25 November

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

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...

19 January

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Employer cannot Retaliate against Employee for Workers’ Compensation Claim

Posted by David Adelstein

in Trial Perspectives

In prior postings, I talked about Florida’s private Whistleblower Act and Florida’s Public Whistleblower Act dealing with retaliatory terminations. Besides these whistleblower protections, there is also protection in Florida’s Workers’ Compensation Law that states: 440.205 Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law. To support an employment retaliation claim: [A] plaintiff must prove the following three elements: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and...

30 October

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Must be a Meeting of the Minds for there to be a Settlement

Posted by David Adelstein

in Trial Perspectives

A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement. Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement. However, what if it is not memorialized in a written settlement agreement? As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.” An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer;...

22 September

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Improperly Moving to Set Aside the Verdict

Posted by David Adelstein

in Appeal

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict: (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall...

01 June

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Two Proposal for Settlement Considerations

Posted by David Adelstein

in Trial Perspectives

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days. In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney's fees. There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation. There are definitely strategic issues that must be considered when serving...

16 April

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

Posted by David Adelstein

in Trial Perspectives

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)? These are damages that should be accounted for in a lis pendens bond. The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained: Haisfield looks back at losses that were actually suffered by a property...