18 February

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Defamation Per Se Opens Door for Punitive Damages

A defamation per se action opens the door for punitive damages even if actual damages cannot be shown or proven. Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710, 729 (Fla. 4th DCA 2010). This is because malice is presumed and, thus, the statements are presumed harmful as a matter of law. Id. However, “proof of liability for defamation per se requires a showing that the declarant knew or should have known the defamatory statement was not true.” Tilton v. Wrobel, 198 So.3d 909 (Fla. 4th DCA 2016). Hence, while a claimant may not be able to prove actual damages...

15 February

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Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein

in Uncategorized

I use expert witnesses in many cases. Many. Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. But, as I have discussed in prior articles, an expert's opinion needs to have a foundation of reliability, which is governed by the Daubert standard. Without ensuring that an expert's opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion. This, of course, provides no value. Hence, the Daubert standard or test "requires that '[t]he testimony is based upon sufficient...

11 February

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Homestead Protection does Not Attach to Corporation (as Judgment Debtor Found Out!)

Posted by David Adelstein

in Trial Perspectives

There are times where (potential) judgment debtors try to be way to crafty. And, guess what, it doesn’t always work! A recent case exemplifies this point. In DeJesus v. A.M.J.R.K. Corp., 43 Fla. L. Weekly D331a (Fla. 2d DCA 2017), a plaintiff sued a defendant corporation in a personal injury action. During the litigation, the defendant corporation transferred residential property it owned to its sole shareholder. This was done through a quitclaim deed and was obviously done as a down and dirty asset protection technique. Of course, the quitclaim deed lacked consideration and was defective – the transfer was invalid. The plaintiff...

30 January

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Requests for Admissions as a Discovery Tool

Posted by David Adelstein

in Trial Perspectives

Requests for Admissions are one of my favorite discovery tools in litigation. Requests for Admissions are designed to narrow the disputed facts by requiring the recipient of the request to admit or deny the requested fact. These should be served with the objective of having the recipient admit the requested fact. If the recipient does admit the fact, then the fact is a stipulated fact – it does not need to be proved at trial because it is stipulated to. Florida Rule of Civil Procedure 1.380(c) provides: (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any...

24 January

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Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein

in Appeal, Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy. This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury. Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions. This issue is reviewed under a de novo standard of appellate review. See Jones v. Federated National Ins. Co., 43...

24 January

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Proving Defense of Unilateral Mistake

Posted by David Adelstein

in Trial Perspectives

One affirmative defense to a breach of contract claim is the defense known as “unilateral mistake.” This is not an easy defense to prove and the party asserting this as a defense has the burden to prove it. Under this defense, the argument is that the contract cannot be enforced because there was a unilateral mistake that induced the party into entering into the contract. To prove the affirmative defense of unilateral mistake, the party asserting this defense must prove the following four elements: “(1) [T]he mistake was induced by the party seeking to benefit from the mistake, (2) there is no...

14 January

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Public Body is Afforded Sovereign Immunity

Posted by David Adelstein

in Trial Perspectives

When it comes to pursuing a claim against a public body in Florida, you need to consider the application of sovereign immunity. This stands for the premise that the "king can do no wrong." Sovereign immunity is an important issue and will dictate the types of claims you pursue against a public body, whether you pursue a claim against a public body, and the conditions precedent to pursuing such a claim against a public body. Public bodies are afforded sovereign immunity with a limited waiver of sovereign immunity set forth in Florida Statute s. 768.28. The limited waiver of sovereign immunity...

09 January

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Do Yourself a Favor: Have a Court Reporter at Important Hearings

Posted by David Adelstein

in Appeal, Trial Perspectives

Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal. Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to...

30 December

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Civil Recourse against Issuer of Worthless Check

Posted by David Adelstein

in Trial Perspectives

Florida has a worthless check statute (Florida Statute s. 68.065) that authorizes treble damages plus the original amount of the check owing if a party issues a worthless check. This statute affords a strong civil remedy for a party (payee) that receives a worthless check. The statute provides in material portion: In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where...

17 December

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Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein

in Appeal

An order denying a motion for attorney's fees is generally reviewed under a de novo standard of appellate review. In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney's fees after the jury's verdict. In this case, the insured moved for attorney's fees pursuant to statute -- Florida Statute s. 627.428. The trial court denied the insured's motion. The insurer moved for attorney's fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79. The trial...