20 February

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The Nonparty Fabre Defendant

I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases. “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].” Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007). As further explained in Florida Statute s. 768.81(3): (3) Apportionment of damages.--In a negligence action, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the...

16 February

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein

in Appeal, Evidence

If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases. In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining...

10 February

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De Novo Standard of Appellate Review for Construction of Arbitration Provision

Posted by David Adelstein

in Standard of Review

Your contract contains an arbitration provision meaning you are required to arbitrate your dispute instead of litigate your dispute (in court). Nonetheless, your opponent files a lawsuit against you and you move to compel the dispute to arbitration pursuant to the arbitration provision in your contract. But, the trial court denies your motion to compel arbitration based on its interpretation of the arbitration provision. So, what do you do? You file an interlocutory appeal to appeal this ruling since you want to arbitrate your dispute. The appellate standard of review for the construction (interpretation) of an arbitration provision is de novo....

07 February

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Statutory Construction Subject to De Novo Standard of Appellate Review

Posted by David Adelstein

in Appeal, Standard of Review

Oftentimes, courts are required to engage in statutory construction and this statutory construction becomes a driving issue in the dispute. Statutory construction is the process of a court interpreting law and then applying that law to a set of facts. For example, if your case turns on the interpretation of a particular Florida statute applied to your facts, this would be statutory construction. On appeal, the issue of statutory construction is subject to a de novo standard of appellate review. Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286, 1289 (Fla. 1st DCA 2015). A de novo standard of review means the...

29 January

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein

in Appeal, Expert Testimony

Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims. For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims...

23 January

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Excited Utterance Hearsay Exception

Posted by David Adelstein

in Evidence

I have discussed that hearsay is inadmissible evidence. Again, hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla.Stat. 90.801(1)(c). While hearsay is inadmissible, there are exceptions that allow hearsay to be admissible at trial. One hearsay exception is known as an “excited utterance.” Typically, this hearsay exception is more applicable in criminal trials than civil trials. An excited utterance is a “statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of...

13 January

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Experts Cannot Tell the Jury How to Decide the Case

Posted by David Adelstein

in Expert Testimony

Previously, I discussed the employment litigation case of Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015) involving a terminated professor suing the University that fired him. Check it out here. In this case, the University called an outside counsel as an expert employment attorney that advised it in the termination of the professor. The lawyer testified that in her expert opinion the University had cause to terminate the professor. The appellate court held it was error to admit this testimony because the testimony was essentially telling the jury how to decide the case, particularly,...

10 January

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Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Posted by David Adelstein

in Evidence

Sometimes, a party will try to introduce hearsay by arguing that that the document/testimony is not being offered to prove the truth of the matter asserted (hearsay), but instead, is being offered for another purpose. This is an avenue to admit evidence that would otherwise be excluded under the hearsay exclusion. This was the situation in the employment litigation case, Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015). In this case, the University terminated a tenured professor for cause and the professor sued. At trial, the University offered into evidence a report prepared by an...

31 December

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Summary Judgment Must be Based on Admissible Evidence

Posted by David Adelstein

in Evidence

A party moving for summary judgment must rely on admissible evidence in the record. Arlen Realty, Inc. v. Penn Mut. Life Ins. Co., 386 So.2d 886 (Fla. 1st DCA 1980). Parties oftentimes submit an affidavit in support of a motion for summary judgment in order to get certain testimony or documentary evidence into the record. When a party submits an affidavit to get a document into the record, the party still needs to authenticate the document and lay its foundation in the affidavit. See Alavi v. Garcia, 140 So.3d 1141 (Fla. 5th DCA 2014) (party required to lay foundation for...

25 December

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How the Defense of Set-Off Applies

Posted by David Adelstein

in Evidence

Set-off is a popular topic or defense raised in civil disputes. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and...