06
October
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Comments
Spoliation of Evidence Claim Against Third-Party
What is a spoliation of evidence claim? Let's find out...
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29
September
Appealing Correct Measure of Damages
In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...
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22
September
Economic Damages Must be Based on Competent Substantial Evidence
Economic damages must be supported by substantial competent evidence. Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable. Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim. If damages cannot be proven, there is no claim, so making sure damages can be supported with competent substantial evidence is beyond important. The recent decision of Alvarez v. All Star Boxing, Inc., 43 Fla.L.Weekly D2102a (Fla. 3d DCA 2018) establishes what can happen if a party puts on speculative damages. This...
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15
September
Quick Note: Competent Substantial Evidence to Support Mitigation of Damages
I recently discussed the defense of mitigation of damages as it applies to contract cases. An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract. In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages. The owner appealed this issue which was reversed on appeal. The reason it was reversed is because the trial court's finding that the owner failed to mitigate his damages is reviewed on appeal...
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08
September
You Can’t Sue Someone for Unjust Enrichment when there is a Contract
You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties. You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability). For example, in Sterling Breeze Owners' Association, Inc. v. New Sterling Resorts, LLC, 43 Fla.L.Weekly D2040c (Fla. 1st DCA 2018), a condominium association sued the developer for, among other claims, unjust enrichment. The claim stemmed from the fact that the developer (in developing the condominium) reserved in the condominium documents ground...
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01
September
Premise Liability Claims and Duties of Owners to Invitees
Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property. What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about...
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26
August
Incentive for Taking Case on Contingency – the Contingency Fee Multiplier
A recent appellate decision came out regarding contingency fee multipliers--the incentive for taking a case on contingency. I included a thorough discussion on the requirements establishing a contingency fee multiplier here. Check out this discussion that goes into establishing reasonable attorney's fees and then the contingency fee multiplier. Notably, in this case, the appellate court affirmed that the elements associated with establishing an entitlement to a contingency fee multiplier are as follows: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel (i.e., whether there are attorneys in the relevant market and would have taken the case on...
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20
August
Sufficient Factual Detail to Support Four Prongs of Temporary Injunction
“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.” XIP Technologies, LLC v. Ascend Global Services, LLC, 43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018). A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongs. Id. A trial court has discretion to grant or deny a motion for temporary injunction. Its discretion, however, is...
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12
August
Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake
Earlier this year I wrote an article regarding proving the defense of unilateral mistake. In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake. Based on this opinion, a party moved for a rehearing en banc under Florida Rule of Appellate Procedure 9.331--see applicable portion of 9.331(d)(1)--arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. The appellate court granted...
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21
July
Serving a Florida Statute s. 57.105 Motion for Sanctions
Appellate courts have been all over the place regarding how to serve a motion for sanctions under Florida Statute s. 57.105 that it has become borderline ridiculous. Of course, this is my opinion, but the ridiculousness prompts the question mark in the photo. A motion for sanctions under s. 57.105 is served when a claim or defense is NOT supported by material facts or is NOT supported by the application of then-existing law to the material facts and the party or party’s counsel knew or should have known of same. Stated more simplistically, this motion gives rise when a claim...
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