20 August

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Venue Considerations when Challenging Venue

In a recent construction dispute, Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC, 48 Fla.L.Weekly D1381b (Fla. 2d DCA 2023), a general contractor hired a subcontractor. The subcontract contained NO venue provision or specified where payments were to be due. This was important because the general contractor and subcontractor were located in different counties and the general contractor was located in the county where the project at-issue was located. A payment dispute arose, and the subcontractor sued the general contractor in the county where it was located. The general contractor moved to transfer venue to the county...

04 July

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Equal Wrongdoing Doctrine Known as In Pari Delicto

Posted by David Adelstein

in Trial Perspectives

There is a legal doctrine known by its Latin phrase, in pari delicto, that: [R]efers to ‘[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” This principle is ‘grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.’ Perry v. Turner, 48 Fla.L.Weekly D1307a (Fla. 2nd DCA 2023) (internal citations omitted). As shown, it is premised on the fact that one cannot be rewarded for their equal wrongdoing, i.e.,...

25 June

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Affidavits and Declarations Used for Summary Judgment

Posted by David Adelstein

in Trial Perspectives

When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge. The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of...

04 June

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Procedure for Seeking Punitive Damages

Posted by David Adelstein

in Trial Perspectives

The recent appellate opinion in Werner Enterprises, Inc. v. Mendez, 48 Fla.L,Weekly D1121A (Fla. 5th DCA 2023) discusses the PROCEDURE for a party moving to amend their complaint to add punitive damages. In this case, the plaintiff appealed the trial court’s denial of the plaintiff’s motion for leave to amend to add punitive damages. The appellate court reversed the trial court’s denial and, in doing so, includes this worthy discussion on the procedure associated with moving to amend a complaint to seek punitive damages: Florida law requires the plaintiff to seek the trial court's permission before adding punitive damages to its complaint....

21 May

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Measure of Tort Damages in Civil Disputes

Posted by David Adelstein

in Appeal, Trial Perspectives

If you are filing a civil action, your case is generally about, and should generally be about, recovering damages. Sure, there may be exceptions where a party is seeking injunctive relief or a declaration, but mostly, civil disputes concern a party seeking monetary damages. When it comes to civil tort actions, remember this when it comes to the measure of damages: “In tort actions, the measure of damages [awarded] seeks to restore the victim to the position he would be in had the wrong not been committed.” Hollywood Imports Limited, Inc. v. Nationwide Financial Services, LLC, 48 Fla.L.Weekly D915a (Fla. 4th...

14 May

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Contract Interpretation; Force Majeure; Impossibility; Impracticability; Frustration of Purpose — All in One Case

Posted by David Adelstein

in Trial Perspectives

Covid-19 created a number of hardships to businesses. No doubt about it. The case of Fitness International, LLC v. 93 FLRPT, LLC, 48 Fla.L.Weekly D947a (Fla. 2d DCA 2023) exemplifies one such hardship. The issue in this case was how “government-ordered restrictions related to the COVID-19 pandemic impact[ed] the parties’ obligations under a commercial real estate lease.” In essence, a gym--tenant--had a commercial lease. The gym sought a refund for a fifteen-week period that it was required to close or operate below full capacity due to government-imposed restrictions. Unfortunately for the gym, it lost its arguments under all theories from breach...

29 April

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Manner in which Information (Such as Customer Lists) Compiled can Constitute Trade Secret

Posted by David Adelstein

in Trial Perspectives

A summary judgment on a misappropriation of trade secrets claim is reversed on appeal because “a genuine issue of material fact remains as to whether the compilation of the information, even that which was within the public domain, constituted information protected as a trade secret.” Patient Depot, LLC v. Acadia Enterprises, Inc., 48 Fla.L.Weekly D871a (Fla. 4th DCA 2023). In this case, the plaintiff operated as a broker of personal protection equipment (PPE) and matched PPE suppliers with consumers. The plaintiff maintained a website platform that plaintiff considered to be a trade secret. This platform contained a list of viable suppliers, including...

23 April

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Forum Non Conveniens – Heavy Burden for Defendant

Posted by David Adelstein

in Trial Perspectives

“The common law doctrine of forum non conveniens, which translates to mean ‘inconvenient forum,' is an equitable, judicially crafted rule designed to allow a court to dismiss, in certain limited circumstances, a lawsuit with little connection to Florida that would be better suited and fairly litigated elsewhere.” Gordon v. Bethel, 48 Fla.L.Weekly D804a (Fla. 4th DCA 2023) (citation omitted). A recent case deals with this limited doctrine of forum non conveniens. In this case, a plaintiff filed a defamation lawsuit in Broward County. The plaintiff is a resident of Broward County and operates his business out of Broward County. The defendants...

16 April

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Third-Party Complaint Must Allege Claim for Indemnification, Subrogation, or Contribution

Posted by David Adelstein

in Trial Perspectives

Must a third-party complaint include a claim for indemnification, subrogation, or contribution arising from the underlying complaint? A recent Fourth District Court of Appeal case, relying on a case from the Second District Court of Appeal, confirmed it did when it reversed final judgment against a third-party defendant due to an improper third-party complaint. Below is the applicable language relating to third-party complaints: Rule 1.180 governs third party complaint practice. That rule provides: At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may...

02 April

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Negligent Training, Retention, Supervision, and Entrustment Claims Against Individual Officers and Agents

Posted by David Adelstein

in Trial Perspectives

In Jones v. Vasilias, 48 Fla.L.Weekly D568a (Fla. 4th DCA 2023), the plaintiff was injured when he was riding his bike in front of an automobile dealership. An employee of the dealership hit the plaintiff as he was leaving the dealership in a van for a delivery. The plaintiff, in addition to suing the driver of the van and the dealership, asserted claims against the dealership’s general manager and service manager in negligence for negligent training, retention, supervision, and entrustment. The trial court dismissed the negligence claims against the general manager and supervisor. The Fourth District Court of Appeal reversed...