17 January

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context - check out this article as an example.) “If the injunction rests on factual findings, then a trial court's order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review...

13 January

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Do I or Do I Not File a Reply to Affirmative Defenses?

Posted by David Adelstein

in Trial Perspectives

I’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute. Thus, if you have an...

08 January

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein

in Appeal

After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues...

01 January

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Quick Note: An Ambiguous Agreement will Lead to Admissibility of Parol Evidence

Posted by David Adelstein

in Trial Perspectives

In an earlier article I explained that parol evidence (extrinsic evidence) is inadmissible to determine the intent of an unambiguous agreement. The corollary is that parol evidence is admissible to determine the intent of an ambiguous agreement. Naturally, parties want their agreements to be clear—crystal clear—to avoid any argument regarding an ambiguity. For example, in a recent case, a commercial lease was deemed ambiguous regarding the tenant’s lease rate. As a result, the landlord could not ram its commercial eviction claim through the court due to what it claimed to be the tenant not paying the right lease rate. Instead, evidence needed...

24 December

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Recoverability of Expert Witness Fees in Federal Court

Posted by David Adelstein

in Trial Perspectives

Many litigants are unaware that testifying expert costs are not automatically recoverable in federal court like they are in state court. Expert witness fees / costs are not an automatic taxable costs. 28 U.S.C. s. 1920 discusses taxable costs. 28 U.S.C. s. 1821 discusses a witness’ per diem costs of $40/day for each day’s attendance. See 28 U.S.C. 1821(2)(b) (“A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the...

12 December

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(Extract on) Business Judgment Rule

Posted by David Adelstein

in Trial Perspectives

Directors that serve on a board owe a fiduciary duty to their company and members. Directors are generally protected from personal liability for decisions they make by what is known as the business judgment rule. See Fla. Stat. s. 607.0830 (“(5) A director is not liable for any action taken as a director, or any failure to take any action, if he or she performed the duties of his or her office in compliance with this section.”); see also Florida Statute s. 617.0834 (regarding directors that serve on a nonprofit board). These are very important statutes (607.0830 and 617.0834) for...

25 November

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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein

in Appeal

Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction. When there is a dispute regarding the transaction, this gives rise to a breach of contract claim. It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently. As explained: [C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for...

17 November

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What Constitutes an Enforceable Contract?

Posted by David Adelstein

in Appeal

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...

03 November

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

Posted by David Adelstein

in Trial Perspectives

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....

26 October

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Prejudgment Interest and Post-judgment Interest

Posted by David Adelstein

in Trial Perspectives

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...