23 September

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Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration. From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal. There are times where a party after a judgment is entered will file a motion for rehearing. Then, before that motion is ruled on, will file a notice of appeal. Why? The party is not appealing the order on the motion for rehearing because such an order has not...

16 September

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Referral Sources can be a Protected Legitimate Business Interest

Posted by David Adelstein

in Trial Perspectives

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof. Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time. White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business...

03 September

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Motion for Rehearing or Reconsideration: What is the Difference?

Posted by David Adelstein

in Appeal

Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and motion for reconsideration can result in an untimely appeal. Motions for rehearing apply to final judgments. They are filed pursuant to Florida Rule of Civil Procedure 1.530 because they “only apply to final judgments and ‘those orders that partake of the character of a final judgment,...

27 August

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Collateral Source Rule – Prohibiting an Injured Plaintiff from having Its Cake and Eating It too

Posted by David Adelstein

in Trial Perspectives

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources. The collateral source rule allows an injured plaintiff to present all of its damages to the trier of fact (jury) irrespective of payment the injured party received from a collateral source (e.g., insurance, social security, etc.). Evidence of payments the injured plaintiff received from a collateral source is inadmissible at trial due to the confusion that could result...

18 August

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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein

in Trial Perspectives

Caveat Emptor. Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property. In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million. The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was...

12 August

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Writ of Certiorari to Remedy Pre-Trial Discovery Order

Posted by David Adelstein

in Discovery, Standard of Review

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm. In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Generally, certiorari is not available to review orders...

06 August

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Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein

in Trial Perspectives

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages. This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available. Additionally, the statute maintains that, "There shall be a rebuttable presumption that the person named in or obtaining the benefits of...

30 July

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Not All Non-Final Orders are Immediately Appealable

Posted by David Adelstein

in Appeal

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders. In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a...

22 July

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Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein

in Trial Perspectives

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity. It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In...

15 July

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Insurance Policy Construction is a Question of Law

Posted by David Adelstein

in Appeal, Standard of Review

I am sure you have an insurance policy...