27 February

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Business Judgment Rule Designed to Shield Directors from Personal Liability

A recent case out of Florida’s Third District discussed the business judgment rule and ultra vires acts. Of importance, the Third District held that the business judgment rule was not required to be raised as an affirmative defense. Hence, the business judgment rule could be relied on notwithstanding a board/manager/director not raising it as an affirmative defense in a lawsuit asserted against them. The business judgment rule is a critical rule for anyone serving on a board to appreciate because it is designed to benefit them, i.e., to shield them for personal liability for their decisions. Without such a rule, who...

20 February

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Ambiguity in Insurance Policy Interpreted in Favor of Insured

Posted by David Adelstein

in Trial Perspectives

When it comes to insurance policies, it is important to consider: If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous. Ambiguous policy provisions are interpreted in favor of the insured. Security First Ins. Co. v. Vazquez, 47 Fla. L. Weekly D487b (Fla. 5th DCA 2022). Vazquez exemplifies an ambiguous insurance provision interpreted in favor of the insured. Here, the property insurance policy contained an endorsement with a $10,000 sublimit for, “Sudden and accidental direct physical loss to covered property by discharge of overflow of water or...

29 January

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Partition Action does Not Result in Money Damages Against a Party

Posted by David Adelstein

in Trial Perspectives

A partition action is an action under Florida Statutes Chapter 64. “A partition action commences a legal proceeding to divide cotenants' interests in a real property.” Morrison v. Smolarick, 47 Fla.L.Weekly D307a (Fla. 2d DCA 2022). In a nutshell, the objective is to sell the property and then determine how the proceeds are shared between the parties. The Morrison Court explained: After the sale, “the court impounds the fund consisting of the proceeds of sale and conducts proceedings to establish the credits due to the parties and to determine the final amount awarded to each.” McFall v. Trubey, 992 So. 2d 867, 870...

22 January

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Consider Prevailing Party Attorney’s Fees before Voluntarily Dismissing Case

Posted by David Adelstein

in Trial Perspectives

Here is an important thing to note: do NOT just voluntarily dismiss a lawsuit where there is a basis for attorney’s fees because you could be liable for the other party’s fees. This was the unfortunate circumstance in Catamaran B.Y., Inc. v. Giordano, 47 Fla.L.Weekly D179a (Fla. 3d DCA 2022). This is an unfortunate circumstance you absolutely want to avoid. In this case, a plaintiff voluntarily dismissed his lawsuit against the defendant without prejudice. The defendant then moved for attorney’s fees based on a contractual attorney's fees provision between the parties. The trial court denied the defendant's motion for attorney’s fees...

15 January

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Confession of Judgment does Not Start the Clock to File Motion for Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

There are times a party rightfully moves to strike another party’s motion for attorney’s fees for being untimely. There are other times a party may try to create a “gotcha” moment to catch a party off guard to create a strategic argument that the motion for attorney’s fees was untimely. The latter is the scenario in the insurance coverage case discussed below. Florida Rule of Civil Procedure 1.525 provides: “Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service...

24 December

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Enforceability of a Himalaya Clause

Posted by David Adelstein

in Trial Perspectives

A “Himalaya” clause. I just learned what this type of provision is called. A Himalaya clause attempts to extend limitation of liability provisions including forum selection provisions to persons other than the contracting party. Aquachile, Inc. v. Williams, 47 Fla. L. Weekly D30c (Fla. 4th DCA 2021). Regarding a Himalaya clause’s enforceability: Himalaya clauses are construed, according to general principles of contract interpretation, “by their terms and consistent with the intent of the parties.” The court must determine whether the plain language of the contract as a whole reflects an intent to extend limitations of liability to the party seeking protection. Any...

19 December

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Presuit Appraisal Requirement under Bert J. Harris Act

Posted by David Adelstein

in Trial Perspectives

The Bert J. Harris, Jr., Private Property Rights Protection Act (also known as the “Bert J. Harris Act”) “provides recovery for the loss of fair market value when the use of land is inordinately burdened by government action.” Blue Water Holdings, SRC, Inc. v. Santa Rosa County, FL, 46 Fla.L.Weekly D2622c (Fla. 1st DCA 2021); Fla. Stat. s. 70.001. A claimant cannot just rush to the courthouse and file a lawsuit. There is a presuit requirement and notice period that requires the claimant to funish an appraisal, as contained in Florida Statute s. 70.001(4)(a), which maintains: Not fewer than 90 days...

11 December

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Determining whether Lis Pendens Against Property is Appropriate – Fair Nexus

Posted by David Adelstein

in Trial Perspectives

When a lis pendens is recorded against property and the lawsuit is NOT founded on a duly recorded instrument and is NOT based on a construction lien, the other party will, and should, move to discharge the lis pendens. This will oftentimes require an evidentiary hearing where there court will determine whether there is a fair nexus to support the lis pendens, and if so, an amount associated with a lis pendens bond for the party that recorded the lis pendens to post. In determining whether a lis pendens against property is appropriate: The relevant question for the trial court, and the...

05 December

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Recovering Attorney’s Fees “Incurred” on Party’s Behalf

Posted by David Adelstein

in Trial Perspectives

Simply because a defendant does not pay his/her/its own attorney's fees does not mean the defendant is not entitled to recover attorney’s fees incurred on his/her/its behalf. That wouldn’t seem to make much sense since attorney's fees would have been incurred on the defendant’s behalf. Who actually writes the check to pay the attorney's fees is really of no moment, right? Therefore, do not bank your argument that another party will never be entitled to recover their fees because that other party did not personally pay for his/her/its own attorney's fees. This was the argument raised in Jain v. Buchanan...

28 November

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To Pierce Corporate Veil, there Needs to be Sufficient Findings of Improper Conduct

Posted by David Adelstein

in Standard of Review, Trial Perspectives

A trial court’s decision whether to pierce the corporate veil is reviewed under a de novo standard of appellate review because it presents a pure issue of law. Flooring Depot FTL, Inc. v. Wurtzebach, 2021 WL 5348903, *2 (Fla. 4th DCA 2021). The recent decision in Flooring Depot FTL demonstrating that piercing a corporate veil is not so easy, and really, far from it. In this case, homeowners did not receive approximate 1,912 square feet of purchased flooring. The homeowners sued the flooring company for not providing all of the flooring they paid for and claimed fraud. The homeowners attempted to...