Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein on November 25, 2016
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Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction.   When there is a dispute regarding the transaction, this gives rise to a breach of contract claim.  

It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently.  As explained:

[C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for that of the parties to the contract in order to relieve one of the parties from the apparent hardships of an improvident bargain.  

Underwater Engineering Services, Inc. v. Utility Board of the City of Key West, 194 So.3d 437, 444 (Fla. 3d DCA 2016) quoting Fernandez v. Homestar at Miller Cove, Inc., 935 So.2d 547, 551 (Fla. 3d DCA 2006).

For this reason, a trial court’s interpretation of a contract is reviewed on appeal with a de novo standard of appellate review – the appellate court will refer to the record in the trial court anew (de novo) without giving deference to the trial court’s findings.

For example, in Underwater Engineering Services (a case I discussed here), the trial court found that a contractor defectively constructed a portion of its work and awarded damages to the owner for replacing the defective work. On appeal, however, the appellate court looked at the underlying contract between the owner and the contractor that required the owner to give the contractor notice before replacing defective work. (The trial court’s final judgment did not reference this contractual provision or provide any application of the provision). The trial court’s record established that such notice was never given to the contractor so the contractor was never in a position to replace the defective work. Based on this contractual provision–remember, courts are not there to rewrite parties’ contracts–the appellate court reversed the trial court’s findings / judgment in favor of the owner because the owner never provided the contractor the required notice per the unambiguous language in the contract.

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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What Constitutes an Enforceable Contract?

Posted by David Adelstein on November 17, 2016
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An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id.

The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in favor of a plaintiff and remanding for the trial court to enter judgment in favor of the defendants. As you can imagine, this is a harsh outcome in an appeal – winning a trial only for the appellate court to reverse and mandate judgment for the party that lost during the trial.

In this case, the plaintiff (borrower) was seeking a construction loan. It entered into a second loan commitment with the defendant (lender) whereby the defendant agreed to loan the plaintiff money for the refinancing of property and constructing the project. The court explained that a loan commitment is “a lender’s binding promise to a borrower to lend a specified amount of money at a certain interest rate, usually within a specified period and for a specific purpose (such as buying real estate).” Jericho All-Weather Opportunity Fund, supra, quoting Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 673-74 (Ala. 2001).

The plaintiff and defendant then entered into a construction loan. The loan agreement was contingent on the actual closing of the loan—the closing of the loan was the consideration for the loan agreement. The loan agreement did not require the defendant to fund the loan as the agreement was predicated on the funding having occurred. However, the loan never closed and the plaintiff sued the defendant for breach of the loan agreement. The plaintiff prevailed at trial. The defendant appealed arguing that the loan agreement was not an enforceable contract as it never became a valid contract because the funding never occurred. The appellate court agreed stating that the plaintiff should have sued for breach of the second loan commitment and not the loan agreement. (Notably, the plaintiff had strategic reasons for not suing on the second loan commitment since it precluded the plaintiff from pursuing certain damages based on a waiver of consequential damages provision.  Unfortunately, by not suing under the second loan commitment, the plaintiff did not sue on an enforceable contract.)

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein on November 03, 2016
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To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1.  

The Florida Supreme Court in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992) held that in a breach of contract action the significant issues test applied to determine the prevailing party for purposes of awarding attorney’s fees.  A party prevails on the significant issues if the party prevails on any significant issue in the case that achieved a benefit sought by the parties in the action.

A year later, the Florida Supreme Court in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993) addressed this significant issues test in the context of a construction lien action where the contractor received a net judgment in its favor but did not prevail on its construction lien (that provided a statutory basis for fees).  In this case, the owner prevailed on the contractor’s lien claim but the contactor prevailed in a breach of contract action and, therefore, recovered a net judgment in its favor.  For purposes of the case, a net judgment was “when the claimant fails to foreclose a mechanic’s lien but obtains a judgment for the underlying claim which exceeds any claim of the owner.”   Prosperi, 626 at n.1.   Here, the Court explained that recovering a net judgment is a significant factor to determine the prevailing party for purposes for purposes of attorney’s fees, but was NOT the only consideration. The equities of the case must be considered at the trial court’s discretion to determine the party that prevailed on the significant issues to be deemed the prevailing party for purposes of attorney’s fees.

