Abuse of Discretion Standard of Review when Expert Deemed Unqualified

Posted by David Adelstein on December 16, 2018
Uncategorized / Comments Off on Abuse of Discretion Standard of Review when Expert Deemed Unqualified


In a recent article I discussed the importance of an expert’s qualifications — hiring an expert witness to render an opinion within his or her qualifications (training, knowledge, or expertise).  If an expert is not qualified to render an opinion, a trial court has the discretion to preclude that witness from offering the opinion at trial. 

For this reason, the standard of review in an appeal where the trial court deemed a witness unqualified is abuse of discretion.  See White v. Ring Power Corp., 43 Fla.L.Weekly D2729a (Fla. 3d DCA 2018) citing Brooks v. State, 762 So. 2d 879, 892 (Fla. 2000) (“holding it is ‘within the trial court’s discretion to determine a witness’s qualifications to express an opinion as an expert, and the court’s determination in this regard will not be reversed absent a clear showing of error.’”).   

In White v. Ring Power Corp., a trial court did not allow the plaintiff’s expert witnesses to render an opinion on a particular issue because the witnesses did not have the qualifications to do so.  They did not have the knowledge, training, or expertise to interpret the data for which their expert opinions were based.  Therefore, the appellate court affirmed the trial court finding that the trial court did NOT abuse its discretion in precluding the expert opinions / testimony at trial.  

Hiring and selecting the right expert for your case is important.  The selection starts with the qualifications of the expert based on the subject matter you are looking for the witness to opine.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Then-Existing State of Mind Hearsay Exception

Posted by David Adelstein on December 09, 2018
Evidence / Comments Off on Then-Existing State of Mind Hearsay Exception

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind.  Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play.  

For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and stop them from playing loud music.  The friend did so and a fight ensued where a gun was brandished and discharged.  The friend was prosecuted for this incident. During the trial, the prosecution called the neighbors and they testified that the woman threatened to whoop them and she was going to send somebody to put a “cap in your a**.”   This testimony came in over the objection of the defense because the pregnant woman did not testify and she was not the defendant. 

The prosecution argued that the neighbor’s testimony about what the woman said to them was admissible to prove the then-existing state of mind of the defendant (friend of the woman).   But, there were two main problems.  

First, the prosecution used the statement to prove the then-existing state of mind of the defendant, not the woman (as she was not on trial). “It is well-settled, however, that this hearsay exception applies only to the declarant’s state of mind, not to someone else’s state of mind.”  Rodriguez, 2018 WL at *2 (internal quotations and citation omitted).

Second, the woman was not the victim.  Thus, the neighbor’s testimony about what the woman said was not admissible to establish the declarant-victim’s state of mind since, again, the woman was not the victim. While the defendant-friend’s state of mind was an issue since he went to the neighbor’s house on behalf of the woman, the woman’s state of mind was not at-issue. 

Thus, the out-of-court statement of the woman (declarant) was hearsay and was improperly admitted since (i) the then-existing state of mind exception cannot be used to establish someone else’s state of mind, in this case the declarant’s friend, and (ii) it could not be used to establish the declarant-victim’s state of mind since the woman-declarant was not the victim.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Posted by David Adelstein on December 03, 2018
Trial Perspectives / Comments Off on Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period.

For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel.   The company hired employees to serve as instructors and made them sign non-solicitation agreements that the employees would not solicit employment with any other company associated with the program or six months after their employment period. 

During the course of the program, three employees left to join another subcontractor providing analagous services under the program.  The company then sued its former employees for violating the non-solicitation agreement.   The issue was whether the former employees’ behavior were proactive in soliciting employment with the other company, regardless of who made the initial contact (the employee or the other company). 

The First District Court of Appeals found this to be a question of fact: “[W]hether the terms of the non-solicitation agreements were violated here is largely predicated on the inferences to be drawn from the facts of Appellees’ [former employees] behavior prior to, and during, their negotiations with Epsilon [other company].

