12 April

Sticky

Reasonable Attorneys’ Fees’ Expert when Attorney’s Fees are the Damages

Generally, when an attorney is. awarded attorney's fees, there is a mini-evidentiary hearing to determine the "reasonableness" of those fees. Another lawyer--the reasonable attorneys' fees' expert--opines that the rate and hours expended are reasonable. The opposing party then has its own expert to opine otherwise. Fairly archaic and ridiculous in my opinion. Others may disagree. Nevertheless, the reasonable fees' expert is how it is done with another attorney testifying that the fees incurred by the prevailing lawyer were "reasonable" fees. What if fees are the actual damages? In a recent case, Law Offices of Granoff & Kessler, P.A. v. Glass, 45 Fla. L....

11 April

0 Comments

Sticky

Prejudgment Interest for Economic Damages is Predicated on the Loss Theory

Posted by David Adelstein

in Trial Perspectives

The purpose of prejudgment interest is to make the plaintiff whole from the date of the loss. Arizona Chemical Co., LLC v. Mohawk Industries, Inc., 197 So.3d 99, 102 (Fla. 1st DCA 2016) (explaining that Florida applies the loss theory as it pertains to prejudgment interest which is simply to make the plaintiff whole and not to penalize the defendant or give the plaintiff a windfall). A prevailing party is entitled to prejudgment interest on damages that have been liquidated. Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So.3d 743, 746 (Fla. 3d DCA 2014). Stated differently, “[o]nce liquidated damages have...

08 April

0 Comments

Sticky

Take Advantage of Video Conference Consultations with an Attorney

Posted by David Adelstein

in Trial Perspectives

If you need a lawyer, I would strongly suggest you start moving towards video conference consultations. You need a computer, tablet, or smartphone and access to the internet. Video conferences are a productive tool to discuss your issues with a lawyer, particularly in today's current climate as we all deal with the coronavirus. Don't delay consulting with a lawyer merely because you think you do not have the right access or opportunity. Take advantage of video conference consultations so that you are proactively getting in front of your issues. It is always advisable to address issues or problems proactively,...

04 April

0 Comments

Sticky

Arbitrability of a Dispute – Does a Judge or Arbitrator Decide?

Posted by David Adelstein

in Trial Perspectives

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim. Another way to resolve a dispute is through binding arbitration. Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs. The key with arbitration is that it is a creature of contract. This means there needs to be an arbitration provision in an agreement for the...

28 March

0 Comments

Sticky

A Misrepresentation is Not the Same as a Breach of Contract

Posted by David Adelstein

in Trial Perspectives

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract. Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self: when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity. See Fla. R. Civ. P. 1.120. Second note to self: a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach of contract...

16 March

0 Comments

Sticky

Consider Alternative Fee Arrangements

Posted by David Adelstein

in Trial Perspectives

With all of the uncertainty going on right now in the world, and there is a lot, it may be the time to consider alternative fee arrangements with your attorney. This can be any fee arrangement that is not hourly billing that is a creative way to meet your needs in light of cash flow constraints. Not every case merits an alternative fee arrangement, but many cases do. Perhaps it is time to explore the possibility of an alternative fee arrangement to see if one can be reached. There is nothing wrong with an innovative way to resolve your issues. Please...

10 March

0 Comments

Sticky

Owner Jointly and Severally Liable for Nondelegable Duty

Posted by David Adelstein

in Trial Perspectives

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff--a guest of a condominium unit owner--sued the association and the association’s dock contractor after she injured herself on an unfinished dock. The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages. The appellate court agreed because the association...

05 March

0 Comments

Sticky

Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action

Posted by David Adelstein

in Trial Perspectives

There used to be an argument that if a corporation becomes administratively dissolved for failing to to file a routine annual report, the corporation cannot prosecute a lawsuit, or even defend itself in a lawsuit, until it becomes reinstated. The Second District Court of Appeal in Hock v. Triad Guaranty Ins. Corp., 45 Fla. L. Weekly D493g (Fla. 2d DCA 2020) held that a corporation that becomes administratively dissolved for failing to file an annual report may prosecute or defend an action “in order to wind up its business and affairs.” This means that any administratively dissolved corporation that prosecutes an...

01 March

0 Comments

Sticky

Application of the Non-Party Fabre Defendant

Posted by David Adelstein

in Trial Perspectives

In an earlier posting, I wrote about the defense concept known as the non-party Fabre defendant. This is an affirmative defense raised by a defendant in negligence scenarios to get a non-party on a jury verdict form so that the jury assigns a percentage of fault / liability for the plaintiff’s damages to this non-party. By assigning a percentage of fault to the non-party, the defendant’s liability for the plaintiff’s damages is reduced. By way of example, if the plaintiff has $100,000 in damages and sues the defendant for these damages, the defendant may claim that "X" should be responsible...

23 February

0 Comments

Sticky

Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument

Posted by David Adelstein

in Appeal, Trial Perspectives

A lis pendens serves as a cloud against real property. A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens...