Innovative or Alternative Fees Can be a Win-Win!

Posted by David Adelstein on February 18, 2017
Uncategorized / Comments Off on Innovative or Alternative Fees Can be a Win-Win!

What is the traditional model of lawyering?  Simply put, it is hourly billing.  There is nothing wrong with this model; however, there are other alternative or innovative attorney’s fee models out there that factor in performance, results, and efficiency.  These are models that incentivize performance which is always in a client’s best interest.  Stepping out of a comfort zone is tough considering we are all creatures of habit.  But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint.  If you are interested in learning more about attorney’s fee models that may benefit your interests, check out the below chart and feel free to contact me.

 

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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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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein on February 11, 2017
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Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

 

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 Contractual Waiver of the Right to Challenge Venue is Enforceable

Posted by David Adelstein on February 03, 2017
Trial Perspectives / Comments Off on A Contractual Waiver of the Right to Challenge Venue is Enforceable

Many contracts contain a forum selection provision or a venue provision.   Contracts may even contain language that parties agree not to challenge or otherwise waive the venue of any filed lawsuit.

An example of such a provision was included in an operating agreement:

This Agreement is to be construed and governed by the laws of the State of Florida (without giving effect to principles of conflicts of laws). Each party hereto irrevocably agrees that any legal action or proceeding arising out of or in connection with this Agreement may be brought in any state or federal court located in Florida (or in any court in which appeal from such courts may be taken), and each party agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and hereby agrees not to challenge such jurisdiction or venue by reason of any offsets or counterclaims in any such action, suit or proceeding. 

Of relevance, this venue provision allowed the parties to bring suit in any state or federal court in Florida and stated that the parties agree not to assert that the venue of any suit is improper.

A dispute arose between the members of the operating agreement. One of the members filed suit against the other member in Martin County, Florida. The other member moved to transfer venue to Palm Beach County, Florida arguing that nothing tied the dispute to Martin County. The trial court agreed and transferred venue to Palm Beach County.   The appellate court, however, reversed. Why? Because the parties agreed that a lawsuit could be filed in any Florida court and, importantly, that they each waive the right to challenge venue.   The parties’ agreement to waive any challenge to venue was enforceable. See Powers, Jr. v. Melick, 42 Fla. L. Weekly D288b (Fla. 4th DCA 2017).

Consider venue provisions when entering into and negotiating contracts – any type of contract.  

 

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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Impeachment as to Prior Crimes in Civil Trials

Posted by David Adelstein on January 29, 2017
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In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this?

When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

So, in a criminal trial, a witness’s credibility can be attacked if (1) the witness was convicted of a crime in excess of one year (a felony) or (2) the witness was convicted of a crime involving dishonesty or a false statement regardless of the length of punishment (a misdemeanor involving dishonesty or a false statement).   But, in a civil trial, not so fast – this type of impeachment will not be permitted if the conviction is remote in time that it has no bearing on the character of the witness.   If the crime is so remote in time, there is no probative value to impeach the witness other than the prejudicial effect the knowledge of the crime may have with the jury. See, e.g., Trowell v. J.C. Penny Co., Inc., 813 So.2d 1042 (Fla. 4th DCA 2002) (“The statute directs the court to determine whether the past convictions have a bearing on the present character of the witness. Evidence of theft and shoplifting convictions in the early 1980s with no subsequent convictions would tend to suggest that the witness no longer has a propensity toward dishonesty, and thus such convictions would have little or no bearing on his present character. Evidence of a continuing pattern of theft convictions tends to suggest that the appellant’s character in this regard remains unchanged.”).

The objective in attacking a witness’s credibility based on a crime (as permitted above) is that the witness cannot be trusted—their testimony is nothing but a bunch of lies.

The procedure to attack a witness’s credibility based on a crime is quite simple.   The witness will be asked whether he/she has ever been convicted of a felony or convicted of a misdemeanor crime involving dishonesty. If the witness says yes, the next question will be to ask the witness how many times has he/she been convicted of such crimes. The lawyer impeaching the witness will already know the answer to these questions. What if the witness lies? If the witness lies or gives a misleading answer, the lawyer can impeach that testimony by introducing a certified copy of the judgment of conviction for each crime (which is usually a judgment of the conviction and the sentence). This allows the lawyer to prove that the witness has been convicted of a particular crime, however, the lawyer cannot go into the nitty gritty about the crime(s). See Porter v. State, 593 So.2d 1158, 1159 (Fla. 2d DCA 1992).

 

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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Quick Note: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein on January 17, 2017
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So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context – check out this article as an example.) “If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review if the injunction is based on factual findings by the trial court. But, assuming the facts are not in dispute and the injunction is based on a matter of law, there is a de novo standard of appellate review.

 

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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Do I or Do I Not File a Reply to Affirmative Defenses?

Posted by David Adelstein on January 13, 2017
Trial Perspectives / Comments Off on Do I or Do I Not File a Reply to Affirmative Defenses?

I’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute.  Thus, if you have an avoidance to a specific affirmative defense, raise it in a reply!

