03 August

Sticky

Good Overview of Florida’s Summary Judgment Standard

in Standard of Review, Trial Perspectives

Below is a good overview of Florida’s summary judgment standard with citations. The last paragraph discusses how a Court should construe legal texts such as contracts, particularly if there is a dispute as to a word in the contract: We review summary judgments de novo. Pial Holdings, LTD v. Riverfront Plaza, LLC, 379 So. 3d 547, 550 (Fla. 6th DCA 2024). Florida's summary judgment standard now aligns with the federal standard. Fla. R. Civ. P. 1.510(a); In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (adopting federal summary judgment rule and standard and citing “Celotex trilogy,” Celotex Corp....

27 July

0 Comments

Sticky

Power of Judgment Liens and Priority of Judgment Liens

Posted by David Adelstein

in Trial Perspectives

The priority of liens matter. A recent case, Aquastar Holdings, LLC v. Peckar & Abramson, P.C., 50 Fla.L.Weekly D1333b (Fla. 3d DCA 2025), discusses the priority of a judgment lien and the difference between a judgement lien and another type of encumbrance, such as a mortgage. In this case a judgment creditor recorded a judgment lien which created a lien on real property owned by the judgment debtor. After the judgment lien was recorded, a mortgage was placed on the only property owned by the debtor. The judgment creditor had the property sold at a sheriff’s auction when it executed...

20 July

0 Comments

Sticky

Commercial Lease – Options for Commercial Landlord with Defaulting Tenant

Posted by David Adelstein

in Trial Perspectives

If you are entering into or negotiating a commercial lease, the terms of the lease matter. For example, as a commercial landlord, if you want to accelerate rent of a defaulting tenant, you need to have an acceleration provision in the commercial lease. When you accelerate rent of a defaulting tenant, you are demanding the tenant pay the lease payments for the unexpired and unaccrued portion of the lease, i.e., the remainder of the lease term. This was the issue in a recent commercial landlord and commercial tenant dispute – Hourglass Entertainment, LLC v. NRG Investments, Inc., 50 Fla.L.Weekly D1538a (Fla....

13 July

0 Comments

Sticky

Summary Judgment Standard when Written Instrument Reasonably Susceptible to Different Interpretations

Posted by David Adelstein

in Trial Perspectives

In a recent dispute between a condominium unit owner and condominium association, an issue arose as to which party was responsible for the abatement of asbestos in the unit owner’s interior ceiling. While the unit owner was responsible for the interior ceiling, the association was responsible for incidental damage caused by performing repairs to the common elements. Here, there was evidence that the issue with asbestos abatement was caused during the association’s common element repair work which required it to remove parts of the owner's interior ceiling. The association claimed the unit owner needed to bear the costs to abate...

04 July

0 Comments

Sticky

Forbearance Agreement Must be in Writing and Signed

Posted by David Adelstein

in Trial Perspectives

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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...

Author: David Adelstein