21 May

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Recovering Attorney’s Fees in Litigating the Amount of Attorney’s Fees

The expression “fees for fees” or “fees on fees” generally refers to a situation where a party is awarded their attorney’s fees for litigating the amount of attorney’s to be awarded. Typically, litigating the amount of fees to be awarded to a prevailing party is not recoverable. Nazarova v. Nayfeld, 47 Fla. L. Weekly D1089B (Fla. 3d DCA 2022). However, such fees can be awarded if the contract in which attorney’s fees is based includes applicable language or is "broad enough to encompass fees incurred in litigating the amount of fees." Id. (internal quotation and citation omitted). In Nazarova, the fee provision...

15 May

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Business Interruption due to COVID-19 NOT Covered under Commercial Property Insurance Policy

Posted by David Adelstein

in Trial Perspectives

Florida has come out with an appellate opinion dealing with business interruption and COVID-19 under a commercial property insurance policy. In this matter, a restaurant/bar filed suit against its commercial property insurance carrier seeking declaratory relief that the policy covered its “business income losses it suffered when its suspended its operations during the COVID-19 pandemic.” Commodore d/b/a Greenstreet Café, Inc. v. Certain Underwriters at Lloyd’s London, 47 Fla.L.Weekly D1044a (Fla. 3d DCA 2022). The commercial property insurance policy at-issue did not contain a virus exclusion. During the COVID-19 pandemic, Miami issued emergency measures impacting the occupancy of businesses. Such measures ordered certain...

08 May

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Foreseeability and the Duty Element of a Negligence Claim

Posted by David Adelstein

in Uncategorized

Negligence causes of action are common causes of action in lawsuits. Therefore, it is important know what a plaintiff needs to do to both plead and prove a negligence claim. This includes the duty element of a negligence claim -- without the duty element, there is no negligence claim, and certainly no claim going to a jury to decide. “To state a cause of action for negligence, a plaintiff must allege: (1) the existence of a legal duty owed by the defendant to others, (2) breach of that duty by the defendant, (3) injury to the plaintiff proximately caused by...

01 May

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Post-Judgment Receiver Appointed to Collect on Behalf of Judgment Creditor

Posted by David Adelstein

in Appeal, Trial Perspectives

When a plaintiff recovers a monetary judgment against a defendant, the plaintiff becomes a judgment creditor. In order to collect on the judgment, it’s not uncommon for the judgment creditor to initiate proceedings supplementay, which is a statutory procedure. See Fla. Stat. s. 56.29. “Proceedings supplementary provide a judgment creditor with useful remedies to satisfy a judgment.” Williams v. Leali, 47 Fla. L. Weekly D949a (Fla. DCA 2022). One collection mechanism, as discussed in Williams, is for the judgment creditor to get a post-judgment receiver appointed with the duty to obtain funds to satisfy the judgment. See Fla. Stat. s. 56.10. ...

24 April

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Reminder: Not Every Breach is a Material Breach of Contract

Posted by David Adelstein

in Trial Perspectives

This is a short reminder. Not every breach of contract is a material breach. That's right - a breach can be a minor or technical breach that does not actually go to the essence of the contract. If it does not go to the essence of the contract, then how can it be a material breach? It cannot. This is important because you do not want to make strategic decisions on a breach that is not regarded a material breach. “To constitute a vital or material breach, a party's nonperformance must ‘go to the essence of the contract.’ A party's ‘failure...

16 April

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Adding a Non-Party Fabre Defendant to the Verdict Form

Posted by David Adelstein

in Uncategorized

In a recent premises liability action, the defendant appealed claiming the trial court failed to include a nonparty Fabre defendant on the verdict form. The appellate court disagreed and affirmed the trial court on this issue. It has become a common occurrence for parties to want others on the jury verdict form to give the jury an opportunity to allocate fault to a party other than them. And why not? However, this is not really how it works. A party cannot just argue that another party should be added to the verdict form just for the sake of it. That would...

10 April

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3-Step Process for Objections to Trade Secrets

Posted by David Adelstein

in Trial Perspectives

There are times a party in a litigation may seek documents from a party or non-party and there is a trade secret objection. The party or non-party does not want to produce trade secret information. What a party or non-party should do is request an in camera inspection or an evidentiary hearing. This was the situation in Bank of America, N.A. v. The Bank of New York Mellon, 47 Fla. L. Weekly D659a (Fla. 3d DCA 2022) where a non-party appealed a trial court’s ruling that required it to produce alleged trade secret information. The non-party timely moved for a petition for...

03 April

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Attorney’s Fees to Prevailing Party Under FDUTPA Claim are PERMISSIVE

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

In a Florida Deceptive and Unfair Trade Practices Act (known as FDUTPA) claim, a claimant will seek attorney’s fees under Florida Statute s. 501.2015(1). However, this statute uses the permissive word, “may” when it comes to awarding attorney’s fees to the prevailing party. With the use of such a permissive word, the trial court has discretion to award or not award attorney’s fees to the prevailing party. Stated differently, the award of attorney's fees is not mandatory. In an older case, Humane Society of Broward County, Inc. v. Florida Humane Society, 951 So.2d 966 (Fla. 4th DCA 2007), the appellate court...

27 March

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Contractually Disclaiming a Fraud Claim (Possible, but not Easy to do)

Posted by David Adelstein

in Trial Perspectives

Can a party contractually foreclose or disclaim liability to a fraud claim? The answer, shown below, is yes but this is rarely done and I have personally never seen it done. In order to “make [a] contract incontestable because of fraud,” the parties must “stipulate that the [contract] may not be rescinded for fraud.” Oceanic Villas, Inc. v. Godson, 4 So. 2d 689, 691 (Fla. 1941). To do so, the contract must do more than merely agree “that no fraud had been committed” -- i.e., disclaim the making of fraudulent statements upon which the other party has relied -- but must rather...

20 March

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Florida’s Single Publication Rule (and Defamation Claims)

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 770.07 provides: The cause of action for damages founded upon a single publication or exhibition or utterance, as described in s. 770.05, shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state. This statute is known as the “single publication rule.” The statute of limitations accrues at the time of the first publication and does not get delayed or tolled due to continued publication. The single publication rule applies to causes for action for “libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance,...