12 August

Sticky

Writ of Certiorari to Remedy Pre-Trial Discovery Order

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm. In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Generally, certiorari is not available to review orders...

06 August

0 Comments

Sticky

Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein

in Trial Perspectives

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages. This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available. Additionally, the statute maintains that, "There shall be a rebuttable presumption that the person named in or obtaining the benefits of...

30 July

0 Comments

Sticky

Not All Non-Final Orders are Immediately Appealable

Posted by David Adelstein

in Appeal

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders. In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a...

22 July

0 Comments

Sticky

Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein

in Trial Perspectives

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity. It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In...

15 July

0 Comments

Sticky

Insurance Policy Construction is a Question of Law

Posted by David Adelstein

in Appeal, Standard of Review

I am sure you have an insurance policy...

09 July

0 Comments

Sticky

Courts do Not Favor the Technical (Oops!) Wins

Posted by David Adelstein

in Trial Perspectives

Many rules of civil procedure are liberally construed to prevent the "oops!" or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred. Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error. An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla....

01 July

0 Comments

Sticky

Civil Conspiracy – Not Just a Claim in the Criminal Context

Posted by David Adelstein

in Trial Perspectives

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that co-conspirators conspired to commit an intentional tort or an intentional wrong. The Third District Court of Appeal in MP, LLC v. Sterling Holding, LLC, 2017 WL 2794218 (Fla. 3d DCA 2017) recently explained a claim for civil conspiracy: The elements of a claim for civil conspiracy...

25 June

0 Comments

Sticky

Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein

in Appeal

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion! Appeals take time...

18 June

0 Comments

Sticky

Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Posted by David Adelstein

in Trial Perspectives

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too. This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse. For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain...

11 June

0 Comments

Sticky

Cause of Action for Tortious Interference with a Business Relationship

Posted by David Adelstein

in Trial Perspectives

Business relationships are important. It is all about relationships in all walks of life! What if someone interferes with your business relationship? What if that interference is intentional or unjustifiable? There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st DCA 1996) (“Tort liability for interference with prospective contractual relationships is generally recognized.”) A plaintiff asserting this cause of action must PROVE the following elements: (1) The existence of a business relationship; (2) The defendant had knowledge of the business relationship; (3) The defendant intentionally and unjustifiably interfered with the...