16 April

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Adding a Non-Party Fabre Defendant to the Verdict Form

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...

10 April

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3-Step Process for Objections to Trade Secrets

Posted by David Adelstein

in Trial Perspectives

There are times a party in a litigation may seek documents from a party or non-party and there is a trade secret objection. The party or non-party does not want to produce trade secret information. What a party or non-party should do is request an in camera inspection or an evidentiary hearing. This was the situation in Bank of America, N.A. v. The Bank of New York Mellon, 47 Fla. L. Weekly D659a (Fla. 3d DCA 2022) where a non-party appealed a trial court’s ruling that required it to produce alleged trade secret information. The non-party timely moved for a petition for...

03 April

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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1). However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party. With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party. Stated differently, the award of attorney's fees is not mandatory. In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court...

27 March

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Contractually Disclaiming a Fraud Claim (Possible, but not Easy to do)

Posted by David Adelstein

in Trial Perspectives

Can a party contractually foreclose or disclaim liability to a fraud claim? The answer, shown below, is yes but this is rarely done and I have personally never seen it done. In order to “make [a] contract incontestable because of fraud,” the parties must “stipulate that the [contract] may not be rescinded for fraud.” Oceanic Villas, Inc. v. Godson, 4 So. 2d 689, 691 (Fla. 1941). To do so, the contract must do more than merely agree “that no fraud had been committed” -- i.e., disclaim the making of fraudulent statements upon which the other party has relied -- but must rather...

20 March

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Florida’s Single Publication Rule (and Defamation Claims)

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 770.07 provides: The cause of action for damages founded upon a single publication or exhibition or utterance, as described in s. 770.05, shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state. This statute is known as the “single publication rule.” The statute of limitations accrues at the time of the first publication and does not get delayed or tolled due to continued publication. The single publication rule applies to causes for action for “libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance,...

13 March

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Reasonable Time to Accept Settlement Offer (is a Question of Fact)

Posted by David Adelstein

in Trial Perspectives

How long does a settlement offer remain pending before it dies on the vine? There is no definite answer here meaning if you extend a settlement offer and it has not been accepted, make sure to formally rescind the offer before it has been accepted. That is the safe bet. Otherwise, it may get accepted when you thought the offer expired due to time and now you are fighting over whether the offer was still valid. This was the situation in Sakowitz v. Waterside Townhomes Community Association, Inc., 47 Fla.L.Weekly D583b (Fla. 3d DCA 2022). Here, the plaintiff extended a settlement offer...

06 March

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Contingency Fee Multiplier – Must Establish the Relevant Market Factor

Posted by David Adelstein

in Trial Perspectives

Should a contingency fee multiplier be applied? A recent case involving an architectural lien foreclose case explains the contingency fee multiplier standard. Initially, the trial court determines through an evidentiary hearing the reasonable attorney’s fees to be awarded to the prevailing party. This is done by applying the lodestar method laid out in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Impex Caribe Corp. v. Carl Levin, P.A., 47 Fla. L. Weekly D544a, n.1 (Fla. 3d DCA 2022) (“The trial court arrives at the lodestar amount by multiplying the number of reasonable hours expended by a reasonable hourly rate.”). Then,...

27 February

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Business Judgment Rule Designed to Shield Directors from Personal Liability

Posted by David Adelstein

in Trial Perspectives

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...

05 February

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Pure Bill of Discovery – NOT for Purposes of Fishing Expedition

Posted by David Adelstein

in Discovery

In unique and limited equitable circumstances, a party can file a lawsuit for what is referred to as a pure bill of discovery. “In the absence of an adequate legal remedy, equity has long authorized a pure bill of discovery as an appropriate remedy to obtain information such as the identity of a proper party defendant or the appropriate legal theory for relief.” A bill of discovery may also be used “to obtain information necessary for meeting a condition precedent to filing suit.” However, this Court has made clear that a pure bill of discovery does not lie “to substantiate one's...