dadelstein@gmail.com

954-361-4720

Call Us For Free Consultation

Search

Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period. For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel.   The company hired employees to serve as...

Continue reading

Proposals for Settlement ONLY Apply to Claims for Monetary Relief

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered.  But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for...

Continue reading

Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner's use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018).  This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own.   For example, in Vale, a group of homeowners purchased property in a planned used development next...

Continue reading

Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff's case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of appellate review a trial court's ruling on a motion for involuntary dismissal.  In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant.  Why? Well, this case involved a member of a limited liability company (LLC), the...

Continue reading

The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions.  One method is known as the Daubert test.  The other as the Frye test.  Both are named after respective cases.    The Daubert test is used in federal court.  The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test.   The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this...

Continue reading

If You File a Frivolous Motion or Pleading: BEWARE

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!   In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature's Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant than filed a motion for prevailing party attorney's fees.  However, the defendant NEVER pled an actual entitlement to attorney's fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time...

Continue reading

Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor.  This does not mean arguments cannot and should not be made.  It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer. In a recent post-judgment collection case, Villamizar v. Luna Capital Partners, LLC, LLC, 43 Fla.L.Weekly D2395a (Fla. 3d DCA 2018),  a plaintiff (judgment creditor) recovered a judgment against a defendant on unsecured promissory notes (i.e., the notes were not secured by any mortgage).  During the underlying lawsuit, the defendant sold...

Continue reading

A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract.  As a result, an order granting...

Continue reading

Appealing Correct Measure of Damages

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence.  In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial.  On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages.  The issue...

Continue reading
Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com