09 November

Sticky

Standard of Review for a Judgment Notwithstanding the Verdict (“JNOV”)

A trial court granted a judgment notwithstanding the (jury’s) verdict, which is also known as a “JNOV.” The verdict was rendered in favor of the plaintiff. The trial court entered the JNOV for the defendant prompting the plaintiff to appeal. Here is important legal analysis when appealing a JNOV: A JNOV order is reviewed de novo. Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017). In reviewing a JNOV, the appellate court must “view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence, which is at odds or contradictory, all conflicts must...

07 November

0 Comments

Sticky

Don’t Forget to Move for Rehearing if Challenging Factual Findings in Final Judgment

Posted by David Adelstein

in Appeal

Florida Rule of Civil Procedure 1.530(a) provides: “To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” In a recent case, Platt v. Cape Marine Services, Inc., 50 Fl. L. Weekly D2315a (Fla. 5th DCA 2025), a party appealed an...

10 March

0 Comments

Sticky

Personal Jurisdiction’s Two Prong Inquiry

Posted by David Adelstein

in Appeal, Trial Perspectives

If you are suing a nonresident defendant, i.e., you are NOT located in Florida, this two-step inquiry to determine whether Florida courts have personal jurisdiction over you--the nonresident defendant--is important: Florida courts conduct a two-step inquiry to determine whether a court has personal jurisdiction over a nonresident defendant. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. The first prong -- i.e., the statutory prong -- … is governed by Florida's...

13 January

0 Comments

Sticky

Trial Court / Judge Cannot Act as the Seventh Juror

Posted by David Adelstein

in Appeal, Evidence

The trial judge cannot act as the seventh juror. What does this mean? Read on...

03 December

0 Comments

Sticky

Insurer’s Claim File Not Categorically Privileged

Posted by David Adelstein

in Appeal, Discovery

A recent appeal (petition for a writ of certiorari) in a property insurance coverage dispute supports two important points regarding discovery disputes in insurance coverage cases, particularly regarding an insurer's claim file. First, “certiorari review is appropriate for discovery dispute orders requiring production of allegedly privileged documents.” Homeowners Choice Property & Casualty Ins. Co., Inc. v. Thompson, 48 Fla.L.Weekly D2218e (Fla. 1st DCA 2023). Second, there is NOT a categorical privilege on an insurer’s claims files. “Documents in claims and underwriting files are not automatically work product. The insurer did not argue or prove that the requested documents were prepared in anticipation...

05 November

0 Comments

Sticky

The Violation of a Company’s Internal Policies Alone does Not Create a Duty Owed to a Third Party

Posted by David Adelstein

in Appeal, Standard of Review

Can internal policies of a company create a standard of care or duty to a plaintiff? Stated another way, can a company’s violation of its internal policies result in a breach of that company’s standard of care or duty to plaintiff? A recent case, Discount Tire Co. v. Tammy Bradford, as the Personal Representative of the Estate of Bradford, 2023 WL 7228186 (Fla. 5th DCA 2023), in analyzing case law with respect to this issue, answered this issue in the negative: a company’s internal policy’s do not alone create duties owed to third parties. In this case, a retail tire company was...

20 August

0 Comments

Sticky

Venue Considerations when Challenging Venue

Posted by David Adelstein

in Appeal, Trial Perspectives

In a recent construction dispute, Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC, 48 Fla.L.Weekly D1381b (Fla. 2d DCA 2023), a general contractor hired a subcontractor. The subcontract contained NO venue provision or specified where payments were to be due. This was important because the general contractor and subcontractor were located in different counties and the general contractor was located in the county where the project at-issue was located. A payment dispute arose, and the subcontractor sued the general contractor in the county where it was located. The general contractor moved to transfer venue to the county...

11 June

0 Comments

Sticky

Draft Agreements with Clarity or…

Posted by David Adelstein

in Appeal

If you ever want to know why a contract or any agreement should be clearly written, here is the reason. In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

28 May

0 Comments

Sticky

Appellate Court Reversing Trial Court Granting Motion for New Trial

Posted by David Adelstein

in Appeal, Standard of Review

There are times a trial court may grant a motion for a new trial after the jury's verdict. Naturally, the party that received the benefit of the jury's verdict will appeal the trial court's ruling granting the motion for a new trial. A good example can be found in Smith v. Lyles, 48 Fla.L.Weekly D1079a (Fla. 6th DCA 2023), a personal injury case, where the trial court granted a new trial in favor of the plaintiff after the jury found the defendant was not liable. The trial court granted the new trial because it found: (a) the defendant had improper testimony;...

21 May

0 Comments

Sticky

Measure of Tort Damages in Civil Disputes

Posted by David Adelstein

in Appeal, Trial Perspectives

If you are filing a civil action, your case is generally about, and should generally be about, recovering damages. Sure, there may be exceptions where a party is seeking injunctive relief or a declaration, but mostly, civil disputes concern a party seeking monetary damages. When it comes to civil tort actions, remember this when it comes to the measure of damages: “In tort actions, the measure of damages [awarded] seeks to restore the victim to the position he would be in had the wrong not been committed.” Hollywood Imports Limited, Inc. v. Nationwide Financial Services, LLC, 48 Fla.L.Weekly D915a (Fla. 4th...