28 October

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Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor. This does not mean arguments cannot and should not be made. It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer. In a recent post-judgment collection case, Villamizar v. Luna Capital Partners, LLC, LLC, 43 Fla.L.Weekly D2395a (Fla. 3d DCA 2018), a plaintiff (judgment creditor) recovered a judgment against a defendant on unsecured promissory notes (i.e., the notes were not secured by any mortgage). During the underlying lawsuit, the defendant sold...

14 October

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A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Posted by David Adelstein

in Trial Perspectives

Arbitration is a creature of contract. This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate. However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract. As a result, an order granting...

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...

29 September

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Appealing Correct Measure of Damages

Posted by David Adelstein

in Appeal, Evidence

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...

22 September

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Economic Damages Must be Based on Competent Substantial Evidence

Posted by David Adelstein

in Trial Perspectives

Economic damages must be supported by substantial competent evidence. Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable. Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim. If damages cannot be proven, there is no claim, so making sure damages can be supported with competent substantial evidence is beyond important. The recent decision of Alvarez v. All Star Boxing, Inc., 43 Fla.L.Weekly D2102a (Fla. 3d DCA 2018) establishes what can happen if a party puts on speculative damages. This...

15 September

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Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein

in Appeal, Burden of Proof

I recently discussed the defense of mitigation of damages as it applies to contract cases. An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract. In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages. The owner appealed this issue which was reversed on appeal. The reason it was reversed is because the trial court's finding that the owner failed to mitigate his damages is reviewed on appeal...

08 September

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You Can’t Sue Someone for Unjust Enrichment when there is a Contract

Posted by David Adelstein

in Trial Perspectives

You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties. You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability). For example, in Sterling Breeze Owners' Association, Inc. v. New Sterling Resorts, LLC, 43 Fla.L.Weekly D2040c (Fla. 1st DCA 2018), a condominium association sued the developer for, among other claims, unjust enrichment. The claim stemmed from the fact that the developer (in developing the condominium) reserved in the condominium documents ground...

01 September

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Premise Liability Claims and Duties of Owners to Invitees

Posted by David Adelstein

in Trial Perspectives

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property. What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about...

26 August

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Incentive for Taking Case on Contingency – the Contingency Fee Multiplier

Posted by David Adelstein

in Trial Perspectives

A recent appellate decision came out regarding contingency fee multipliers--the incentive for taking a case on contingency. I included a thorough discussion on the requirements establishing a contingency fee multiplier here. Check out this discussion that goes into establishing reasonable attorney's fees and then the contingency fee multiplier. Notably, in this case, the appellate court affirmed that the elements associated with establishing an entitlement to a contingency fee multiplier are as follows: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel (i.e., whether there are attorneys in the relevant market and would have taken the case on...

20 August

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Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.” XIP Technologies, LLC v. Ascend Global Services, LLC, 43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018). A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongs. Id. A trial court has discretion to grant or deny a motion for temporary injunction. Its discretion, however, is...