14 November

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Attorney’s Fees do Not have to be Quantified in Proposal for Settlement

Does a proposal for settlement have to specifically quantify the amount of attorney’s fees if the proposal wants to factor the other party’s attorney’s fees into the equation? According the recent opinion in Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D2406b (Fla. 3d DCA 2021), the answer is No. The proposal can leave it up to the court (per a fee hearing) where the fees plus the judgment amount get factored in to determine whether that amount meets the proposal for settlement threshold for entitlement to attorney’s fees. In Safepoint Insurance Co., the defendant served a proposal for settlement...

17 December

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Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein

in Appeal

An order denying a motion for attorney's fees is generally reviewed under a de novo standard of appellate review. In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney's fees after the jury's verdict. In this case, the insured moved for attorney's fees pursuant to statute -- Florida Statute s. 627.428. The trial court denied the insured's motion. The insurer moved for attorney's fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79. The trial...

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...

26 December

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A “Reasonable Time” Period does Exist

Posted by David Adelstein

in Trial Perspectives

A reasonable time period does exist. The recent case of New Leaf Assets, LLC v. Jefrue, 50 Fla.L.Weekly D2673a (Fla. 4th DCA 2025) exemplifies this point. In this case, an investment agreement was entered – investors invested money in exchange for a percentage of membership interests. The agreement contained an option that gave the investors the option to exchange their membership interest for a refund of their investment, and the refund was backed by a personal guaranty. The investors attempted to exercise the option two years later, but the company notified them that it re-invested the money. The investors filed a...

15 June

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Preferred Contractor Endorsement in Property Insurance Policies

Posted by David Adelstein

in Trial Perspectives

Certain property insurance policies have what is known as a preferred contractor endorsement. It can be written in numerous ways, but the objective is to allow the insurer to perform covered repairs through its preferred contractor. In a recent case, the property insurance policy contained this endorsement: That policy includes a preferred contractor endorsement which states that when a covered loss occurs to the insured's property “and repairs are necessary to protect property from further damage,” the insured must notify People's Trust [insurer] “before authorizing or commencing repairs so [People's Trust], at [its] option, may select Rapid Response Team, LLC, to make...

25 November

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Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception

Posted by David Adelstein

in Evidence, Trial Perspectives

One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18): (18) ADMISSIONS.—A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence...

19 November

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Incorporated Documents (such as an Addendum) Need to be Identified as Incorporated

Posted by David Adelstein

in Trial Perspectives

If you have a document you want incorporated into the contract, make sure the contract specifically identifies the incorporated document. Otherwise, that document will NOT form the basis of your contract and if that document is not executed, it will NOT affect the enforceability of your contract. By way of example, in Mercado v. Sridhar, 48 Fla.L.Weekly D2188a (Fla. 3d DCA 2023), a buyer and seller entered into a purchase-and-sale contract. The issue was an addendum relating to the seller’s furnishings and a leaseback option that was never executed. The buyer sued the seller for specific performance when the seller refused...

19 December

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Presuit Appraisal Requirement under Bert J. Harris Act

Posted by David Adelstein

in Trial Perspectives

The Bert J. Harris, Jr., Private Property Rights Protection Act (also known as the “Bert J. Harris Act”) “provides recovery for the loss of fair market value when the use of land is inordinately burdened by government action.” Blue Water Holdings, SRC, Inc. v. Santa Rosa County, FL, 46 Fla.L.Weekly D2622c (Fla. 1st DCA 2021); Fla. Stat. s. 70.001. A claimant cannot just rush to the courthouse and file a lawsuit. There is a presuit requirement and notice period that requires the claimant to funish an appraisal, as contained in Florida Statute s. 70.001(4)(a), which maintains: Not fewer than 90 days...

28 February

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Proposals for Settlements and Attaching Releases

Posted by David Adelstein

in Trial Perspectives

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

25 December

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

Posted by David Adelstein

in Trial Perspectives

I have talked about proposals for settlement in a number of prior postings. (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79. A party receiving a proposal for settlement has 30 days to accept the proposal. If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...

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