Years later, this issue was brought up again to the Florida Supreme Court in Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009), as to whether the significant issues test applied when a contractor obtained a net judgment against an owner on its lien even though the lien amount was reduced by the owner’s claim for repair costs.  In finding that the significant issues test applied, the court further explained that the trial court has discretion to examine all factors including issues litigated, claim amount, amount recovered, and counterclaims, and can determine that neither party was the prevailing party for purposes of attorney’s fees

As you can see, the trend to determine the prevailing party for purposes of attorney’s fees in a breach of contract action is to apply the significant issues test. Because the trial court has the discretion to examine the equities to determine the party that prevailed on the significant issues in a given case, there is not any objective or bright-line rule to refer to in order to determine whether your situation will deem you the prevailing party for purposes of attorney’s fees.   This component makes it challenging to predict how a trial judge or arbitrator may rule and whether a party will be deemed the prevailing party for purposes of attorney’s fees. Recovering a net judgment is still an important factor, but it will not be the sole deciding factor because the prospect of a party recovering $1 and being deemed the prevailing party for purposes of attorney’s fees may prevent that party from becoming reasonable with their settlement terms.

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Prejudgment Interest and Post-judgment Interest

Posted by David Adelstein on October 26, 2016
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Prejudgment interest is routinely a component of a claimant’s monetary damages.   The claimant wants prejudgment interest on the principal amount due and owing. If no interest rate is set forth in the claimant’s contract, then the interest will accrue at the statutory rate. Then, once a judgment is entered, post-judgment interest will accrue on the judgment until it is paid.   See Florida Statute s. 55.03.

Florida’s statutory interest rate is set by the Chief Financial Officer and published here.

For instance, the current statutory interest rate is 4.75% per annum (and it has been 4.75% for numerous years). This translates to a daily rate as a decimal of .000130137.   Say you are owed $100,000 for 125 days. The calculation could be made two ways to determine the statutory interest rate on this amount for 125 days:

  1. $100,000 x 4.75% / 365 days in a year= $13.01 per day x 125 days = $1,626.25;

OR

  1. $100,000 x .000130137 = $13.01 per day x 125 days = $1,626.25.

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 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 when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein on October 16, 2016
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In an earlier posting I talked about proposals for settlement / offers of judgment.   Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law, some of which is conflicting. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is an argument and not a guaranty.

Sometimes, parties with a contractual or statutory basis to recover attorney’s fees will still serve a proposal for settlement. This becomes tricky because the right to attorney’s fees per the contract or statute is not cut-off by virtue of the proposal for settlement.

Say, for example, a defendant serves a proposal for settlement. The plaintiff, however, prevails in the case through trial in a claim in which the plaintiff is entitled to contractual attorney’s fees. There are two considerations.  