When signing an employment agreement with a non-solicitation clause, it is important to consider the ramifications of the clause and how it could impact your employment, particularly if you are looking to explore other similar opportunities.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein on December 02, 2018
Trial Perspectives / Comments Off on Proposals for Settlement ONLY Apply to Claims for Monetary Relief

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered.  But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for attorney’s fees regardless of the conflicting case law in effect.  Proposals for settlement, in my opinion, have become head scratchers. 

 

The case of Starboard Cruise Services, Inc. v. DePrince, 43 Fla. L. Weekly D2581a (Fla. 3d DCA 2018) exemplifies the confusing nature of proposals for settlement.  In this case, the defendant served a proposal for settlement conditioned on the plaintiff releasing all claims asserted in his amended complaint and dismissing the amended complaint with prejudice.  The plaintiff’s amended complaint contained claims for monetary relief and a specific performance claim for equitable relief (where non-monetary damages were sought).  Prior to trial, the plaintiff dismissed his equitable claim and proceeded to trial only on his claim for monetary relief. The jury found in favor of the defendant and the defendant filed a motion for attorney’s fees based on its proposal for settlement (that the plaintiff did not accept).  The trial court denied the defendant’s motion for attorney’s fees finding that the proposal for settlement was invalid since it applied to plaintiff’s claims for monetary relief and equitable relief. 

The appellate court agreed with the trial court finding that the defendant’s proposal for settlement was invalid because it was conditioned on the plaintiff releasing all his claims—his claims for monetary relief and his claim for equitable relief (where non-monetary relief was also sought).   A proposal for settlement only applies to claims for money damages.

Due consideration is required when serving a proposal for settlement.  Even with that consideration, there is still the possibility that the proposal for settlement will be deemed invalid, as was the circumstance in this case.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

Posted by David Adelstein on November 22, 2018
Trial Perspectives / Comments Off on Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner’s use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018).  This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own.  

For example, in Vale, a group of homeowners purchased property in a planned used development next to a golf course.  The golf course was part of the planned unit development but the homeowners did not own the golf course.  The development of the golf course was unsuccessful and it was rezoned for residential development.  The homeowners sued the County under the Act claiming that the rezoning inordinately burdened their property by diminishing the value of their homes, which they anticipated to be next to a golf course.  The trial court, as affirmed by the appellate court, dismissed this argument because the homeowners did not own the golf course: “As it is undisputed that plaintiffs do not hold legal title to the former golf course, they are not ‘property owners’ as contemplated under the Act.”  Vale, supra.  Hence, the homeowners did not have standing under the Act to sue the County based on the rezoning of the golf course. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

Posted by David Adelstein on November 17, 2018
Appeal, Trial Perspectives / Comments Off on Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of appellate review a trial court’s ruling on a motion for involuntary dismissal.  In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant.  Why?

Well, this case involved a member of a limited liability company (LLC), the plaintiff, filing a lawsuit against a third-party, the defendant, due to a real estate transaction.  The overriding problem for the plaintiff was that the damages he was suing for were damages associated with his LLC, and not him individually. “Generally, a shareholder of a corporation or a member of an LLC may not maintain an action in his or her own right if the cause of action is derived from the right of the corporation or the LLC to bring the action.” Home Title Co. of Maryland, Inc. v. LaSalla, 43 Fla.L.Weekly D2561a (Fla. 2d DCA 2018).  Because the plaintiff (member of the LLC) was suing for damages that directly belonged to the LLC, the cause of action rested with the corporation.  Id. (“The property belonged to the LLC, and thus, the LLC suffered the direct harm when Home Title [third-party] transferred the property…Even though LaSalla [plaintiff-member] is the only other member of the LLC who suffered as a result of the transfer, the harm to him individually was indirect and the result of the harm to the LLC.”). 

The moral of this case is make sure you have standing to sue for the damages/injuries you are suing for.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

Posted by David Adelstein on November 11, 2018
Expert Testimony / Comments Off on The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions.  One method is known as the Daubert test.  The other as the Frye test.  Both are named after respective cases.    The Daubert test is used in federal court.  The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test.  

The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this article here).   The trial court looks at whether the expert testimony is based on sufficient facts or data, is the product of reliable principles or methods, and whether an expert witness has reliably applied the principles or methods to the facts of the given case.

