31 May

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Objecting and/or Refusing to Participate in Employer’s Activity in Violation of a Law, Rule, or Regulation under Florida’s Whistleblower Act

Previously, I discussed damages recoverable under Florida’s Whistleblower Act (“FWA”). What is the FWA? The FWA prohibits an employer from taking retaliatory action against an employee because the employee has “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” § 448.102(3), Fla. Stat. (2005). “ ‘Law, rule, or regulation' includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4), Fla. Stat. (2005). To establish...

25 May

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Quick Note: Obtaining a Default Final Judgment

Posted by David Adelstein

in Trial Perspectives

When a defendant does not timely respond to the lawsuit, a plaintiff will move for a default against the defendant. Sometimes a plaintiff will ask the clerk to issue a default and other times the plaintiff will ask the court to issue a default. A default serves as an admission of liability by the defendant with the issue then being whether the plaintiff’s damages are liquidated or unliquidated as it pertains to obtaining a default final judgment: Damages are liquidated when the amount to be awarded can be determined with exactness from a pleaded agreement between the parties, by an arithmetical calculation,...

23 May

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Appealing a Protective Order that Precludes You from Deposing Material Witness

Posted by David Adelstein

in Appeal, Depositions

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari. I further discussed that this was not an easy appeal, and typically, it is not an easy appeal. But, what about the scenario where the trial court precludes you from taking a deposition of a material witness? For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward. Say the trial court agrees with the opposing party and grants...

16 May

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Tortious Interference with Business Relationship and Two Defense Privileges

Posted by David Adelstein

in Trial Perspectives

A cause of action for tortious interference with an advantageous business relationship requires proof of four elements: (1) the existence of a business relationship under which the plaintiff has legal rights; (2) the defendant's knowledge of the relationship; (3) the defendant's intentional and unjustified interference with the relationship; and (4) damages resulting from the breach of the relationship. Weisman v. Southern Wine & Spirits of America, Inc., 45 Fla. L. Weekly D1140a (Fla. 4th DCA 2020). This tortious interference claim “teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the one hand, and the need to...

10 May

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Appeal of Discovery Order — Not so Easy!

Posted by David Adelstein

in Appeal, Discovery

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers). It may not occur in every case, but it will occur. There is no such thing as discovery orders always going in your favor. Not possible. Some discovery orders entered against you are understandable. Others lead to a certain amount of frustration. And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice. The appeal of a discovery order, however, is through a petition for writ of...

02 May

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Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure

Posted by David Adelstein

in Trial Perspectives

To prove fraud, a plaintiff MUST prove: 1) a false statement of a material fact by the defendant; 2) the defendant had knowledge that the statement was false; 3) the defendant intended that the statement induce the plaintiff to act on it; and 4) damages by the plaintiff in relying on the defendant's statement. Pritchard v. Levin, 2020 WL 2050691, *2 (Fla. 3d DCA 2020). When a fraud claim concerns nondisclosure--a failure to disclose material information--such claim “exists only when there is a duty to make such disclosure.” Id. (citation omitted). The court determines, as a matter of law, whether a...

26 April

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Prevailing Party in Civil Action Entitled to Recover Costs

Posted by David Adelstein

in Trial Perspectives

A party prevailing in a civil action is entitled to recover their costs. Fla. Stat. s. 57.041(1) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment….”). Florida Rule of Civil Procedure 1.525 provides that a “party seeking a judgment taxing costs…shall serve a motion no later than 30 days after filing of the judgment….”). Check out this article to understand the type of taxable costs a prevailing party in a civil action is entitled. A prevailing party’s counsel moving to recover legal costs does not need to verify the...

19 April

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Properly Exercising the Right of First Refusal

Posted by David Adelstein

in Trial Perspectives

It is common for commercial leases or certain real estate transactions to include a right of first refusal. The right of first refusal can be a valuable option for a party to hold and a worthy option for a party to bargain for and ultimately exercise. But, if a party exercises the right of first refusal, it does not mean that the third party that lost the transaction will be happy about it. Many times, they are not happy because it is perceived as a lost deal. When it comes to a right of first refusal: It is true that “[a] right...

12 April

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Reasonable Attorneys’ Fees’ Expert when Attorney’s Fees are the Damages

Posted by David Adelstein

in Trial Perspectives

Generally, when an attorney is. awarded attorney's fees, there is a mini-evidentiary hearing to determine the "reasonableness" of those fees. Another lawyer--the reasonable attorneys' fees' expert--opines that the rate and hours expended are reasonable. The opposing party then has its own expert to opine otherwise. Fairly archaic and ridiculous in my opinion. Others may disagree. Nevertheless, the reasonable fees' expert is how it is done with another attorney testifying that the fees incurred by the prevailing lawyer were "reasonable" fees. What if fees are the actual damages? In a recent case, Law Offices of Granoff & Kessler, P.A. v. Glass, 45 Fla. L....

11 April

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Prejudgment Interest for Economic Damages is Predicated on the Loss Theory

Posted by David Adelstein

in Trial Perspectives

The purpose of prejudgment interest is to make the plaintiff whole from the date of the loss. Arizona Chemical Co., LLC v. Mohawk Industries, Inc., 197 So.3d 99, 102 (Fla. 1st DCA 2016) (explaining that Florida applies the loss theory as it pertains to prejudgment interest which is simply to make the plaintiff whole and not to penalize the defendant or give the plaintiff a windfall). A prevailing party is entitled to prejudgment interest on damages that have been liquidated. Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So.3d 743, 746 (Fla. 3d DCA 2014). Stated differently, “[o]nce liquidated damages have...