Preserving an Objection for Appeal

Posted by David Adelstein on May 20, 2018
Appeal, Expert Testimony / Comments Off on Preserving an Objection for Appeal

Preserving an objection for appeal.  Preserving an objection for appeal.  Preserving an objection for appeal.  Repeat again and again, because this is important.  The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida,  43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife.  Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder.   The jury found that the man was guilty of attempted murder.

An issue on appeal dealt with the scope of an expert’s testimony that tied the defendant to the scene of the crime.  Prior to the expert’s trial testimony, the defense argued that the prosecution’s expert was going to be rendering an opinion outside of his expertise as demonstrated by prior deposition testimony.  The defense argued to exclude this testimony.   The judge held that the prosecution needed to lay the proper predicate (foundation) for the expert’s opinion, and he will entertain an objection at a later time.  The prosecution’s expert rendered the opinion and the defense never renewed the objection.  Because the defense never renewed this objection and there was never a definitive ruling on the motion to exclude the testimony, the defense never preserved this issue for appeal. Pierre, supra (“But because Pierre [defendant] then failed to renew his objection during Silvia’s [prosecution’s expert] testimony or obtain a ruling on his earlier motion to exclude the testimony, this argument was not preserved for review either.”).  Moreover, the appellate court held that the trial court permitting this opinion, even if the trial court was wrong, was not a fundamental error (i.e., it was harmless error) because the jury could have convicted the defendant based on eyewitness testimony alone.

Remember, it is important to preserve an objection for appeal, particularly if it will be the basis of a potential appeal. 

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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Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Posted by David Adelstein on May 12, 2018
Trial Perspectives / Comments Off on Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Here is a case that may give associations some degree of consternation.  I think it should because it supports permanent injunctive relief against an association to comply with its governing documents when managing or maintaining a surface water management system / stormwater management system.   This case, discussed below, would extend beyond a surface water management system to any covenant in the governing documents.  

In Coconut Creek Homeowner’s Association, Inc. v. Gonzalez,  43 Fla.L.Weekly D1045a (Fla. 4th DCA 2018), a homeowner sued her homeowner’s association for failing to manage the association’s surface water management system.  The homeowner sued the association for breach of the governing documents (Declaration, bylaws, etc.) and for a permanent / mandatory injunction to compel the association to comply with its governing documents to fix the swales and drainage system (common elements owned by the association).   The lack of management of the surface water management system caused flooding problems and damage to the homeowner’s home.

The jury found that the association breached its governing documents in failing to manage the surface water management system, but awarded the homeowner $0 caused by the breach associated with her claimed damages.  But, the trial court, as affirmed by the appellate court, granted a mandatory / permanent injunction against the association to enforce restrictive covenants in the governing documents. Specifically, the injunctive relief was issued to order the association to fix the swales and drainage system and comply with its governing documents.  

Now, the association perhaps thought this was not all that bad because it did not owe the homeowner any monetary damages based on the jury’s verdict of $0.  However, the appellate court found that because the homeowner prevailed on the significant issues of her case, she is entitled to her attorney’s fees and costs.  Thus, a mandatory / permanent injunction is issued against the association requiring it to comply with the governing documents and it is liable for the homeowner’s attorney’s fees and costs, which are likely significant after a trial.  Please check out this article for more information relating to the attorney’s fees aspect of this case. 

If you live in a community governed by an association (whether a homeowner’s association or condominium association), make sure you seek counsel that appreciates the issues associated with your governing documents.  And, an association needs to likewise consider the issues so it understands its responsibilities under the governing documents and potential outcomes associated with owner disputes.

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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Mid-litigation Monetary Settlement with Co-Defendant

Posted by David Adelstein on May 05, 2018
Trial Perspectives / Comments Off on Mid-litigation Monetary Settlement with Co-Defendant

I recently discussed a doctrine that applies in negligence cases known as the undertaker’s doctrine.  Some may also call this the no good deed goes unpunished doctrine.  Just kidding; but, this undertaker’s doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a duty to prevent the beneficiary of that service from harm.  

For instance, a tenant sued the owner of the condominium he (and his family) was renting and his real estate agent for water intrusion and mold problems in the unit.  The tenant claimed the real estate agent was negligent because the agent agreed to fix the problems with the unit but neglected to do so.  This is where the undertaker’s doctrine comes into play–the agreement to undertake a service exposed the real estate agent to a duty to use reasonable care with that service.  

The owner of the unit settled with the tenant for $82,000 resulting in a final judgment against the owner.  The real estate agent argued that the negligence claim against him should be deemed moot in light of this settlement since the agent was being sued for the same damages.  The appellate court disagreed because there was nothing in the record to reflect that the settlement amount with the owner included ALL of the tenant’s damages.

