de novo

Condominium’s Declaration is a Contract

Posted by David Adelstein on June 28, 2018
Trial Perspectives / Comments Off on Condominium’s Declaration is a Contract

A condominium’s declaration is a contract.  As a unit owner, it serves as your contract and will govern your rights with your condominium association.  Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration.  And, no different than any contract, the interpretation of a declaration is reviewed under a de novo standard of appellate review.  See Lenzi v. The Regency Tower Ass’n, 43 Fla.L.Weekly D1397a (Fla. 4th DCA 2018).

Lenzi serves as an example of a dispute involving a condominium unit owner and his association regarding the interpretation of a provision in the condominium’s declaration. In this case, the unit owner wanted the court to interpret a word used in the declaration restrictively, which the trial court rejected and the appellate court affirmed. 

When it comes to terms in a declaration (or any contract), terms are to be given their plain and ordinary meaning such that terms are construed in their ordinary sense.  See Lenzi, supra.  Unless a specific word is a defined term in the declaration (or contract), words are to be construed by their generally understood definition. Id.

If you are in a dispute with your condominium association regarding a provision or the interpretation of your declaration, make sure to consult with counsel to make sure your interpretation or basis of your dispute is colorable.   

 

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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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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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein on April 08, 2018
Burden of Proof, Standard of Review / Comments Off on Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be.  It is also not a motion commonly granted.  But, this does not mean there are no appellate rights if a court denies a motion for directed verdict.  A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review.

An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate court reversed a trial court’s denial of a motion for directed verdict and remanded the case back to the trial court to enter judgment in favor of the defendant.  A devastating appellate outcome for a plaintiff that was victorious in the underlying jury trial.

In this case, an older couple was shopping at Publix and the wife slipped on water on the ground.  The husband did not witness the incident.  Both the husband and wife did testify that they saw an employee with a mop in his hand after the fall, but neither could testify the mop was wet or that the employee was using the mop.   However, video evidence revealed that the presumed employee only had been using a broom and dustpan. And, the store manager testified that Publix did not use pre-soaked cotton mops but used dry rayon mops for its floors.

The jury nevertheless returned a verdict for the wife for over $1.5 million in damages. 

On appeal, Publix claimed, among other things, that the trial court erred by not granting its motion for directed verdict.  The appellate court agreed.  The evidence at trial did not demonstrate that Publix had any actual knowledge of the water on the floor prompting the dangerous condition that the wife slipped on.   The evidence also did not demonstrate that Publix’s own employee caused the condition.  This was important evidence because the plaintiff was required to prove (remember, the plaintiff had the burden of proof) “that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche [plaintiff] to slip and fall.”  Publix Supermarkets, supra.   The plaintiff argued that Publix had actual knowledge because she and her husband both saw a man with a mop and he caused the water to be on the floor.   But, she only saw the man with the alleged mop after she fell.  “A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. If the only way a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”  Publix Supermarkets, supra, (internal 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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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein on March 11, 2018
Appeal, Burden of Proof, Standard of Review / Comments Off on Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case.  This is a common motion after the plaintiff in a bench trial puts on his/her case.  No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff.  

Florida Rule of Civil Procedure 1.420(b) authorizes motions for involuntary dismissal as indicated by the emphasized language below:

Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under rule 1.090(d). After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

In a bench trial, motions for involuntary dismissal are appropriate if the plaintiff fails to establish a prima facie case, i.e., the plaintiff fails to introduce evidence that establish the elements of his/her claim(s) against the defendant.  Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003).  “To rule on the motion for involuntary dismissal, the trial court was required to view the evidence in the light most favorable to the plaintiff, resolving every conflict and inference in its favor.”  Id.   See also Nationstar Mortgage, LLC v. Silva, 43 Fla.L.Weekly D548a (Fla. 3d DCA 2018) (“A motion for involuntary dismissal should only be granted ‘when there is no reasonable evidence upon which a [fact finder] could legally predicate a verdict in favor of the non-moving party.’” (quoting Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012)).

In ruling on a motion for involuntary dismissal, the trial court is NOT supposed to rule on the credibility of a testifying witness.  Deutsche Bank Nat. Trust Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016).  This is because when:

[T]he movant [party moving for involuntary dismissal] admits the truth of all facts in evidence an every reasonable conclusion or inference based thereon favorable to the non-moving party [e.g., plaintiff].  Where the plaintiff has presented a prima facia case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal.

Id. quoting Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989).

Importantly for appellate purposes, if a plaintiff is appealing a trial court’s granting of a motion for involuntary dismissal in a bench trial, it is reviewed under a de novo standard of appellate review.  Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4th DCA 2016).

 

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: Appeal of Jury Instructions with Wrong Burden of Proof

Posted by David Adelstein on January 24, 2018
Appeal, Burden of Proof / Comments Off on Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy.  This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury.  Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions.  This issue is reviewed under a de novo standard of appellate review.  See Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) citing Daniels v. State, 121 So.3d 409, 413 (Fla. 2013).  

The appellate court found the the trial court’s jury instructions were erroneous meaning the case was remanded back to the trial court for a new trial (with correct jury instructions regarding the burden of proof).

It is important to note that at the charging conference between counsel and the judge to discuss the jury instructions that will be read to the jury, the insured’s lawyer objected to the jury instructions that the judge was going to read to the jury.  This charging conference is important and, as the insured’s lawyer did in this case, it is crucial to object to any jury instruction that is incorrect and/or applies the wrong burden of proof. 

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

Posted by David Adelstein on December 17, 2017
Appeal / Comments Off on Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

An order denying a motion for attorney’s fees is generally reviewed under a de novo standard of appellate review.  In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney’s fees after the jury’s verdict.  

In this case, the insured moved for attorney’s fees pursuant to statute — Florida Statute s. 627.428.  The trial court denied the insured’s motion.  The insurer moved for attorney’s fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79.  The trial court denied the insurer’s motion too.  Both orders were appealed and reviewed by the appellate court under 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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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. Slowly, software for insurance agencies is being developed to make the customer interface, and policy information much more simple.  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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