18 August

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Standard for Petition for Writ of Certiorari

To invoke an appellate court's certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal. State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). This is the standard for a petition for writ of certiorari. An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s...

10 August

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Supplemental Property Insurance Claim

Posted by David Adelstein

in Trial Perspectives

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost. The insured then filed a new suit against his property insurer for the same damages. The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer. The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the...

28 July

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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein

in Discovery, Trial Perspectives

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis. And, frankly, delay tactics should not work as an intentional means to delay the inevitable. This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it. In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units...

27 July

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Damages Under Florida’s Public Whistleblower Act

Posted by David Adelstein

in Trial Perspectives

In a prior article, I discussed damages recoverable under Florida’s Whistleblower Act, which concerns employees working for private employers. An employer cannot retaliate against an employee for reporting or objecting to violations of laws, rules, and regulations. But, Florida also has a Whistleblower Act concerning employees or independent contractors working for public employers. This is embodied in Florida Statute s. 112.3187 (also known as Florida’s Public Whistleblower Act) and designed to prevent the retaliation against such persons that report to an appropriate agency violations of law or any person that discloses information to an appropriate agency regarding the gross waste of...

20 July

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Damages Under Florida’s Whistleblower Act

Posted by David Adelstein

in Trial Perspectives

Florida’s Whistleblower Act is designed to protect an employee who is wrongfully retaliated against (i.e., suspended, terminated, demoted, etc.) for objecting to or refusing to participate in his or her employer’s illegal practices. Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 912 (Fla. 4thDCA 2013) (citation and quotation omitted). This is set forth in Florida Statute s. 448.102. If you believe you have been retaliated against for threatening to blow the whistle (or refusing to participate and objecting to your employer’s illegal activities), it is important to consult with counsel immediately to ensure your rights are protected. Also, if you believe...

14 July

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What is a Covenant Running with the Land?

Posted by David Adelstein

in Trial Perspectives

What is a covenant running with the land? A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land: “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate' . . . [and] are divided into two categories, real and personal.” A real covenant, or covenant running with the land, “differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the...

13 July

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Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation. It provides: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. In a recent opinion, Mazur v. Baraya, 44 Fla. L. Weekly D1795b (Fla. 2d DCA 2019), the issue was whether...

04 July

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Attorney’s Fees on Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit? This concept is known as “fees on fees.” It depends. Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees. Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception. The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created...

30 June

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Striking an Affirmative Defense

Posted by David Adelstein

in Appeal, Standard of Review

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy. Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

23 June

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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein

in Evidence

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019). What about a party's statement within a medical record (double hearsay - hearsay within hearsay)? Well, that hearsay statement may be admissible if another exception permits its admissibility. Once such exception that could apply is an admission by a party opponent. For instance, in Strong, a person driving a motorcycle collided with an SUV. The motorcyclist sued the driver of the SUV. ...