30 August

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Anti-Waiver Contractual Provisions Serve a Purpose

An anti-waiver provision in a contract reads something like, “Except as otherwise expressly provided herein, no waiver of any rights or obligations hereunder shall be deemed to have occurred unless in writing signed by the party against whom such waiver is asserted and no waiver shall be deemed a waiver of any other or subsequent right or obligation.” See Overland Fuels, infra. These provisions serve a legitimate purpose. A recent case demonstrates. In Overseas Fuels, LLC v. Key Largo Petro, LLC, 2026 WL 22507039 (Fla. 4th DCA 2026), the losing party appealed a summary judgment. A focus of the appeal was...

23 August

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A Nominal Offer can Serve as a “Good Faith” Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives, Uncategorized

A $100 “good faith” proposal for settlement? Can a nominal offer serve as “good faith”? Yes. In a recent property insurance coverage dispute, Citizens Property Insurance Corp. v. Sauerez, 51 Fla.L.Weekly D1687a (Fla. 3d DCA 2026), the insurer served a $100 proposal for settlement. The plaintiff did not accept. The insurer moved for summary judgment which the trial court granted. The insurer moved for its attorney’s fees based on the unaccepted proposal for settlement. The plaintiff claimed the $100 proposal was not made in good faith, which the trial court also agreed. This was reversed on appeal. “We find that the...

16 August

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Insurer Not Liable for Attorney’s Fees Entered against Insured Based on Policy Language

Posted by David Adelstein

in Trial Perspectives

In a recent case, Hurst v. Bell, 51 Fla. L. Weekly D1542a (Fla. 2d DCA 2026), a plaintiff recovered attorney’s fees against a defendant in an automobile accident case. The defendant was defended by its automobile liability insurer. The plaintiff recovered attorney’s fees based on the proposal for settlement statute. The plaintiff served a proposal for settlement, the defendant (insurer) did not accept the proposal, and the plaintiff recovered a judgment that triggered rights to fees under the proposal for settlement statute. The plaintiff tried to join the defendant’s automobile liability insurer to the attorney’s fees judgment under Florida Statute...

16 August

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Florida’s Lodestar Method Not Apply in Dispute between Attorney and Client

Posted by David Adelstein

in Trial Perspectives

Florida’s lodestar method (which is what it is called) is the formula used to determine “reasonable attorney’s fees” incurred in a case. It is simply taking the reasonable hourly rate by the reasonable number of hours based on FACTORS promulgated in the Florida Supreme Court case, Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The question is whether the lodestar method factors apply in a dispute between a client and it counsel where attorney’s fees are the damages. The answer is NO. "[T]he Florida Supreme Court has cautioned that the lodestar method is ‘ill-suited for...

16 August

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Need to have Standing to Bring Lawsuit

Posted by David Adelstein

in Trial Perspectives

You need to have standing to bring a lawsuit. In a recent case, Northwest Baptist Church of Cocoa, Inc. v. Trutee Corp. of the King Street Baptist Church, Inc., 51 Fla. L. Weekly D1592c (Fla. 5th DCA 2026), a plaintiff was found not to have standing to bring the lawsuit. The plaintiff filed the lawsuit claiming it was owner of the property based on a reversionary interest in a deed. The problem was the property was subsequently conveyed. The court found that the subsequent conveyance killed the plaintiff’s standing to bring the lawsuit. “Thus, with this transfer of the property to...

23 May

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Blueprint for Introducing Business Record to Satisfy Business Records Hearsay Exception

Posted by David Adelstein

in Evidence

A recent opinion does a good job explaining how to establish a business record under the business records hearsay exception. In this case, there was an appeal dealing with an evidentiary hearing as to attorney’s fees. The appellant challenged the manner in which the appellee introduced attorney’s fees records claiming the appellee didn’t property satisfy the business records hearsay exception. Unfortunately for the appellant, the appellate court disagreed, finding that the appellee satisfied the business records hearsay exception with an affidavit. Take a look at this noteworthy discussion. If you want to introduce a business records, here is the blueprint: Hearsay refers...

16 May

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Difference between Affirmative Defenses and General Denials

Posted by David Adelstein

in Trial Perspectives

A recent case explains how an affirmative defense works. In this case, a drywall subcontractor sued a general contractor for unpaid work. The subcontractor filed a motion for summary judgment, the contractor filed an opposition in response, and the summary judgment was denied. The case proceeded to a bench trial and the court found that the subcontractor failed to prove its claim and awarded judgment in favor of the contractor. The subcontractor appealed which included an appeal of the denial of its summary judgment. An argument the subcontractor raised is that the court improperly allowed the contractor to present evidence...

11 April

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Exceptions to Rule that Subsequent Remedial Measures are Inadmissible

Posted by David Adelstein

in Evidence

In a recent case dealing with a design defect in a motorcycle, where a product safety recall was issued, the appellate court gave a good discussion on what's known as a "subsequent remedial measure." Consider this discussion on the inadmissibility of subsequent remedial measures as well as EXCEPTIONS to this rule of inadmissibility: Even if relevant, Suzuki [motorcycle manufacturer] asserts that the recall is a subsequent remedial measure inadmissible under section 90.407, Florida Statutes. Section 90.407 precludes evidence of remedial measures from being used to establish negligence or a product defect. See § 90.407, Fla. Stat. (“Evidence of measures taken...

03 April

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Party that Recovers Judgment Entitled to Costs

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 57.041 provides in material part, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.” Recently, Florida’s Sixth District Court of Appeals determined whether the recovery of costs should be analyzed under the same prevailing party analysis as attorney’s fees. Most Florida districts find that it does not although one district (Florida’s Fifth District) finds that it should. The Sixth District aligned itself with the majority of Florida districts holding that the party that recovers a judgment is entitled to their costs. H&S Investment Group of...

03 April

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Proving a Prescriptive Easement

Posted by David Adelstein

in Trial Perspectives

Does an easement exist? A recent case discusses. An upland property owner claimed it had a prescriptive easement over downstream property owner to use a drainage pipe to drain surface water. “[A]n easement is a right to use another's land ‘for some particular purpose or purposes.' ” The following elements must be proven to establish the existence of a prescriptive easement: (1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; (2) that during the whole prescribed period the use has been either with the actual knowledge of the owner or...