I believe in the process of mediation for all disputes, particularly complicated factual business disputes.   I use the word “process” because that is what mediation really is – a series of actions to achieve a particular end. Mediation can be a tiring process. A frustrating process. An informative process. A continuing process. A result oriented process. In certain instances, a futile process. Oftentimes, mediation is a mixture of all of the above. But, mediation allows parties to make a business decision based on their perception of risk — the risk of losing or the risk of a damages award (greater or lesser than expectations).   This business decision is important because a party, typically, never wants to bank on the resources and uncertainty that goes along with trial (and, then the appeal) without truly knowing where that case could have been resolved at during the course of a dispute.

The process of mediation should not be taken for granted. Preparation is important. I believe in learning the facts and developing the theme of the case and persuasively presenting this theme at mediation.   This may include demonstrative aids. A powerpoint. Handouts of key documents. A well-versed narrative. The participation of fact witnesses. The participation of experts. You name it — whatever best tells the story of the dispute.

I also want to hear the other side’s presentation of their theme because they may make good points that factor into a party’s business decision. Look, in my experience, there is no such thing as a slam dunk dispute. If it was truly a slam dunk dispute, parties could probably resolve the dispute without the assistance of counsel. As such, there are probably issues of contention that are worth considering, whether from a factual or legal perspective.

Once the presentations and themes are out there, there is strategy that goes into trying to get the case resolved. This strategy comes from the mediator and, of course, the parties. I prefer an aggressive mediator. What I mean by this is I prefer a mediator that is not afraid to be direct or assertive with a party. I know if a mediator is being direct with my client he/she is doing the same thing with the other party. I need a mediator that is going to be more than simply a message carrier. He/she needs to be able to get the parties to compromise from their positions and oftentimes the only way to do this is to be strategically direct and assertive. A good mediator finds a way to get cases resolved or puts the parties in the best position to make a business decision, even if that decision results in an impasse at mediation.  

The clip above from the movie Wedding Crashers is a great opening scene in a movie dealing with the mediation of a family law dispute.  Sure, this is an unorthodox mediation, but it was a hilarious strategy that allowed the parties to make a business decision.  

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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A money judgment is entered against you, but you are going to appeal. Can the collection of the money judgment be stayed pending appellate review? Yes.

Florida Rule of Appellate Procedure 9.310 provides in material portion:

(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.

(b) Exceptions.

(1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

A recent opinion out of the First District Court of Appeals shed some light on these provisions (even though there is conflicting opinions in other appellate jurisdictions). See Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, LC, 42 Fla. L. Weekly D442c (Fla. 1^st DCA 2017).

The Court explained that the money judgment exception above in Rule 9.310(b)(1) “allows a party in an appeal of a money judgment to obtain a stay from the lower tribunal without following the procedure outlined in rule 9.310(a), which requires the filing of a motion to stay with the lower tribunal.” Silver Beach Towers, supra.   In other words, if a party wants an automatic stay, the party can follow the procedure in the money judgment exception and the trial court has no authority to modify the bond amount. Indeed, the party does not need to file a motion.

However, if a party does not want to follow this automatic stay procedure, the party can still file a motion with the trial court under 9.310(a) where the trial court can condition the stay on the posting of a bond amount in the court’s discretion. Thus, 9.310(a) gives the party an alternative option to utilize by filing a motion with the trial court and letting the trial court determine the conditions warranting an appellate stay.  For parties appealing a monetary judgment, this case gives them authority to argue under to stay the money judgment for a bond amount that is perhaps less than the automatic stay bond amount found in Rule 9.310(b)(1).

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 is the traditional model of lawyering?  Simply put, it is hourly billing.  There is nothing wrong with this model; however, there are other alternative or innovative attorney’s fee models out there that factor in performance, results, and efficiency.  These are models that incentivize performance which is always in a client’s best interest.  Stepping out of a comfort zone is tough considering we are all creatures of habit.  But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint.  If you are interested in learning more about attorney’s fee models that may benefit your interests, check out the below chart and feel free to contact me.

Download (PDF, 273KB)

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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Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1^st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5^th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

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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Many contracts contain a forum selection provision or a venue provision.   Contracts may even contain language that parties agree not to challenge or otherwise waive the venue of any filed lawsuit.

An example of such a provision was included in an operating agreement:

This Agreement is to be construed and governed by the laws of the State of Florida (without giving effect to principles of conflicts of laws). Each party hereto irrevocably agrees that any legal action or proceeding arising out of or in connection with this Agreement may be brought in any state or federal court located in Florida (or in any court in which appeal from such courts may be taken), and each party agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and hereby agrees not to challenge such jurisdiction or venue by reason of any offsets or counterclaims in any such action, suit or proceeding. 

Of relevance, this venue provision allowed the parties to bring suit in any state or federal court in Florida and stated that the parties agree not to assert that the venue of any suit is improper.

A dispute arose between the members of the operating agreement. One of the members filed suit against the other member in Martin County, Florida. The other member moved to transfer venue to Palm Beach County, Florida arguing that nothing tied the dispute to Martin County. The trial court agreed and transferred venue to Palm Beach County.   The appellate court, however, reversed. Why? Because the parties agreed that a lawsuit could be filed in any Florida court and, importantly, that they each waive the right to challenge venue.   The parties’ agreement to waive any challenge to venue was enforceable. See Powers, Jr. v. Melick, 42 Fla. L. Weekly D288b (Fla. 4^th DCA 2017).

Consider venue provisions when entering into and negotiating contracts – any type of 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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