28 April

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The Contractual Right to Arbitrate a Dispute Can be Waived

Arbitration is a form of dispute resolution. Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator. Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute. The parties either agree to an arbitrator or an arbitrator is appointed through a selection process. With everything, there are pros and cons to arbitration to be discussed in detail with your counsel. There are many disputes I prefer arbitration and there are many disputes I do not. Arbitration is a creature of contract so if...

16 April

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

Posted by David Adelstein

in Trial Perspectives

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)? These are damages that should be accounted for in a lis pendens bond. The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained: Haisfield looks back at losses that were actually suffered by a property...

07 April

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Affirming Summary Judgment when there are Competing Expert Affidavits

Posted by David Adelstein

in Evidence, Trial Perspectives

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve...

24 March

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Proving Entitlement to a “Trade Secret”

Posted by David Adelstein

in Trial Perspectives

A recent case, Managed Care of North America, Inc. v. Florida Healthy Kids Corp., D735a (Fla. 1st DCA 2019), discusses the standard in proving entitlement to a "trade secret," as defined by Florida law (below). In this case, bidders submitted proposals to a public body in response to an Invitation to Negotiate. In responding to the proposal, one of the bidders marked certain pages confidential as a trade secret, which is not uncommon. A losing bidder sought to obtain this information under Florida’s Public Record’s Act and the bidder maintaining the trade secret protection filed a motion for declaratory relief asking...

24 February

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Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

Posted by David Adelstein

in Standard of Review, Trial Perspectives

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.”Zurich Am. Ins. Co. v. Puccini, LLC, 2019 WL 454222, *1 (Fla. 3d DCA 2019) (citation omitted). The standard of review associated with reviewing a trial court’s order granting a motion to dismiss with prejudice is de novo. Id. In Puccini, a commercial tenant operating a restaurant caused a fire. The fire...

17 February

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

Posted by David Adelstein

in Trial Perspectives

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”). A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount. (See this article for more on proposals for settlement). For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant. In Cassedy, Jr. v. Wood,44 Fla.L.Weekly...

10 February

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Posted by David Adelstein

in Trial Perspectives

Everybody knows that you need to maintain properties, no matter what type of building it is. If a lock breaks, call a locksmith as soon as possible to change it. If you see signs of pests, get professional pest control san marcos tx to ensure it's dealt with. If a pipe leaks, hire a plumber and make sure there's no water damage. The list goes on. However, did you know that you've got a duty to maintain even the most obvious issues and dangerous conditions? Even with an open and obvious dangerous condition, there may still exist a duty to...

04 February

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Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule

Posted by David Adelstein

in Trial Perspectives

The recent decision in Coachwood Colony MGP, LLC v. Kironi, LLC, 44 Fla.L.Weekly D340a (Fla. 5thDCA 2019) discusses the burden an upper landowner owes to a neighboring lower landowner when it comes to stormwater runoff / drainage. The upper landowner is at a higher elevation than the lower landowner so the issue becomes the flow of stormwater from the upper landowner’s higher elevation property to the neighboring lower elevation property. The flow of stormwater can result in washout, flooding, and loss of use and enjoyment to the lower elevation property, which is where the issue lies. The Florida Supreme Court discussed...

27 January

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Disgorgement for WRONGDOING

Posted by David Adelstein

in Trial Perspectives

What is disgorgement and what are the proper measure of damages when seeking disgorgement? If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2018), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of fiduciary duty, defamation, conspiracy, slander per se, tortious interference, and violation of Florida’s Deceptive and Unfair Trade Practices Act. You name it, this case seemed to include it! Applicable here, however, is the damages associated with disgorgement which is designed to prevent a wrongdoer from...

20 January

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Disability Discrimination: Synopsis

Posted by David Adelstein

in Trial Perspectives

When it comes to disability discrimination, there are two key federal statutes. The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act. Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities. There are numerous federal cases discussing both the ADA and the Rehabilitation Act and their application to a given factual scenario. For purposes here, this synopsis will merely highlight key components to a disability discrimination claim. It is important that a person that believes they have been discriminated against because of a disability to...