) that a conversion has taken place and 2) that the accused party acted with criminal intent. Such intent must be proven by clear and convincing evidence.”) (internal citation omitted). See also United...

25 April

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

Posted by David Adelstein

in Trial Perspectives

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims? Can a party still be deemed to prevail on the significant issues in the case? That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

11 April

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Attorney’s Fees and the “American Rule”

Posted by David Adelstein

in Trial Perspectives

Not every cause of action asserted gives rise to an argument to recover attorney’s fees. Florida follows what is known as the “American Rule” which is “attorney’s fees may be awarded by a court only when authorized by statute or agreement of the parties.” State Farm Fire & Casualty Co v. Palma., 629 So.2d 830, 833 (Fla. 1993); Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017) (“It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute.”); accord Attorney’s Title Ins. Fund, Inc., v. Landa-Posada,...

21 March

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Non-Signatory Compelling Arbitration based on Equitable Estoppel

Posted by David Adelstein

in Trial Perspectives

Many times, parties will prefer to arbitrate their disputes instead of litigate their disputes. Because arbitration is a creature of contract, an arbitration provision must be included in the parties’ contract. There are pros and cons to arbitration and it is important to discuss these pros and cons with your counsel when negotiating a contract that includes an arbitration provision. The pros and cons may change over time. (For example, in this COVID-19 world, there are pros with arbitration that did not exist before the COVID-19 pandemic.) Notwithstanding, there are instances where a non-signatory to the contract with the arbitration provision...

28 February

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Proposals for Settlements and Attaching Releases

Posted by David Adelstein

in Trial Perspectives

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

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...