Cole, Scott & Kissane, P.A.
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RECENT SUCCESSFUL TRIALS
September 2018
Case: Sandra Hoke v. Bonefish Grill, LLC
Venue: Pasco County
Dan Shapiro of CSK’s Tampa office, was asked to co-counsel with Stephanie Ritt of Ogden & Sullivan, P.A., to defend Bonefish Grill in a slip and fall case. Plaintiff alleged that Bonefish Grill failed to maintain its bar area in a reasonably safe condition and, as a consequence, Plaintiff slipped and fell resulting in a right shoulder arthroscopic surgery and, thereafter, a reverse shoulder replacement based upon the failure of the first surgery. The defense argued the ground was inspected immediately after the fall and there did not appear to be any water, or any other slippery substance, that would have placed Bonefish Grill on either actual or constructive notice or accounted for the Plaintiff’s fall. Of interest, the Court permitted Plaintiff to argue other prior slip and fall incidents as notice. Plaintiff’s total medical bills were approximately $289,000. The jury was out just over 25-minutes before rendering a complete defense verdict. 
Case: Whitney Hedgmon v. West Park Village Owner, LLC
Venue: Hillsborough County
Michelle Bartels and Dan Shapiro of CSK’s Tampa Office, obtained a complete defense verdict in this slip/trip and fall trial. Plaintiff alleged the Defendant apartment complex’s stairs contained numerous code violations and that because the complex failed to adhere to these rules it must be held responsible for Plaintiff's damages. The defense agreed that Plaintiff fell, sustained a fracture coccyx and incurred medical expenses of approximately $12,000. CSK’s defense centered on the Plaintiff’s lack of credibility and that she could not definitively state her path of travel on the steps. Plaintiff’s version of events ranged from slipping on glossy paint to windblown rain water. Ultimately, there was no credible evidence offered by Plaintiff that the lack of uniformity in the dimensional configuration of the steps caused or contributed to the fall.
Case: Michael Curry v. La Placida Homeowners Association Inc. 
Venue: Broward County
Barry Postman and Olga Butkevich of CSK’s West Palm Beach office obtained a complete defense verdict on the declaratory judgment claim. The basis of Plaintiff’s entire lawsuit stemmed from the validity of a Claim of Lien imposed on his property for his failure to remit payments for maintenance assessments, late fees, special assessments, interest and attorney's fees. Plaintiff argued that the Claim of Lien was invalid and the amounts therein were incorrect, that it hindered his ability to sell his home and that he incurred extensive monetary damages to satisfy the Claim of Lien in order to sell his home. Plaintiff also argued that the Association’s governing documents, including its Original Declaration and three subsequent amendments, which provided the Association with the powers to impose the Claim of Lien were invalid, thereby deeming the Claim of Lien unenforceable. The Plaintiff’s most recent demand prior to trial was $187,000.
Case: Sandra Dezelan v. Darcy Ode Butkus a/k/a Darcell Ode Butkus
Venue: Palm Beach County
Rachel Beige and Jonathan Midwall of CSK’s West Palm Beach office obtained a complete defense verdict in this cyber-liability trial. Plaintiff brought claims of stalking and cyberstalking, which are considered criminal violations under Florida law, arising out of several Facebook and blog posts, online reviews, phone calls and allegations of trespass on property. Plaintiff was also seeking a civil injunction for the same conduct. Defendant, who is an animal rights activist, was critical of Plaintiff and the way she ran her rescue operation. The court ultimately determined that Plaintiff’s evidence was insufficient to obtain an injunction and found that the conduct did not meet the definition of stalking and cyberstalking under the law. 
Case: Tenner v. Churchill Downs, Inc. d/b/a Calder Casino & Race Course
Venue: Miami-Dade County
Brandon Waas and Najla Bubtana of CSK’s Miami office obtained a complete defense verdict in a premises liability case involving an alleged slip and fall. Plaintiff alleged she slipped and fell on a liquid substance left on the floor of the buffet area and that Defendant had actual notice of same. Plaintiff alleged CSK’s client was negligent in failing to correct or warn her of the dangerous condition. Defendant denied liability and maintained that Plaintiff fell as a result of her own failure to walk with due care. The trial was bifurcated as to liability; however, Plaintiff appeared at trial in a wheelchair due to drop foot and other neurological deficits she claimed to have sustained as a result of the injury. The jury was out for 30-minutes before returning a complete defense verdict. 