The Frye test, on the other hand, is widely considered less stringent because it only requires the court look at whether the expert testimony / opinion is based on methods generally accepted in the scientific community.   

Under Frye, “the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.”  Significantly, Frye applies only to “new or novel scientific evidence.” 

Delisle v. Crane Co., 43 Fla.L.Weekly S459a (Fla. 2018) (internal quotations omitted) (Pariente, J., concurring).

Recently, however, the Florida Supreme Court in Delisle ruled that the less stringent Frye test, and NOT the Daubert test, is to applied in Florida:

We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein on November 03, 2018
Trial Perspectives / Comments Off on If You File a Frivolous Motion or Pleading: BEWARE

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!  

In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant than filed a motion for prevailing party attorney’s fees.  However, the defendant NEVER pled an actual entitlement to attorney’s fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time period to withdraw the filing before sanctions (attorney’s fees and costs) can be imposed.  The defendant withdrew its motion, albeit too late–after the safe harbor period expired.  

The trial court denied the plaintiff’s Florida Statute s. 57.105 motion for sanctions. The plaintiff appealed and the appellate court reversed finding that the defendant’s motion for attorney’s fees without a basis was frivolous and its withdrawal of the motion was too late since it came after the expiration of the safe harbor time period: 

Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, “[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Motions for attorney’s fees count as “claims.” 

Typically, a party seeking attorney’s fees must specifically allege and request the award in the pleadings…. However, Appellees’ counsel failed to withdraw the meritless motion until well after the safe harbor period had passed….

Mark W. Rickard, P.A. d/b/a Law Guard, supra (internal citations omitted).

Frivolous filings are a big deal. A filing is deemed frivolous if a party or its counsel knew or should have known that a claim or defense was not supported by the facts or application of existing law.  In this case, the defendant and its counsel should have known the motion was frivolous under existing law.  The fact that the defendant’s counsel ultimately recognized this and withdraw the motion was of no moment because it was too late–after the expiration of the safe harbor period.  

Thus, if you file a frivolous motion of pleading: BEWARE

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Posted by David Adelstein on October 28, 2018
Trial Perspectives / Comments Off on Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor.  This does not mean arguments cannot and should not be made.  It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer.

In a recent post-judgment collection case, Villamizar v. Luna Capital Partners, LLC, LLC, 43 Fla.L.Weekly D2395a (Fla. 3d DCA 2018),  a plaintiff (judgment creditor) recovered a judgment against a defendant on unsecured promissory notes (i.e., the notes were not secured by any mortgage).  During the underlying lawsuit, the defendant sold condominium units to a bulk buyer for approximately $13 Million.  Although the defendant and buyer shared a similar name, they were unrelated parties, and there was no evidence that they were related parties.  Thereafter, the plaintiff recovered a judgment against the defendant and, through post-judgment collection efforts, sued the new buyer arguing that the bulk sale of condominium units was a fraudulent transfer. 

The plaintiff (judgment creditor) first argued that the new buyer had some duty to the plaintiff simply because it knew that the plaintiff was suing the defendant / seller of the units on unsecured promissory notes.  The appellate court, affirming the trial court, dismissed this argument, as it should:

Luna Capital’s [buyer of units] awareness that Mr. Nieto [plaintiff / judgment creditor] was suing the seller, Luna Developments [defendant / seller of units], on unsecured indebtedness that had not yet been reduced to judgment, did not create a legal duty on Luna Capital’s part. This is so because there is nothing in this record to suggest that Luna Capital was partially or totally controlled by Luna Developments at the time of the sale, or that these entities were under common control, or that they were anything other than a buyer and seller dealing at arm’s length.

***

Luna Capital’s alleged knowledge of Luna Development’s debts did not impose a legal duty on Luna Capital’s part to assure that specific unsecured creditors of Luna Development were paid. Luna Capital naturally assured that all liens against the condominium units were paid from the proceeds and satisfied of record, but payment of an unsecured claim in a lawsuit pending trial is not such a matter.

***

Buyers may insist (by contract) on escrows to cover claims-in-process “which, if successful” might become a judgment lien after the closing, but an arm’s length buyer at a fair market price is not under a legal duty to do so for the protection of such claimants.

