26 December

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A “Reasonable Time” Period does Exist

A reasonable time period does exist. The recent case of New Leaf Assets, LLC v. Jefrue, 50 Fla.L.Weekly D2673a (Fla. 4th DCA 2025) exemplifies this point. In this case, an investment agreement was entered – investors invested money in exchange for a percentage of membership interests. The agreement contained an option that gave the investors the option to exchange their membership interest for a refund of their investment, and the refund was backed by a personal guaranty. The investors attempted to exercise the option two years later, but the company notified them that it re-invested the money. The investors filed a...

07 December

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Contesting Personal Jurisdiction in Florida

Posted by David Adelstein

in Trial Perspectives

Contesting personal jurisdiction in Florida is a two-step process oftentimes referred to as the Venetian Salami analysis after a 1989 Florida Supreme Court case. See Kowalski v. Binance Holdings, Ltd., 50 Fla.L.Weekly D2582a (Fla. 3d DCA 2025). The Kowalski case summarized this two-step process as follows: [P]ersonal jurisdiction over a non-resident involves a two-step analysis: a statutory and a constitutional inquiry. First, the court determines whether the complaint sets forth sufficient jurisdictional allegations to bring the action within Florida's long-arm statute, section 48.193, Florida Statutes. Id. This is accomplished by either tracking the language of the statute without supporting facts or alleging specific facts that...

28 November

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Conduct to Support Punitive Damages

Posted by David Adelstein

in Trial Perspectives

When should punitive damages be considered? Stated differently, when does the opposing party’s conduct rise up to the level to support an amendment to a complaint to include punitive damages? How about this discussion from a recent case as to the conduct to support punitive damages: “[L]ong-established precedent dictates that actions which deserve punitive sanctions involve outrageous conduct, malicious motive, or wrongful intention.” William Dorsky Assocs. v. Highlands Cnty. Title & Guar. Land Co., 528 So. 2d 411, 412 (Fla. 2d DCA 1988). “[P]unitive damages are reserved for truly ‘culpable conduct,' ” where the conduct is “so outrageous in character, and so...

27 November

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Replevin Concerns the Wrongful Detention of Property

Posted by David Adelstein

in Trial Perspectives

The cause of action of replevin arises when another party wrongfully detains your property. Replevin is strictly a possessory action where the sole legal issue is the right to immediate possession, not ownership or title. In a replevin action, the right of immediate possession is the question to be determined, and that right may prevail even against absolute legal title to the property where title and possession have become separated. Indeed, where the title and the right of immediate possession are separated, a temporary right to possession may prevail against an absolute legal right to the property. Accordingly, the matter of...

16 November

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A Party Cannot Use Indemnity Clause to Create Basis for Attorney’s Fees Unless Clause Clearly Expresses that Intent

Posted by David Adelstein

in Trial Perspectives

In a recent case (discussed here) a party moved for attorney’s fees under an indemnification provision. The party claiming attorney’s fees was the indemnitor (party giving the indemnification) claiming that it should be entitled to attorney’s fees based on Florida Statute 57.105(7) which allows the trial court to award attorney's fees in a reciprocal manner. The problem, however, was the case had nothing to do with indemnity, which is really when a claim is made against you (an indemnitee) by a third party and you are looking to pass that claim through to the indemnitor. While the trial court granted...

08 November

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Proposal for Settlement / Offer of Judgment does NOT Apply to Claims where Equitable Relief is also Sought

Posted by David Adelstein

in Trial Perspectives

A recent case confirms that the proposal for settlement / offer of judgment statute does not apply where claims for equitable relief are also sought. It only applies to claims for monetary relief. This means, strategically, there may be a reason why you should or should not assert a claim for equitable relief if the proposal for settlement / offer of judgment statute is otherwise the only basis to recover attorney’s fees. The claim for equitable relief would put a damper in the enforceability of any proposal for settlement / offer of judgment. In Cornelius v. Haywood, 50 Fla.L.Weekly D2250a (Fla....

13 September

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FDUTPA Can Give Rise to a Claim Against a Person in an Individual Capacity

Posted by David Adelstein

in Trial Perspectives

In Florida, there is a statutory claim under Florida's Deceptive Unfair Trade Practices Act. This also goes by its acronym FDUTPA, and is referred to as a FDUTPA claim. For more information in FDUTPA, please check here. Did you know you can assert a FDUTPA claim against a person in an individual capacity? And this has nothing to do with piercing the corporate veil? In Thompson Nation Holdings, LLC v. Gonzalez, 50 Fla.L.Weekly D2030a (Fla. 3d DCA 2025), a customer sued her moving company's principal, individually, under FDUTPA. A judgment was obtained against the principal, and the appellate court affirmed the...

06 September

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Proving a Conversion Claim

Posted by David Adelstein

in Trial Perspectives

A recent federal district court opinion discusses what needs to be proven in a conversion claim. If you are pursing or considering to pursue a conversion claim, knowing what you need to plead and then prove is critical. “Under Florida law, a conversion is ‘an unauthorized act which deprives another of his property permanently or for an indefinite time.’ ‘[T]he elements of conversion are ‘(1) an act of dominion wrongfully asserted; (2) over another’s property; and (3) inconsistent with this ownership therein.’ ‘Conversion may be demonstrated by a plaintiff’s demand [for return of the property] and defendant’s refusal,’ but ‘demand and...

29 August

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Enforcing Restrictive Covenants and Not Needing to Prove Irreperable Harm

Posted by David Adelstein

in Trial Perspectives

To pursue an injunction, a party needs to satisfy the following four elements: “(1) a clear legal right; (2) irreparable harm; (3) no adequate remedy at law; (4) consideration of the public interest.” Mooney v. Color Le Palais of Boynton Beach Homeowners Association, Inc., 50 Fla.L.Weekly D1912a (Fla. 4th DCA 2025). When a party moves to enforce a restrictive covenant, they do so through injunctive relief. However, when it comes to a restrictive covenant, a party does not need to prove that there was irreparable harm or that there was no adequate remedy at law – elements 2 and 3....

24 August

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The Duty of Care Extended to Invitees is Not Boundless

Posted by David Adelstein

in Trial Perspectives

In the previous posting, I write about how the element of duty in a negligence claim is a question of law. It is up for the court to decide and not the jury. However, I did not delve into the facts of the case. The underlying case was a personal injury case. A plaintiff was injured when she parked her car and, instead of using the paved sidewalk, decided to cross a grassy median and stepped on an irrigation box. She sued the defendant in a premise liability negligence action claiming the defendant failed to maintain the grassy median, or adequately...