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What Constitutes an Enforceable Contract?

An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id. The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in...

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1.   The Florida Supreme Court in Moritz v....

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Prejudgment Interest and Post-judgment Interest

Prejudgment interest is routinely a component of a claimant’s monetary damages.   The claimant wants prejudgment interest on the principal amount due and owing. If no interest rate is set forth in the claimant’s contract, then the interest will accrue at the statutory rate. Then, once a judgment is entered, post-judgment interest will accrue on the judgment until it is paid.   See Florida Statute s. 55.03. Florida’s statutory interest rate is set by the Chief Financial Officer and published here. For instance, the current statutory interest rate is 4.75% per annum (and it has been 4.75% for numerous years). This translates to a...

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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

In an earlier posting I talked about proposals for settlement / offers of judgment.   Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is...

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The Simple, All-or-Nothing Verdict Form

Attention should be given to the verdict form you want the jury to fill out after listening to and seeing the evidence presented in the case. This verdict form dictates how the jury decides the facts in your case in the context of the theme of your case and the jury instructions. Needless to say, the verdict form is very, very important! There are times when a party may want a simple, all-or-nothing verdict form. A party may like this (such as the plaintiff) versus a special interrogatory form that contains numerous potentially confusing questions the jury is asked to answer. For...

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records. The proper foundation requires the witness to show that "(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a...

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Moving to Enforce the Appellate Court’s Mandate

    When an appellate opinion is issued (and after any post-opinion motions have been resolved or the timing to file same has expired), oftentimes the matter is remanded back to the trial court to implement the appellate court’s opinion or mandate.   This mandate is the “official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.” Tierney v. Tierney, 290 So.2d 136, 137 (Fla. 2d DCA 1974).  In other words, once that mandate is issued, the trial court is obligated...

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Improperly Admitting Hearsay can still be Harmless Error

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

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Actions for Declaratory Relief / Declaratory Judgment

Sometimes a party pursues what is known as an action for declaratory relief or declaratory judgment– for a trial court to declare their rights with respect to the application of a written document or instrument. In this manner, Florida Statute s. 86.021 states: Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed,...

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Foundation Required to Admit Prior Inconsistent Statement

One of the most effective impeachment vehicles to attack the credibility of a testifying witness is the prior inconsistent statement. A prior inconsistent statement is exactly what it seems – a statement previously made by the witness on a material issue that directly contradicts with what the witness is testifying to at trial.  The point of impeaching the witness with the prior inconsistent statement is to show the witness’ trial testimony is not credible—they are lying.   By attacking the credibility, you leave doubts in the trier of fact’s mind (e.g., jury) that the witness’ trial testimony needs to be discounted...

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