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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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Insurance Policy Construction is a Question of Law

Posted by David Adelstein on July 15, 2017
Appeal, Standard of Review / Comments Off on Insurance Policy Construction is a Question of Law

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to protect you or your business’s needs or risks.   You may have even been involved in an insurance coverage dispute or have had issues dealing with insurance coverage.

If you read any one of your insurance policies, you will probably be left with more questions than answers. You will be asking yourself “what does this mean?” or “what does this say?” and will often be left bemoaning “huh!?!” with every other sentence you read.  This is the exact reason why there are insurance coverage disputes.

When it comes to insurance coverage disputes and the interpretation of the language in an insurance policy, the Florida Supreme Court importantly explained:

Insurance policy construction is a question of law subject to de novo review.  Courts construe insurance contracts according to their plain language.  However, “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.”  A provision is ambiguous if it is “susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage.”  The ambiguity must be genuine, and the lack of a definition for an operative term “does not, by itself, create an ambiguity “When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.” 

Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017) (internal citations omitted).

Obviously, if you have an insurance coverage dispute, you want to make sure you are represented by an attorney that understands the complexities of insurance coverage.  Nonetheless, it is imperative that you understand that insurance policy construction is a question of law for the Court with a de novo standard of appellate review.

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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Insurance Coverage Disputes where the Focus is the Policy Language

Posted by David Adelstein on March 06, 2017
Standard of Review / Comments Off on Insurance Coverage Disputes where the Focus is the Policy Language

Insurance coverage disputes are fairly common between an insured and his/her/its insurer.   These are important disputes to an insured, particularly when they have been damaged and their insurer refuses to defend them from a third-party claim or otherwise denies coverage. An insured never wants to be in this position—understandably so. On the other hand, an insurance policy is not designed to cover every single risk under the sun as there are exclusions identified in policies for risks or perils that are not covered.   This ultimately means an insured needs to have an appreciation of those risks or perils not covered (in case he/she/it needs to procure another policy or a policy endorsement to cover certain risks or perils).

There are insurance coverage disputes where the primary focus is on the policy language. The material facts are not in dispute; the dispute is centered on whether the undisputed facts create coverage under the applicable policy. In this instance, the insurance coverage dispute is an issue for the court and not for a jury.

A recent case explains the appellate standard of review in insurance coverage disputes, particularly when the overriding issue has nothing to do with the facts and everything to do with the policy language:

We review the instant appeal from a final judgment interpreting the provisions of an insurance policy to determine coverage de novo. Where the facts are not in dispute and the language of an insurance policy is unambiguous and not subject to conflicting inferences, “its construction is for the court, not the jury.” Moreover, even where an ambiguity exists, if the facts are not disputed “it is within the province of the trial judge not the jury to resolve the ambiguity as a matter of law.” Here, because neither a factual dispute nor an ambiguity was demonstrated to exist, the coverage issue raised below should have been decided by the court below and on the record below….

Zurich American Ins. Co. v. Cernogorsky, 42 Fla. L. Weekly D476b (Fla. 3d DCA 2017) (internal citations omitted).

If you have questions regarding an insurance policy or you are involved in an insurance coverage dispute, do the prudent thing, consult an attorney that understands insurance.  Insurance is challenging, even for experienced practitioners, so do not assume you can navigate the complicated insurance waters solo.

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: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein on January 17, 2017
Appeal / Comments Off on Quick Note: So You Want to Appeal an Injunction Entered Against You…

So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context – check out this article as an example.) “If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review if the injunction is based on factual findings by the trial court. But, assuming the facts are not in dispute and the injunction is based on a matter of law, there is a de novo standard of appellate review.

 

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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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
Appeal / Comments Off on Appealing Entitlement to Attorney’s Fees

After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

 

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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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein on November 25, 2016
Appeal / Comments Off on Trial Court’s Responsibility is NOT to Rewrite a Contract

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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 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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What Constitutes an Enforceable Contract?

Posted by David Adelstein on November 17, 2016
Appeal / Comments Off on What Constitutes an Enforceable Contract?

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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 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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Appealing Trial Court’s Interpretation of Contract

Posted by David Adelstein on July 24, 2016
Appeal, Standard of Review / Comments Off on Appealing Trial Court’s Interpretation of Contract

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Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation.

The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo standard of review. Notably, construction of contractual terms is a question of law, which we review de novo, provided that the language is clear and unambiguous and free of conflicting inferences.

Ciklin Lubetz Martens & O’Connell v. Patrick J. Casey, P.A., 41 Fla.L.Weekly D1678b (Fla. 4th DCA 2016 (internal quotations and citations omitted).

