18 October

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Dealing with a Choice of Law Issue?

Do you have a “choice of law” issue? In other words, does your contract require you to apply Delaware law (or the law of another state) but you will be filing your lawsuit in Florida? In this case, how do you know when to apply the law of another state versus Florida law? The answer depends on whether dealing with a substantive versus procedural issue: When dealing with choice of law matters, Florida adheres to a distinction between substantive and procedural matters. Siegel v. Novak, 920 So. 2d 89, 93 (Fla. 4th DCA 2006); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So....

10 October

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Properly Alleging a Trade Secret Misappropriation Claim under Florida Law

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Is there a cause of action for trade secret misappropriation? Why, why, yes there is under Florida’s Uniform Trade Secret Act, known as “FUTSA”, included in Florida Statute s. 688.001 en seq. FUTSA defines the terms “trade secret” and “misappropriation” as not everything a person claims to be a trade secret is, indeed, a trade secret. Understanding the statutory definitions to “trade secret” and “misappropriation” are important if a party is looking to pursue a claim against another under FUTSA. To successfully state a cause of action under FUTSA, a plaintiff must [identify the trade secrets with reasonable particularity and] allege...

04 October

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Statutory Construction – What does the Statute Mean?

Posted by David Adelstein

in Trial Perspectives

What does this statute mean? As an example of a statute saying what it says and meaning what it means, Florida Statute s. 95.11 (5)(b) provides that there is a one-year statute of limitations for “[a]n action to enforce an equitable lien arising from the furnishing of labor, services, or material for the improvement of real property.” In a recent case, Gabriji, LLC v. Hollywood East, LLC, 45 Fla. L. Weekly D2251a (Fla. 4th DCA 2020), an issue was whether the one-year statute of limitations applied to equitable liens outside the context of “furnishing of labor, services, or material for the...

06 September

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Personal Jurisdiction and Florida Court’s Two-Prong Analysis

Posted by David Adelstein

in Trial Perspectives

When a defendant is sued, a court needs to have personal jurisdiction over that party. It is a due process consideration to ensure the court has authority over that party. A court’s ruling as to personal jurisdiction over a party will give a right to an immediate appeal. The issue of personal jurisdiction is generally confronted when the defendant is a foreign person or company, i.e., not operating in Florida, being sued in Florida. Making the decision to sue a foreign person or company in Florida needs to consider personal jurisdiction including the appellate right associated with a court's ruling on...

29 August

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Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages

Posted by David Adelstein

in Trial Perspectives

Lawsuits are an inconvenience. They just are--no doubt about it. You have to devote time and resources, both of which you would prefer to allocate to another endeavor. However, while your time is valuable, this does NOT mean you can recover an inconvenience factor associated with your lawsuit. In a recent case, P&G Trucking of Brandon, Inc. v. Riverland Hedging & Topping, Inc., 45 Fla. L. Weekly D2023a (Fla. 4th DCA 2020), a truck struck and damaged a tractor and citrus topper. The owner of this damaged machinery sued in negligence for property damage in addition to its lost profits,...

22 August

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Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration

Posted by David Adelstein

in Appeal, Trial Perspectives

With the current post-COVID-19 state of affairs with the judicial system, there is attraction to arbitrating disputes as an efficient means to dispute resolution. Arbitration is a creature of contract and is a binding method to resolve a dispute outside of the judicial system. Just because there may be an agreement to arbitrate a dispute does not mean parties will concede that their particular dispute falls within the scope of the contractual arbitration provision. A party may still prefer to litigate certain disputes and preserve the right to appeal the outcome, a right which does not exist in arbitration. There...

17 August

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Mutual Mistake or Unilateral Mistake in Contract

Posted by David Adelstein

in Trial Perspectives

Mistakes unfortunately happen when it comes to written agreements. When they do, a party to a written agreement may try to reform the agreement or rescind the agreement due to the mistake. Reforming or rescinding a written agreement based on a mistake is NOT as easy as it may sound simply because a party claims there was a mistake in the process. There are two types of mistakes that could support a basis to reform or rescind a contract: mutual mistake and unilateral mistake. Typically, both mistakes require a party to prove the mistake and satisfy their burden of proof justifying...

09 August

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Employee’s Premise Liability Claim Barred by Disclaimer / Release in Employment Agreement

Posted by David Adelstein

in Trial Perspectives

Many times, an employee is required to sign a contract or agreement by the employer as a condition of employment. If the employee does sign, they are employed. If the employee does not sign, there is no employment. The catch-22 when it comes to employment agreements. If you have questions about what you are signing, do yourself a favor and consult with counsel. This way, you at least have an understanding as to what rights you may be foregoing. There are times these employment agreements are later challenged in court by the employee when the employee leaves the company and argues...

26 July

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Comparative Fault Applies when Substance of the Action is Sounded in Negligence

Posted by David Adelstein

in Trial Perspectives

In previous postings (check here and here) I discussed the doctrine known as comparative fault or comparative negligence referenced in Florida Statute s. 768.81. This is when the trier of fact allocates a parties percentage of fault to the damages claimed by the plaintiff. A party can only be liable for their pro rata percentage of fault and fault can even be allocated to the plaintiff. This doctrine typically applies in negligence claims. However, in a recent construction dispute dealing with only economic damages, further discussed here, the appellate court considered that Florida Statute s. 768.81 focuses on the...

12 July

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Work Product Document and Withholding of Documents Based on Doctrine

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When it comes to the protection of information in litigation, there are generally two doctrines that apply. First, there is the attorney-client privilege. Makes sense. The second is what is known as the “work product” doctrine. This doctrine stands for the proposition that what a party does in anticipation of litigation is protected from disclosure during discovery. This could include a party’s legal or mental impressions, or strategic decisions and organization relative to a pending or ongoing dispute. Typically, when a document is withheld under either the attorney-client privilege or work product doctrine, it will be identified on a privilege log. ...