In an earlier article, I talked about the election of remedies doctrine. The purpose of this election of remedies doctrine is to preclude the plaintiff from obtaining a windfall by double-recovering its damages under alternative (or mutually exclusive) theories of liability.  If a plaintiff could double recover on mutually exclusive theories of liability based on inconsistent facts, then plaintiffs would recover double than what they are rightfully entitled to.  That isn’t fair!

Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. A party may not obtain judgment for two remedies that are factually inconsistent.

Remedies are factually consistent when they “logically can coexist on the same facts.”  Remedies are factually inconsistent when one remedy “implies negation of the underlying facts necessary for the other.” 

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When remedies are factually consistent, the “mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies.”  Where remedies are factually consistent, “only a full satisfaction of the right asserted will estop the plaintiff from pursuing her other consistent remedies.”

The Allegro at Boynton Beach, L.L.C. v. Pearson, 42 Fla. L. Weekly D2277d (Fla. 4^th DCA 2017) (internal citations omitted).

In The Allegro at Boynton Beach, the plaintiff had a right of first refusal over real property owned by the property owner. The property owner refused to honor the right of first refusal and entered into a purchase and sale contract to sell the property to another buyer. The plaintiff sued the property owner for breach of contract for monetary damages and for specific performance (to force the property owner to sell the property to it based on its right of first refusal and prevent the sale to the buyer). Both claims were predicated on the same facts.

The plaintiff moved for summary judgment where its motion claimed that upon election of its remedy, it seeks damages or specific performance. The trial court granted the motion finding that the property owners failed to comply with the right of first refusal and the right of first refusal remained in effect.   The property owner, trying to be cunning, decided to cancel its purchase and sale contract with the buyer and enter a new contract with the buyer for a higher purchase price, giving the agreement to the plaintiff to exercise its right of first refusal within 10 days.

The plaintiff quickly moved for a final judgment of specific performance based on its election of remedy. The trial court denied this motion finding that the plaintiff already made an election of remedies to recover monetary damages and that the property owner’s original purchase and sale contract with the buyer was not longer effective due to the property owner cancelling the contract.

The appellate court reversed both of the trial court’s findings.

First, the appellate court held that the plaintiff’s remedies seeking breach of contract and specific performance were factually consistent since they were based on the same underlying factual transaction. In other words, they were not mutually exclusive remedies; rather, they were factually consistent. Only the full satisfaction of the plaintiff’s monetary damages would prevent the plaintiff from pursuing specific performance.

Second, the appellate court quickly rejected the property owner’s cunning effort to cancel the original purchase and sale contract only to enter into a new agreement at a higher price. The appellate court stated when a property owner enters into a purchase contract, “a pre-existing right of refusal is converted into an irrevocable option to purchase.” The Allegro at Boynton Beach, supra (internal quotations and citations omitted). The property owner and buyer could not negate this irrevocable option by simply terminating the purchase and sale contract only to enter a new agreement.

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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In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo!  This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney’s fees. (For example, if the Court determines that an attorney’s reasonable attorney’s fees are $35,000, the Court can order a multiplier of 2, meaning the attorney’s fees would be $70,000). As they say, with risk comes reward!

In what I think to be noteworthy language regarding the contingency fee multiplier, the Court pronounced:

[T]he contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages “nonmeritorious claims” and would, instead, posit that solely because a case is “difficult” or “complicated” does not mean that the case is nonmeritorious. Indeed, without the option of a contingency fee multiplier, those with difficult and complicated cases will likely be unable or find it difficult to obtain counsel willing to represent them.

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The point being, the lodestar amount, which awards an attorney for the work performed on the case, is properly analyzed through the hindsight of the actual outcome of the case, whereas the contingency fee multiplier, which is intended to incentivize the attorney to take a potentially difficult or complex case, is properly analyzed through the same lens as the attorney when making the decision to take the case. We disagree that the possibility of receiving a contingency fee multiplier leads to a “windfall.” … While the attorney for the insurer charges and receives an hourly rate regardless of whether the defense is successful, the insured’s attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier.

Joyce v. Federated National Ins. Co., 42 Fla.L.Weekly S852a (Fla. 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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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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Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct.  Punitive damages can be a game changer.

The objective behind punitive damages is to punish the wrongdoer-defendant and deter the wrongful conduct, rather than to compensate the plaintiff. Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 640 (Fla. 5^th DCA 2005). “Because the amount of an award [of punitive damages] may be a pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer.” Id. at 641. For this reason, once the court grants a motion to allow punitive damages, this allows the plaintiff to seek financial worth discovery on the wrongdoer-defendant. Id.

If you are interested in preserving your rights to assert punitive damages, you must comply with both Florida Statute s. 768.72 [Pleading in civil actions; claim for punitive damages] and Florida Rule of Civil Procedure 1.190(f) [Claims for Punitive Damages].

Florida Statute s. 768.72 provides in relevant part:

(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.

Florida Rule of Civil Procedure 1.190(f) provides:

A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

Both Florida Statute s. 768.72 and Florida Rule of Civil Procedure 1.190(f) MUST be considered in detail when moving to amend to add punitive damages. When a court grants a plaintiff’s motion to amend to add punitive damages, this gives the defendant the right to file an appeal for certiorari relief to argue that the plaintiff failed to comply with the procedural requirements of Section 768.72 and Rule 1.190(f).   See Fetlar, LLC v. Suarez, 2017 WL 3879968 (Fla. 3d DCA 2017) (reversing motion to amend authorizing punitive damages because the plaintiff failed to comply with the procedural requirements of Section 768.72 and Rule 1.190).  This appellate right makes it all the more important to ensure that the procedural requirements are being strictly complied with when moving to amend to add punitive damages. 

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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