Mid-litigation monetary settlements are often less than the total amount of damages that the plaintiff was claiming. Each side gives up something when they settle, including some of the plaintiff’s potential monetary damages award.”  Muchnick v. Goihman, 43 Fla.L.Weekly D986b (Fla. 3d DCA 2018).   The settlement amount would serve as a set-off from any judgment amount or verdict awarded against the agent to avoid any windfall to the tenant; however, the agent does not get to put the cart before the horse and argue the case against him is moot because the plaintiff settled with the co-defendant. 

 

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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Florida’s Uniform Trade Secrets Act cannot be used to Restrict Competition

Posted by David Adelstein on April 30, 2018
Trial Perspectives / Comments Off on Florida’s Uniform Trade Secrets Act cannot be used to Restrict Competition

Florida’s Uniform Trade Secrets Act is contained in Florida Statutes Chapter 688.  This Act authorizes  courts to take reasonable steps to preserve the confidentiality of trade secrets including ordering injunctive relief to prevent a party (such as a former employee) from misappropriating trade secrets.  Norton v. American LED Technology, Inc., 43 Fla.L.Weekly D951a (Fla. 1st DCA 2018).   However, as confirmed by the First District in Norton, Florida’s Uniform Trade Secrets Act cannot be used as a sword to restrict or stifle direct competition.  In other words, it is improper for a trial court to issue a temporary injunction restricting direct competition based on Florida’s Uniform Trade Secrets Act.  Norton, supra.

Please make sure to consult with counsel if you have an issue dealing with trade secrets or the preservation of the same.  This includes your rights when you believe a party is misappropriating your trade secrets. 

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

Posted by David Adelstein on April 29, 2018
Appeal, Standard of Review / Comments Off on A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

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

In this case, there was a relatively minor rear end automobile collision in 2007 causing $1,600 in damages to plaintiff’s bumper.   Thereafter, plaintiff was having right-sided neck pain and a cervical fusion was recommended and ultimately performed in 2011.  Plaintiff’s orthopedic surgeon opined that the car accident caused her disc herniation that led to her surgery.  Plaintiff’s medical bills totaled $240,000.  During trial, plaintiff’s attorney asked the jury to award the $240,000 in past medical expenses, $40,000 for future medical visits, a minimum of $700,000 for past pain and suffering, and a minimum of $200,000 for future pain and suffering.

The defense argued with expert testimony that plaintiff’s x-rays taken right after the accident were normal showing only arthritic or degenerative changes, and that plaintiff’s injuries were not permanent.  The cervical fusion performed in 2011 was not attributed to the 2007 car accident.

The jury found that both plaintiff and defendant were equally liable for the accident, plaintiff’s injuries were not permanent, and awarded plaintiff only $18,506 in past medical bills.  Nothing was awarded to plaintiff for pain and suffering.

Plaintiff moved for a new trial regarding the inadequate jury verdict.  One argument raised was that during the trial the defendant took the stand to testify that he was a medical student and further doing research on cancer to receive a PhD.  Plaintiff claimed this was elicited simply to prejudicially influence the jury in favor of the defense; the defense countered that this was permissible evidence to humanize the defendant so that a jury can assess his credibility.  The court agreed with plaintiff’s motion and ordered a new trial as the result of the inadequate jury award.  The defense appealed the trial court’s order granting a new trial.

Regarding the standard of appellate standard of review regarding this issue of an inadequate jury award, the appellate court quoted:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

. . . .

Regarding inadequate or excessive verdicts, this ground is a corollary of the ground asserting that the verdict is contrary to the manifest weight of the evidence. A new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice. . . . Regardless of whether a new trial was ordered because the verdict was excessive or inadequate or was contrary to the manifest weight of the evidence, the appellate court must employ the reasonableness test to determine whether the trial judge abused his or her discretion.

Black, supra, quoting Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla. 1999).

Based on this standard of review, the appellate court reversed the trial court’s order granting a new trial and remanded the case back to the trial court to enter final judgment consistent with the jury’s (nominal) verdict:

Even if we consider the ruling as being within the “broad discretion” afforded to trial courts in ruling on motions for new trial, we would still conclude that the court abused its discretion in ordering a new trial based upon the comments about Black’s [defendant’s] cancer research. We simply cannot conclude that mention of Black’s cancer research was so prejudicial that the jury was misled and misperceived the weight of the evidence because of it and decided the case upon the fact that the defendant did cancer research. No reasonable person would conclude that the verdict was fatally tainted by this single remark.

