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

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...

22 August

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

Posted by David Adelstein

in Trial Perspectives

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....