29 April

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A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff’s damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4th DCA 2018), involving an automobile accident, where the trial court granted plaintiff's motion for a new trial based on an inadequate jury verdict....

22 April

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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein

in Appeal, Trial Perspectives

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim. The article also discusses the application of equitable subrogation dealing with an actual fact pattern. Equitable subrogation, you say? In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party. The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt. No one wants to pay for damages or a debt it believes were caused by a third...

13 April

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Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein

in Trial Perspectives

Lawyers get it. Generally, people do not like to spend money on lawyers. There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees. Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with. But, money is important and decisions cannot be made in a vacuum without understanding associated costs. I get that not everyone...

08 April

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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein

in Burden of Proof, Standard of Review

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be. It is also not a motion commonly granted. But, this does not mean there are no appellate rights if a court denies a motion for directed verdict. A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review. An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate...

31 March

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Forum Selection / Venue Provisions in Contracts are Enforceable

Posted by David Adelstein

in Appeal, Trial Perspectives

If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract. Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute. For instance, the provision may say something to the effect, “The exclusive venue for any dispute arising out of or relating to this contract shall be in Miami-Dade County Florida.” This means that if you plan to sue you need to do so in a court located in Miami-Dade County,...

25 March

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Set-Off when Entering into Settlements in Multi-Party Disputes

Posted by David Adelstein

in Trial Perspectives

Lawsuits oftentimes involve multiple parties. This could include multiple defendants or third-party defendants, whatever the case may be. During the course of the dispute, there are avenues for settlement. With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out. Sometimes, a party needs to settle with some, but not all, of the defendants. This means the plaintiff will need to try the case against the remaining defendants (or parties). The remaining defendants, obviously, want the settlements with the settling defendants to be used to set-off any damages or judgment entered against them. For example,...

18 March

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The Not Widely Known Harris Act: Protection of Private Property Rights

Posted by David Adelstein

in Trial Perspectives

There is a Florida statute not universally known called the “Bert J. Harris, Jr., Private Property Rights Protection Act” and oftentimes called the "Harris Act" for ease of reference. The Harris Act is embodied in Florida Statute s. 70.001 (found here) and it deals with the protection of private property rights. More specifically, it provides a private cause of action when the existing use (or vested rights) of property is inordinately burdened by the Florida government (including agencies thereof). The Harris Act has some teeth in certain situations, as demonstrated below in a case example, and is a good...

11 March

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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case. This is a common motion after the plaintiff in a bench trial puts on his/her case. No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff. Florida Rule of Civil Procedure 1.420(b) authorizes motions for...

04 March

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Yes, There is Such a Thing Called Apparent Authority

Posted by David Adelstein

in Trial Perspectives

“But he did NOT have the authority….” This is the beginning of a sentence that does not start well. Agents have the authority to bind their principal. “Even where there is no express agent/principal relationship, a principal may be bound by the acts of an agent acting with apparent authority.” Clayton v. Poggendorf, 43 Fla.L.Weekly D436a (Fla. 4th DCA 2018). Apparent authority sometimes gets lost in the shuffle and the reason why the sentence, “But he did not have the authority…,” does not start well. If the person is deemed to have apparent authority then he did have the authority to bind...

18 February

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Defamation Per Se Opens Door for Punitive Damages

Posted by David Adelstein

in Trial Perspectives

A defamation per se action opens the door for punitive damages even if actual damages cannot be shown or proven. Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710, 729 (Fla. 4th DCA 2010). This is because malice is presumed and, thus, the statements are presumed harmful as a matter of law. Id. However, “proof of liability for defamation per se requires a showing that the declarant knew or should have known the defamatory statement was not true.” Tilton v. Wrobel, 198 So.3d 909 (Fla. 4th DCA 2016). Hence, while a claimant may not be able to prove actual damages...