Appeal

Appealing Correct Measure of Damages

Posted by David Adelstein on September 29, 2018
Appeal, Evidence / Comments Off on Appealing Correct Measure of Damages

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. 

In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial.  On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages.  The issue was whether the plaintiff should be entitled to a new trial.  The Third District held NO!  The plaintiff is NOT entitled to a new trial on damages:

We also write to clarify the law within this [Third] district, and hold, as a general rule, that where this court determines, on appeal from a properly preserved claim, that a party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages, unless that party’s failure to meet its burden was the result of judicial error.

Levy, supra (“The generally prevailing rule is that a party will not be permitted a new trial on remand to remedy its own failure to present sufficient evidence to support its claim.”).

It is worth noting that in a bench trial, “the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question [objection] has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”  Fla.R.Civ.P. 1.530(e).   Thus, in a bench trial, a party can challenge the sufficiency of the evidence for the first time on appeal.  In Levy, the defendant had actually moved for an involuntary dismissal after the plaintiff’s case-in-chief, but had he not done so, the objection to the sufficiency of evidence would still have been properly preserved for appeal.  

A jury trial, however, is different.  In a jury trial, “where a defendant fails to timely move for a directed verdict [as the sufficiency of evidence], and raises this issue for the first time in a motion for new trial, the proper remedy upon reversal and remand is a new trial.”  Levy, supra, n. 2.  Hence, in a jury trial, if a defendant does timely move for a directed verdict on such an issue, then the proper remedy is to enter judgment in favor of the defendant as the plaintiff is not entitled to a new trial. Id.  But, if the defendant first raises such an issue for the first time in a motion for new trial, then the proper remedy would be a new trial.

 

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: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein on September 15, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

I recently discussed the defense of mitigation of damages as it applies to contract cases.  An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract.  In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages.  The owner appealed this issue which was reversed on appeal.  The reason it was reversed is because the trial court’s finding that the owner failed to mitigate his damages is reviewed on appeal for competent substantial evidence.  If competent, substantial evidence supports the trial court’s findings, the ruling would not be disturbed on appeal. At trial, however, there was NO competent substantial evidence presented by the contractor that the owner failed to mitigate his damages. Forbes v. Prime General Contractors, Inc., 43 Fla.L.Weekly D2094a (Fla. 2d DCA 2018) (“Here, there is no competent substantial evidence that the Forbeses [owner] could have taken any measure without undue effort or expense to avoid [mitigate] the damages they sought.”).

 

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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Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

Posted by David Adelstein on August 20, 2018
Appeal, Standard of Review, Trial Perspectives / Comments Off on Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.”  XIP Technologies, LLC v. Ascend Global Services, LLC,  43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018).  A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongsId.

A trial court has discretion to grant or deny a motion for temporary injunction.  Its discretion, however, is not absolute and will be reviewed under an abuse of discretion standard of appellate review.  It will be deemed an abuse of discretion if an injunction is issued where the moving party has an adequate remedy at law or there has not been strict compliance with the factual detail needed to support the injunction.

In XIP Technologies, LLC, a defendant provided software that allowed the plaintiff to accept credit card payments from its customers and tracked all customer information, transactions, and purchases.  Due to a dispute, the defendant stopped transferring credit card payments to the plaintiff, stopped providing the plaintiff the tracked customer data, and stopped accepting credit card payments from the plaintiff’s customers.  The plaintiff stopped paying the defendant the required monthly fee for the software.  The plaintiff sued the defendant and moved for a temporary injunction that, among other things, required the defendant to pay the plaintiff the withheld credit card payment amounts, provide the plaintiff the tracked customer data, and continue to accept credit card payments from the plaintiff’s customers. The trial court granted the injunction.

On appeal, the defendant argued that it was wrong to order it to pay the plaintiff the withheld credit card payments because that payment constitutes an adequate remedy at law and injunctive relief is only when a party does NOT have an adequate remedy at law.  The appellate court agreed:  “If indeed XIP [defendant] is determined to be in breach of the parties’ contract, Ascend [plaintiff] will have an adequate remedy at law in the form of damages to replace the withheld revenue.  Because damages are available, there is no irreparable harm.” XIP Technologies, LLC, supra

The appellate court, on the other hand, found that injunctive relief could be appropriate relating to the customer data and refusal of the defendant to continue to process credit card payments of the plaintiff’s customers.   However, the trial court’s order was insufficient in that it did NOT contain sufficient factual detail supporting all of the four prongs to justify the issuance of a temporary injunction.  In particular, the trial court’s order did not include factual detail regarding requirements 3 (the substantial likelihood of success on the merits) and 4 (considerations of public interest).  For this reason, as to these issues, the appellate court remanded back to the trial court to enter a temporary injunction as to these issues “but only if it includes the required findings as to each of the necessary four prongs.”  XIP Technologies, LLC, supra.  

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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Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Posted by David Adelstein on August 12, 2018
Appeal, Trial Perspectives / Comments Off on Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Earlier this year I wrote an article regarding proving the defense of unilateral mistake.  In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake.  Based on this opinion, a party moved for a rehearing en bank under Florida Rule of Appellate Procedure 9.331–see applicable portion of 9.331(d)(1)–arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. 

The appellate court granted the rehearing en bank to address this undeniable conflict and lack of uniformity holding that inducement is NOT a required element in proving unilateral mistake:  “We conclude that inducement is not an element of unilateral mistake. A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.”  DePrince v. Starboard Cruise Services, Inc., 43 Fla.L.Weekly D1734a (Fla. 3d DCA 2018).   Without the inducement element, the defense of unilateral mistake becomes easier to prove.

 

 

9.331(d)(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by rule 9.330, a party may move for an en banc rehearing solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A response may be served within 10 days of service of the motion. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

 

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: Interpretation of a Contract (Policy) is for the Court, Not the Jury

Posted by David Adelstein on July 07, 2018
Appeal, Trial Perspectives / Comments Off on Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract.

While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed.

In a recent property insurance coverage dispute, the insured, over the insurer’s objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy.  On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy was a role reserved for the judge, not the jury.  See Citizens Property Ins. Corp. v. Mendoza, 43 Fla. L. Weekly D1523a (Fla. 4th DCA 2018) (finding other errors that occurred in the trial and maintaining it was the trial judge’s job to instruct the jury that certain exclusions in the policy were not in conflict or sustain objections as to arguments to the contrary).

The judge interprets the policy; the jury, in an insurance coverage dispute, determines whether the facts fall within the scope of coverage.

 

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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Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Posted by David Adelstein on June 23, 2018
Appeal, Trial Perspectives / Comments Off on Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Arbitration is a creature of contract, meaning if you want your disputes to be resolved by arbitration through an arbitrator (as opposed to litigation with a judge and/or jury), you need to include an arbitration provision in your contract.   A trial court granting or denying a party’s motion to compel arbitration is a non-final order that is immediately appealableSee Fla.R.App.P. 9.130(a)(3)(C)(iv).

There are times that a non-signatory to a contract with an arbitration provision wants to compel arbitration.  For example, a signatory to a contract (with an arbitration provision) files suit against a non-party and the non-party moves to compel arbitration based on the contract.  A dispute arises because the non-party is not a party to that contract, and thus, it needs a legal basis to compel arbitration under that contract.  That legal basis to allow a non-party to a contract to compel arbitration against a signatory to the contract is equitable estoppel: 

Courts have recognized that this [compelling arbitration] can be appropriate (1) when the signatory’s claims [against the non-party to the contract] allege “substantially interdependent and concerted misconduct” by the signatory and the non-signatory or (2) when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory

Beck Auto Sales, Inc. v. Asbury Jax Ford, LLC, 43 Fla.L.Weekly D1380a (Fla. 1st DCA 2018).

