29 March

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Considerations Involving Proposals for Settlement / Offers for Judgment

There needs to be a contractual or statutory basis in order to be entitled to recover your reasonable attorneys' fees at trial. See Cadenhead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996). This means either the contract needs to support a basis for the party to recover attorney’s fees (such as a prevailing party attorneys’ fees provision or a contractual indemnification provision that authorizes attorneys’ fees) or there needs to be a statute that authorizes you to recover reasonable attorneys' fees. Absent these bases, there is generally no basis to recover attorneys' fees. However, there is a vehicle under...

19 September

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Affidavit Used to Support or Defend Against Summary Judgment

Posted by David Adelstein

in Trial Perspectives

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact. A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay. The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate. This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...

06 September

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Calculating the Judgment Obtained in Determining Proposals for Settlement

Posted by David Adelstein

in Trial Perspectives

There are numerous prior postings discussing proposals for settlement / offers of judgment. As discussed, they create an argument to recover attorney’s fees from the date of the proposal on forward. A recent case discusses the thorny issues of determining whether the “judgment obtained” by the plaintiff meets the threshold to recover attorney’s fees when serving a proposal for settlement under Florida Statute s. 768.79. In this case, the plaintiff served a proposal for settlement on March 21, 2019. The defendant did not accept the proposal. The case proceeded to trial and the jury returned a verdict in favor of the...

17 November

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How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

Posted by David Adelstein

in Trial Perspectives

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney's fees as the prevailing party. When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides: (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred...

04 December

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Inadmissible Testimony / Evidence Should Not be Considered on a Summary Judgment

Posted by David Adelstein

in Depositions

Speculative and inadmissible testimony should not be considered on a summary judgment. This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015). In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am. He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have...

29 January

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Proffers / Offers of Proof when Trial Judge Precludes Evidence or Testimony from being Introduced

Posted by David Adelstein

in Appeal, Evidence

What is an offer of proof or evidentiary proffer? During trial there are times where the opposing party objects to a question (testimony) and/or the introduction of evidence. If the judge sustains (or agrees with) an objection, the witness is precluded from offering testimony in response to the question and/or the evidence is excluded and deemed inadmissible. Ouch!! When this happens, it is important for the party trying to offer the excluded testimony or evidence to make a proffer or offer of proof in furtherance of preserving this issue for appeal. The reason a proffer or offer of proof of...

17 September

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

Posted by David Adelstein

in Trial Perspectives

When it comes to proposal for settlements from a defendant, there is both good news and bad news. If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed. The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

05 December

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Recovering Attorney’s Fees “Incurred” on Party’s Behalf

Posted by David Adelstein

in Trial Perspectives

Simply because a defendant does not pay his/her/its own attorney's fees does not mean the defendant is not entitled to recover attorney’s fees incurred on his/her/its behalf. That wouldn’t seem to make much sense since attorney's fees would have been incurred on the defendant’s behalf. Who actually writes the check to pay the attorney's fees is really of no moment, right? Therefore, do not bank your argument that another party will never be entitled to recover their fees because that other party did not personally pay for his/her/its own attorney's fees. This was the argument raised in Jain v. Buchanan...

14 November

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Attorney’s Fees do Not have to be Quantified in Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

Does a proposal for settlement have to specifically quantify the amount of attorney’s fees if the proposal wants to factor the other party’s attorney’s fees into the equation? According the recent opinion in Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D2406b (Fla. 3d DCA 2021), the answer is No. The proposal can leave it up to the court (per a fee hearing) where the fees plus the judgment amount get factored in to determine whether that amount meets the proposal for settlement threshold for entitlement to attorney’s fees. In Safepoint Insurance Co., the defendant served a proposal for settlement...

17 December

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Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein

in Appeal

An order denying a motion for attorney's fees is generally reviewed under a de novo standard of appellate review. In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney's fees after the jury's verdict. In this case, the insured moved for attorney's fees pursuant to statute -- Florida Statute s. 627.428. The trial court denied the insured's motion. The insurer moved for attorney's fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79. The trial...