We are not bound by any findings and credibility determinations, because the trial court made none. The court did not explain or analyze why the verdict was “grossly inadequate.” The trial court made no analysis of the testimony of the witnesses. Implicit in its finding of gross inadequacy must be a finding that no evidence supported the jury’s finding of no permanency; however, without an analysis of the evidence in the case and how the trial court would have come to that conclusion, the trial court’s decision cannot be sustained. On the record before us, the issue of liability and permanency were hotly contested, and the court has shed no light as to why the defense’s evidence supporting its case should be rejected. Therefore, we conclude that the court abused its broad discretion in ordering a new trial.

Black, supra.

As this case demonstrates, a new trial will not automatically be warranted just because the jury rendered what a plaintiff perceives to be an inadequate jury verdict.

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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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein on April 22, 2018
Appeal, Trial Perspectives / Comments Off on Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim.   The article also discusses the application of equitable subrogation dealing with an actual fact pattern.

Equitable subrogation, you say?  In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party.  The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt.  No one wants to pay for damages or a debt it believes were caused by a third party!

There are five (5) elements to an equitable subrogation claim that the subrogee, the party that paid off the damages or debt, must prove:

  1. The party (subrogee) made the payment to protects its own interests;
  2. The party (subrogee) did not volunteer the payment — it was not making the payment as a volunteer;
  3. The party (subrogee) was not primarily liable for the damages or debt it seeks reimbursement for; 
  4. The party (subrogee) paid off the entire debt it seeks reimbursement for; and
  5. Subrogation would not work any injustice, i.e., it would not be unfair.

Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 43 Fla.L.Weekly D868a (Fla. 2d DCA 2018) quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999).

Notably, in Tank Tech, Inc., the trial court granted summary judgment against the party pursing equitable subrogation. Summary judgment was granted in favor of the defendant.  The appellate court reversed for the factual reasons discussed in the article.  

As you may know from reading this blog, a motion for summary judgment is reviewed on appeal under a de novo standard of appellate review.  Summary judgment is only proper if there are no genuine issues of material fact and the party moving for summary judgment is entitled to a judgment as a matter of law.

Where the defendant is the party moving for summary judgment, as here, ‘neither the trial court nor this court determines whether the plaintiff can prove [its] case; our function solely is to determine whether the pleadings, depositions, and affidavits conclusively show that the plaintiff cannot prove [its] case.’”  Tank Tech, Inc., supra, quoting Crandall v. S.W. Fla. Blood Bank, Inc., 581 So.2d 593, 595 (Fla. 2d DCA 1991).  The takeaway is that a plaintiff is NOT required to prove its entire case when responding to a defendant’s motion for summary judgment and the court’s job is not to determine whether the plaintiff can prove its case at trial.  Rather, the job is to determine whether the the undisputed material facts “conclusively show that the plaintiff cannot prove its case.”  Id.

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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Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein on April 13, 2018
Trial Perspectives / Comments Off on Attorney’s Fee Arrangements can be Creative or Innovative

Lawyers get it.  Generally, people do not like to spend money on lawyers.  There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees.  Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with.  But, money is important and decisions cannot be made in a vacuum without understanding associated costs.  

I get that not everyone wants to have to deal with the potential unknown of hourly lawyer billing, the traditional legal model.  There are creative or innovative models out there outside of hourly lawyer billing that can be explored in certain matters, but the dynamic of that model has to work for both the client and lawyer.  If you are interested in learning a little more about the nuts and bolts of creative or innovative attorney’s fee models where there is a focus on results, performance, or meeting budgetary or target parameters, check out the ebook above. Look, there is no one-size-fits-all model.  The key takeaway is that creativity can be implemented in a business model so the attorney-client relationship works for both the attorney and the client!

 

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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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein on April 08, 2018
Burden of Proof, Standard of Review / Comments Off on Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be.  It is also not a motion commonly granted.  But, this does not mean there are no appellate rights if a court denies a motion for directed verdict.  A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review.

An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate court reversed a trial court’s denial of a motion for directed verdict and remanded the case back to the trial court to enter judgment in favor of the defendant.  A devastating appellate outcome for a plaintiff that was victorious in the underlying jury trial.

In this case, an older couple was shopping at Publix and the wife slipped on water on the ground.  The husband did not witness the incident.  Both the husband and wife did testify that they saw an employee with a mop in his hand after the fall, but neither could testify the mop was wet or that the employee was using the mop.   However, video evidence revealed that the presumed employee only had been using a broom and dustpan. And, the store manager testified that Publix did not use pre-soaked cotton mops but used dry rayon mops for its floors.

The jury nevertheless returned a verdict for the wife for over $1.5 million in damages. 

