21 February

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Intervention Standard for Intervening into Lawsuit

in Standard of Review, Trial Perspectives

If you’ve ever considered intervening into a lawsuit, Mendoza v. Kendall Park Plaza, Ltd., 51 Fla.L.Weekly D309a (Fla. 3d DCA 2026), does a good job explaining the standard ad the process. Florida Rule of Civil Procedure 1.230 governs intervention. It provides, in pertinent part, that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention . . . .” Fla. R. Civ. P. 1.230. But the rule comes with the caveat that “the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered...

08 February

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Mutuality of Obligation under Florida Statute 57.105(7)

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 57.105(7) provides: “If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Fla. Stat. s. 57.105(7). Parties argue this subsection (7) to create a reciprocal basis for attorney’s fees under the argument “mutuality of obligation.” A recent case dealt with attorney’s fees being awarded under s. 57.105(7) under a law firm retainer agreement. Fees...

30 January

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Vicarious Liability Claims and the Exoneration Rule

Posted by David Adelstein

in Trial Perspectives

The legal principle of vicarious liability comes into play when a third-party pursues an employer for an employee’s negligence. When pursuing vicarious liability against an employer, remember that the exoneration rule comes into play when the employer is not a joint-tortfeasor with the employee. The exoneration rule is explained as follows: An employer may be held vicariously liable for the negligent act of its employee committed during the course and scope of employment, even when the employer itself is without fault. Because in this context the employer is not a joint tort-feasor with the employee, the employer's liability depends on the...

24 January

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Don’t Create an Attorney’s Fees Waiver Argument

Posted by David Adelstein

in Trial Perspectives

Here’s a situation you’d like to avoid because it creates an unnecessary waiver argument with respect to attorney’s fees. In a dispute between a condominium association and unit owner, the unit owner sued his association for injunctive relief, negligence, and breach of contract. The parties entered an agreed order on the unit owner’s injunctive relief claim against the association, and identified the unit owner as the prevailing party. The parties then entered an agreed order that granted the unit owner entitlement to fees and an evidentiary was held on the fees. The trial court entered a judgment as to the attorney's...

09 January

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Right of First Refusal and Consideration for the Right of First Refusal

Posted by David Adelstein

in Trial Perspectives

Have you dealt with a right of first refusal? “A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those continued in good faith offer by a third person if the owner manifests a willingness to accept the offer.” A contractual right of first refusal must be supported by consideration to be enforceable.” Raj v. Sutherlin, 51 Fla.L.Weekly D73a (Fla. 4th DCA 2026) (internal citations omitted). In a recent case, an owner and buyer and into an addendum to a contract where the owner gave the buyer the...

04 January

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The Duty and Proximate Causation Elements in Negligence Actions

Posted by David Adelstein

in Trial Perspectives

A negligence action has four elements a plaintiff must prove: “(1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Las Olas Holding Co. v. Demella, 228 So.3d 97, 102 (Fla. 4th DCA 2017) (quotation omitted). The third element, causal connection, refers to proximate causation. See id. at 106. A recent case discusses both the duty element (a question of law) and proximate causation element (a question of fact) with notable analysis...

26 December

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A “Reasonable Time” Period does Exist

Posted by David Adelstein

in Trial Perspectives

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...