28 November

Sticky

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

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...

21 November

0 Comments

Sticky

Timely Moving for Trial De Novo after Non-Binding Arbitration Award

Posted by David Adelstein

in Trial Perspectives

When involved in litigation, there are courts that will require you to go to non-binding arbitration as a method to resolve the dispute before proceeding to trial. While courts will always require you to mediate, some courts will take it a step further and require you to proceed to non-binding arbitration. See Florida Rule of Civil Procedure 1.820 and Florida Statute s. 44.103. And there are times parties will voluntarily agree to this process. I am not a fan of non-binding arbitration. I don’t find it to be a productive vehicle to resolve disputes compared to mediation (even multiple mediations). ...

14 November

0 Comments

Sticky

Attorney’s Fees do Not have to be Quantified in Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

Does a proposal for settlement have to specifically quantify the amount of attorney’s fees if the proposal wants to factor the other party’s attorney’s fees into the equation? According the recent opinion in Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D2406b (Fla. 3d DCA 2021), the answer is No. The proposal can leave it up to the court (per a fee hearing) where the fees plus the judgment amount get factored in to determine whether that amount meets the proposal for settlement threshold for entitlement to attorney’s fees. In Safepoint Insurance Co., the defendant served a proposal for settlement...

31 October

0 Comments

Sticky

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...

17 October

0 Comments

Sticky

Duty Element of Negligence – Did Defendant’s Conduct Foreseeably Create Broader Zone of Risk

Posted by David Adelstein

in Trial Perspectives

In any negligence action, the first element a plaintiff needs to prove is that the defendant owed a duty of care to the plaintiff. Lee v. Harper, 46 Fla.L.Weekly D2251a (Fla. 1st DCA 2021). This duty element is a threshold legal question or a question of law. Id. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’that poses a general threat of harm to others.” Id. (quotations and citations omitted). The issue is not whether the harm in question was foreseeable but the “defendant’s conduct must create the risk or control the...

10 October

0 Comments

Sticky

Trier of Fact Determines Weight of the Evidence

Posted by David Adelstein

in greater weight of the evidence, Trial Perspectives

Just because there was conflicting evidence does not mean a new trial is warranted or the trier of fact got it wrong. It just means the trier of fact weighed that conflicting evidence differently then you. This is permissible because it is up to the trier of fact to determine the weight to be given to the evidence. Trials are filled with conflicting evidence and he said/she said testimony. This is why there is a dispute. The determination of who is right and who is wrong based on this conflicting evidence and the weight to be given to the evidence...

02 October

0 Comments

Sticky

Oops! I Sued the Wrong Party and Need to Amend the Complaint AFTER the Expiration of the Statute of Limitations

Posted by David Adelstein

in Trial Perspectives

If you incorrectly sue the wrong party and need to amend to substitute the correct party after the statute of limitations, there is an argument the amendment will relate back to the timely filing of the initial complaint. This means, with the relation back of the amended complaint to the initial complaint, that the amended complaint was timely filed and the expiration of the statute of limitations does not apply. In Friedel v. Edwards, 46 Fla.L.Weekly D2125a (Fla. 2d DCA 2021), a plaintiff sued a defendant stemming from a car accident. However, the defendant had died so the plaintiff moved to...

26 September

0 Comments

Sticky

Declaratory Judgment / Relief Considerations

Posted by David Adelstein

in Appeal, Trial Perspectives

There are a number of lawsuits where a party will assert a claim for declaratory judgment/relief. This is a claim oftentimes included in insurance coverage disputes, but is also asserted in a plethora of other types of civil disputes where a party asks the trial court to issue a declaration. To be legally sufficient, a complaint for declaratory relief must allege that: (1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of...

19 September

0 Comments

Sticky

Affidavit Used to Support or Defend Against Summary Judgment

Posted by David Adelstein

in Trial Perspectives

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact. A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay. The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate. This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...