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Party Recovering Judgment Entitled to Recoverable Costs

Posted by David Adelstein on October 12, 2019
Appeal, Standard of Review / Comments Off on Party Recovering Judgment Entitled to Recoverable Costs

Florida Statute s. 57.041(1) provides, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.” 

Thus, in most cases, when it comes to the recovery of recoverable costs, if you obtain a judgment against the other party, you are entitled to such costs under section 57.041.   There is no analysis as to which party truly prevailed in the case (which is oftentimes the analysis when dealing with attorney’s fees). See Sherman v. Sherman, 2019 WL 4658446, *5 (Fla. 4th DCA 2019) (“Under section 57.041(1), costs should be awarded to the ‘party recovering judgment.’”).  If you recover a judgment in your favor, you should be entitled to recoverable costs. 

When a trial court denies a party’s costs, there is a de novo standard of appellate review.  See Sherman, 2019 WL at *2.  Also, when a party is appealing the excessiveness of the costs awarded to the opposing party that recovers a judgment in its favor, there is a de novo standard of appellate review.  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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Amended Complaints and the “Relation Back” Doctrine

Posted by David Adelstein on October 05, 2019
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There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations.  Assume an original complaint was filed within the applicable statute of limitations.  Assume after the statute of limitations expired, an amended complaint is asserted with new claims.  Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations? 

The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1st DCA 2019) explains Florida’s liberal policy in answering this question:

Whether an amended complaint relates back to the filing of the original complaint for statute of limitations purposes is a question of law subject to de novo review. Caduceus Props., LLC v. Graney, 137 So. 3d 987, 991 (Fla. 2014). As the Florida Supreme Court explained in Caduceus:

Generally, Florida has a judicial policy of freely permitting amendments to the pleadings so that cases may be resolved on the merits, as long as the amendments do not prejudice or disadvantage the opposing party. . . .

Permitting relation back in this context is also consistent with Florida case law holding that [Florida Rule of Civil Procedure] 1.190(c) is to be liberally construed and applied.

Id. at 991-92.

In other words, as long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back . . . even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements.

Mitchell, supra.

The key inquiry to determine whether an amendment relates back or is barred by the statute of limitations is whether the party in question had notice of the litigation during the limitations period under the original pleadings and the amendment merely adjusts the status of an existing party, or the amendment actually introduces a new defendant.Id. quoting HSBC Bank USA, Nat’l Ass’n v. Karzen, 157 So.3d 1089, 1091-92 (Fla. 1st DCA 2015).

When it comes to amended complaints filed after the expiration of the statute of limitations, it is one thing if you are amending a complaint to assert a claim against a new party.  It is another if you are amending a complaint to add claims against existing defendants based on the same transactions and occurrences as the original complaint.

 

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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Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Posted by David Adelstein on September 28, 2019
Trial Perspectives / Comments Off on Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Does an uneven floor level, in of itself, support a premise liability claim?  No!  Uneven floor levels are not so uncommon. 

The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor.  A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit.   The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not exist as a matter of law.  The appellate court affirmed the summary judgment with an informative discussion as to premise liability claims, particularly in the context of uneven floors:

An owner/occupier of land owes an invitee two duties: (1) to use ordinary care in keeping the premises in a reasonably safe condition; and (2) to give timely warning of latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee.  However, there is no duty to warn an invitee of an obvious danger. This duty does not change from a residential to a commercial context. 

Uneven floor levels in public places, by themselves, do not constitute latent, hidden, and dangerous conditions.  Dim lighting does not transform an otherwise-obvious change in floor elevation into a latent danger.  According to her own deposition testimony, [the plaintiff] had earlier that visit successfully exited the skating rink onto the floor under the same lighting conditions that were present when she fell. Because the uneven floor levels, even in dim lighting, constituted an open and obvious danger, Fun Town [owner of skating rink] had no duty to warn B.C. of the difference in the levels between the rink and the rest of the building floor.

Lastly, while an obvious danger may discharge a landowner’s duty to warn, Fun Town still had a separate duty to maintain the premises in a reasonably safe condition. [The plaintiff] did not allege, argue, or present evidence in opposition to Fun Town’s summary judgment motion that the condition of the lip or step where B.C. fell was improperly maintained, in disrepair, or negligently designed. Accordingly, we conclude that the trial court properly entered summary judgment in favor of Fun Town.

Contardi, 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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Improperly Moving to Set Aside the Verdict

Posted by David Adelstein on September 22, 2019
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Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict:

(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

(b) Reservation of Decision on Motion. When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.

