17 November

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How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney's fees as the prevailing party. When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides: (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred...

10 November

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Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein

in Appeal, Burden of Proof

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses. Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency. Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses. “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’” Hurchalla v. Homeowners...

03 November

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Authentication of Photograph at Trial

Posted by David Adelstein

in Burden of Proof, Evidence

A photograph needs to be authenticated at trial just like any other evidence. A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated. In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk. The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of. The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on...

30 October

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Must be a Meeting of the Minds for there to be a Settlement

Posted by David Adelstein

in Trial Perspectives

A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement. Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement. However, what if it is not memorialized in a written settlement agreement? As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.” An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer;...

12 October

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Party Recovering Judgment Entitled to Recoverable Costs

Posted by David Adelstein

in Appeal, Standard of Review

Florida Statute s. 57.041(1) provides, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.” Thus, in most cases, when it comes to the recovery of recoverable costs, if you obtain a judgment against the other party, you are entitled to such costs under section 57.041. There is no analysis as to which party truly prevailed in the case (which is oftentimes the analysis when dealing with attorney's fees). See...

05 October

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Amended Complaints and the “Relation Back” Doctrine

Posted by David Adelstein

in Appeal, Trial Perspectives

There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations. Assume an original complaint was filed within the applicable statute of limitations. Assume after the statute of limitations expired, an amended complaint is asserted with new claims. Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations? The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1st DCA 2019) explains Florida’s liberal policy in answering this question: Whether...

28 September

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Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Posted by David Adelstein

in Trial Perspectives

Does an uneven floor level, in of itself, support a premise liability claim? No! Uneven floor levels are not so uncommon. The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor. A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit. The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not...

22 September

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Improperly Moving to Set Aside the Verdict

Posted by David Adelstein

in Appeal

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict: (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall...

08 September

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Considerations when Enforcing or Challenging Restrictive Covenant

Posted by David Adelstein

in Trial Perspectives

A restrictive covenant that runs with the land places restrictions on the use of real property. As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.” Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019). These are important things to remember when enforcing or challenging a restrictive covenant. For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant...

02 September

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Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

Posted by David Adelstein

in Appeal, Trial Perspectives

It is permissible for non-Florida persons/entities to agree to arbitration in Florida. Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida. Section 682.18(1) of Florida’s Arbitration Code provides in material part: The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify...