Trial Perspectives

Do Yourself a Favor: Have a Court Reporter at Important Hearings

Posted by David Adelstein on January 09, 2018
Appeal, Trial Perspectives / Comments Off on Do Yourself a Favor: Have a Court Reporter at Important Hearings

Make sure to have a court reporter at any substantive hearing, particularly a hearing that could result in an appeal.

Here is why. In a slip and fall action, Lago v. Costco Wholesale Corp., 42 Fla. L. Weekly D2599a (Fla. 3d DCA 2017), the trial court granted summary judgment in favor of the defendant. The trial court’s summary judgment order provided NO elaboration or reasoning as to the basis of granting the summary judgment. It was probably a simple order that stated that the defendant’s motion for summary judgment was granted. This does not provide a whole lot of comfort to parties or even practitioners that receive an order with no reasoning. It certainly does not bring me any comfort.

The plaintiff appealed and argued that the trial court erred in entering an unelaborated order. The appellate court disagreed on this point: “‘[w]hile it might be desirable for the trial judge to specify his reasons for granting or denying a summary judgment there does not appear to be any rule or decision that requires him to do so.’” Lago, supra, quoting Newman v. Shore, 206 So.2d 279, 280 (Fla. 3d DCA 1968). Irrespective of the lack of stated reasoning in the order, the appellate court found that the reasoning was clear when reviewing the defendant’s motion for summary judgment, the plaintiff’s response, and the transcribed summary judgment hearing. (Remember, a summary judgment is reviewed on appeal with a de novo standard of appellate review.)

My guess is the transcribed summary judgment hearing was important and it underscores the importance of having a court reporter at a hearing for this purpose. If the trial court does not provide its reasoning in an order, it is not always clear what the reasoning is that led to the ruling. Having a court reporter at the hearing allows the appellate court to review the arguments raised at the hearing including any pronouncements by the trial court at the hearing.

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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Civil Recourse against Issuer of Worthless Check

Posted by David Adelstein on December 30, 2017
Trial Perspectives / Comments Off on Civil Recourse against Issuer of Worthless Check

Florida has a worthless check statute (Florida Statute s. 68.065) that authorizes treble damages plus the original amount of the check owing if a party issues a worthless check.  This statute affords a strong civil remedy for a party (payee) that receives a worthless check. 

The statute provides in material portion:

In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to the payee, in addition to the amount owing upon such payment instrument, for damages of triple the amount so owing.

Fla. Stat. s. 68.065(3)(a).

This is certainly a hefty punishment for issuing a worthless check. And, of course, this serves as a hopeful deterrent for a party not to issue a worthless check.

As the statute states, one way to issue a worthless check is where the maker “stops payment on the instrument with intent to defraud.” The recipient of the check (payee) still has to prove that the maker intended to defraud him/her/it by stopping payment on the check. This is typically a factual issue. See Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 43 Fla. L. Weekly D73a (Fla. 2d DCA 2017) (reversing summary judgment in favor of payee that received worthless check on de novo standard of appellate review because there was issue of fact as to whether maker stopped payment on a check with intent to defraud payee).

 

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.Civ

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New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein on December 16, 2017
Trial Perspectives / Comments Off on New Trial Warranted for Prejudicially Inflaming the Jury

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial.

An example of this can be found in the case TT of Indian River, Inc. v. Fortson, 42 Fla. L. Weekly D2655a (Fla. 5th DCA 2017). This case involved an automobile accident where liability had been stipulated. The defendant was not interested in trying the liability of the case. The jury trial was ONLY as to damages. Liability was therefore irrelevant. Nonetheless, at trial, the plaintiff’s counsel, over the objection of the defense, called a corporate representative of the defendant and inquired as to issues concerning liability to create the perception that the defendant engaged in indifference and misconduct regarding the underlying automobile accident. The plaintiff also used the term of “guilt” to describe the defendant’s stipulation as to liability and the term of “innocence” to describe the plaintiff’s conduct.   After a final judgment was rendered against the defendant in accordance with the jury’ verdict, the defendant appealed for a new trial on damages. The appellate court agreed reversing the final judgment and mandating a new trial on damages due to conduct designed to inflame the jury.

When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.  Moreover, as this court has recognized, it is improper to refer to “guilt” or “innocence” at a civil trial on negligence

Fortson, supra (internal quotations and 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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Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Posted by David Adelstein on November 24, 2017
Trial Perspectives / Comments Off on Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly pled, pleading a fraud-type claim and proving a fraud-type claim are two different things. A party can plead a fraud-type claim to get passed a motion to dismiss. Proving the fraud-type claim, however, is a different story. Plaintiffs need to understand the elements they are required to prove so they know the evidence they need to introduce at trial to satisfy the elements and, hence, their required burden of proof. Likewise, defendants also need to understand the elements so that they can move for a directed verdict and preserve any appellate issue. 

An example of the difficulty in proving a fraud claim can be found in Arlington Pebble Creek, LLC v. Campus Edge Condominium Association, Inc., 42 Fla. L. Weekly D2370a (Fla. 1st DCA 2017).   Here, the defendants converted an apartment complex into a condominium and sold the condominium units. The unit owners took control of the condominium association from the defendants. The association then sued the defendants claiming that they knew of water intrusion problems, failed to fully remedy the problems, and turned over the association to the unit owners knowing the association would incur huge expense in upkeep and preserving common areas.

The association sued the defendants for both fraudulent misrepresentation and negligent misrepresentation.

A claim for fraudulent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of a material fact (a misrepresentation); 2) the defendants knew the representation was false; 3) the defendants intended that the misrepresentation would induce the association to act on it; and 4) the association was injured acting in reliance on the misrepresentation. Arlington Pebble Creek, supra.

A claim for negligent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of material fact that they believed to be true but was in fact false (a misrepresentation); 2) the defendants should have known the representation was false; 3) the defendants intended to induce the association to act on the misrepresentation; and 4) the association acted in justifiable reliance on the misrepresentation causing injury to the association. Arlington Pebble Creek, supra.

During trial, the defendants moved for a directed verdict arguing the plaintiff failed to prove all of the elements of a fraudulent or negligent misrepresentation claim. “‘A direct verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it.’” Arlington Pebble Creek, supra, quoting Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011).  The trial court denied the defendants’ motion for a directed verdict and ultimately a jury verdict and final judgment was entered against the defendants. The defendants appealed the trial court’s denial of their motion for directed verdict.  

The appellate court reversed the final judgment directing the trial court to enter judgment in favor of the defendants because the association did not prove all of the required elements of either a fraudulent misrepresentation or negligent misrepresentation claim. Specifically, the association failed to prove the third and fourth elements of the claims.   The association failed to prove any evidence of intent by the defendants or that the defendants induced reliance by the association—there was also no evidence that the association actually relied on any misrepresentation.

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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Is the “Bad” Appellate Case Binding or Persuasive?

Posted by David Adelstein on November 14, 2017
Appeal, Trial Perspectives / Comments Off on Is the “Bad” Appellate Case Binding or Persuasive?

There are times I hear that because the “bad” appellate case is in another appellate district compared to the appellate district where my case is located, that “bad” case is not binding. This sentiment is not necessarily true, particularly if there are no interdistrict conflicting opinions relating to the “bad” appellate case (and, more appropriately, the legal issue that “bad” case deals with).   This was explained by the Florida Supreme Court in Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992):

This Court has stated that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Florida Supreme] Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985). The purpose of this rule was explained by the Fourth District in State v. Hayes:

The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts—District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive.

333 So.2d 51, 53 (Fla. 4th DCA 1976).

In other words, and further noted by the Florida Supreme Court, “Absent an opinion from this Court, all trial courts in this State would be bound by the opinion of the First District [or any appellate district] until there is a contrary decision from the appellate court in their own district.Charles v. Southern Baptist Hospital of Florida, Inc., 209 So.3d 1199, n.2 (Fla. 2017).

