29 September

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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...

15 September

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Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein

in Appeal, Burden of Proof

I recently discussed the defense of mitigation of damages as it applies to contract cases. An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract. In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages. The owner appealed this issue which was reversed on appeal. The reason it was reversed is because the trial court's finding that the owner failed to mitigate his damages is reviewed on appeal...

20 August

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Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.” XIP Technologies, LLC v. Ascend Global Services, LLC, 43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018). A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongs. Id. A trial court has discretion to grant or deny a motion for temporary injunction. Its discretion, however, is...

12 August

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Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Posted by David Adelstein

in Appeal, Trial Perspectives

Earlier this year I wrote an article regarding proving the defense of unilateral mistake. In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake. Based on this opinion, a party moved for a rehearing en banc under Florida Rule of Appellate Procedure 9.331--see applicable portion of 9.331(d)(1)--arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. The appellate court granted...

07 July

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Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

Posted by David Adelstein

in Appeal, Trial Perspectives

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract. While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed. In a recent property insurance coverage dispute, the insured, over the insurer's objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy. On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy...

23 June

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Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Posted by David Adelstein

in Appeal, Trial Perspectives

Arbitration is a creature of contract, meaning if you want your disputes to be resolved by arbitration through an arbitrator (as opposed to litigation with a judge and/or jury), you need to include an arbitration provision in your contract. A trial court granting or denying a party’s motion to compel arbitration is a non-final order that is immediately appealable. See Fla.R.App.P. 9.130(a)(3)(C)(iv). There are times that a non-signatory to a contract with an arbitration provision wants to compel arbitration. For example, a signatory to a contract (with an arbitration provision) files suit against a non-party and the non-party moves to compel...

28 May

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General Understanding of Collateral Estoppel and Res Judicata

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

There are two similarly related legal doctrines known as collateral estoppel and res judicata. The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata). These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application. Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit. Collateral Estoppel =...

20 May

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Preserving an Objection for Appeal

Posted by David Adelstein

in Appeal, Expert Testimony

Preserving an objection for appeal. Preserving an objection for appeal. Preserving an objection for appeal. Repeat again and again, because this is important. The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida, 43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife. Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder. The jury found that the man was guilty of attempted murder. An issue on appeal dealt with the scope of an expert's testimony that tied...

29 April

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A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff's damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4th DCA 2018), involving an automobile accident, where the trial court granted plaintiff's motion for a new trial based on an inadequate jury verdict....

22 April

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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein

in Appeal, Trial Perspectives

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim. The article also discusses the application of equitable subrogation dealing with an actual fact pattern. Equitable subrogation, you say? In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party. The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt. No one wants to pay for damages or a debt it believes were caused by a third...