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Appeal

Code Enforcement Board Appeal

Posted by David Adelstein on November 24, 2019
Appeal, Standard of Review / Comments Off on Code Enforcement Board Appeal

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11:

An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.

You appeal the enforcement board’s final administrative order to the circuit court.  This is a plenary appeal as a matter of right.   

If you don’t like the circuit court’s ruling, then you can appeal by second-way certiorari to the district court, but this appeal is limited to: (1) whether the circuit court afforded procedural due process; and (2) whether the circuit court applied the correct law.  Central Florida Investments, Inc. v. Orange County, 2019 WL 5848987 (Fla. 5thDCA 2019).  This is a very tough appeal.

An example of second-way certiorari can be found in Central Florida Investments where the Orange County Code Enforcement Division cited the petitioner for a violation of the building code “with regard to what were deemed to be unsafe conditions in a structure that had been partially demolished.”  Central Florida Investments, 2019 WL at *1.   The petitioner contested the violation and a hearing was held with a final administrative order being entered against the petitioner.  The petitioner took an appeal asking the circuit court to reverse the final administrative order under a limited standard of appellate review.  This is a standard of review more limited than the plenary appeal the petitioner was entitled.  The petitioner did this because of confusing case law that would suggest this limited standard of review could arguably apply, however, such case law was not in reference to appeals under s. 162.11.  See Central Florida Investments.  

The district court of appeal, limited by its second-way certiorari review, granted certiorari ONLY because it appeared the circuit court did not apply the correct limited standard of appellate review.  The district court of appeal was going to hold the petitioner’s feet to the fire regarding the more limited standard of appellate review by the circuit court, but considering the circuit court, sitting in an appellate capacity, applied an incorrect standard of review, remanded the matter back to the circuit court to state whether the circuit court applied the limited appellate review the petitioner sought. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein on November 10, 2019
Appeal, Burden of Proof / Comments Off on Refuting Affirmative Defenses in Motion for Summary Judgment

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 Choice Property & Casualty Ins. Co., Inc., 44 Fla. L. Weekly D257a (Fla. 4th DCA 2019) quoting Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786 (Fla. 5th DCA 2003).

For example, the case of Hurchalla involved an insurance coverage declaratory relief action where the insurer argued there is no coverage for an underlying action because the policy did not provide coverage for intentional acts.  During the case, the insurer moved for summary judgment, which was denied.  However, the underlying action went to trial and a verdict was entered against the insured based on the insured’s intentional act.  The insurer renewed its motion for summary judgment.  The insured opposed arguing that that the insurer had not negated her affirmative defenses.  The trial court nevertheless granted the insurer’s renewed motion for summary judgment.

The appellate court reversed.   The appellate standard of review of an order granting a motion for summary judgment is de novoHurchalla, supra.  

Here, the insured alleged affirmative defenses and nothing was done by the insurer to address their legal insufficiency or to factually disprove them.  “Where the defendant has raised affirmative defenses, the plaintiff must factually refute them or establish that they are legally insufficient before being entitled to summary judgment in its favor.”  Hurchalla, supra.  This failure to address affirmative defenses resulted in a reversal of the trial court’s granting of the motion for summary judgment.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Party Recovering Judgment Entitled to Recoverable Costs

Posted by David Adelstein on October 12, 2019
Appeal, Standard of Review / Comments Off on Party Recovering Judgment Entitled to Recoverable Costs

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 Sherman v. Sherman, 2019 WL 4658446, *5 (Fla. 4th DCA 2019) (“Under section 57.041(1), costs should be awarded to the ‘party recovering judgment.’”).  If you recover a judgment in your favor, you should be entitled to recoverable costs. 

When a trial court denies a party’s costs, there is a de novo standard of appellate review.  See Sherman, 2019 WL at *2.  Also, when a party is appealing the excessiveness of the costs awarded to the opposing party that recovers a judgment in its favor, there is a de novo standard of appellate review.  Id.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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Amended Complaints and the “Relation Back” Doctrine

Posted by David Adelstein on October 05, 2019
Appeal, Trial Perspectives / Comments Off on Amended Complaints and the “Relation Back” Doctrine

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 an amended complaint relates back to the filing of the original complaint for statute of limitations purposes is a question of law subject to de novo review. Caduceus Props., LLC v. Graney, 137 So. 3d 987, 991 (Fla. 2014). As the Florida Supreme Court explained in Caduceus:

Generally, Florida has a judicial policy of freely permitting amendments to the pleadings so that cases may be resolved on the merits, as long as the amendments do not prejudice or disadvantage the opposing party. . . .

Permitting relation back in this context is also consistent with Florida case law holding that [Florida Rule of Civil Procedure] 1.190(c) is to be liberally construed and applied.

Id. at 991-92.

In other words, as long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back . . . even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements.

Mitchell, supra.

The key inquiry to determine whether an amendment relates back or is barred by the statute of limitations is whether the party in question had notice of the litigation during the limitations period under the original pleadings and the amendment merely adjusts the status of an existing party, or the amendment actually introduces a new defendant.Id. quoting HSBC Bank USA, Nat’l Ass’n v. Karzen, 157 So.3d 1089, 1091-92 (Fla. 1st DCA 2015).

