09 January

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Right of First Refusal and Consideration for the Right of First Refusal

Have you dealt with a right of first refusal? “A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those continued in good faith offer by a third person if the owner manifests a willingness to accept the offer.” A contractual right of first refusal must be supported by consideration to be enforceable.” Raj v. Sutherlin, 51 Fla.L.Weekly D73a (Fla. 4th DCA 2026) (internal citations omitted). In a recent case, an owner and buyer and into an addendum to a contract where the owner gave the buyer the...

04 January

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The Duty and Proximate Causation Elements in Negligence Actions

Posted by David Adelstein

in Trial Perspectives

A negligence action has four elements a plaintiff must prove: “(1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Las Olas Holding Co. v. Demella, 228 So.3d 97, 102 (Fla. 4th DCA 2017) (quotation omitted). The third element, causal connection, refers to proximate causation. See id. at 106. A recent case discusses both the duty element (a question of law) and proximate causation element (a question of fact) with notable analysis...

26 December

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A “Reasonable Time” Period does Exist

Posted by David Adelstein

in Trial Perspectives

A reasonable time period does exist. The recent case of New Leaf Assets, LLC v. Jefrue, 50 Fla.L.Weekly D2673a (Fla. 4th DCA 2025) exemplifies this point. In this case, an investment agreement was entered – investors invested money in exchange for a percentage of membership interests. The agreement contained an option that gave the investors the option to exchange their membership interest for a refund of their investment, and the refund was backed by a personal guaranty. The investors attempted to exercise the option two years later, but the company notified them that it re-invested the money. The investors filed a...

07 December

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Contesting Personal Jurisdiction in Florida

Posted by David Adelstein

in Trial Perspectives

Contesting personal jurisdiction in Florida is a two-step process oftentimes referred to as the Venetian Salami analysis after a 1989 Florida Supreme Court case. See Kowalski v. Binance Holdings, Ltd., 50 Fla.L.Weekly D2582a (Fla. 3d DCA 2025). The Kowalski case summarized this two-step process as follows: [P]ersonal jurisdiction over a non-resident involves a two-step analysis: a statutory and a constitutional inquiry. First, the court determines whether the complaint sets forth sufficient jurisdictional allegations to bring the action within Florida's long-arm statute, section 48.193, Florida Statutes. Id. This is accomplished by either tracking the language of the statute without supporting facts or alleging specific facts that...

28 November

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Conduct to Support Punitive Damages

Posted by David Adelstein

in Trial Perspectives

When should punitive damages be considered? Stated differently, when does the opposing party’s conduct rise up to the level to support an amendment to a complaint to include punitive damages? How about this discussion from a recent case as to the conduct to support punitive damages: “[L]ong-established precedent dictates that actions which deserve punitive sanctions involve outrageous conduct, malicious motive, or wrongful intention.” William Dorsky Assocs. v. Highlands Cnty. Title & Guar. Land Co., 528 So. 2d 411, 412 (Fla. 2d DCA 1988). “[P]unitive damages are reserved for truly ‘culpable conduct,' ” where the conduct is “so outrageous in character, and so...

27 November

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Replevin Concerns the Wrongful Detention of Property

Posted by David Adelstein

in Trial Perspectives

The cause of action of replevin arises when another party wrongfully detains your property. Replevin is strictly a possessory action where the sole legal issue is the right to immediate possession, not ownership or title. In a replevin action, the right of immediate possession is the question to be determined, and that right may prevail even against absolute legal title to the property where title and possession have become separated. Indeed, where the title and the right of immediate possession are separated, a temporary right to possession may prevail against an absolute legal right to the property. Accordingly, the matter of...

16 November

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A Party Cannot Use Indemnity Clause to Create Basis for Attorney’s Fees Unless Clause Clearly Expresses that Intent

Posted by David Adelstein

in Trial Perspectives

In a recent case (discussed here) a party moved for attorney’s fees under an indemnification provision. The party claiming attorney’s fees was the indemnitor (party giving the indemnification) claiming that it should be entitled to attorney’s fees based on Florida Statute 57.105(7) which allows the trial court to award attorney's fees in a reciprocal manner. The problem, however, was the case had nothing to do with indemnity, which is really when a claim is made against you (an indemnitee) by a third party and you are looking to pass that claim through to the indemnitor. While the trial court granted...

09 November

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Standard of Review for a Judgment Notwithstanding the Verdict (“JNOV”)

Posted by David Adelstein

in Appeal, Standard of Review

A trial court granted a judgment notwithstanding the (jury’s) verdict, which is also known as a “JNOV.” The verdict was rendered in favor of the plaintiff. The trial court entered the JNOV for the defendant prompting the plaintiff to appeal. Here is important legal analysis when appealing a JNOV: A JNOV order is reviewed de novo. Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017). In reviewing a JNOV, the appellate court must “view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence, which is at odds or contradictory, all conflicts must...

08 November

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Proposal for Settlement / Offer of Judgment does NOT Apply to Claims where Equitable Relief is also Sought

Posted by David Adelstein

in Trial Perspectives

A recent case confirms that the proposal for settlement / offer of judgment statute does not apply where claims for equitable relief are also sought. It only applies to claims for monetary relief. This means, strategically, there may be a reason why you should or should not assert a claim for equitable relief if the proposal for settlement / offer of judgment statute is otherwise the only basis to recover attorney’s fees. The claim for equitable relief would put a damper in the enforceability of any proposal for settlement / offer of judgment. In Cornelius v. Haywood, 50 Fla.L.Weekly D2250a (Fla....

07 November

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Don’t Forget to Move for Rehearing if Challenging Factual Findings in Final Judgment

Posted by David Adelstein

in Appeal

Florida Rule of Civil Procedure 1.530(a) provides: “To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” In a recent case, Platt v. Cape Marine Services, Inc., 50 Fl. L. Weekly D2315a (Fla. 5th DCA 2025), a party appealed an...

Author: David Adelstein