05 November

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

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...

28 May

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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;...

18 March

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Five-Year Statute of Limitation Applies to Reformation of Written Instrument Claim

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Claims have a statute of limitations. Claims outside the statute of limitations are time barred. In an interesting case dealing with the statute of limitations, an association sued homeowners to try to reform a declaration that was recorded fifteen years earlier. The declaration excluded the residential phases theses homes were situated in. While numerous homeowners consented to being governed by the declaration, two homeowners did not. The association wanted the court to reform the declaration so that these homes would be bound by the declaration. The homeowners argued that the association’s reformation claim was barred by the five-year statute of limitations...

11 December

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Real Estate Brokers are NOT Immune from Liability

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Real estate brokers are NOT immune from liability when it comes to misrepresentations regarding the property they are selling. A recent Florida appellate opinion supports this point. See Dziegielewski v. Scalero, 47 Fla.L.Weekly D2608a (Fla. 5th DCA 2022). If you are a real estate broker, consider this, particularly if you are marketing a property with misrepresentative statements. In this case, a condominium unit was listed for sale. The MLS listing for the property made a representation regarding garage spaces tied to the unit: “Not one or two, but three deeded garages come with this unit…” In actuality, the unit came with...

03 December

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Res Judicata and 4 Requirements that Must be Demonstrated

Posted by David Adelstein

in Standard of Review, Trial Perspectives

A recent case discusses the doctrine of res judicata after the trial court dismissed the plaintiff’s complaint with prejudice based on this doctrine. “The doctrine of res judicata provides that a judgment on the merits in an earlier suit bars a later suit on the same cause of action between the same parties or others in privity with those parties.” Res judicata bars a subsequent lawsuit when the following identities exist in both the original lawsuit and the subsequent lawsuit: “(1) identity of the thing being sued for; (2) identity of the cause of action; (3) identity of the parties; and...

19 November

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Mandatory Forum Selection Provisions

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When reviewing a contract, check to see if there is a forum selection provision. This provision will dictate where a dispute shall or may be brought. Forum selection provisions are construed as either mandatory forum selection provisions (the dispute has to be brought in this exclusive forum) or permissive forum selection provisions (the dispute may be brought in this forum, but other forums would work too). Be mindful of forum selection provisions because they will come into play if a dispute unfolds. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and...

23 October

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Directed Verdict Granted where No View of Evidence Could Support Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

In this blog posting, I discussed a case where the appellate reversed a final judgment in favor of a plaintiff on a breach of contract claim and remanded for the trial court to enter judgment in favor of the defendant. The appellate court found that the trial court should have entered defendant’s motion for directed verdict on plaintiff’s breach of contract claim. There are three interesting points regarding a motion for directed verdict. One, a motion for directed verdict is reviewed under a de novo standard of appellate review. Two: A motion for directed verdict should be granted only where no view of the...

28 September

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

Posted by David Adelstein

in Standard of Review, Trial Perspectives

The affirmative defense of waiver is a commonly pled affirmative defense. A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions. (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

10 September

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Bert Harris Act and Competing Motions for Summary Judgment

Posted by David Adelstein

in Standard of Review, Trial Perspectives

In previous articles, I have discussed the Bert J. Harris, Jr. Private Property Rights Protection Act also known as the Bert Harris Act. (See here and here.) A recent case, Brevard County, Florida v. Waters Mark Development Enterprises, LC, 47 Fla.L.Weekly D1863c (Fla. 5thDCA 2022), discusses the Bert Harris Act when there are competing motions for summary judgment. In this case, the plaintiff purchased land in Brevard County with plans to develop a residential subdivision. After the plaintiff purchased the land, the County amended its comprehensive land use plan that lowered the developmental density. Whereas the comprehensive land use plan originally...

03 April

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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1). However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party. With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party. Stated differently, the award of attorney's fees is not mandatory. In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court...