(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

The recent opinion in TLO South Farms, Inc. v. Heartland Farms, Inc., 44 Fla.L.Weekly D2385a (Fla. 2d DCA 2019), demonstrates what can happen if a defendant improperly moves to set aside a verdict based on a motion for directed verdict.  

In this case, a defendant moved for a directed verdict at the close of the plaintiff’s case-in-chief.  The court reserved ruling.  Due to the reservation, the defendant put on evidence to support its case.  The jury returned a verdict in favor of the plaintiff and the defendant filed a motion per Rule 1.480(b) to set aside the verdict and enter judgment in favor of the defendant per its motion for directed verdict. The defendant, also, per Rule 1.480(c), joined the motion with an alternative motion for a new trial. 

The trial court granted the motion to set aside the verdict and also granted the alternative motion for a new trial subject to the appeal (i.e., if the appellate court reverses the order to set aside the verdict, then the alternative motion for a new trial is granted).   The Second District reversed the trial court in entirety and remanded for the trial court to reinstate the jury’s verdict.  The appellate court’s basis for reversal, discussed below, is important to know.

Setting Aside the Verdict

 

The reason supporting the reversal as to the order to set aside the verdict was because the defendant’s motion to set aside the verdict per Rule 1.480(b) was based on an argument the defendant did NOT raise in its motion for directed verdict.  See TLO South Farms, supra (“[T]he trial court erred in granting the defendants’ motion to set aside the verdict and entering judgment in [defendant’s] favor on the FDUTPA [Florida’s Deceptive and Unfair Trade Practices Act] count based on their newly raised posttrial challenge to the evidence….”).  You cannot raise a new argument posttrial that was not raised in the motion for directed verdict.

Alternative Motion Granting New Trial

 

The trial court granted the alternative motion for new trial based on two issues: (i) the verdict on the Florida’s Deceptive and Unfair Trade Practice’s Act’s (“FDUTPA”) claim was inconsistent with the verdict on the negligence claim and (ii) the verdict on the FDUTPA claim was contrary to the manifest weight of the evidence.  

Regarding the first issue, the appellate court held that the defendant waived this argument because it never objected to inconsistent verdicts on the FDUTPA and negligence counts prior to the discharge of the jury.

Regarding the second issue, the appellate court held that a “trial court may order a new trial when the jury’s verdict is against the manifest weight of the evidence…[only when] the evidence is clear, obvious, and indisputable.”  TLO South Farms, supra (internal citations and quotations omitted).   The appellate court held the trial record did not support a ruling that the jury’s verdict was contrary to the manifest weight of the evidence.

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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Considerations when Enforcing or Challenging Restrictive Covenant

Posted by David Adelstein on September 08, 2019
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A restrictive covenant that runs with the land places restrictions on the use of real property.  As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.”   Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019).  These are important things to remember when enforcing or challenging a restrictive covenant.

For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant of land.  The restrictive covenant provided that the property “will not be used as a parking lot, storage yard facility or for a garage or tow truck company.

The plaintiff wanted to build a parking garage on the property.  The defendant contended that a parking garage was restricted by the restrictive covenant.  The plaintiff filed a lawsuit for a declaratory judgment claiming ambiguities with the restrictive covenant, specifically with the word “garage.”  The parties did not dispute that the term “parking lot” referred to a surface parking lot as opposed to a parking garage.  The plaintiff was looking for a declaration from the court that the restrictive covenant did not restrict its use to build a parking garage on the property.  The appellate court, affirming the trial court, agreed.

Given the intent and meaning of ALL of the words in the restrictive covenant, the plaintiff could not use the property to conduct the business of activities of a garage company or tow truck company.  Beach Towing Services, supra (“The question thus becomes how to construe the words ‘for a garage or tow truck company,’ since the parties agree that the only dispute in this case is whether the word ‘garage’ as used in the Covenant prohibits Plaintiff from construction of a parking garage on the Property. Applying the series-qualifier, the Court must read the term ‘company’ as modifying both the term ‘garage,’ as well as the term, ‘tow truck,’ and the Covenant must therefore be read to mean that the Property cannot be used for either a ‘garage company’ or a ‘tow truck company.’  Indeed, there is no determiner before the words ‘tow truck’ that would indicate that the term ‘company’ modifies only ‘tow truck’ and not ‘garage’ (i.e., the Covenant does not say ‘for use as a garage or a tow truck company’).  Moreover, when reading the Covenant’s prohibition on a “garage company” in context, as the Court must do, ‘garage company’ is clearly associated with ‘tow truck company.’”) (internal citations omitted).  But, here, the plaintiff was not looking to engage in the business activities of a garage company or tow truck company.  Thus, nothing restricted the use of the property as a parking garage.

