08 May

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Foreseeability and the Duty Element of a Negligence Claim

Negligence causes of action are common causes of action in lawsuits. Therefore, it is important know what a plaintiff needs to do to both plead and prove a negligence claim. This includes the duty element of a negligence claim -- without the duty element, there is no negligence claim, and certainly no claim going to a jury to decide. “To state a cause of action for negligence, a plaintiff must allege: (1) the existence of a legal duty owed by the defendant to others, (2) breach of that duty by the defendant, (3) injury to the plaintiff proximately caused by...

16 April

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Adding a Non-Party Fabre Defendant to the Verdict Form

Posted by David Adelstein

in Uncategorized

In a recent premises liability action, the defendant appealed claiming the trial court failed to include a nonparty Fabre defendant on the verdict form. The appellate court disagreed and affirmed the trial court on this issue. It has become a common occurrence for parties to want others on the jury verdict form to give the jury an opportunity to allocate fault to a party other than them. And why not? However, this is not really how it works. A party cannot just argue that another party should be added to the verdict form just for the sake of it. That would...

02 January

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There are NO Magic Buzz Words to Effectuate an Assignment

Posted by David Adelstein

in Uncategorized

A recent case dealing with homeowner's associations’ declaration of covenants finds that there are NO magic buzz words when it comes to assigning contractual rights: “All contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment.” … Furthermore, “it is the general rule that no particular words of art are necessary to effect” an assignment. “The assignment or endorsement of any instrument vests the assignee or endorsee with the same rights, powers, and capacities as were possessed by the assignor or endorser. The assignee or endorsee may bring action thereon.”...

06 March

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Procedure Over Substance when it comes to Temporary Injunction Order

Posted by David Adelstein

in Uncategorized

The recent case of Phelan, Jr. v. TriFactor Solutions, LLC, 2021 WL 833515 (Fla. 2d DCA 2021) involves a temporary injunction issued in a noncompete case where the appellate court started off its decision saying, “In some cases, procedure precedes substance. This is one of those cases.” A good ole procedure over substance matter! In this case, regardless of the substance, the trial court issued a temporary injunction order. But the order, i.e., the procedure in issuing the injunction, was wrong for two fundamental reasons. First, the order failed to include specific factual findings from the evidentiary hearing to satisfy the...

02 February

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Limitation on Real Estate Broker’s Procuring Cause Doctrine

Posted by David Adelstein

in Trial Perspectives, Uncategorized

Here is the scenario? A commercial owner enters into an exclusive listing agreement with a real estate broker that gives the broker the exclusive right to sell or lease property within 1 year in exchange for 6% commission. The exclusive listing agreement provides that the broker is entitled to the commission “if the property was sold or leased within twelve months after termination of the agreement to any buyer to whom the property was submitted for sale during the continuance of the agreement.” This is the broker's protection period. The broker introduces the commercial owner to a couple. However, the couple does...

22 December

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Arbitration Clause – Narrow or Broad

Posted by David Adelstein

in Trial Perspectives, Uncategorized

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...

16 December

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Abuse of Discretion Standard of Review when Expert Deemed Unqualified

Posted by David Adelstein

in Uncategorized

In a recent article I discussed the importance of an expert's qualifications -- hiring an expert witness to render an opinion within his or her qualifications (training, knowledge, or expertise). If an expert is not qualified to render an opinion, a trial court has the discretion to preclude that witness from offering the opinion at trial. For this reason, the standard of review in an appeal where the trial court deemed a witness unqualified is abuse of discretion. See White v. Ring Power Corp., 43 Fla.L.Weekly D2729a (Fla. 3d DCA 2018) citing Brooks v. State, 762 So. 2d 879, 892 (Fla. 2000)...

06 October

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Spoliation of Evidence Claim Against Third-Party

Posted by David Adelstein

in Uncategorized

What is a spoliation of evidence claim? Let's find out...

15 February

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Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein

in Uncategorized

I use expert witnesses in many cases. Many. Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. But, as I have discussed in prior articles, an expert's opinion needs to have a foundation of reliability, which is governed by the Daubert standard. Without ensuring that an expert's opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion. This, of course, provides no value. Hence, the Daubert standard or test "requires that '[t]he testimony is based upon sufficient...

19 March

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Enforcing Non-Compete Agreement with Injunctive Relief

Posted by David Adelstein

in Uncategorized

There are numerous employers that want employees to sign a non-compete, non-disclosure, and non-solicitation agreement (collectively, the “non-compete agreement”). For good reason, they don’t want to train employees to learn the business’ trade secrets and business practices (e.g., marking strategies, pricing, techniques, customer lists, etc.) only to then compete with the employer and solicit its clients. The non-compete agreement will allow the employer to move for injunctive relief if a former employee violates the agreement to maintain the status quo and prevent the irreparable harm to the employer. An example is as follows. In Allied Universal Corp. v. Given, 42 Fla....