However, “even when a non-signatory can rely on equitable estoppel ‘to access [the arbitration] clause,’ the non-signatory can compel arbitration only if the dispute at issue ‘falls within the scope of the arbitration clause.’”  Beck Auto Sales, Inc., supra (citation omitted).  Even if one of the above equitable estoppel circumstances apply, the non-signatory still will not be able to compel arbitration if the scope of its dispute falls outside of the arbitration provision.

An example of the first circumstance was raised in Beck Auto Sales where a car dealership sued its former employee and the former employee’s new dealership/employer for a number of theories relating to their concerted effort to prevent the car dealership from winning a contract with a public entity. 

The former employee had an employment agreement with the car dealership that included an arbitration provision.  The trial court granted arbitration between the car dealership and former employee.  The new employer/dealership, a non-signatory to the employment contract, moved to compel the car dealership’s claims against it to arbitration under the employment contract.  It argued that the car dealership’s claims against it and the former employee (a signatory to the contract) allege substantially interdependent and concerted misconduct by the former employee (signatory) and it (non-signatory). The problem for the new dealership/employer, however, was that the arbitration provision in the employment contract was limited to disputes between the parties to the arbitration agreement.  The scope of the arbitration provision would not cover disputes involving the new dealership/employer; hence, it was unable to take advantage of an equitable estoppel argument to compel arbitration as a non-signatory to the employment 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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General Understanding of Collateral Estoppel and Res Judicata

Posted by David Adelstein on May 28, 2018
Appeal, Standard of Review, Trial Perspectives / Comments Off on General Understanding of Collateral Estoppel and Res Judicata

There are two similarly related legal doctrines known as collateral estoppel and res judicata.   The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata).  These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application.   Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit.

 

Collateral Estoppel = Issue Preclusion

 

The doctrine of collateral estoppel is also generally known as issue preclusion. 

Collateral estoppel applies when the following five elements are satisfied: “(1) the identical issues were presented in a prior proceeding; (2) there was a full and fair opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior litigation were a critical and necessary part of the prior determination; (4) the parties in the two proceedings were identical; and (5) the issues were actually litigated in the prior proceeding.”  Pearce v. Sandler, 219 So.3d 961, 965 (Fla. 3d DCA 2017) quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004).  

When these elements are satisfied, “[c]ollateral estoppel precludes re-litigating an issue where the same issue has been fully litigated by the parties or their privies, and a final decision has been rendered by a court.”  Id. quoting Mtge. Elec. Registration Sys., Inc. v. Badra, 991 So.2d 1037, 1039 (Fla. 4th DCA 2008).   The underlined phraseology “or their privies” refers to one who is in privity with a party to a lawsuit.  “To be in privity with one who is a party to a lawsuit, or for one to have been virtually represented by one who is a party to a lawsuit, one must have an interest in the action such that she will be bound by the final judgment as if she were a party.”  Pearce, 219 So.3d at 965.

A trial court’s ruling regarding the application of collateral estoppel is reviewed under a de novo standard of appellate review.   PNC Bank, Nat. Ass’n v. Inlet Village Condominium Ass’n, Inc., 204 So.3d 97 (Fla. 4th DCA 2016).

 

Res Judicata = Claim Preclusion

 

The doctrine of res judicata is also generally known as claim preclusion.

Res judicata applies when the following four identities are satisfied: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.”  Professional Roofing and Sales, Inc. v. Flemmings, 138 So.3d 524, 527 (Fla. 3d DCA 2014) quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004).

An identity of the cause of action refers to “whether the facts or evidence necessary to maintain the suit are the same in both actions.”  Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) quoting Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984).   

Another way to consider res judicata has been stated as follows: “A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated determined in that action.”  Tyson, 890 So.2d at 1209 quoting Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So.2d 1049, 1050 (Fla. 4th DCA 2002). 

A trial court’s ruling regarding the application of res judicata is also reviewed under a de novo standard of appellate review.  Philadelphia Financial Management of San Francisco, LLC v. DJSP Enterprises, Inc., 227 So.3d 612 (Fla. 4th 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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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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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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