The insured filed an insurance coverage dispute and the insurer relied on an exclusion in the policy. The insured, however, never filed a reply to the affirmative defense. When the insurer moved for summary judgment on the exclusion, the insured tried to argue waiver, that the insurer’s conduct waived its right to this affirmative defense. Well, this is an avoidance of the defense (a defense to a defense) and should have been raised in a reply. But, it was not. The trial court granted the summary judgment in favor of the insurer and on an appeal the appellate court agreed – the insured failed to preserve its waiver argument because it never raised its waiver defense to the insurer’s affirmative defense through a reply:

We reject Gamero’s [insured’s] argument that Foremost [insurer] waived its right to rely upon the marring exclusion [in the insurance policy] by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim. Moreover, even if such actions by Foremost amounted to a waiver, Gamero failed to preserve the issue below. After Gamero filed suit for breach of the insurance contract, Foremost answered and asserted, as an affirmative defense, that Gamero’s claim was excluded from coverage because the loss constituted marring. Gamero, however, failed to reply to, or avoid, this affirmative defense by alleging, as he does in this appeal, that the affirmative defense was waived by Foremost’s conduct in initially acknowledging coverage and paying a portion of the claim. Instead, Gamero raised this issue, for the first time, in opposition to Foremost’s motion for summary judgment. The trial court was correct in not considering this issue, raised for the first time in opposition to Foremost’s motion for summary judgment.

Gamero v. Foremost Ins. Co., 42 Fla. L. Weekly D158b (Fla. 3d DCA 2017).

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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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
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After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

 

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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Quick Note: An Ambiguous Agreement will Lead to Admissibility of Parol Evidence

Posted by David Adelstein on January 01, 2017
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In an earlier article I explained that parol evidence (extrinsic evidence) is inadmissible to determine the intent of an unambiguous agreement. The corollary is that parol evidence is admissible to determine the intent of an ambiguous agreement. Naturally, parties want their agreements to be clear—crystal clear—to avoid any argument regarding an ambiguity. For example, in a recent case, a commercial lease was deemed ambiguous regarding the tenant’s lease rate. As a result, the landlord could not ram its commercial eviction claim through the court due to what it claimed to be the tenant not paying the right lease rate. Instead, evidence needed to be considered regarding the intent of the parties, particularly as it pertained to the paragraph in the lease regarding the lease rate. Clearly, this is not what the commercial landlord wanted and, perhaps, could have been avoided by specific and unambiguous language regarding the lease rate. Remember, an ambiguity regarding a material portion of an agreement is bad–it just leads to the inevitable dispute.  

 

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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Recoverability of Expert Witness Fees in Federal Court

Posted by David Adelstein on December 24, 2016
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Many litigants are unaware that testifying expert costs are not automatically recoverable in federal court like they are in state court.   Expert witness fees / costs are not an automatic taxable costs.   28 U.S.C. s. 1920 discusses taxable costs. 28 U.S.C. s. 1821 discusses a witness’ per diem costs of $40/day for each day’s attendance. See 28 U.S.C. 1821(2)(b) (“A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.”).

The Eleventh Circuit in Primo v. State Farm Mutual Automobile Ins. Co. , 2016 WL 5436821, *5 (11th Cir. 2016) explained that, “[u]nder 28 U.S.C. § 1821(b), [a] witness shall be paid an attendance fee of $40 per day for each day’s attendance. The Supreme Court has held that when a prevailing party seeks reimbursement for fees paid to its own expert witness, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.” (internal quotations omitted).

In order to recover more than the standard per diem witness fee, either the contract needs to authorize expert witness fees or a specific federal statute needs to authorize the recovery of testifying expert costs. See Troche v. City of Orlando, 2015 WL 631280 (M.D.Fla. 2015) (“[A]bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s [expert] witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920. Section 1920 does not provide for costs for experts unless they were court-appointed.”) (internal quotations omitted).

When drafting a prevailing party attorney’s fees provision in a contract, I always like to include that the prevailing party is entitled to recover their testifying expert witness fees.  This way if the lawsuit is filed in federal court there is a contractual basis to recover expert witness fees. 

 

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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(Extract on) Business Judgment Rule

Posted by David Adelstein on December 12, 2016
Trial Perspectives / Comments Off on (Extract on) Business Judgment Rule

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Directors that serve on a board owe a fiduciary duty to their company and members. Directors are generally protected from personal liability for decisions they make by what is known as the business judgment rule. See Fla. Stat. s. 607.0830 (“(5) A director is not liable for any action taken as a director, or any failure to take any action, if he or she performed the duties of his or her office in compliance with this section.”); see also Florida Statute s. 617.0834 (regarding directors that serve on a nonprofit board).   These are very important statutes (607.0830 and 617.0834) for directors that serve on for profit and not for profit boards and their discharge of duties and decision-making.

The business judgment rule, however, is not absolute meaning directors are not automatically immunized from personal liability if they do not at in good faith, as set forth below. Directors needs to remember this point!

Under the business judgment rule, a court presumes that corporate directors acted in good faith. The rule prevents a court—which may possess less business expertise than the corporate directors—from calling upon directors to account for their actions, no matter how poor their business judgment, absent a showing by the plaintiff of abuse of discretion, fraud, bad faith, or illegality. The rule also prevents a factfinder from using hindsight to second-guess directors’ business decisions.

Kloha v. Duda, 246 F. Supp.2d 1237, 1244-45 (M.D. Fla. 2003) (internal citations omitted); accord Raphael v. Silverman, 22 So.3d 837, 838 (Fla. 4th DCA 2009) (nonprofit condominium association directors “are immune from liability in their individual capacity absent fraud, criminal activity, or self-dealing/unjust enrichment.”); Hollywood Towers Condominium Ass’n, Inc. v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010) (“In applying the business judgment rule to condominium association decisions, courts have generally limited their review to two issues: (1) whether the association has the contractual or statutory authority to perform the relevant act, and (2) if the authority exists, whether the board’s actions are reasonable.”).

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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