28 May

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Appellate Court Reversing Trial Court Granting Motion for New Trial

There are times a trial court may grant a motion for a new trial after the jury's verdict. Naturally, the party that received the benefit of the jury's verdict will appeal the trial court's ruling granting the motion for a new trial. A good example can be found in Smith v. Lyles, 48 Fla.L.Weekly D1079a (Fla. 6th DCA 2023), a personal injury case, where the trial court granted a new trial in favor of the plaintiff after the jury found the defendant was not liable. The trial court granted the new trial because it found: (a) the defendant had improper testimony;...

03 April

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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1). However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party. With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party. Stated differently, the award of attorney's fees is not mandatory. In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court...

08 January

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Quick Note: Motion for Protective Order Reviewed Under Abuse of Discretion Standard of Review

Posted by David Adelstein

in Appeal, Standard of Review

The ruling on a motion for protective order is reviewed for abuse of discretion. An abuse of discretion occurs where the trial court's ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022) (internal quotations and citations omitted). In this case, discussed further here, an attorney being deposed on his own attorney’s fees moved for a protective order claiming he was entitled to be paid for his time as an expert witness. The trial court found the...

20 February

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Dismissal due to Fraud on the Court Post-Jury Verdict — Not Soooooo Fast

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

Oftentimes, people use the term “fraud on the court” without truly recognizing the difficulties in getting a case dismissed--the harshest of sanctions--especially in a circumstance where the jury already rendered a verdict. Upon learning of the facts supporting “fraud on the court,” the appropriate motions should be filed during the course of the case because there are a number of remedies that can be employed short of dismissing a case with prejudice. While in appellate court will review a dismissal due to fraud on the court under an abuse of discretion standard of review, this does not mean that a trial...

07 November

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57.105 Motion for Sanctions

Posted by David Adelstein

in Appeal

In prior postings, I discussed Florida Statute s. 57.105, which provides a statutory basis to serve a motion to seek attorney’s fees against another party (and even their counsel) if they are pursuing frivolous (bad faith) claims, motions, or defenses, or taking action for purposes of unreasonable delay. While this is not a motion I personally like to file, the recent Third District Court of Appeal’s opinion in Lanson v. Reid, 45 Fla. L. Weekly D2479a (Fla. 3d DCA 2020), discusses two important aspects of what is commonly known as a 57.105 motion for sanctions. Any party considering this type...

20 September

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Admissibility of Text Messages

Posted by David Adelstein

in Evidence

In today’s world, we text. We text a lot! In many instances, we text more than we e-mail or talk on the phone to a specific person. At trial, no different than letters or e-mails, texts need to be authenticated for purposes of admissibility. If you want to use text messages at trial, you need to authenticate those texts. In Walker v. Harley-Anderson, 45 Fla. L. Weekly D2116a (Fla. 4th DCA 2020), the sole issue in this appeal was the admissibility of text messages. This case involved an injunction to prevent stalking. The petitioner moving for the injunction claimed the respondent...

30 June

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Striking an Affirmative Defense

Posted by David Adelstein

in Appeal, Standard of Review

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy. Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

20 August

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Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

“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...

29 April

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A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff's damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4th DCA 2018), involving an automobile accident, where the trial court granted plaintiff's motion for a new trial based on an inadequate jury verdict....

04 November

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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review, Trial Perspectives

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions)....