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Jury Instructions and your Case THEORY

When it comes to jury trials – really any trial, bench or jury – your theory matters. A lot. Your theory should not be overlooked. It is your theme in context and perspective. You put on evidence to support your theory so that it falls in your given context and perspective. Your theory or theme is your story that supports your burden of proof.  Your opening statement sets your case up with your theory and the evidence you will put on the support the theory.  Your closing statement then summarizes your theory with the evidence introduced. With respect to jury instructions,...

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Equal Wrongdoing Doctrine Known as In Pari Delicto

There is a legal doctrine known by its Latin phrase, in pari delicto, that: [R]efers to ‘[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.”  This principle is ‘grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.’  Perry v. Turner, 48 Fla.L.Weekly D1307a (Fla. 2nd DCA 2023) (internal citations omitted). As shown, it is premised on the fact that one cannot be rewarded for their equal wrongdoing, i.e.,...

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Affidavits and Declarations Used for Summary Judgment

When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge.  The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of...

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Draft Agreements with Clarity or…

If you ever want to know why a contract or any agreement should be clearly written, here is the reason.  In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

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Procedure for Seeking Punitive Damages

The recent appellate opinion in Werner Enterprises, Inc. v. Mendez, 48 Fla.L,Weekly D1121A (Fla. 5th DCA 2023) discusses the PROCEDURE for a party moving to amend their complaint to add punitive damages. In this case, the plaintiff appealed the trial court’s denial of the plaintiff’s motion for leave to amend to add punitive damages. The appellate court reversed the trial court’s denial and, in doing so, includes this worthy discussion on the procedure associated with moving to amend a complaint to seek punitive damages: Florida law requires the plaintiff to seek the trial court's permission before adding punitive damages to its complaint....

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Appellate Court Reversing Trial Court Granting Motion for New Trial

There are times a trial court may grant a motion for a new trial after the jury's verdict. Naturally, the party that received the benefit of the jury's verdict will appeal the trial court's ruling granting the motion for a new trial. A good example can be found in Smith v. Lyles, 48 Fla.L.Weekly D1079a (Fla. 6th DCA 2023), a personal injury case, where the trial court granted a new trial in favor of the plaintiff after the jury found the defendant was not liable. The trial court granted the new trial because it found: (a) the defendant had improper testimony;...

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Measure of Tort Damages in Civil Disputes

If you are filing a civil action, your case is generally about, and should generally be about, recovering damages. Sure, there may be exceptions where a party is seeking injunctive relief or a declaration, but mostly, civil disputes concern a party seeking monetary damages. When it comes to civil tort actions, remember this when it comes to the measure of damages: “In tort actions, the measure of damages [awarded] seeks to restore the victim to the position he would be in had the wrong not been committed.” Hollywood Imports Limited, Inc. v. Nationwide Financial Services, LLC, 48 Fla.L.Weekly D915a (Fla. 4th...

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Contract Interpretation; Force Majeure; Impossibility; Impracticability; Frustration of Purpose — All in One Case

Covid-19 created a number of hardships to businesses. No doubt about it. The case of Fitness International, LLC v. 93 FLRPT, LLC, 48 Fla.L.Weekly D947a (Fla. 2d DCA 2023) exemplifies one such hardship.  The issue in this case was how “government-ordered restrictions related to the COVID-19 pandemic impact[ed] the parties’ obligations under a commercial real estate lease.”  In essence, a gym--tenant--had a commercial lease. The gym sought a refund for a fifteen-week period that it was required to close or operate below full capacity due to government-imposed restrictions. Unfortunately for the gym, it lost its arguments under all theories from breach...

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Have the Trial Court Rule on a Motion BEFORE the Court Loses Jurisdiction

In a recent construction posting that I posted here, it discusses when a trial court loses jurisdiction. This is a worthy consideration because in this case the trial court no longer had jurisdiction to rule on a motion after the final judgment was entered and the time for a rehearing and appeal expired. Here are the key takeaways from the case: (1) "The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. By the time the trial court had ruled...

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Manner in which Information (Such as Customer Lists) Compiled can Constitute Trade Secret

A summary judgment on a misappropriation of trade secrets claim is reversed on appeal because “a genuine issue of material fact remains as to whether the compilation of the information, even that which was within the public domain, constituted information protected as a trade secret.” Patient Depot, LLC v. Acadia Enterprises, Inc., 48 Fla.L.Weekly D871a (Fla. 4th DCA 2023). In this case, the plaintiff operated as a broker of personal protection equipment (PPE) and matched PPE suppliers with consumers. The plaintiff maintained a website platform that plaintiff considered to be a trade secret. This platform contained a list of viable suppliers, including...

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