Villamizar, supra.

The plaintiff / judgment creditor next argued that the property was not sold for reasonably equivalent value.  However, the plaintiff did not even retain an expert appraiser to support this argument, rendering this theory speculative from the get-go.  The appellate court, affirming the trial court, dismissed this argument too, as it should:

Mr. Nieto’s [plaintiff / judgment creditor] affiant [attorney expert] provided a back-of-the-envelope computation questioning whether the per-unit price was below market. Unsubstantiated “guesstimates” of what inflation might have done to values, or what appreciation or depreciation might have been expected during the period Luna Developments [judgment debtor] owned the property, create no genuine issue as against the competent, substantial evidence of an actual arm’s length sale between “a purchaser willing but not obliged to buy” and “one willing but not obliged to sell.” 

***

Mr. Nieto did not file an appraisal or other evidence probative of actual market value of the condominium units as of the July 2015 sale.

Villamizar, supra

The reality is that the defendant / judgment debtor sold condominium units prior to the plaintiff / judgment creditor obtaining a final judgment on unsecured promissory notes.  There was no evidence that the buyer was merely a straw party or that the sale was intended to delay, hinder, or defraud the defendant’s creditors, such as the plaintiff.  And, on top of that, there was nothing to suggest that the sale was not at fair market value or reasonably equivalent value such that the transaction was really not an arm’s length transaction.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Posted by David Adelstein on October 14, 2018
Trial Perspectives / Comments Off on A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract.  As a result, an order granting or denying arbitration is an appealable non-final order

In a recent construction dispute between a general contractor and its millwork subcontractor, National Millwork, Inc. v. ANF Group, Inc., 43 Fla.L.Weekly D2207a (Fla. 4th DCA 2018), the subcontractor filed a lawsuit against the general contractor and the general contractor’s payment bond.  The general contractor moved to stay the litigation and compel arbitration pursuant to the arbitration provision in the subcontract.  The subcontractor argued that the arbitration provision was unenforceable, and, therefore, void, because it expanded the scope of judicial review after an arbitrator renders an arbitration award contrary to the Revised Florida Arbitration Code in Florida Statutes Chapter 682 (and, specifically, Florida Statute s. 682.014). 

The arbitration clause in the subcontract empowered the court to address on judicial review any failure by the arbitrator to properly apply the law and if the court or arbitrator failed to properly apply the law then this was subject to appellate review. 

This clause was creating an appellate basis to challenge an arbitration award based on a party’s position that the arbitrator did not correctly apply the law.  However, challenging an arbitrator’s award is very limited to discrete statutory circumstances and a party’s position that the arbitrator did not correctly apply the law is not one of them.   For this reason, the millwork subcontractor claimed the arbitration provision is void against public policy because it expanded the statutory circumstances to challenge an arbitration award set forth in the Revised Florida Arbitration Code.  The appellate court agreed: “A party may not expand the scope of judicial review of an arbitration agreement.”  National Millwork Inc., supra

The contract had a severability clause, an important clause in contracts.  Based on the severability clause, the appellate court remanded the issue back to the trial court to determine whether the unenforceable language in the arbitration clause that expanded judicial review of an arbitrator’s award could be severed from the clause such that the parties are still required to arbitrate without the expanded judicial review.   In other words, the appellate court wanted the trial court to determine whether severing the unenforceable language would still retain the essence of the arbitration clause or whether the entire clause was unenforceable because the offending language was integral to the agreement to arbitrate.  See National Millwork, Inc. supra, citing Obolensky v. Chatsworth at Wellington Green, LLC, 240 So.3d 6 (Fla. 4th DCA 2018).

It would seem that the offending language expanding the scope of judicial review of an arbitration award could be, and should be, severed.  This is the value and point of a severability clause in a contract.  It is uncertain why the appellate court did not make this ruling instead of remanding the matter back to the trial court which could lead to a further appeal.  Severing the offensive language still requires the parties to arbitrate, which is the basis of the arbitration clause, but without the appellate recourse / judicial review of a party challenging the arbitrator’s award based on an incorrect application of law. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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