22 December

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Arbitration Clause – Narrow or Broad

Arbitration, as a method of dispute resolution, is a creature of contract. If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract. If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified in your contractual arbitration provision. Conversely, if you want certain disputes not to be arbitrated or carved-out from arbitration, you want to clarify this in the arbitration provision. The more clarity, the better, as it will avoid an issue down the road as to whether the dispute...

03 December

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Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Posted by David Adelstein

in Trial Perspectives

Certain employment contracts will contain non-solicitation clauses. Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period. For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel. The company hired employees to serve as...

02 December

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Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein

in Trial Perspectives

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument. In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered. But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for...

22 November

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Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

Posted by David Adelstein

in Trial Perspectives

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act. This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner's use of their property without the governmental action amounting to a taking. Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018). This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own. For example, in Vale, a group of homeowners purchased property in a planned used development next...

17 November

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Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

Posted by David Adelstein

in Appeal, Trial Perspectives

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff's case-in-chief. The defendant argued the plaintiff had no standing. The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff. The defendant appealed. On appeal, the appellate court reviews on a de novo standard of appellate review a trial court's ruling on a motion for involuntary dismissal. In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant. Why? Well, this case involved a member of a limited liability company (LLC), the...

03 November

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If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein

in Trial Perspectives

If you file a frivolous motion or pleading: BEWARE. Appellate courts are taking seriously frivolous filings. Frankly, they should! In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature's Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial. The defendant than filed a motion for prevailing party attorney's fees. However, the defendant NEVER pled an actual entitlement to attorney's fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time...

28 October

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Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Posted by David Adelstein

in Trial Perspectives

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor. This does not mean arguments cannot and should not be made. It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer. In a recent post-judgment collection case, Villamizar v. Luna Capital Partners, LLC, LLC, 43 Fla.L.Weekly D2395a (Fla. 3d DCA 2018), a plaintiff (judgment creditor) recovered a judgment against a defendant on unsecured promissory notes (i.e., the notes were not secured by any mortgage). During the underlying lawsuit, the defendant sold...

14 October

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A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate. However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract. As a result, an order granting...

22 September

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Economic Damages Must be Based on Competent Substantial Evidence

Posted by David Adelstein

in Trial Perspectives

Economic damages must be supported by substantial competent evidence. Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable. Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim. If damages cannot be proven, there is no claim, so making sure damages can be supported with competent substantial evidence is beyond important. The recent decision of Alvarez v. All Star Boxing, Inc., 43 Fla.L.Weekly D2102a (Fla. 3d DCA 2018) establishes what can happen if a party puts on speculative damages. This...

08 September

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You Can’t Sue Someone for Unjust Enrichment when there is a Contract

Posted by David Adelstein

in Trial Perspectives

You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties. You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability). For example, in Sterling Breeze Owners' Association, Inc. v. New Sterling Resorts, LLC, 43 Fla.L.Weekly D2040c (Fla. 1st DCA 2018), a condominium association sued the developer for, among other claims, unjust enrichment. The claim stemmed from the fact that the developer (in developing the condominium) reserved in the condominium documents ground...