When it comes to amended complaints filed after the expiration of the statute of limitations, it is one thing if you are amending a complaint to assert a claim against a new party.  It is another if you are amending a complaint to add claims against existing defendants based on the same transactions and occurrences as the original complaint.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Improperly Moving to Set Aside the Verdict

Posted by David Adelstein on September 22, 2019
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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 state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

(b) Reservation of Decision on Motion. When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.

(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

The recent opinion in TLO South Farms, Inc. v. Heartland Farms, Inc., 44 Fla.L.Weekly D2385a (Fla. 2d DCA 2019), demonstrates what can happen if a defendant improperly moves to set aside a verdict based on a motion for directed verdict.  

In this case, a defendant moved for a directed verdict at the close of the plaintiff’s case-in-chief.  The court reserved ruling.  Due to the reservation, the defendant put on evidence to support its case.  The jury returned a verdict in favor of the plaintiff and the defendant filed a motion per Rule 1.480(b) to set aside the verdict and enter judgment in favor of the defendant per its motion for directed verdict. The defendant, also, per Rule 1.480(c), joined the motion with an alternative motion for a new trial. 

The trial court granted the motion to set aside the verdict and also granted the alternative motion for a new trial subject to the appeal (i.e., if the appellate court reverses the order to set aside the verdict, then the alternative motion for a new trial is granted).   The Second District reversed the trial court in entirety and remanded for the trial court to reinstate the jury’s verdict.  The appellate court’s basis for reversal, discussed below, is important to know.

Setting Aside the Verdict

 

The reason supporting the reversal as to the order to set aside the verdict was because the defendant’s motion to set aside the verdict per Rule 1.480(b) was based on an argument the defendant did NOT raise in its motion for directed verdict.  See TLO South Farms, supra (“[T]he trial court erred in granting the defendants’ motion to set aside the verdict and entering judgment in [defendant’s] favor on the FDUTPA [Florida’s Deceptive and Unfair Trade Practices Act] count based on their newly raised posttrial challenge to the evidence….”).  You cannot raise a new argument posttrial that was not raised in the motion for directed verdict.

Alternative Motion Granting New Trial

 

The trial court granted the alternative motion for new trial based on two issues: (i) the verdict on the Florida’s Deceptive and Unfair Trade Practice’s Act’s (“FDUTPA”) claim was inconsistent with the verdict on the negligence claim and (ii) the verdict on the FDUTPA claim was contrary to the manifest weight of the evidence.  

Regarding the first issue, the appellate court held that the defendant waived this argument because it never objected to inconsistent verdicts on the FDUTPA and negligence counts prior to the discharge of the jury.

Regarding the second issue, the appellate court held that a “trial court may order a new trial when the jury’s verdict is against the manifest weight of the evidence…[only when] the evidence is clear, obvious, and indisputable.”  TLO South Farms, supra (internal citations and quotations omitted).   The appellate court held the trial record did not support a ruling that the jury’s verdict was contrary to the manifest weight of the evidence.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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

Posted by David Adelstein on September 02, 2019
Appeal, Trial Perspectives / Comments Off on Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

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 or correct an award rendered thereunder for such cause in the manner provided in this law.

This was at-issue in the opinion, Ancla International, S.A. v. Tribeca Asset Management, Inc., 44 Fla. L. Weekly D2189a (Fla. 3d DCA 2019), involving two non-Florida entities dealing with an out-of-country transaction.  Here, a Columbian company (owned by a Florida resident) entered into an agreement with a Panamanian company.  The underlying transaction was to occur in Columbia.  

The agreement contained the following arbitration provision:

SEVENTH. APPLICABLE LAW. This agreement will be governed by the laws of the State of Florida of the United States of America (USA), a jurisdiction accepted by the parties irrespective of the fact that the principal activity of the beer project will be conducted in Colombia. The parties agree that, in the event that differences arise between them as a result of or in relation to the present Agreement, they will attempt to resolve their differences via direct negotiation. For this purpose, the parties will have a period of thirty (30) business days, counting from the date on which either of the parties presents a request in this regard. This term may be extended by mutual agreement for additional thirty-day periods. If a solution is not reached within these stipulated periods, the differences will be submitted to an Arbitration Board, whose ruling with carry the force of law.

Although this provision is perhaps not a model of clarity relative to arbitration, the issue was whether the trial court had personal jurisdiction over the defendant to compel the parties to arbitration.   The parties agreed that personal jurisdiction stemmed from s. 682.18(1) of Florida’s Arbitration Act.  The Third District Court of Appeal held that the trial court had personal jurisdiction over the defendant “[b]ecause the parties accepted the power of Florida courts to enforce the Agreement.”   Ancla International, supra.   Hence, a Florida court could enforce the parties’ agreement to compel the parties to arbitration even though they are non-Florida entities dealing with a non-Florida transaction.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Standard for Petition for Writ of Certiorari

Posted by David Adelstein on August 18, 2019
Appeal / Comments Off on Standard for Petition for Writ of Certiorari

To invoke an appellate court’s certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.