Also, federal district and circuit court cases (absent the United States Supreme Court) are not binding precedent on trial courts. Rather, they are persuasive authority. See State Farm Mut. Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293, 297 (Fla. 1st DCA 2010) (“First, the [federal] cases are not binding precedent; they are, at most, persuasive authority.”); Roland v. Fla. East Coast Ry., LLC, 873 So.2d 1271, n.5 (Fla. 3d DCA 2004) (“This court is bound by decisions of the United States Supreme Court and the Florida Supreme Court. Decisions of the federal courts of appeals are persuasive but not binding.”) (internal citation 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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Proving Fraud on the Court with Clear and Convincing Evidence

Posted by David Adelstein on November 08, 2017
Trial Perspectives / Comments Off on Proving Fraud on the Court with Clear and Convincing Evidence

When a party files a motion that the opposing party perpetuated a fraud on the court, they are looking for the court to sanction the opposing party, with the harsh remedy of striking the opposing party’s pleadings

Fraud on the court is described as:

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

Perrine v. Henderson, 85 So.3d 1210, 1211-22 (Fla. 5th DCA 2012) quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (dismissing plaintiff’s case after finding by clear and convincing evidence that plaintiff engaged in fraud on the court by evading or stymying discovery of material facts).  

Fraud on the court is analogous to the adage, “Cheating is a choice, not a mistake.”  Hence, if you deliberately lie and stymie the discovery of facts central to the dispute, you are materially cheating, because you are preventing the opposing party from ascertaining those central facts and fully evaluating and analyzing the issues in dispute.

Dismissing an action, however, is a very harsh remedy to be used sparingly unless clear and convincing evidence supports “the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Ibarra v. Izaguirre, 985 So.2d 1117, 1119 (Fla. 3d DCA 2008) (reversing dismissal of action since clear and convincing evidence did not exist to warrant dismissal). Although, the court can certainly entertain other less harsh sanctions.

The burden supporting fraud on the court with clear and convincing evidence is on the party filing the motion. Villansenor v. Martinez, 991 So.2d 433, 436 (Fla. 5th DCA 2008). Such a finding requires an evidentiary basis / hearing. See id.; Ramey v. Haverty Furniture Companies, Inc., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). But if an evidentiary hearing is not requested, it is incumbent on the party claimed to have perpetuated a fraud on the court to request an evidentiary hearing. Obregon v. Corp., 42 Fla. L. Weekly D2347A (Fla. 3d DCA 2017) (finding that plaintiff failed to preserve lack of evidentiary hearing for appellate review on a motion to dismiss for fraud on the court by not objecting and not presenting any counter evidence).

Bottomline:  Do not engage in fraud on the court.  Just do not make this deliberate choice!  Ultimately, the facts are what they are and a theory of the case needs to be developed based on that evidence. Cases and the credibility of witnesses need to be assessed based on those facts.  

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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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein on November 04, 2017
Appeal, Burden of Proof, Standard of Review, Trial Perspectives / Comments Off on Striking / Excusing a Prospective Juror for Bias during Voir Dire

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, 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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Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract

Posted by David Adelstein on October 26, 2017
Trial Perspectives / Comments Off on Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract

In an earlier article, I talked about the election of remedies doctrine. The purpose of this election of remedies doctrine is to preclude the plaintiff from obtaining a windfall by double-recovering its damages under alternative (or mutually exclusive) theories of liability.  If a plaintiff could double recover on mutually exclusive theories of liability based on inconsistent facts, then plaintiffs would recover double than what they are rightfully entitled to.  That isn’t fair!

Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. A party may not obtain judgment for two remedies that are factually inconsistent.

Remedies are factually consistent when they “logically can coexist on the same facts.”  Remedies are factually inconsistent when one remedy “implies negation of the underlying facts necessary for the other.” 

***

When remedies are factually consistent, the “mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies.”  Where remedies are factually consistent, “only a full satisfaction of the right asserted will estop the plaintiff from pursuing her other consistent remedies.”

The Allegro at Boynton Beach, L.L.C. v. Pearson, 42 Fla. L. Weekly D2277d (Fla. 4th DCA 2017) (internal citations omitted).

In The Allegro at Boynton Beach, the plaintiff had a right of first refusal over real property owned by the property owner. The property owner refused to honor the right of first refusal and entered into a purchase and sale contract to sell the property to another buyer. The plaintiff sued the property owner for breach of contract for monetary damages and for specific performance (to force the property owner to sell the property to it based on its right of first refusal and prevent the sale to the buyer). Both claims were predicated on the same facts.

