21 May

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Measure of Tort Damages in Civil Disputes

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...

14 May

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Contract Interpretation; Force Majeure; Impossibility; Impracticability; Frustration of Purpose — All in One Case

Posted by David Adelstein

in Trial Perspectives

Covid-19 created a number of hardships to businesses. No doubt about it. The case of Fitness International, LLC v. 93 FLRPT, LLC, 48 Fla.L.Weekly D947a (Fla. 2d DCA 2023) exemplifies one such hardship. The issue in this case was how “government-ordered restrictions related to the COVID-19 pandemic impact[ed] the parties’ obligations under a commercial real estate lease.” In essence, a gym--tenant--had a commercial lease. The gym sought a refund for a fifteen-week period that it was required to close or operate below full capacity due to government-imposed restrictions. Unfortunately for the gym, it lost its arguments under all theories from breach...

29 April

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Manner in which Information (Such as Customer Lists) Compiled can Constitute Trade Secret

Posted by David Adelstein

in Trial Perspectives

A summary judgment on a misappropriation of trade secrets claim is reversed on appeal because “a genuine issue of material fact remains as to whether the compilation of the information, even that which was within the public domain, constituted information protected as a trade secret.” Patient Depot, LLC v. Acadia Enterprises, Inc., 48 Fla.L.Weekly D871a (Fla. 4th DCA 2023). In this case, the plaintiff operated as a broker of personal protection equipment (PPE) and matched PPE suppliers with consumers. The plaintiff maintained a website platform that plaintiff considered to be a trade secret. This platform contained a list of viable suppliers, including...

23 April

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Forum Non Conveniens – Heavy Burden for Defendant

Posted by David Adelstein

in Trial Perspectives

“The common law doctrine of forum non conveniens, which translates to mean ‘inconvenient forum,' is an equitable, judicially crafted rule designed to allow a court to dismiss, in certain limited circumstances, a lawsuit with little connection to Florida that would be better suited and fairly litigated elsewhere.” Gordon v. Bethel, 48 Fla.L.Weekly D804a (Fla. 4th DCA 2023) (citation omitted). A recent case deals with this limited doctrine of forum non conveniens. In this case, a plaintiff filed a defamation lawsuit in Broward County. The plaintiff is a resident of Broward County and operates his business out of Broward County. The defendants...

16 April

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Third-Party Complaint Must Allege Claim for Indemnification, Subrogation, or Contribution

Posted by David Adelstein

in Trial Perspectives

Must a third-party complaint include a claim for indemnification, subrogation, or contribution arising from the underlying complaint? A recent Fourth District Court of Appeal case, relying on a case from the Second District Court of Appeal, confirmed it did when it reversed final judgment against a third-party defendant due to an improper third-party complaint. Below is the applicable language relating to third-party complaints: Rule 1.180 governs third party complaint practice. That rule provides: At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may...

02 April

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Negligent Training, Retention, Supervision, and Entrustment Claims Against Individual Officers and Agents

Posted by David Adelstein

in Trial Perspectives

In Jones v. Vasilias, 48 Fla.L.Weekly D568a (Fla. 4th DCA 2023), the plaintiff was injured when he was riding his bike in front of an automobile dealership. An employee of the dealership hit the plaintiff as he was leaving the dealership in a van for a delivery. The plaintiff, in addition to suing the driver of the van and the dealership, asserted claims against the dealership’s general manager and service manager in negligence for negligent training, retention, supervision, and entrustment. The trial court dismissed the negligence claims against the general manager and supervisor. The Fourth District Court of Appeal reversed...

26 March

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Nonbinding Arbitrations under Florida Law and Moving for a Trial De Novo

Posted by David Adelstein

in Trial Perspectives

Certain Florida courts require parties to proceed to nonbinding arbitration as a settlement vehicle – as a means for the parties to evaluate their case and provide a basis for attorney’s fees if the losing party proceeds to trial regardless of the nonbinding arbitration ruling. If a court requires the parties to proceed to nonbonding arbitration, this will occur prior to trial. While I'm not necessarily a fan of nonbonding arbitrations, if a court requires it, you want to make sure you are prepared to participate in the arbitration process and present your case to the arbitrator. A recent Florida case...

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...

12 March

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Florida’s Judicially Created Impact Rule and Emotional Distress

Posted by David Adelstein

in Trial Perspectives

In Florida, there is a judicially created doctrine known as the impact rule. This judicially created impact rule is aimed at claims for emotional distress. The impact rule “requires that ‘before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.” Lotierzo v. Barbarito, 48 Fla.L.Weekly D512a (Fla. 4th DCA 2023) (quotation omitted). However, the impact rule is not without limited exceptions. See Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 4th DCA 2005) (discussing limited exceptions to the impact...

05 March

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Attorney’s Fee as an Element of Compensatory Damages

Posted by David Adelstein

in Trial Perspectives

When attorney’s fees are being sought as an element of compensatory damages, there is NO requirement for an expert to opine as to the reasonableness of the attorney’s fees. Rodriguez v. Altomare, 261 So.3d 590, 592 (Fla. 4th DCA 2018). “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.” Id. See also Sea World of Florida, Inc. v. Ace American Ins. Companies, Inc., 28 So.3d 158,...