 

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 Provision Involving Non-Florida Entities and a Non-Florida Transaction

Posted by David Adelstein on September 02, 2019
Appeal, Trial Perspectives / Comments Off on Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

It is permissible for non-Florida persons/entities to agree to arbitration in Florida.  Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida.

Section 682.18(1) of Florida’s Arbitration Code provides in material part:

The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause in the manner provided in this law.

This was at-issue in the opinion, Ancla International, S.A. v. Tribeca Asset Management, Inc., 44 Fla. L. Weekly D2189a (Fla. 3d DCA 2019), involving two non-Florida entities dealing with an out-of-country transaction.  Here, a Columbian company (owned by a Florida resident) entered into an agreement with a Panamanian company.  The underlying transaction was to occur in Columbia.  

The agreement contained the following arbitration provision:

SEVENTH. APPLICABLE LAW. This agreement will be governed by the laws of the State of Florida of the United States of America (USA), a jurisdiction accepted by the parties irrespective of the fact that the principal activity of the beer project will be conducted in Colombia. The parties agree that, in the event that differences arise between them as a result of or in relation to the present Agreement, they will attempt to resolve their differences via direct negotiation. For this purpose, the parties will have a period of thirty (30) business days, counting from the date on which either of the parties presents a request in this regard. This term may be extended by mutual agreement for additional thirty-day periods. If a solution is not reached within these stipulated periods, the differences will be submitted to an Arbitration Board, whose ruling with carry the force of law.

Although this provision is perhaps not a model of clarity relative to arbitration, the issue was whether the trial court had personal jurisdiction over the defendant to compel the parties to arbitration.   The parties agreed that personal jurisdiction stemmed from s. 682.18(1) of Florida’s Arbitration Act.  The Third District Court of Appeal held that the trial court had personal jurisdiction over the defendant “[b]ecause the parties accepted the power of Florida courts to enforce the Agreement.”   Ancla International, supra.   Hence, a Florida court could enforce the parties’ agreement to compel the parties to arbitration even though they are non-Florida entities dealing with a non-Florida transaction.

 

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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Apex Doctrine to Prevent Deposition of High Ranking Official in Corporate Context

Posted by David Adelstein on September 01, 2019
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There is a doctrine referred to as the Apex doctrine to prevent the deposition of a high ranking official.  The Apex doctrine stands for the proposition that “[an] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.”  Suzuki Motor Corp. v. Winckler, 44 Fla.L.Weekly D2219a (Fla. 1stDCA 2019) (citation omitted).   Stated another way: “[A] party seeking to depose a . . . high-ranking governmental official must demonstrate the personal involvement of the official in a material way or the existence of extraordinary circumstances.” Id. (citations omitted). 

The Apex doctrine has been applied in Florida in the government context, and not in the private corporate context to prevent the deposition of a high ranking corporate officer.   

This issue was subject of a petition for a writ of certiorari in Suzuki Motor Corp.where a plaintiff wanted to depose Mr. Suzuki—the former CEO and current Chairman of the Board of Suzuki Motor Corp.–in Japan based on his involvement in a product liability issue concerning the brakes of a motorcycle due to a letter or memo that had his signature.  The trial court allowed the deposition, notwithstanding objection, prompting the defendant to file a petition for a writ of certiorari.

The First District Court of Appeal denied the petition for writ of certiorari finding that the trial court did not depart from the essential requirements of law “because the apex doctrine [in Florida] has not been adopted in the corporate context.”  Suzuki Motor Corp., supra.  Further, the Court found that the “trial court’s decision that the Chairman’s deposition was reasonably calculated to lead to the discovery of admissible evidence provides no basis for us to quash the order below.”  Id

There was a good dissenting opinion in this case that demonstrated that Mr. Suzuki’s deposition may really have been taken for leverage to drive the case to a settlement.  There were other important depositions that were not taken that could have been taken.  There was a three day corporate representative deposition of Suzuki Motor Corp.  Mr. Suzuki provided a sworn declaration that he had no knowledge and did not recall the document.  And, this concerned one document in thousands of documents that were produced.  The dissenting opinion expressed:

To allow meritless discovery depositions of corporate leaders, who have provided sworn statements that they have no discoverable knowledge of the issue at hand, or that such information can be obtained from persons with less corporate responsibilities, is to allow illegitimate disruption in the private sector that is forbidden in the public sector. While the separation of powers certainly compels the application of the apex doctrine in the public sphere, the rationale of the doctrine is equally applicable in the private sphere: the courts cannot countenance unjustified discovery of lead corporate executives for no legitimate reason.

