30 January

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Expert Cannot Serve as Conduit for Inadmissible Evidence / Hearsay

The law allows an expert to rely on hearsay when formulating expert opinions, but an expert cannot serve as a conduit for inadmissible evidence / hearsay. This point is discussed in the wrongful death action, Dayes v. Werner Enterprises, Inc., 46 Fla.L.Weekly D233b (Fla. 3d DCA 2021), a case that resulted in a defense verdict that was reversed on appeal. The case involved a tractor-trailer backing up and killing someone. The plaintiff (the estate of the deceased person) raised an issue on appeal that it was error for the trial court to allow a detective to testify “that another officer...

23 January

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Florida Supreme Court says No! – Extra-Contractual Damages cannot be Recovered against Property Insurer Absent Bad Faith Claim

Posted by David Adelstein

in Trial Perspectives

Can an insured recover extra-contractual, consequential damages from its property insurer without pursuing a separate bad faith claim against the insurer? The Florida Supreme Court, quashing an order of a lower appellate court, held NO!: [W]e conclude that extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy. Extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but are not recoverable in this action against Citizens because Citizens is statutorily...

16 January

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Discovery Appeal by Non-Party in Dispute

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Discovery disputes do not always go your way. You win some. You lose some. In losing a discovery dispute, it could give rise to an appeal through a petition for a writ of certiorari. Obviously, this is not an easy appeal but, certainly, there are instances where the trial court issues a discovery ruling that gives rise to irreparable harm supporting the basis for certiorari. This discovery ruling may be against a party, or in certain cases, a non-party. “To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which...

09 January

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In Ruling on Motion to Compel Arbitration, Trial Court Must Determine whether Parties Bound by Arbitration Provision

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you want to arbitrate, instead of litigate, your dispute, you need to include an arbitration provision in your contract. However, this does not mean that parties do not try to avoid arbitration, albeit there being an arbitration provision in the contract, by filing a lawsuit. This leads to parties moving to compel arbitration and, upon the trial court’s ruling, a right to appeal. A party may feel the nature of the dispute will play out better for them in arbitration versus litigation, or there are other important strategic reasons to arbitrate...

31 December

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Recording Documents in Public Records to put Others on Constructive Notice

Posted by David Adelstein

in Trial Perspectives

A primary reason why documents concerning real property are recorded in the public (official) records is so that parties that do not have actual notice have “constructive notice” of the recording. Because the document was recorded in the public records, you reasonably should have known of the recording. To this point, Florida Statute s. 695.01(1) provides in pertinent portion, “No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable...

25 December

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

Posted by David Adelstein

in Trial Perspectives

I have talked about proposals for settlement in a number of prior postings. (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79. A party receiving a proposal for settlement has 30 days to accept the proposal. If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...

19 December

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Just because You Recovered an Affirmative Judgment does NOT Mean you Are the Prevailing Party for Purposes of Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

The prevailing party in a litigation for purposes of being awarded attorney's fees is NOT determined by how the money flows at the conclusion of the litigation. In other words, just because you recovered an affirmative judgment does NOT mean you are the prevailing party for purposes of being entitled to attorney's fees. See Skylink Jets, Inc. v. Klukan, 45 Fla.L.Weekly D2829a (Fla. 4th DCA 2020). To be the prevailing party for purposes of being entitled to attorney's fees, a party must have prevailed on the significant issues in the litigation. Id. And a trial court has broad discretion to...

13 December

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PLEAD SUFFICIENT ALLEGATIONS SUPPORTING PERSONAL JURISDICTION

Posted by David Adelstein

in Trial Perspectives

Remember when drafting a complaint, jurisdictional allegations are important. This is especially true if you are suing a defendant located outside of Florida. Jurisdictional allegations should be plead with detail supporting the factual basis for personal jurisdiction. There should be a consideration that a nonresident defendant may challenge personal jurisdiction and the very FIRST STEP in a court’s analysis in determining personal jurisdiction “is to determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes.” Williamson v. Prime Sports Marketing, LLC, 45 Fla.L.Weekly D268a (Fla. 3d DCA 2020). ...

05 December

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Pleading the 5th Amendment Right Against Self Incrimination in a Civil Dispute

Posted by David Adelstein

in Trial Perspectives

If you watch TV, you have seen legal shows where the witness on the stand refuses to testify under his/her Fifth Amendment’s right against self incrimination. Most of these TV shows are in the criminal context. However, the Fifth Amendment right against self-incrimination also applies in civil disputes: The Fifth Amendment provides no person “shall be compelled in any criminal case to be a witness against himself.” Amend. V, U.S. Const. The Fourteenth Amendment incorporates the Fifth Amendment so that the privilege against self-incrimination is protected from both federal and state action. See, e.g., Malloy v. Hogan, 378 U.S. 1, 8 (1964). The privilege...

29 November

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Owner can Testify as to the Value of His Property

Posted by David Adelstein

in Trial Perspectives

There are disputes that concern the valuation of an owner’s real property. Oftentimes, an appraiser or even a real estate broker is utilized for this purpose. But, this doesn’t have to be the case. An owner of the property can render opinions as to the valuation of his property despite not being an appraiser or real estate broker. An owner's testimony about the valuation of the property based on his familiarity and use (or intended use) of the property, along with the characteristics of the property, add an aura of authenticity. This is an important consideration when the valuation of...