12 March

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Florida’s Judicially Created Impact Rule and Emotional Distress

In Florida, there is a judicially created doctrine known as the impact rule. This judicially created impact rule is aimed at claims for emotional distress. The impact rule “requires that ‘before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.” Lotierzo v. Barbarito, 48 Fla.L.Weekly D512a (Fla. 4th DCA 2023) (quotation omitted). However, the impact rule is not without limited exceptions. See Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 4th DCA 2005) (discussing limited exceptions to the impact...

05 March

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Attorney’s Fee as an Element of Compensatory Damages

Posted by David Adelstein

in Trial Perspectives

When attorney’s fees are being sought as an element of compensatory damages, there is NO requirement for an expert to opine as to the reasonableness of the attorney’s fees. Rodriguez v. Altomare, 261 So.3d 590, 592 (Fla. 4th DCA 2018). “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.” Id. See also Sea World of Florida, Inc. v. Ace American Ins. Companies, Inc., 28 So.3d 158,...

26 February

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Value of Restrictive Covenant when Moving for Permanent Injunction

Posted by David Adelstein

in Trial Perspectives

A recent case demonstrates the value of a restrictive covenant. In The Residences at the Bath Club Condominium Association, Inc. v. Bath Club Entertainment, LLC, 48 Fla.L.Weekly D221a (Fla. 3d DCA), the parties entered into a settlement agreement and a proceeding relative to the breach and enforcement of the settlement occurred. The trial court entered an order enforcing the settlement agreement based on a specific paragraph in the agreement. Ultimately, the facts, for purposes of this posting, are not as significant as the appellate court’s discussion in obtaining a permanent injunction when dealing with a restrictive covenant. In particular, when...

19 February

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Doctrine of Equitable Contribution

Posted by David Adelstein

in Trial Perspectives

Here is an interesting case dealing with the doctrine of equitable contribution which “applies to cases involving joint contractual obligations when the parties’ agreement does not address their rights to seek contribution.” Shamieh v. HCB Financial Corp., 48 Fla.L.Weekly D377a (Fla. 1st DCA 2023). In this case, two persons executed a mortgage and promissory note to purchase property. The persons were jointly and severally liable under the mortgage. They defaulted on the mortgage and one of the persons paid $1 million to settle the debt. That person sued his co-obligor under the mortgage for half of the settlement amount under...

12 February

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Reasonable Attorney’s Fee Hearing – Does Attorney Need to Testify at Hearing

Posted by David Adelstein

in Trial Perspectives

Does an attorney at the law firm performing the work need to testify at an evidentiary attorney’s fees hearing to support the reasonableness of the rate and number of hours? Seems like an attorney at the law firm seeking to recover attorney’s fees would absolutely testify, right? Who better to speak about the work performed, number of hours expended, and the reasonableness of the rate than an attorney at the law firm performing the work. Interestingly enough, this was the issue decided by Florida’s new 6th District Court of Appeal in CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club,...

05 February

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Word to the Wise: File Your Notice of Appeal TIMELY

Posted by David Adelstein

in Appeal

Here is a recent case that is really more about a word to the wise. “[A] motion for rehearing directed to a non-final order…is not authorized under the rules and does not toll the time for filing the notice of appeal.” Omni Healthcare, Inc. v. North Brevard County Hospital District, 48 Fla. L. Weekly D257b (Fla. 5th DCA 2023). This means filing a motion for rehearing based on a non-final order does NOT toll the time for you the timely preserve your appellate rights by filing a notice of appeal. This case involved a commercial eviction dispute where the commercial tenant...

29 January

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Contract is Not Hearsay; It has Independent Legal Significance

Posted by David Adelstein

in Evidence

Are words of a contract hearsay? Or do they have independent legal significance such that the hearsay doctrine does not apply? The answer is explained in a recent foreclosure dispute, U.S. Bank National Association as Trustee for Ramp 2006 EFC2 v. Bell, 48 Fla.L.Weekly D218a (Fla. 5th DCA 2022). In this case, a trustee filed a foreclosure action. To establish it was the holder of the promissory note when it filed the foreclosure lawsuit, the trustee tried to introduce a Pooling and Servicing Agreement where the trustee was one of the parties that executed it. The borrowers objected to the Pooling...

21 January

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Voluntarily Dismissing a Lawsuit that Gives Rise to Attorney’s Fees (Oh No!)

Posted by David Adelstein

in Trial Perspectives

When you plead a cause of action that triggers a basis for attorney’s fees (i.e., a statutory basis or contractual basis), you can also give the other side a strong argument that they are entitled to attorney’s fees if you voluntarily dismiss your lawsuit. This kind of operates under the “be careful what you ask for” scenario. An “Oh No!” moment. This was the scenario in Ward v. Estate of Lillian K. Wasserman, 48 Fla.L.Weekly D96c (Fla. 4th DCA 2022). The plaintiff filed a lawsuit predicated on Florida’s civil theft statute (Fla. Stat. s. 772.11) that gives a basis for statutory...

14 January

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Equitable Relief: One seeking Equity MUST do Equity

Posted by David Adelstein

in Appeal, Trial Perspectives

How about this longstanding maxim: “One maxim of equity is that a litigant going into equity must go with clean hands, and another is that he who seeks equity must do equity.” Davis v. Verandah at Lake Grady Homeowners Association, Inc., 48 Fla.L.Weekly D142a (Fla. 2d DCA 2022) quoting Engebretsen v. Engebretsen, 11 So.2d 322, 329 (Fla. 1942). When you read it, it is hard to disagree with it, right? It just makes sense. In Davis, the 2007 plat for a subdivision was recorded by a developer. The developer subsequently advertised its subdivision as a deed-restricted community. The plaintiffs were interested...

01 January

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Exculpatory Clauses will be Strictly Construed to Determine Enforceability

Posted by David Adelstein

in Trial Perspectives

Do you know what an exculpatory clause is? My guess is that you signed more than one document with such a clause even if you are unfamiliar with what the clause is called. I know I have signed way more than one document with such a clause. An exculpatory clause is basically a full-blown liability waiver / damages waiver and release clause that you are signing on the frontend before an incident may occur. However, because of the devastatingly harsh effect these clauses can have if an incident does occur (by serving as a get out of jail free cause...