02 May

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Civil Theft has a Rigorous Burden of Proof

Florida has a cause of action known as civil theft. It is a statutory cause of action under Florida Statute s. 772.11 (referenced at the bottom of this article) that, just like criminal theft, requires a party to prove criminal intent with clear and convincing evidence. See Bailey v. Covington, 46 Fla.L.Weekly D776a (Fla. 3d DCA 2021) (“To establish a claim for civil theft, a party must prove 1) that a conversion has taken place and 2) that the accused party acted with criminal intent. Such intent must be proven by clear and convincing evidence.”) (internal citation omitted). See also United...

25 April

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

Posted by David Adelstein

in Trial Perspectives

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims? Can a party still be deemed to prevail on the significant issues in the case? That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

11 April

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Attorney’s Fees and the “American Rule”

Posted by David Adelstein

in Trial Perspectives

Not every cause of action asserted gives rise to an argument to recover attorney’s fees. Florida follows what is known as the “American Rule” which is “attorney’s fees may be awarded by a court only when authorized by statute or agreement of the parties.” State Farm Fire & Casualty Co v. Palma., 629 So.2d 830, 833 (Fla. 1993); Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017) (“It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute.”); accord Attorney’s Title Ins. Fund, Inc., v. Landa-Posada,...

03 April

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Moving for a Remittitur to Reduce Jury’s Verdict

Posted by David Adelstein

in Evidence

When a damages verdict comes in high for a plaintiff, it is not uncommon for a defendant to move for a remittitur for the trial judge to reduce the amount of damages arguing that the verdict is unreasonably excessive. A motion for remittitur is a motion to reduce the jury's verdict award. Florida’s Fourth District Court of Appeal in Fernalld v. ABB, Inc., 46 Fla.L.Weekly D542a (Fla. 4th DCA 2021) explained: When considering a motion for remittitur, the court must determine whether the amount of a damages award “is excessive . . . in light of the facts and circumstances which...

27 March

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Appealing a Discovery Order Requiring the Production of Work Product

Posted by David Adelstein

in Appeal, Discovery

A party moves for a petition for a writ of certiorari when appealing a discovery order. “To obtain a writ of certiorari, the petitioner must establish that the discovery order was a departure from the essential requirements of law resulting in a material injury that will affect the remainder of the proceedings below and the injury cannot be corrected on appeal.” Onward Living Recovery Community, LLC v. Mormeneo, 46 Fla.L.Weekly D637a (Fla. 3d DCA 2021). One example of “material injury,” otherwise referred to as “irreparable harm” is when the trial court orders the production of work product material (protected material prepared...

21 March

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Non-Signatory Compelling Arbitration based on Equitable Estoppel

Posted by David Adelstein

in Trial Perspectives

Many times, parties will prefer to arbitrate their disputes instead of litigate their disputes. Because arbitration is a creature of contract, an arbitration provision must be included in the parties’ contract. There are pros and cons to arbitration and it is important to discuss these pros and cons with your counsel when negotiating a contract that includes an arbitration provision. The pros and cons may change over time. (For example, in this COVID-19 world, there are pros with arbitration that did not exist before the COVID-19 pandemic.) Notwithstanding, there are instances where a non-signatory to the contract with the arbitration provision...

06 March

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Procedure Over Substance when it comes to Temporary Injunction Order

Posted by David Adelstein

in Uncategorized

The recent case of Phelan, Jr. v. TriFactor Solutions, LLC, 2021 WL 833515 (Fla. 2d DCA 2021) involves a temporary injunction issued in a noncompete case where the appellate court started off its decision saying, “In some cases, procedure precedes substance. This is one of those cases.” A good ole procedure over substance matter! In this case, regardless of the substance, the trial court issued a temporary injunction order. But the order, i.e., the procedure in issuing the injunction, was wrong for two fundamental reasons. First, the order failed to include specific factual findings from the evidentiary hearing to satisfy the...

28 February

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Proposals for Settlements and Attaching Releases

Posted by David Adelstein

in Trial Perspectives

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

20 February

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Dismissal due to Fraud on the Court Post-Jury Verdict — Not Soooooo Fast

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

Oftentimes, people use the term “fraud on the court” without truly recognizing the difficulties in getting a case dismissed--the harshest of sanctions--especially in a circumstance where the jury already rendered a verdict. Upon learning of the facts supporting “fraud on the court,” the appropriate motions should be filed during the course of the case because there are a number of remedies that can be employed short of dismissing a case with prejudice. While in appellate court will review a dismissal due to fraud on the court under an abuse of discretion standard of review, this does not mean that a trial...

14 February

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Special Venue Rule in Breach of Contract Actions Known as Debtor-Creditor Rule

Posted by David Adelstein

in Trial Perspectives

There is a special venue rule known as the debtor-creditor rule, which applies in limited circumstances in breach of contract actions. The debtor-creditor rule provides that if “a cause of action [is] based on failure to pay money due under a contract and the contract does not expressly provide a place of payment, it is implied that the debtor must seek the creditor and payment is to be made where the creditor resides.” Magic Wok International, Inc. v. Li, 706 So.2d 372, 374 (Fla. 5th DCA 1998). This rule, importantly, ONLY applies when dealing with a liquidated debt; it does...