On appeal, Publix claimed, among other things, that the trial court erred by not granting its motion for directed verdict.  The appellate court agreed.  The evidence at trial did not demonstrate that Publix had any actual knowledge of the water on the floor prompting the dangerous condition that the wife slipped on.   The evidence also did not demonstrate that Publix’s own employee caused the condition.  This was important evidence because the plaintiff was required to prove (remember, the plaintiff had the burden of proof) “that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche [plaintiff] to slip and fall.”  Publix Supermarkets, supra.   The plaintiff argued that Publix had actual knowledge because she and her husband both saw a man with a mop and he caused the water to be on the floor.   But, she only saw the man with the alleged mop after she fell.  “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. If the only way a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”  Publix Supermarkets, supra, (internal citations omitted).

 

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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Forum Selection / Venue Provisions in Contracts are Enforceable

Posted by David Adelstein on March 31, 2018
Appeal, Trial Perspectives / Comments Off on Forum Selection / Venue Provisions in Contracts are Enforceable

If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract.  Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute. 

For instance, the provision may say something to the effect, “The exclusive venue for any dispute arising out of or relating to this contract shall be in Miami-Dade County Florida.”   This means that if you plan to sue you need to do so in a court located in Miami-Dade County, Florida, even if you have an argument that the venue should be in a different, more preferred location.  Venue and forum selection provisions are important provisions because they contemplate where a lawsuit must be brought in the event such a lawsuit occurs down the road.  While of course you hope for the best with any agreement, you know that disputes occur, so you plan for the potentiality of that risk.

As a contracting party, you have the right to contractually agree to a forum selection / venue provision; you can contractually agree to the forum governing your dispute.  Baker v. Economic Research Services, Inc. 43 Fla.L.Weekly D643a (Fla. 1st DCA 2017).  Absent limited exceptions, these provisions will be deemed enforceable.  Id.   A judicial order as to venue is also the type of non-final order that can be appealed immediatelyId.  Thus, even if you sued in a venue contrary to the forum selection provision in your contract and the trial court agreed with you, the other side can appeal this order immediately arguing that the forum selection provision places venue in a different location.

In Baker, employees entered an employment agreement that contained a forum selection provision that placed venue in Delaware.  The employees left to work for a competitor and the employer sued its former employees in Leon County, Florida.  An argument the employees raised was that the lawsuit should have been filed in Delaware, not Florida, based on the forum selection provision.  The trial court denied the motion.  But, remember, an order as to venue can be appealed immediately so the employees appealed.  The appellate court reversed the trial court finding that claims arising out of or relating to the agreements need to be filed in Delaware based on the forum selection provision.  The forum selection provision survives any termination of the agreements such that if the employer’s claims have a significant relationship (nexus) to the agreement, then the claims must be brought in Delaware.

As you can see, forum selection provisions are important because they will largely dictate where a party must sue or be sued.  Take such provisions into consideration when entering an agreement.

For more information on forum selection / venue provisions, you can also check out this article.

 

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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Set-Off when Entering into Settlements in Multi-Party Disputes

Posted by David Adelstein on March 25, 2018
Trial Perspectives / Comments Off on Set-Off when Entering into Settlements in Multi-Party Disputes

Lawsuits oftentimes involve multiple parties.  This could include multiple defendants or third-party defendants, whatever the case may be.  During the course of the dispute, there are avenues for settlement.  With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out.  Sometimes, a party needs to settle with some, but not all, of the defendants.  This means the plaintiff will need to try the case against the remaining defendants (or parties).  The remaining defendants, obviously, want the settlements with the settling defendants to be used to set-off any damages or judgment entered against them.  For example, if the plaintiff settles with multiple defendants for $1 Million and recovers damages against the remaining defendants for $1.5 Million at trial, the remaining defendants want the $1 Million in pre-suit settlements to be set-off from their damages award.  This means their exposure is not a $1.5 Million judgment, but instead, a $500,000 principal judgment — a big difference, right!  

The issue of set-off is an issue that should not be overlooked in multi-party disputes, specifically from the plaintiff considering pre-suit settlements.  Time should be dedicated to trying to craft settlements to truly prevent a set-off, which is designed to prevent the plaintiff from recovering a gratuitous windfall.  For more information on a construction defect case where the issue of set-off hurt a plaintiff based on the broad wording in settlement agreements, view this article.  Due to pre-suit settlements, the plaintiff’s damages against the remaining defendants at trial were reduced by the total sum of the settlements.  All because of this set-off doctrine; had the settlement agreements been drafted differently, perhaps the plaintiff’s damages awarded at trial would not have been set-off by the pre-suit settlements.

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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