First, when determining the merits of a proposal for settlement, you need to look at the “net” judgment, which would include attorney’s fees and costs incurred by the opposing party (party receiving offer that prevailed in the case) through the date of the offer. See Leon F. Cohn, M.D., P.A. v. Visual Health and Surgical Center, Inc., 125 So.3d 860, 863 (Fla. 4th DCA 2013) (“Because Cohn prevailed on the breach of contract claim and the contract contained a provision awarding attorney’s fees to the prevailing party, we reverse and remand for the trial court to reconsider the issue of Cohn’s entitlement to fees after conducting an evidentiary hearing to determine the total net judgment, which shall include the amount of fees and taxable costs incurred by Cohn in litigating the breach of contract claim up to the date of the offer.”). Since the proposal for settlement is based on the net judgment, to determine whether the above defendant would be a prevailing party for purposes of recovering its attorney’s fees from the date of the proposal on forward would require an analysis to see what the total net judgment to the plaintiff would be factoring in fees and taxable costs through the date the defendant served the proposal.   The issue in looking at the net judgment is to determine whether the defendant could offset some of the attorney’s fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Second, the proposal for settlement does not cut-off the opposing party’s contractual right to fees incurred after the proposal for settlement is served. See Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011).   The above plaintiff would still be entitled to its attorney’s fees if deemed the prevailing party under the contract through the trial.   The issue, as discussed above, is whether the defendant could offset some of the fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Let’s use real numbers. Assume the defendant served the proposal for settlement to the plaintiff for $100,000. The plaintiff has a contractual right to attorney’s fees. The plaintiff rejects the proposal for settlement and at trial the plaintiff is awarded $40,000. Now, let’s assume the total net judgment through the date of the proposal for settlement factoring in fees and costs entitled to the plaintiff as the prevailing party under the contract is $60,000.   This $60,000 is at least 25% less than the defendant’s proposal for settlement of $100,000, meaning the defendant would be entitled to its attorney’s fees from the date of the proposal on forward. Assume those reasonable fees are $75,000. Assume the plaintiff’s total reasonable fees are $90,000.

Under step one, the defendant would presumably be the prevailing party for purposes of fees per the proposal for settlement and be entitled to its reasonable fees of $75,000 from the date of the proposal through trial.   The reason being is that the total net judgment to the plaintiff at the time the defendant served the proposal when factoring in fees and costs was at least $25% less than the defendant’s proposal for settlement.

Under step two, the plaintiff is still entitled to its attorney’s fees for prevailing under the contract, which are $90,000 through trial. Thus, the $75,000 owed to the defendant in fees would simply be credited in a judgment given to the plaintiff (reducing the plaintiff’s judgment by $75,000). For example, if the court entered an attorney’s fees judgment, the plaintiff would be entitled to $15,000 in fees, or the difference between the $90,000 and the $75,000.

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 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 Simple, All-or-Nothing Verdict Form

Posted by David Adelstein on October 06, 2016
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Attention should be given to the verdict form you want the jury to fill out after listening to and seeing the evidence presented in the case.   This verdict form dictates how the jury decides the facts in your case in the context of the theme of your case and the jury instructions. Needless to say, the verdict form is very, very important!

There are times when a party may want a simple, all-or-nothing verdict form.  A party may like this (such as the plaintiff) versus a special interrogatory form that contains numerous potentially confusing questions the jury is asked to answer. For example, an all-or-nothing verdict form may simply ask the jury as the first question whether the defendant breached the contract. If the jury answers yes, then they need to answer the second question which would be the amount of damages that should be awarded to the plaintiff as a consequence of the defendant’s breach of the contract. On the other hand, if the jury answers no to the first question, they should not answer any more questions as the jury’s verdict is in favor of the defendant.

In Finkel v. Batista, 41 Fla.L.Weekly D2279b (Fla. 3d DCA 2016), the liability portion of the trial was bifurcated from the damages portion. The case dealt with a car accident that resulted in personal injury. During the liability portion, the jury found the defendant 100% liable for the car accident. During the damages trial, the parties agreed on a verdict form that read:

  1. Evan Finkel [Defendant] was negligent. Was such negligence the legal cause of loss, injury or damage to the Plaintiff, Yarielsi Batista?

Yes_______ No_______

If you answered “NO” to Question 1, your verdict is for the Defendant, Evan Finkel and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If you answered “YES” to Question 1, please answer Questions 2 and 3.

The jury answered “No” to this first question finding for the defendant; no damages were awarded to the plaintiff.