Case: Luis Marrero Cuevas v. Daniel Oviedo
Venue: Orange County
David Evelev and Justin Bleakley of CSK’s Orlando office obtained a favorable verdict in this auto negligence case. Defendant made a U-turn on a heavily travelled roadway at night and in the rain. A non-party struck a U-Haul truck and Plaintiff, who was travelling behind the non-party swerved to avoid a collision, lost control of his vehicle and traveled across the median into oncoming traffic, where he was struck. Liability was contested and CSK argued that the accidents were caused primarily by the negligence of the non-party and Plaintiff. Plaintiff sought approximately $25,000 in past and future medical damages, and an additional $50,000 for past and future pain and suffering. The defense conceded that approximately $14,500 of the medical bills were related to the injuries sustained in the accident, but that Plaintiff sustained nothing more than a back strain and sustained no permanent or significant injury in the accident. The jury was out for several hours before returning a verdict finding that the non-party and Plaintiff were 81% responsible for the accident and awarded the Plaintiff $16,500 in past medical damages; no future damages, and further found that the Plaintiff did not sustain a permanent injury. After reducing the verdict due to the negligence of the non-party and Plaintiff, and applying the PIP setoff, the net verdict was zero.
Case: Desouza v. Hurtado and Escobar
Venue: Palm Beach County 
Barry A. Postman , David A. Kirsch and Jaclyn N. Switalski of CSK’s West Palm Beach office obtained a favorable verdict in case involving a rear-end collision. This case was initially tried by a competitor law firm in 2012. The jury verdict was over $1.1m. CSK was successful in getting the case reversed on appeal. The re-trial took place in West Palm Beach with the same Plaintiff lawyers. This time, however, the defense of the trial was handled by CSK. As indicated above, the case involved a rear-end collision with a Plaintiff who was taken from the accident scene to the hospital by ambulance. Plaintiff, a pilot, alleged his neck pain caused chronic high blood pressure, which made him ineligible to obtain medical clearance to fly as pilot for two-years. Plaintiff sought recovery of past medical expenses, future medical expenses, significant lost wages, as well as pain and suffering. In total, the Plaintiff sought an excess of the $1.1m previously awarded. After four-days of trial, the jury came back with a verdict awarding Plaintiff only $30,000 in past medical expenses. Moreover, the jury found there was no permanent injury and therefore Plaintiff received no damages for pain and suffering. The total verdict will later be reduced to approximately $15,000 after post-trial motions and set-offs.
Case: In re: Estate of Burton G. Friedlander v. Gregory Friedlander
Venue: Palm Beach County
Barry Postman and Jordan Bachenheimer of CSK’s West Palm Beach office obtained a trial victory in this will contest case. CSK represented the Petitioners; two adult children of the Decedent, who were disinherited by their father in favor of their brother who received 99% of his Estate. In support of the Estate’s position, a physician testified that the testator was mentally competent and the will appropriately expressed his desire to disinherit two of his three children. Despite the presumption that the testator had testamentary capacity, the Court agreed with CSK’s position finding that the testator lacked the necessary capacity to execute the will and that the will was otherwise the product of undue influence. As a result, the Court revoked the will in its entirety, thus, entitling each child to an equal share of the father’s Estate.
Case: Arena, et al. v. Tew Cardenas, LLP and et al.
Venue: Miami-Dade County
Jonathan Vine and Alan St. Louis of CSK’s West Palm Beach office obtained final summary judgment against a Plaintiffs in an aiding-and-abetting fraud action. Plaintiffs filed suit against the Defendants, seeking $300,000, for allegedly assisting their clients in a purported real estate scheme. The Court granted the Defendants’ Motion for Summary Judgement finding that that Plaintiffs' claim was time-barred by the applicable statute of limitations.