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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 3)

Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure

To prove fraud, a plaintiff MUST prove: 1) a false statement of a material fact by the defendant; 2) the defendant had knowledge that the statement was false; 3) the defendant intended that the statement induce the plaintiff to act on it; and 4) damages by the plaintiff in relying on the defendant's statement.  Pritchard v. Levin, 2020 WL 2050691, *2 (Fla. 3d DCA 2020).      When a fraud claim concerns nondisclosure--a failure to disclose material information--such claim “exists only when there is a duty to make such disclosure.” Id. (citation omitted).  The court determines, as a matter of law, whether a...

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Prevailing Party in Civil Action Entitled to Recover Costs

A party prevailing in a civil action is entitled to recover their costs. Fla. Stat. s. 57.041(1) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment….”).    Florida Rule of Civil Procedure 1.525 provides that a “party seeking a judgment taxing costs…shall serve a motion no later than 30 days after filing of the judgment….”).   Check out this article to understand the type of taxable costs a prevailing party in a civil action is entitled.  A prevailing party’s counsel moving to recover legal costs does not need to verify the...

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Properly Exercising the Right of First Refusal

It is common for commercial leases or certain real estate transactions to include a right of first refusal.   The right of first refusal can be a valuable option for a party to hold and a worthy option for a party to bargain for and ultimately exercise.  But, if a party exercises the right of first refusal, it does not mean that the third party that lost the transaction will be happy about it.  Many times, they are not happy because it is perceived as a lost deal. When it comes to a right of first refusal: It is true that “[a] right...

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Reasonable Attorneys’ Fees’ Expert when Attorney’s Fees are the Damages

Generally, when an attorney is awarded attorney's fees, there is a mini-evidentiary hearing to determine the "reasonableness" of those fees.  Another lawyer--the reasonable attorneys' fees' expert--opines that the rate and hours expended are reasonable.  The opposing party then has its own expert to opine otherwise. Fairly archaic and ridiculous in my opinion.  The fact that fees/costs need to be expended to have a reasonable attorney's fees' hearing has always struck me as a needless task.   Others may disagree. Nevertheless, the reasonable fees' expert is how it is done with another lawyer testifying that the fees incurred by the prevailing...

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Prejudgment Interest for Economic Damages is Predicated on the Loss Theory

The purpose of prejudgment interest is to make the plaintiff whole from the date of the loss.  Arizona Chemical Co., LLC v. Mohawk Industries, Inc., 197 So.3d 99, 102 (Fla. 1st DCA 2016) (explaining that Florida applies the loss theory as it pertains to prejudgment interest which is simply to make the plaintiff whole and not to penalize the defendant or give the plaintiff a windfall). A prevailing party is entitled to prejudgment interest on damages that have been liquidated.  Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So.3d 743, 746 (Fla. 3d DCA 2014). Stated differently, “[o]nce liquidated damages have...

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Take Advantage of Video Conference Consultations with an Attorney

If you need a lawyer, I would strongly suggest you start moving towards video conference consultations.   You need a computer, tablet, or smartphone and access to the internet.  Video conferences are a productive tool to discuss your issues with a lawyer, particularly in today's current climate as we all deal with the coronavirus.  Don't delay consulting with a lawyer merely because you think you do not have the right access or opportunity.  Take advantage of video conference consultations so that you are proactively getting in front of your issues.   It is always advisable to address issues or problems...

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Arbitrability of a Dispute – Does a Judge or Arbitrator Decide?

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim.   Another way to resolve a dispute is through binding arbitration.  Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs.   The key with arbitration is that it is a creature of contract.  This means there needs to be an arbitration provision in an agreement for the...

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A Misrepresentation is Not the Same as a Breach of Contract

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract.  Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self:  when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity.  See Fla. R. Civ. P. 1.120. Second note to self:  a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach of contract...

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Consider Alternative Fee Arrangements

With all of the uncertainty going on right now in the world, and there is a lot, it may be the time to consider alternative fee arrangements with your attorney.  This can be any fee arrangement that is not hourly billing that is a creative way to meet your needs in light of cash flow constraints.  Not every case merits an alternative fee arrangement, but many cases do.  Perhaps it is  time to explore the possibility of an alternative fee arrangement to see if one can be reached.  There is nothing wrong with an innovative way to resolve your issues. Please...

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Owner Jointly and Severally Liable for Nondelegable Duty

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff--a guest of a condominium unit owner--sued the association and the association’s dock contractor after she injured herself on an unfinished dock.  The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages.   The appellate court agreed because the association...

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