22 March

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Worthy Discussion on Florida’s Summary Judgment Standard Modeled after Federal Standard

in Standard of Review, Trial Perspectives

The Fourth District Court of Appeals in Kincaid v. Wal-Mart, Inc., 51 Fla.L.Weekly D495a (Fla. 4th DCA 2026) contains an important discussion on Florida’s summary judgment standard that is worth sharing after Florida adopted the federal summary judgment standard: We review de novo an order granting summary judgment. Florida Rule of Civil Procedure 1.510, as amended May 1, 2021, revised Florida's summary judgment rule to align with the federal summary judgment standard. Our Supreme Court explained that Florida would now follow the Celotex trilogy from the United States Supreme Court. This change was meant to “recognize the fundamental similarity between the summary judgment standard and...

22 March

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Prior Proceeding Forming Basis of Malicious Prosecution Claim Must Entirely Be Terminated in Plaintiff’s Favor

Posted by David Adelstein

in Trial Perspectives

There is a cause of action for malicious prosecution. This cause of action is discussed here. Of importance, the First District Court of Appeals in Gacek v. Avalon Dunes Condominium Owners Association, Inc., 51 Fla.L.Weekly D477b (Fla. 1st DCA 2026), affirmed that in order to pursue a malicious prosecution claim, the claiming party must prove that the prior proceeding forming the basis of the malicious prosecution claim ENTIRELY terminated in their favor: According to the Florida Supreme Court, one of the required elements of a claim for malicious prosecution is that the underlying “proceeding” must have terminated “in favor of the present...

21 February

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Intervention Standard for Intervening into Lawsuit

Posted by David Adelstein

in Standard of Review, Trial Perspectives

If you’ve ever considered intervening into a lawsuit, Mendoza v. Kendall Park Plaza, Ltd., 51 Fla.L.Weekly D309a (Fla. 3d DCA 2026), does a good job explaining the standard ad the process. Florida Rule of Civil Procedure 1.230 governs intervention. It provides, in pertinent part, that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention . . . .” Fla. R. Civ. P. 1.230. But the rule comes with the caveat that “the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered...

14 February

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Purpose of Punitive Damages

Posted by David Adelstein

in Uncategorized

If you wanted to know the purpose behind punitive damages, this below snippet does a quality job explaining the purpose. When reading this snippet, pay special attention to the last paragraph in red emphasizing that the trial court’s job is NOT to weigh evidence or evaluate witness credibility in the punitive damages proffer. The punitive damages proffer just has to support a reasonable basis without the evaluation of credibility or evidence. When you consider that, consider what your thoughts are on this because without this evaluation, it makes creating that reasonable basis to support a punitive damages proffer quite a...

08 February

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Mutuality of Obligation under Florida Statute 57.105(7)

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 57.105(7) provides: “If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.” Fla. Stat. s. 57.105(7). Parties argue this subsection (7) to create a reciprocal basis for attorney’s fees under the argument “mutuality of obligation.” A recent case dealt with attorney’s fees being awarded under s. 57.105(7) under a law firm retainer agreement. Fees...

30 January

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Vicarious Liability Claims and the Exoneration Rule

Posted by David Adelstein

in Trial Perspectives

The legal principle of vicarious liability comes into play when a third-party pursues an employer for an employee’s negligence. When pursuing vicarious liability against an employer, remember that the exoneration rule comes into play when the employer is not a joint-tortfeasor with the employee. The exoneration rule is explained as follows: An employer may be held vicariously liable for the negligent act of its employee committed during the course and scope of employment, even when the employer itself is without fault. Because in this context the employer is not a joint tort-feasor with the employee, the employer's liability depends on the...

24 January

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Don’t Create an Attorney’s Fees Waiver Argument

Posted by David Adelstein

in Trial Perspectives

Here’s a situation you’d like to avoid because it creates an unnecessary waiver argument with respect to attorney’s fees. In a dispute between a condominium association and unit owner, the unit owner sued his association for injunctive relief, negligence, and breach of contract. The parties entered an agreed order on the unit owner’s injunctive relief claim against the association, and identified the unit owner as the prevailing party. The parties then entered an agreed order that granted the unit owner entitlement to fees and an evidentiary was held on the fees. The trial court entered a judgment as to the attorney's...

18 January

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Adverse Inference Jury Instructions due to Spoliation of Evidence

Posted by David Adelstein

in Jury Instructions

In a recent case, a trial judge gave the plaintiff a burden shifting adverse inference jury instruction due to a spoliation of evidence argument. No defendant wants any adverse inference jury instruction. These instructions are not favorable to a defendant and don't present well to a defendant. A burden shifting adverse inference jury instruction is known as the kiss of death jury instruction because it tells the jury to presume a fact and that the plaintiff satisfied a component of the claim unless it is rebutted by the defense. Ouch! Florida has two standard form jury instructions relative to adverse inferences...

09 January

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Right of First Refusal and Consideration for the Right of First Refusal

Posted by David Adelstein

in Trial Perspectives

Have you dealt with a right of first refusal? “A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those continued in good faith offer by a third person if the owner manifests a willingness to accept the offer.” A contractual right of first refusal must be supported by consideration to be enforceable.” Raj v. Sutherlin, 51 Fla.L.Weekly D73a (Fla. 4th DCA 2026) (internal citations omitted). In a recent case, an owner and buyer and into an addendum to a contract where the owner gave the buyer the...

04 January

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The Duty and Proximate Causation Elements in Negligence Actions

Posted by David Adelstein

in Trial Perspectives

A negligence action has four elements a plaintiff must prove: “(1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Las Olas Holding Co. v. Demella, 228 So.3d 97, 102 (Fla. 4th DCA 2017) (quotation omitted). The third element, causal connection, refers to proximate causation. See id. at 106. A recent case discusses both the duty element (a question of law) and proximate causation element (a question of fact) with notable analysis...