For example, in a dispute concerning a law firm’s partnership agreement as it pertains to the withdrawal of a partner, the trial court made an interpretation of the partnership agreement that resulted in certain amounts being awarded to the withdrawing partner. The law firm appealed the trial court’s interpretation and the appellate court, examining the partnership agreement under a de novo standard of appellate review, reversed certain interpretations by the trial court. This is because the appellate court was able to examine the partnership agreement anew without providing any deference to how the trial court interpreted the partnership 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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Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein on May 21, 2016
Evidence, Standard of Review / Comments Off on Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

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After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.)  The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for directed verdict / motion to set aside the verdict.

An appellate court must review a trial court’s determination on a motion for judgment notwithstanding the verdict de novo and “evaluate the evidence in the light most favorable to the non-moving party, drawing every reasonable inference flowing from the evidence in the non-moving party’s favor.” Miami-Dade Cnty. v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011). Additionally, we must sustain a jury verdict if it is supported by competent substantial evidence. Hancock v. Schorr, 941 So. 2d 409, 412 (Fla. 4th DCA 2006).

Frieri v. Capital Investment Services, Inc. , 41 Fla.L.Weekly D1189a (Fla. 3d DCA 2016).  

In other words, the appellate court will evaluate the evidence in favor of the non-moving plaintiff (part that did not move for the directed verdict) drawing reasonable inferences in its favor. If there was competent substantial evidence supporting the jury’s verdict, the court will affirm the judgment in favor of the plaintiff.

Now what if after the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict and the trial court grants the directed verdict in your favor and against the plaintiff.   The plaintiff appeals the trial court’s granting of your motion for directed verdict.

While the standard of review for the trial court’s entry of a directed verdict is de novo, an appellate court “can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.Banco Espirito Santo Int’l, Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008) (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001)).

Frieri, supra.

In other words, the appellate court will evaluate the evidence to see if no proper view of the evidence, and all inferences drawn from the evidence, could support a verdict in favor of the plaintiff. Thus, if the plaintiff fails to introduce any evidence substantiating its claims (or a claim) against the defendant (i.e.,to sustain a verdict in favor of the plaintiff), then the appellate court will affirm the directed 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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Proving Your Case Through Circumstantial Evidence

Posted by David Adelstein on May 15, 2016
Evidence / Comments Off on Proving Your Case Through Circumstantial Evidence

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The plaintiff puts on her case through circumstantial evidence so that inferences can be drawn from that evidence.  The defendant moves for a directed verdict after the plaintiff put on her case through circumstantial evidence. The trial court denies the motion and the jury enters a verdict in favor of the plaintiff. The defendant appeals the trial court’s denial of the motion for a directed verdict. The standard of review for the denial of a motion for directed verdict is de novo.   Broward Executive Builders, Inc. v. Zota, 41 Fla.L.Weekly D1126a (Fla. 4th DCA 2016).

In Broward Executive Builders, the plaintiff, a painter, fell and seriously injured herself. No one witnessed the fall and the plaintiff was unable to testify. The plaintiff claimed that defendant general contractor caused her fall by failing to install required guardrails that would have prevented the fall.

[A plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Broward Executive Builders, supra, quoting Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015).

Without any direct evidence relating to the cause of the plaintiff’s injury, the plaintiff needed to establish the defendant general contractor’s liability through circumstantial evidence, predominantly through an expert accident reconstructionist. While the plaintiff may prove facts in a negligence case through circumstantial evidence, an inference drawn from the circumstantial evidence “must be the only reasonable inference that can be formed from that evidence for the plaintiff to build further inferences upon it.” Broward Executive Builders, supra.

While it certainly could be inferred from the circumstantial evidence that the plaintiff fell and sustained injuries, it could not be reasonably inferred that the plaintiff fell from a location where the guardrails would have prevented her fall. The circumstantial evidence did not exclude other reasonable inferences about the location where the plaintiff fell, what the plaintiff was doing when she fell, or what caused the fall. In other words, it could not be solely inferred that the defendant’s failure to install the required guardrails caused the plaintiff’s injuries—there were other reasonable possibilities relating to the fall that could be inferred.

[B]ecause there is no evidence of how she fell or where exactly she fell from, it would be complete speculation and conjecture for any trier of fact to conclude that the lack of guardrails contributed to causing her injuries. The burden of proof rested upon appellees [plaintiff] to prove appellant’s [defendant] negligence. Where there is evidence that the harm could have occurred even in the absence of the appellant’s conduct, proof of causation cannot be based on mere speculation, conjecture, or inferences drawn from other non-exclusive inferences.

Broward Executive Builders, supra (reversing the trial court and remanding for judgment to be entered in favor of defendant general contractor). 

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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