27 March

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

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order to “make [a] contract incontestable because of fraud,” the parties must “stipulate that the [contract] may not be rescinded for fraud.”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,...

13 March

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Reasonable Time to Accept Settlement Offer (is a Question of Fact)

Posted by David Adelstein

in Trial Perspectives

How long does a settlement offer remain pending before it dies on the vine? There is no definite answer here meaning if you extend a settlement offer and it has not been accepted, make sure to formally rescind the offer before it has been accepted. That is the safe bet. Otherwise, it may get accepted when you thought the offer expired due to time and now you are fighting over whether the offer was still valid. This was the situation in Sakowitz v. Waterside Townhomes Community Association, Inc., 47 Fla.L.Weekly D583b (Fla. 3d DCA 2022). Here, the plaintiff extended a settlement offer...

06 March

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Contingency Fee Multiplier – Must Establish the Relevant Market Factor

Posted by David Adelstein

in Trial Perspectives

Should a contingency fee multiplier be applied? A recent case involving an architectural lien foreclose case explains the contingency fee multiplier standard. Initially, the trial court determines through an evidentiary hearing the reasonable attorney’s fees to be awarded to the prevailing party. This is done by applying the lodestar method laid out in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). Impex Caribe Corp. v. Carl Levin, P.A., 47 Fla. L. Weekly D544a, n.1 (Fla. 3d DCA 2022) (“The trial court arrives at the lodestar amount by multiplying the number of reasonable hours expended by a reasonable hourly rate.”). Then,...

27 February

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Business Judgment Rule Designed to Shield Directors from Personal Liability

Posted by David Adelstein

in Trial Perspectives

A recent case out of Florida’s Third District discussed the business judgment rule and ultra vires acts. Of importance, the Third District held that the business judgment rule was not required to be raised as an affirmative defense. Hence, the business judgment rule could be relied on notwithstanding a board/manager/director not raising it as an affirmative defense in a lawsuit asserted against them. The business judgment rule is a critical rule for anyone serving on a board to appreciate because it is designed to benefit them, i.e., to shield them for personal liability for their decisions. Without such a rule, who...

20 February

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Ambiguity in Insurance Policy Interpreted in Favor of Insured

Posted by David Adelstein

in Trial Perspectives

When it comes to insurance policies, it is important to consider: If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous. Ambiguous policy provisions are interpreted in favor of the insured. Security First Ins. Co. v. Vazquez, 47 Fla. L. Weekly D487b (Fla. 5th DCA 2022). Vazquez exemplifies an ambiguous insurance provision interpreted in favor of the insured. Here, the property insurance policy contained an endorsement with a $10,000 sublimit for, “Sudden and accidental direct physical loss to covered property by discharge of overflow of water or...

05 February

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Pure Bill of Discovery – NOT for Purposes of Fishing Expedition

Posted by David Adelstein

in Discovery

In unique and limited equitable circumstances, a party can file a lawsuit for what is referred to as a pure bill of discovery. “In the absence of an adequate legal remedy, equity has long authorized a pure bill of discovery as an appropriate remedy to obtain information such as the identity of a proper party defendant or the appropriate legal theory for relief.” A bill of discovery may also be used “to obtain information necessary for meeting a condition precedent to filing suit.” However, this Court has made clear that a pure bill of discovery does not lie “to substantiate one's...

29 January

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Partition Action does Not Result in Money Damages Against a Party

Posted by David Adelstein

in Trial Perspectives

A partition action is an action under Florida Statutes Chapter 64. “A partition action commences a legal proceeding to divide cotenants' interests in a real property.” Morrison v. Smolarick, 47 Fla.L.Weekly D307a (Fla. 2d DCA 2022). In a nutshell, the objective is to sell the property and then determine how the proceeds are shared between the parties. The Morrison Court explained: After the sale, “the court impounds the fund consisting of the proceeds of sale and conducts proceedings to establish the credits due to the parties and to determine the final amount awarded to each.” McFall v. Trubey, 992 So. 2d 867, 870...

22 January

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Consider Prevailing Party Attorney’s Fees before Voluntarily Dismissing Case

Posted by David Adelstein

in Trial Perspectives

Here is an important thing to note: do NOT just voluntarily dismiss a lawsuit where there is a basis for attorney’s fees because you could be liable for the other party’s fees. This was the unfortunate circumstance in Catamaran B.Y., Inc. v. Giordano, 47 Fla.L.Weekly D179a (Fla. 3d DCA 2022). This is an unfortunate circumstance you absolutely want to avoid. In this case, a plaintiff voluntarily dismissed his lawsuit against the defendant without prejudice. The defendant then moved for attorney’s fees based on a contractual attorney's fees provision between the parties. The trial court denied the defendant's motion for attorney’s fees...

15 January

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Confession of Judgment does Not Start the Clock to File Motion for Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

There are times a party rightfully moves to strike another party’s motion for attorney’s fees for being untimely. There are other times a party may try to create a “gotcha” moment to catch a party off guard to create a strategic argument that the motion for attorney’s fees was untimely. The latter is the scenario in the insurance coverage case discussed below. Florida Rule of Civil Procedure 1.525 provides: “Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service...