04 July

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Forbearance Agreement Must be in Writing and Signed

In a recent case, American First Federal Inc., v. Trugon Properties, Inc., 50 Fla.L.Weekly D1419f (Fla. 4th DCA 2025), a borrower, through a bench trial, prevailed on an argument that its lender forbeared from foreclosing on the mortgage based on an oral loan modification / forbearance agreement. The lender appealed arguing that any agreement between the borrower and lender where the lender is lending or forbearing the repayment of money must be in writing and signed by the lender and borrower under the Banking Statute of Frauds. See Fla. Stat. s. 687.0304. The lender prevailed on appeal: "Accordingly, as the...

21 June

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Prejudgment Interest applies to Awards for Unjust Enrichment or Quantum Meruit

Posted by David Adelstein

in Trial Perspectives

In a recent case, a jury rendered a verdict in favor of a plaintiff for unjust enrichment. The trial court thereafter awarded prejudgment interest from the date of the jury's verdict. An issue on appeal was whether the prejudgment interest should have been awarded from the date of the plaintiff’s loss instead of the (later) date of the jury’s verdict. The appellate court held that the prejudgment interest should have been from the date of the loss as the record demonstrated when the date of loss occurred. In making this holding, the appellate court explained: A plaintiff is entitled to prejudgment...

19 June

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Insured Can’t Try Bad Faith Claims with Insurance Coverage (Breach of Policy) Case

Posted by David Adelstein

in Trial Perspectives

In Florida, an insured cannot try its breach of insurance contract case (the coverage dispute) with its bad faith claim or dispute. See Universal Property & Casualty Co. v. Naze, 50 Fla.L.Weekly D1208a (Fla. 4th DCA 2025). It’s putting the cart before the horse. In Naze, bad faith claims against the insurer were not claimed, but at trial, the insured used opening argument, closing argument, and testimony to go into the insurer’s “bad faith” claims handling process. The insurer objected and moved for a mistrial, which was denied. The appellate court reversed and remanded the case for a new trial finding the claims...

15 June

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Tort of Intentional Infliction of Emotional Distress is a HARD Claim to Prove

Posted by David Adelstein

in Trial Perspectives

The tort of intentional infliction of emotional distress is a HARD claim to prove. It sounds like a sexy claim to assert against a defendant, but it’s a hard claim to prove. Here is why: Intentional infliction of emotional distress requires the following elements: (1) intentional or reckless conduct; (2) outrageousness beyond all bounds of decency; (3) causation; and (4) severe distress. The second prong is the gravamen of the tort. The Restatement (Second) of Torts § 46 cmt. d (Oct. 2024 ed.) describes the standard as follows: The cases thus far decided have found liability only where the defendant's conduct has...

14 June

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Florida’s “Impact Rule” and Recovering Non-Economic Mental or Emotional Damages

Posted by David Adelstein

in Trial Perspectives

Florida follows the impact rule when it comes to a plaintiff pursuing non-economic emotional distress type of damages. The impact rule “bars recovery when the plaintiff claims mental or emotional damages but has not sustained any physical impact or contact.” Murphy v. Heritage II Holdings, LLC, 50 Fla.L.Weekly D1300c (Fla. 5th DCA2025) (internal citations omitted). “A plaintiff who suffers a physical impact may recover emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.” Murphy, supra, (internal citations omitted). Notably, the physical impact can be slight – “the essence of impact…is that the outside...

13 June

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Fees for Fees – Be Specific in Your Contract

Posted by David Adelstein

in Trial Perspectives

Attorney's fees are a creature of contract or statute. Regarding your contract, if you want attorney's fees for litigating the amount associated with an award granting you entitlement to attorney's fees (a concept known as "fees for fees"), you need to make sure contract is broad enought to cover the award of these fees. Otherwise, these attorney's fees will not be recovered. In a recent appeal, Isbell v. Bohrer, 50 Fla.L.Weekly D1267a (Fla. 4th DCA 2025), an attorney's fees provision read, "Should any litigation or legal proceeding be required by either party for the enforcement of this Agreement, the prevailing party...

14 September

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Proving a Novation

Posted by David Adelstein

in Trial Perspectives

“A novation is an agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation.” Schroer v. Cumdale Partners, LLC, 2024 WL 3882430 (Fla. 4th DCA 2024) (internal citation omitted). “Four elements form a novation: (1) the existence of a previously valid contract; (2) the agreement of the parties to cancel and extinguish the first contract; (3) the agreement of the parties that the second contract takes the place of the first; and (4) the validity of the new contract.” Id. (internal citation omitted). When arguing novation, remember these four...

02 September

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You cannot Profit from Your Own Illegality

Posted by David Adelstein

in Trial Perspectives

Remember this adage: You cannot profit from your own illegality. In a recent case, parties entered into a promissory note for the repayment of gambling debts. Naturally, the promissory note was not repaid and a lawsuit on the note was initiated. However, the promissory note was illegal as a matter of law and parties cannot ratify an otherwise illegal transaction: [Florida Statute] Section 849.26 provides that “[a]ll promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities . . . for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being...

21 July

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Fraudulent Inducement Renders Contract Voidable, but Induced Party can Still Ratify Contract

Posted by David Adelstein

in Trial Perspectives

Here’s an interesting tidbit when it comes to fraudulent inducement of a contract: the inducement renders a contract voidable (not void). See Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors, LLC, 49 Fla. L. Weekly D1512a (Fla. 4th DCA 2024) (citation omitted). This means if a party claims they were fraudulently induced into entering a contract, and elects to sue for damages on the contract, even a contract procured by fraud, the election to sue for damages on the contract “ratifies the contract and ensures that a party who accepts the proceeds and benefits of a contract remains subject...

22 June

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Nondelegable Duty Doctrine

Posted by David Adelstein

in Trial Perspectives

The recent Fourth District Court of Appeal decision, Publix Super Markets, Inc. v. Safonte, 49 Fla.L.Weekly D1337a (Fla. 4thDCA 2024), discussed what is known as the nondelegable duty doctrine: A business establishment owes a non-delegable duty to an invitee “to maintain the premises in a safe condition.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 431 (Fla. 4th DCA 2014). “[A] breach of [this] duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.” Id. Thus, a business establishment...