The plaintiff appealed arguing that she should be entitled to damages for medical expenses she incurred. The trial court agreed and ordered a new jury trial.   The appellate court reversed with directions to reinstate the jury’s verdict:

[T]he plaintiffs here did not object to the verdict form that invited the jury to return a verdict on an “all-or-nothing” basis. The jury answered the first question presented to it in the negative, finding that the accident was not the legal cause of loss, injury, or damage to Ms. Batista [plaintiff]. Consistent with verdict form’s instructions, the jury answered no further questions and awarded no damages. It is well-settled law that “the jury cannot be faulted for doing exactly what it was instructed to do” in these circumstances. For these reasons, we reverse the order granting a new trial.

Finkel, supra (internal citation omitted).

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

Posted by David Adelstein on October 01, 2016
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If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records.  The proper foundation requires the witness to show that “(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Ocwen Loan Servicing, LLC v. Gunderson, 41 Fla.L.Weekly D2238a (Fla. 4th DCA 2016) quoting Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008).

The business records exception to the hearsay rule comes up quite a bit in the mortgage foreclosure context.   This is because the loans (notes and mortgage) get assigned or assumed by a new servicer or lender and the new servicer or lender moves to foreclosure on the mortgage. Many times the issue is laying the proper foundation with the witness being relied upon in order to admit certain documents under the business records exception to the hearsay rule.

In Ocwen Loan Servicing, LLC, the witness was trying to lay the foundation for records maintained by the original loan servicer (which was a company whose assets were purchased by the new loan servicer). He testified about the verification process of getting the original servicer’s records to the new servicer to ensure the accuracy of the records and then entering that information into the new servicer’s computer system.

The witness also tried to lay the foundation for a screenshot to show that the original promissory note was entered into the original servicer’s system / loan servicing platform. The trial judge sustained a hearsay objection and excluded this evidence because the witness did not work for the original servicer and had no personal knowledge as to its computer system / servicing platform.   The trial court also excluded the loan payment history and the default letter that was entered into the original servicer’s computer system as hearsay. As a result, the loan servicer could not support a mortgage foreclosure claim and the court entered judgment in favor of the homeowners.

The appellate court reversed finding that the documents that the trial court excluded as hearsay were admissible under the business records exception even though the new loan servicer took custody of the original servicer’s records:

Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’ [T]he authenticating witness need not be ‘the person who actually prepared the business records.’ As such, it is not necessary to present a witness who was employed by the prior servicer or who participated in the boarding process. Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it had procedures in place to check the accuracy of the information it received from the previous note holder. The testifying witness just need[s] [to] be well enough acquainted with the activity to provide testimony. Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records

Ocwen Loan Servicing, LLC, supra (internal citations and quotations omitted).

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Moving to Enforce the Appellate Court’s Mandate

Posted by David Adelstein on September 16, 2016
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When an appellate opinion is issued (and after any post-opinion motions have been resolved or the timing to file same has expired), oftentimes the matter is remanded back to the trial court to implement the appellate court’s opinion or mandate.   This mandate is the “official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.” Tierney v. Tierney, 290 So.2d 136, 137 (Fla. 2d DCA 1974).  In other words, once that mandate is issued, the trial court is obligated to comply.

What happens if the trial court does not comply with the appellate court’s mandate in the appellate opinion?   A party can move to enforce the mandate in the appellate court.

In Florida Digestive Health Specialists, LLP v. Ramon E. Colina, M.D., LLC, 41 Fla. L. Weekly D2078a (Fla. 2d DCA 2016), the appellate court issued an opinion that remanded the matter back to the trial court to implement the mandate in the opinion.   In this matter, the mandate explained how the trial court was to implement a temporary injunction to enforce a restrictive covenant / non-compete agreement.   On remand, however, the trial court issued an order that did not fully comply with the appellate court’s mandate. This prompted a party to file a motion to enforce the mandate with the appellate court (as well as a notice of appeal of the trial court’s order that did not comply with the appellate mandate).