Regardless of how you feel about this deposition, the fact remains that there is a liberal standard with respect to discovery — discovery needs to be reasonably calculated to lead to the discovery of admissible evidence.  In this case, such standard was met.  Will this opinion open the door for parties to make arguments to depose high ranking corporate officials under the argument that the apex doctrine does not apply in the corporate context?  Likely!

 

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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Comply with the Dispute Resolution Provision in Your Contract

Posted by David Adelstein on August 24, 2019
Trial Perspectives / Comments Off on Comply with the Dispute Resolution Provision in Your Contract

Many contracts have dispute resolution provisions.  If not, they should.  It is important that dispute resolution provisions are reviewed and complied with PRIOR TO the initiation of a dispute.  Failure to comply could result in you being “S*** Out of Luck” with your claim, as exemplified in the recent opinion in Guan v. Ellingsworth Residential Community Association, Inc., 44 Fla. L. Weekly D2155a (Fla. 5thDCA 2019). 

This case involved a dispute between a homeowner and her homeowner’s association.  There was a Declaration of Covenants recorded in the public records.  The Declaration, no different than any Declaration, created a contract between a homeowner and homeowner’s association.  The Declaration also contained a dispute resolution provision that required: (a) the parties to first negotiate, in person, a resolution to their dispute; (b) submit the dispute to mediation within 30 days if the negotiation reaches an impasse; and (c) submit the dispute to binding arbitration with the American Arbitration Association within 30 days if the mediation reaches an impasse or else the dispute is waived.

The homeowner’s association wanted to enforce a restrictive covenant against the homeowner.  Negotiation and mediation failed.  The association then initiated a lawsuit, not an arbitration, against the homeowner.   The association failed to comply with its own dispute resolution provision by filing the lawsuit instead of submitting the dispute to arbitration within 30 days. 

The appellate court held that the association waived its claims against the homeowner “when it failed to submit the dispute to arbitration within thirty days after termination of mediation.”  Guan, supra.   Oops!

 

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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Condominium Unit Owner Suing Condominium Unit Owner under Florida’s Condominium Act

Posted by David Adelstein on August 21, 2019
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If you are a condominium unit owner, you might find this to be of interest.   If you are not a condominium unit owner, you likely will not. 

In a recent case, an issue was whether a particular provision of the Florida Condominium Act provided a private cause of action between unit owners.  Stated differently, the issue was whether one owner could sue another owner for a statutory violation.  The appellate court held it did not: “Nothing in the language of this [particular] statute or in the statutory structure indicates that a private cause of action between unit owners was contemplated by the legislature in enacting this statute.”    Universal Property & Casualty Ins. Co. v. Loftus, 2019 WL 3676433, *3 (Fla. 4thDCA 2019).

The point is that if a unit owner is being sued by another unit owner for a violation of specific provision in Florida’s Condominium Act, they may be doing so purely to create a private statutory cause of action that does not otherwise exist in order to support statutory attorney’s fees.  However, this does not make it right.  Sure, there may be a basis in ordinary negligence, but there is a difference between a unit owner suing another unit owner in negligence versus a statutory violation in a private cause of action under the statute that may give rise to attorney’s fees. Potentially, this is a big difference.

If you are a condominium unit owner sued by another unit owner in a private statutory cause of action under Florida’s Condominium Act, make sure you consult with counsel.  Do not concede that a unit owner can sue you in a statutory private cause of action if no such right exists.

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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Standard for Petition for Writ of Certiorari

Posted by David Adelstein on August 18, 2019
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To invoke an appellate court’s certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.

State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). 

This is the standard for a petition for writ of certiorari.

An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s order can be found in State Farm Florida Ins. Co. v. Sanders, which dealt with a property insurance coverage dispute. 

In this case, after the policyholder filed a lawsuit against his insurer, the insurer filed a motion to compel the parties to the appraisal process mandated by the property insurance policy.  An issue arose as to the parties’ selection of “disinterested” appraisers as required by the policy.  The policyholder wanted to use his public adjuster, which the insurer contested because the public adjuster is hardly disinterested – he is an agent for the policyholder. Notwithstanding, the trial court entered an order allowing the policyholder’s public adjuster to serve as the disinterested appraiser prompting the insurer to file a petition for writ of certiorari.

The appellate court granted the petition because allowing the public adjuster to serve as a disinterested appraiser is a harm that could NOT be corrected in a post-judgment appeal. A major reason for this is the nature of the property insurance appraisal process is a binding process, as more particularly outlined in the property insurance policy. 

If you are considering filing a petition for writ of certiorari, know the standard you need to satisfy to get the appellate court to entertain the petition and quash the trial court’s order.

 

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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