24 February

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Stay Money Judgment Pending Appeal

A money judgment is entered against you, but you are going to appeal. Can the collection of the money judgment be stayed pending appellate review? Yes. Florida Rule of Appellate Procedure 9.310 provides in material portion: (a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond,...

17 January

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein

in Appeal

So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context - check out this article as an example.) “If the injunction rests on factual findings, then a trial court's order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review...

08 January

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein

in Appeal

After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues...

25 November

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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein

in Appeal

Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction. When there is a dispute regarding the transaction, this gives rise to a breach of contract claim. It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently. As explained: [C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for...

17 November

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What Constitutes an Enforceable Contract?

Posted by David Adelstein

in Appeal

An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id. The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in...

16 September

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Moving to Enforce the Appellate Court’s Mandate

Posted by David Adelstein

in Appeal

When an appellate opinion is issued (and after any post-opinion motions have been resolved or the timing to file same has expired), oftentimes the matter is remanded back to the trial court to implement the appellate court’s opinion or mandate. This mandate is the “official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.” Tierney v. Tierney, 290 So.2d 136, 137 (Fla. 2d DCA 1974). In other words, once that mandate is issued, the trial court is obligated...

24 July

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Appealing Trial Court’s Interpretation of Contract

Posted by David Adelstein

in Appeal, Standard of Review

Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation. The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo...

09 July

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Asserting Punitive Damages (or Appealing the Decision to Allow for Punitive Damages)

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

So, you are interested in pursuing punitive damages. Then you MUST comply with the requirements of Florida Statute s. 768.72. This statute provides in relevant part: (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so...

18 June

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Appeals Regarding Personal Jurisdiction

Posted by David Adelstein

in Appeal

In a matter where a commercial landlord sued its tenant’s personal guarantors as the result of the tenant’s breach of the lease, the guarantors moved to dismiss the lawsuit based on personal jurisdiction. Check here for more on this matter. A trial court’s ruling on personal jurisdiction is an immediately appealable ruling--a trial court’s determination relating to personal jurisdiction is an immediately appealable non-final order (non-final order meaning the order does not finally dispose of the lawsuit). See Fla.R.App.P. 9.130(a)(3)(C)(i). A determination on personal jurisdiction is an important issue. If a court grants a motion to dismiss based on lack of personal...

30 May

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“Other Products” Evidence to Support Alternate Causation Theory

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

The recent case of Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 41 Fla. L. Weekly D1213a (Fla. 1st DCA 2016) is a case I discussed regarding lost profit damages. Check out that article here. But, this case also raised an interesting trial and appellate issue involving “other products” evidence to support an alternate causation argument, such as when a specific product or manufactured component fails. This case involved a manufacturer of a specific brand of carpet suing the manufacturer of resin that was used in manufacturing the failed carpet brand. The carpet manufacturer claimed that the resin failure caused an...