01 October

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Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages

Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct. Punitive damages can be a game changer. The objective behind punitive damages is to punish the wrongdoer-defendant and deter the wrongful conduct, rather than to compensate the plaintiff. Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 640 (Fla. 5th DCA 2005). “Because the amount of an award [of punitive damages] may be a pittance to...

16 September

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Referral Sources can be a Protected Legitimate Business Interest

Posted by David Adelstein

in Trial Perspectives

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof. Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time. White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business...

27 August

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Collateral Source Rule – Prohibiting an Injured Plaintiff from having Its Cake and Eating It too

Posted by David Adelstein

in Trial Perspectives

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources. The collateral source rule allows an injured plaintiff to present all of its damages to the trier of fact (jury) irrespective of payment the injured party received from a collateral source (e.g., insurance, social security, etc.). Evidence of payments the injured plaintiff received from a collateral source is inadmissible at trial due to the confusion that could result...

18 August

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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein

in Trial Perspectives

Caveat Emptor. Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property. In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million. The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was...

06 August

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Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein

in Trial Perspectives

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages. This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available. Additionally, the statute maintains that, "There shall be a rebuttable presumption that the person named in or obtaining the benefits of...

22 July

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Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein

in Trial Perspectives

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity. It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In...

09 July

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Courts do Not Favor the Technical (Oops!) Wins

Posted by David Adelstein

in Trial Perspectives

Many rules of civil procedure are liberally construed to prevent the "oops!" or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred. Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error. An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla....

01 July

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Civil Conspiracy – Not Just a Claim in the Criminal Context

Posted by David Adelstein

in Trial Perspectives

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that co-conspirators conspired to commit an intentional tort or an intentional wrong. The Third District Court of Appeal in MP, LLC v. Sterling Holding, LLC, 2017 WL 2794218 (Fla. 3d DCA 2017) recently explained a claim for civil conspiracy: The elements of a claim for civil conspiracy...

18 June

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Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Posted by David Adelstein

in Trial Perspectives

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too. This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse. For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain...

11 June

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Cause of Action for Tortious Interference with a Business Relationship

Posted by David Adelstein

in Trial Perspectives

Business relationships are important. It is all about relationships in all walks of life! What if someone interferes with your business relationship? What if that interference is intentional or unjustifiable? There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st DCA 1996) (“Tort liability for interference with prospective contractual relationships is generally recognized.”) A plaintiff asserting this cause of action must PROVE the following elements: (1) The existence of a business relationship; (2) The defendant had knowledge of the business relationship; (3) The defendant intentionally and unjustifiably interfered with the...