25 April

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims? Can a party still be deemed to prevail on the significant issues in the case? That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

11 April

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Attorney’s Fees and the “American Rule”

Posted by David Adelstein

in Trial Perspectives

Not every cause of action asserted gives rise to an argument to recover attorney’s fees. Florida follows what is known as the “American Rule” which is “attorney’s fees may be awarded by a court only when authorized by statute or agreement of the parties.” State Farm Fire & Casualty Co v. Palma., 629 So.2d 830, 833 (Fla. 1993); Bank of New York Mellon Trust Co., N.A. v. Fitzgerald, 215 So.3d 116, 119 (Fla. 3d DCA 2017) (“It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute.”); accord Attorney’s Title Ins. Fund, Inc., v. Landa-Posada,...

21 March

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Non-Signatory Compelling Arbitration based on Equitable Estoppel

Posted by David Adelstein

in Trial Perspectives

Many times, parties will prefer to arbitrate their disputes instead of litigate their disputes. Because arbitration is a creature of contract, an arbitration provision must be included in the parties’ contract. There are pros and cons to arbitration and it is important to discuss these pros and cons with your counsel when negotiating a contract that includes an arbitration provision. The pros and cons may change over time. (For example, in this COVID-19 world, there are pros with arbitration that did not exist before the COVID-19 pandemic.) Notwithstanding, there are instances where a non-signatory to the contract with the arbitration provision...

28 February

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Proposals for Settlements and Attaching Releases

Posted by David Adelstein

in Trial Perspectives

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

20 February

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Dismissal due to Fraud on the Court Post-Jury Verdict — Not Soooooo Fast

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

Oftentimes, people use the term “fraud on the court” without truly recognizing the difficulties in getting a case dismissed--the harshest of sanctions--especially in a circumstance where the jury already rendered a verdict. Upon learning of the facts supporting “fraud on the court,” the appropriate motions should be filed during the course of the case because there are a number of remedies that can be employed short of dismissing a case with prejudice. While in appellate court will review a dismissal due to fraud on the court under an abuse of discretion standard of review, this does not mean that a trial...

14 February

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Special Venue Rule in Breach of Contract Actions Known as Debtor-Creditor Rule

Posted by David Adelstein

in Trial Perspectives

There is a special venue rule known as the debtor-creditor rule, which applies in limited circumstances in breach of contract actions. The debtor-creditor rule provides that if “a cause of action [is] based on failure to pay money due under a contract and the contract does not expressly provide a place of payment, it is implied that the debtor must seek the creditor and payment is to be made where the creditor resides.” Magic Wok International, Inc. v. Li, 706 So.2d 372, 374 (Fla. 5th DCA 1998). This rule, importantly, ONLY applies when dealing with a liquidated debt; it does...

07 February

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Do Not Overlook Reviewing the Forum Selection Provision in the Contract

Posted by David Adelstein

in Trial Perspectives

Many contracts contain what is known as a forum selection provision. This provision may state that disputes arising out of the contract MUST be brought in the exclusive venue of a specific county or state. Do not overlook this provision because this provision is enforceable and will likely dictate where you will need to file suit in the event of a dispute. For instance, if you have a contract for services performed in Miami-Dade County, Florida (or you live in that County, or is receiving goods in that County), you may not want to agree to litigate disputes arising from...

23 January

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Florida Supreme Court says No! – Extra-Contractual Damages cannot be Recovered against Property Insurer Absent Bad Faith Claim

Posted by David Adelstein

in Trial Perspectives

Can an insured recover extra-contractual, consequential damages from its property insurer without pursuing a separate bad faith claim against the insurer? The Florida Supreme Court, quashing an order of a lower appellate court, held NO!: [W]e conclude that extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy. Extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but are not recoverable in this action against Citizens because Citizens is statutorily...

16 January

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Discovery Appeal by Non-Party in Dispute

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Discovery disputes do not always go your way. You win some. You lose some. In losing a discovery dispute, it could give rise to an appeal through a petition for a writ of certiorari. Obviously, this is not an easy appeal but, certainly, there are instances where the trial court issues a discovery ruling that gives rise to irreparable harm supporting the basis for certiorari. This discovery ruling may be against a party, or in certain cases, a non-party. “To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which...

09 January

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In Ruling on Motion to Compel Arbitration, Trial Court Must Determine whether Parties Bound by Arbitration Provision

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you want to arbitrate, instead of litigate, your dispute, you need to include an arbitration provision in your contract. However, this does not mean that parties do not try to avoid arbitration, albeit there being an arbitration provision in the contract, by filing a lawsuit. This leads to parties moving to compel arbitration and, upon the trial court’s ruling, a right to appeal. A party may feel the nature of the dispute will play out better for them in arbitration versus litigation, or there are other important strategic reasons to arbitrate...