16 May

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Difference between Affirmative Defenses and General Denials

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...

22 March

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Worthy Discussion on Florida’s Summary Judgment Standard Modeled after Federal Standard

Posted by David Adelstein

in Standard of Review, Trial Perspectives

The Fourth District Court of Appeals in Kincaid v. Wal-Mart, Inc., 51 Fla.L.Weekly D495a (Fla. 4th DCA 2026) contains an important discussion on Florida’s summary judgment standard that is worth sharing after Florida adopted the federal summary judgment standard: We review de novo an order granting summary judgment. Florida Rule of Civil Procedure 1.510, as amended May 1, 2021, revised Florida's summary judgment rule to align with the federal summary judgment standard. Our Supreme Court explained that Florida would now follow the Celotex trilogy from the United States Supreme Court. This change was meant to “recognize the fundamental similarity between the summary judgment standard and...

22 March

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Prior Proceeding Forming Basis of Malicious Prosecution Claim Must Entirely Be Terminated in Plaintiff’s Favor

Posted by David Adelstein

in Trial Perspectives

There is a cause of action for malicious prosecution. This cause of action is discussed here. Of importance, the First District Court of Appeals in Gacek v. Avalon Dunes Condominium Owners Association, Inc., 51 Fla.L.Weekly D477b (Fla. 1st DCA 2026), affirmed that in order to pursue a malicious prosecution claim, the claiming party must prove that the prior proceeding forming the basis of the malicious prosecution claim ENTIRELY terminated in their favor: According to the Florida Supreme Court, one of the required elements of a claim for malicious prosecution is that the underlying “proceeding” must have terminated “in favor of the present...

21 February

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Intervention Standard for Intervening into Lawsuit

Posted by David Adelstein

in Standard of Review, Trial Perspectives

If you’ve ever considered intervening into a lawsuit, Mendoza v. Kendall Park Plaza, Ltd., 51 Fla.L.Weekly D309a (Fla. 3d DCA 2026), does a good job explaining the standard ad the process. Florida Rule of Civil Procedure 1.230 governs intervention. It provides, in pertinent part, that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention . . . .” Fla. R. Civ. P. 1.230. But the rule comes with the caveat that “the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered...

14 February

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Purpose of Punitive Damages

Posted by David Adelstein

in Uncategorized

If you wanted to know the purpose behind punitive damages, this below snippet does a quality job explaining the purpose. When reading this snippet, pay special attention to the last paragraph in red emphasizing that the trial court’s job is NOT to weigh evidence or evaluate witness credibility in the punitive damages proffer. The punitive damages proffer just has to support a reasonable basis without the evaluation of credibility or evidence. When you consider that, consider what your thoughts are on this because without this evaluation, it makes creating that reasonable basis to support a punitive damages proffer quite a...

08 February

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Mutuality of Obligation under Florida Statute 57.105(7)

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 57.105(7) provides: “If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Fla. Stat. s. 57.105(7). Parties argue this subsection (7) to create a reciprocal basis for attorney’s fees under the argument “mutuality of obligation.” A recent case dealt with attorney’s fees being awarded under s. 57.105(7) under a law firm retainer agreement. Fees...

30 January

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Vicarious Liability Claims and the Exoneration Rule

Posted by David Adelstein

in Trial Perspectives

The legal principle of vicarious liability comes into play when a third-party pursues an employer for an employee’s negligence. When pursuing vicarious liability against an employer, remember that the exoneration rule comes into play when the employer is not a joint-tortfeasor with the employee. The exoneration rule is explained as follows: An employer may be held vicariously liable for the negligent act of its employee committed during the course and scope of employment, even when the employer itself is without fault. Because in this context the employer is not a joint tort-feasor with the employee, the employer's liability depends on the...