The plaintiff moved for summary judgment where its motion claimed that upon election of its remedy, it seeks damages or specific performance. The trial court granted the motion finding that the property owners failed to comply with the right of first refusal and the right of first refusal remained in effect.   The property owner, trying to be cunning, decided to cancel its purchase and sale contract with the buyer and enter a new contract with the buyer for a higher purchase price, giving the agreement to the plaintiff to exercise its right of first refusal within 10 days.

The plaintiff quickly moved for a final judgment of specific performance based on its election of remedy. The trial court denied this motion finding that the plaintiff already made an election of remedies to recover monetary damages and that the property owner’s original purchase and sale contract with the buyer was not longer effective due to the property owner cancelling the contract.

The appellate court reversed both of the trial court’s findings.

First, the appellate court held that the plaintiff’s remedies seeking breach of contract and specific performance were factually consistent since they were based on the same underlying factual transaction. In other words, they were not mutually exclusive remedies; rather, they were factually consistent. Only the full satisfaction of the plaintiff’s monetary damages would prevent the plaintiff from pursuing specific performance.

Second, the appellate court quickly rejected the property owner’s cunning effort to cancel the original purchase and sale contract only to enter into a new agreement at a higher price. The appellate court stated when a property owner enters into a purchase contract, “a pre-existing right of refusal is converted into an irrevocable option to purchase.” The Allegro at Boynton Beach, supra (internal quotations and citations omitted). The property owner and buyer could not negate this irrevocable option by simply terminating the purchase and sale contract only to enter a new agreement.

 

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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The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein on October 19, 2017
Trial Perspectives / Comments Off on The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo!  This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney’s fees. (For example, if the Court determines that an attorney’s reasonable attorney’s fees are $35,000, the Court can order a multiplier of 2, meaning the attorney’s fees would be $70,000). As they say, with risk comes reward!

In what I think to be noteworthy language regarding the contingency fee multiplier, the Court pronounced:

[T]he contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages “nonmeritorious claims” and would, instead, posit that solely because a case is “difficult” or “complicated” does not mean that the case is nonmeritorious. Indeed, without the option of a contingency fee multiplier, those with difficult and complicated cases will likely be unable or find it difficult to obtain counsel willing to represent them.

***

The point being, the lodestar amount, which awards an attorney for the work performed on the case, is properly analyzed through the hindsight of the actual outcome of the case, whereas the contingency fee multiplier, which is intended to incentivize the attorney to take a potentially difficult or complex case, is properly analyzed through the same lens as the attorney when making the decision to take the case. We disagree that the possibility of receiving a contingency fee multiplier leads to a “windfall.” … While the attorney for the insurer charges and receives an hourly rate regardless of whether the defense is successful, the insured’s attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier.

Joyce v. Federated National Ins. Co., 42 Fla.L.Weekly S852a (Fla. 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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Arbitration is an Appealable Non-Final Order

Posted by David Adelstein on October 14, 2017
Standard of Review, Trial Perspectives / Comments Off on Arbitration is an Appealable Non-Final Order

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator.

There are three considerations when determining whether a dispute is subject to arbitration:

1) Is there a valid written agreement to arbitrate (such as an arbitration provision in a contract)?

2) Is there an arbitrable issue? And

3) Has the right to arbitrate the issue or dispute been waived?

Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017) quoting Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013).

Entitlement to arbitration, and the granting or denying a party’s motion to compel arbitration, is a non-final order that is appealable. Fla. R. App. P. 9.130(a) (3)(C)(iv).  Typically, when a party moves to compel arbitration and that motion is granted or denied, there is an appeal of this non-final order.

An order granting or denying a motion to compel arbitration is reviewed on appeal with a de novo standard of review. Chaikin, supra, quoting Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006). Whether a party has waived the right to arbitrate “‘is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court’s findings.’” Chaikin, supra, quoting Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 686 (Fla. 2d DCA 2009).

For example, in Chaikin (the facts discussed in more detail here), the appellate court reversed the trial court and held that a party waived its right to compel arbitration of a counterclaim by virtue of the party initiating the lawsuit to begin with. By the party filing the lawsuit, they voluntarily relinquished the right to compel the counterclaim – based on the same facts as the complaint — to arbitration.  As the appellate court held, what is sauce for the goose is sauce for the gander — a party cannot compel a counterclaim to arbitration when the same party filed a lawsuit.

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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