22 August

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Duty in a Negligence Claim is a QUESTION OF LAW and Not for the Jury

In a negligence case, the first element a plaintiff is required to prove is that the defendant owed the plaintiff a duty of care. If the defendant did not owe the plaintiff a duty of care, then guess what? The negligence claim fails in entirety. “Whether a duty exists in a negligence case, however, is a matter of law and is, therefore, not a question for the jury to decide.” Sierra Orlando Properties, Ltd. v. Allen, 50 Fla.L.Weekly D1903a (Fla. 6th DCA 2025). The duty element is the only element in a negligence claim that is for the Court to...

16 August

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You Can’t Sue an Arbitrator You Don’t Like – There is Arbitral Immunity

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Binding arbitration is exactly that – binding. It is a BINDING dispute resolution process. It is a creature of contract meaning that if you want arbitration to resolve your disputes, you need an arbitration provision in your contract. If you don’t want arbitration to resolve your disputes, don’t agree to an arbitration provision in your contract. But whether you arbitrate or not, you may not like the arbitrator and you may not like the outcome. That’s the nature of the beast. It's the same with litigation. This does not mean, however, that you can sue an arbitrator that you don’t...

09 August

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Raising Choice-of-Law Provision in Your Contract

Posted by David Adelstein

in Trial Perspectives

It’s not uncommon for contracts to include a choice-of -law provision that specifies that a specific state’s law governs the agreement. For instance, even though the transaction is in Florida, the agreement may specify that another state’s law applies. Typically, the reason for this is that the other party is based in that state and the agreement was drafted based on that state’s legal framework. So, if a dispute arises, or the agreement needs to be enforced, it is the state's law subject to the choice-of-law provision governing the dispute. What if a dispute was filed in Florida and another state’s...

03 August

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Good Overview of Florida’s Summary Judgment Standard

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Below is a good overview of Florida’s summary judgment standard with citations. The last paragraph discusses how a Court should construe legal texts such as contracts, particularly if there is a dispute as to a word in the contract: We review summary judgments de novo. Pial Holdings, LTD v. Riverfront Plaza, LLC, 379 So. 3d 547, 550 (Fla. 6th DCA 2024). Florida's summary judgment standard now aligns with the federal standard. Fla. R. Civ. P. 1.510(a); In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (adopting federal summary judgment rule and standard and citing “Celotex trilogy,” Celotex Corp....

27 July

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Power of Judgment Liens and Priority of Judgment Liens

Posted by David Adelstein

in Trial Perspectives

The priority of liens matter. A recent case, Aquastar Holdings, LLC v. Peckar & Abramson, P.C., 50 Fla.L.Weekly D1333b (Fla. 3d DCA 2025), discusses the priority of a judgment lien and the difference between a judgement lien and another type of encumbrance, such as a mortgage. In this case a judgment creditor recorded a judgment lien which created a lien on real property owned by the judgment debtor. After the judgment lien was recorded, a mortgage was placed on the only property owned by the debtor. The judgment creditor had the property sold at a sheriff’s auction when it executed...

20 July

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Commercial Lease – Options for Commercial Landlord with Defaulting Tenant

Posted by David Adelstein

in Trial Perspectives

If you are entering into or negotiating a commercial lease, the terms of the lease matter. For example, as a commercial landlord, if you want to accelerate rent of a defaulting tenant, you need to have an acceleration provision in the commercial lease. When you accelerate rent of a defaulting tenant, you are demanding the tenant pay the lease payments for the unexpired and unaccrued portion of the lease, i.e., the remainder of the lease term. This was the issue in a recent commercial landlord and commercial tenant dispute – Hourglass Entertainment, LLC v. NRG Investments, Inc., 50 Fla.L.Weekly D1538a (Fla....

13 July

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Summary Judgment Standard when Written Instrument Reasonably Susceptible to Different Interpretations

Posted by David Adelstein

in Trial Perspectives

In a recent dispute between a condominium unit owner and condominium association, an issue arose as to which party was responsible for the abatement of asbestos in the unit owner’s interior ceiling. While the unit owner was responsible for the interior ceiling, the association was responsible for incidental damage caused by performing repairs to the common elements. Here, there was evidence that the issue with asbestos abatement was caused during the association’s common element repair work which required it to remove parts of the owner's interior ceiling. The association claimed the unit owner needed to bear the costs to abate...

04 July

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Forbearance Agreement Must be in Writing and Signed

Posted by David Adelstein

in Trial Perspectives

In a recent case, American First Federal Inc., v. Trugon Properties, Inc., 50 Fla.L.Weekly D1419f (Fla. 4th DCA 2025), a borrower, through a bench trial, prevailed on an argument that its lender forbeared from foreclosing on the mortgage based on an oral loan modification / forbearance agreement. The lender appealed arguing that any agreement between the borrower and lender where the lender is lending or forbearing the repayment of money must be in writing and signed by the lender and borrower under the Banking Statute of Frauds. See Fla. Stat. s. 687.0304. The lender prevailed on appeal: "Accordingly, as the...

21 June

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Prejudgment Interest applies to Awards for Unjust Enrichment or Quantum Meruit

Posted by David Adelstein

in Trial Perspectives

In a recent case, a jury rendered a verdict in favor of a plaintiff for unjust enrichment. The trial court thereafter awarded prejudgment interest from the date of the jury's verdict. An issue on appeal was whether the prejudgment interest should have been awarded from the date of the plaintiff’s loss instead of the (later) date of the jury’s verdict. The appellate court held that the prejudgment interest should have been from the date of the loss as the record demonstrated when the date of loss occurred. In making this holding, the appellate court explained: A plaintiff is entitled to prejudgment...

19 June

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Insured Can’t Try Bad Faith Claims with Insurance Coverage (Breach of Policy) Case

Posted by David Adelstein

in Trial Perspectives

In Florida, an insured cannot try its breach of insurance contract case (the coverage dispute) with its bad faith claim or dispute. See Universal Property & Casualty Co. v. Naze, 50 Fla.L.Weekly D1208a (Fla. 4th DCA 2025). It’s putting the cart before the horse. In Naze, bad faith claims against the insurer were not claimed, but at trial, the insured used opening argument, closing argument, and testimony to go into the insurer’s “bad faith” claims handling process. The insurer objected and moved for a mistrial, which was denied. The appellate court reversed and remanded the case for a new trial finding the claims...