The appellate court granted the motion to enforce its mandate instructing the trial court to enter an order pursuant to its mandate:

This [appellate] court “is vested with all the power and authority necessary for carrying into complete execution all of its judgments, decrees, orders, and determinations in the matters before it.” § 35.08, Fla. Stat. (2015). “No principle of appellate jurisdiction is more firmly established than the one which provides that a trial court utterly lacks the power to deviate from the terms of an appellate mandate.” Mendelson v. Mendelson, 341 So. 2d 811, 813-14 (Fla. 2d DCA 1977). That is, “upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate.” City of Miami Beach v. Arthree, Inc., 300 So. 2d 65, 67 (Fla. 3d DCA 1973). The trial court must execute the mandate without variance or examination; it may not review the mandate — “even for apparent error” — or grant any additional or further relief. Rinker Materials Corp. v. Holloway Materials Corp., 175 So. 2d 564, 565 (Fla. 2d DCA 1965) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895)). Further, “any motion or petition to vary the judgment of this court may not be entertained without the express permission of this court to do so.Arthree, 300 So. 2d at 67.

Florida Digestive Health Specialists, supra. 

 

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein on September 03, 2016
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I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule.

What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of review, limited by Florida’s rules of evidence.

In Johnson v. State, 2016 WL 446889 (Fla. 4th DCA 2016)—yes, a criminal case—a defendant argued that the trial court erred in overruling a hearsay objection and admitting hearsay evidence / testimony. During the trial, the defendant objected when the responding police officer was asked to testify how the victim and the victim’s friend described the defendant. The trial court overruled this objection and the officer was allowed to testify. The appellate court correctly found that this testimony was hearsay as it was offered to prove the truth of the matter asserted–that the defendant was involved in the crime. There was not a hearsay exception that would otherwise allow the officer to recount the victim and the victim’s friend’s description of the defendant.

Unfortunately for the defendant, the trial court’s error was harmless. So, yes, the trial court erred by allowing the officer to offer hearsay testimony, but the error was deemed harmless error. If the error is harmless, then the appellate court will affirm the trial court. Remember, just because a trial court commits error during the course of the trial does not mean the error will result in a new trial or a reversal.

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Actions for Declaratory Relief / Declaratory Judgment

Posted by David Adelstein on August 24, 2016
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Sometimes a party pursues what is known as an action for declaratory relief or declaratory judgment– for a trial court to declare their rights with respect to the application of a written document or instrument. In this manner, Florida Statute s. 86.021 states:

Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

It has long been held that with respect to actions for declaratory relief:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Ahearn v. Mayo Clinic, 180 So.3d 165, 174 (Fla. 1st DCA 2015) quoting May v. Holley, 59 So.2d 636, 639 (Fla. 1952) (courts are not going to entertain hypothetical facts or facts that are contingent in nature to address the possibility of a legal injury).

Courts, however, are not going to render an advisory opinion about a future possibility of a legal injury because this means there is NOT a present injury at the time the declaration is being sought. See Apthorp v. Detzner, 162 So.3d 236 (Fla. 1st DCA 2015). Thus, it is imperative that there is a “bona fide, actual, present practical need for the declaration” dealing with the application of an actual fact pattern and these allegations should be included in the lawsuit seeking declaratory relief. See Ahearn, 180 So.3d at 174.

Generally, and subject so some exceptions, actions for declaratory relief must be filed in the trial court that has jurisdiction over that party’s monetary claims. For example, if you are moving for an action for declaratory relief in a civil matter where you are seeking in excess of $15,000 in damages, then the action for declaratory relief must be filed in a circuit court (since a circuit court has subject matter jurisdiction over matters in excess of $15,000). Conversely, if you are moving for an action for declaratory relief in a civil matter where you are seeking damages up to and including $15,000 in damages, then the action for declaratory relief must be filed in county court (since a county court has subject matter jurisdiction over matters up to and including $15,000 in damages).   This jurisdictional requirement is set forth in the following relevant language in Florida Statute s. 86.011:

The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment.

Please contact David Adelstein at dma@katzbarron.com or (954) 522-3636 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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