State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). 

This is the standard for a petition for writ of certiorari.

An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s order can be found in State Farm Florida Ins. Co. v. Sanders, which dealt with a property insurance coverage dispute. 

In this case, after the policyholder filed a lawsuit against his insurer, the insurer filed a motion to compel the parties to the appraisal process mandated by the property insurance policy.  An issue arose as to the parties’ selection of “disinterested” appraisers as required by the policy.  The policyholder wanted to use his public adjuster, which the insurer contested because the public adjuster is hardly disinterested – he is an agent for the policyholder. Notwithstanding, the trial court entered an order allowing the policyholder’s public adjuster to serve as the disinterested appraiser prompting the insurer to file a petition for writ of certiorari.

The appellate court granted the petition because allowing the public adjuster to serve as a disinterested appraiser is a harm that could NOT be corrected in a post-judgment appeal. A major reason for this is the nature of the property insurance appraisal process is a binding process, as more particularly outlined in the property insurance policy. 

If you are considering filing a petition for writ of certiorari, know the standard you need to satisfy to get the appellate court to entertain the petition and quash the trial court’s order.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Striking an Affirmative Defense

Posted by David Adelstein on June 30, 2019
Appeal, Standard of Review / Comments Off on Striking an Affirmative Defense

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant’s (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial.

The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of discretion.” Estrada, supra (internal citations omitted).

In this case, the jury was not able to consider the application of an affirmative defense because the trial court struck the affirmative defense prior to trial.  The trial court also would not allow the defendant to amend the affirmative defense.  There would not have been any prejudice to the plaintiff in allowing an amendment since the substance of the amended defense was based on facts already in the record. “Because we are unable to conclude that this error was harmless and that the jury would have rejected this defense, we are compelled to reverse the final judgment on review and remand for a new trial.”  Estrada, supra.  Stated differently, the appellate court ordered a new trial because the jury was not able to consider this affirmative defense and there was nothing to indicate the jury would have rejected this defense (had the jury considered it). 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

Posted by David Adelstein on November 17, 2018
Appeal, Trial Perspectives / Comments Off on Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of appellate review a trial court’s ruling on a motion for involuntary dismissal.  In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant.  Why?

Well, this case involved a member of a limited liability company (LLC), the plaintiff, filing a lawsuit against a third-party, the defendant, due to a real estate transaction.  The overriding problem for the plaintiff was that the damages he was suing for were damages associated with his LLC, and not him individually. “Generally, a shareholder of a corporation or a member of an LLC may not maintain an action in his or her own right if the cause of action is derived from the right of the corporation or the LLC to bring the action.” Home Title Co. of Maryland, Inc. v. LaSalla, 43 Fla.L.Weekly D2561a (Fla. 2d DCA 2018).  Because the plaintiff (member of the LLC) was suing for damages that directly belonged to the LLC, the cause of action rested with the corporation.  Id. (“The property belonged to the LLC, and thus, the LLC suffered the direct harm when Home Title [third-party] transferred the property…Even though LaSalla [plaintiff-member] is the only other member of the LLC who suffered as a result of the transfer, the harm to him individually was indirect and the result of the harm to the LLC.”). 

The moral of this case is make sure you have standing to sue for the damages/injuries you are suing for.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appealing Correct Measure of Damages

Posted by David Adelstein on September 29, 2018
Appeal, Evidence / Comments Off on Appealing Correct Measure of Damages

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. 

In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial.  On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages.  The issue was whether the plaintiff should be entitled to a new trial.  The Third District held NO!  The plaintiff is NOT entitled to a new trial on damages:

We also write to clarify the law within this [Third] district, and hold, as a general rule, that where this court determines, on appeal from a properly preserved claim, that a party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages, unless that party’s failure to meet its burden was the result of judicial error.

Levy, supra (“The generally prevailing rule is that a party will not be permitted a new trial on remand to remedy its own failure to present sufficient evidence to support its claim.”).

It is worth noting that in a bench trial, “the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question [objection] has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”  Fla.R.Civ.P. 1.530(e).   Thus, in a bench trial, a party can challenge the sufficiency of the evidence for the first time on appeal.  In Levy, the defendant had actually moved for an involuntary dismissal after the plaintiff’s case-in-chief, but had he not done so, the objection to the sufficiency of evidence would still have been properly preserved for appeal.  

A jury trial, however, is different.  In a jury trial, “where a defendant fails to timely move for a directed verdict [as the sufficiency of evidence], and raises this issue for the first time in a motion for new trial, the proper remedy upon reversal and remand is a new trial.”  Levy, supra, n. 2.  Hence, in a jury trial, if a defendant does timely move for a directed verdict on such an issue, then the proper remedy is to enter judgment in favor of the defendant as the plaintiff is not entitled to a new trial. Id.  But, if the defendant first raises such an issue for the first time in a motion for new trial, then the proper remedy would be a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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