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Courts are not Here to Rewrite Bargained for Contractual Provisions

“Courts cannot disregard agreed-upon, contractual provisions between parties. To do so would be to strike the…[contractual] obligations from the contract ‘by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage.’”  Peoples Trust Ins. Co. v. Amaro, 46 Fla.L.Weekly D1025a (3d DCA 2021). Courts are not here to rewrite negotiated contracts between the parties when, after-the-fact, one of the parties realizes they don’t like the terms of the contract.  Doing so would be rendering certain terms or language as surplusage or unilaterally striking terms that had been bargained.  Frankly, that would not be fair and defeat the very...

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A Defamation Claim of a Public Figure

Stating a defamation claim of a public figure is different and more rigorous than stating a defamation claim of a private figure. Florida employs a two-step process to determine if a person is a public figure: “First, the court must determine whether there is a public controversy. Second, the court must…determine whether the plaintiff played a sufficiently central role in the instant controversy to be considered a public figure for purposes of that controversy.” Reardon v. WPLG, LLC, 46 Fla.L.Weekly D836a, n.1 (Fla. 3d DCA 2021) (internal quotations and citations omitted). To assert a claim for defamation of a public figure, a...

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Civil Theft has a Rigorous Burden of Proof

Florida has a cause of action known as civil theft.   It is a statutory cause of action under Florida Statute s. 772.11 (referenced at the bottom of this article) that, just like criminal theft, requires a party to prove criminal intent with clear and convincing evidence.   See Bailey v. Covington, 46 Fla.L.Weekly D776a (Fla. 3d DCA 2021) (“To establish a claim for civil theft, a party must prove 1) that a conversion has taken place and 2) that the accused party acted with criminal intent. Such intent must be proven by clear and convincing evidence.”) (internal citation omitted).  See also United...

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims?  Can a party still be deemed to prevail on the significant issues in the case?  That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

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Attorney’s Fees and the “American Rule”

Not every cause of action asserted gives rise to an argument to recover attorney’s fees.  Florida follows what is known as the “American Rule” which is “attorney’s fees may be awarded by a court only when authorized by statute or agreement of the parties.”  State Farm Fire & Casualty Co v. Palma., 629 So.2d 830, 833 (Fla. 1993); Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017) (“It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute.”); accord Attorney’s Title Ins. Fund, Inc., v. Landa-Posada,...

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Moving for a Remittitur to Reduce Jury’s Verdict

When a damages verdict comes in high for a plaintiff, it is not uncommon for a defendant to move for a remittitur for the trial judge to reduce the amount of damages arguing that the verdict is unreasonably excessive.   A motion for remittitur is a motion to reduce the jury's verdict award. Florida’s Fourth District Court of Appeal in Fernalld v. ABB, Inc., 46 Fla.L.Weekly D542a (Fla. 4th DCA 2021) explained: When considering a motion for remittitur, the court must determine whether the amount of a damages award “is excessive . . . in light of the facts and circumstances which...

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Appealing a Discovery Order Requiring the Production of Work Product

A party moves for a petition for a writ of certiorari when appealing a discovery order.  “To obtain a writ of certiorari, the petitioner must establish that the discovery order was a departure from the essential requirements of law resulting in a material injury that will affect the remainder of the proceedings below and the injury cannot be corrected on appeal.” Onward Living Recovery Community, LLC v. Mormeneo, 46 Fla.L.Weekly D637a (Fla. 3d DCA 2021).  One example of “material injury,” otherwise referred to as “irreparable harm” is when the trial court orders the production of work product material (protected material prepared...

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Non-Signatory Compelling Arbitration based on Equitable Estoppel

Many times, parties will prefer to arbitrate their disputes instead of litigate their disputes.  Because arbitration is a creature of contract, an arbitration provision must be included in the parties’ contract.  There are pros and cons to arbitration and it is important to discuss these pros and cons with your counsel when negotiating a contract that includes an arbitration provision.  The pros and cons may change over time.  (For example, in this COVID-19 world, there are pros with arbitration that did not exist before the COVID-19 pandemic.)  Notwithstanding, there are instances where a non-signatory to the contract with the arbitration provision...

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Procedure Over Substance when it comes to Temporary Injunction Order

The recent case of Phelan, Jr. v. TriFactor Solutions, LLC, 2021 WL 833515 (Fla. 2d DCA 2021) involves a temporary injunction issued in a noncompete case where the appellate court started off its decision saying, “In some cases, procedure precedes substance. This is one of those cases.”  A good ole procedure over substance matter!  In this case, regardless of the substance, the trial court issued a temporary injunction order.  But the order, i.e., the procedure in issuing the injunction, was wrong for two fundamental reasons. First, the order failed to include specific factual findings from the evidentiary hearing to satisfy the...

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Proposals for Settlements and Attaching Releases

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles.  A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount.  Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel.  It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

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