28 September

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

in Standard of Review, Trial Perspectives

The affirmative defense of waiver is a commonly pled affirmative defense. A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions. (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

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...

23 May

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Accurate Jury Instructions are Important

Posted by David Adelstein

in Appeal, Jury Instructions

Accurate jury instructions that are read to a jury are important. This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.” Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff. The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs. After the insurer’s contractor...

25 April

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There can be a Winner for Prevailing Party Attorney’s Fees when Both Parties Lose

Posted by David Adelstein

in Trial Perspectives

From reviewing prior articles on attorney’s fees, you know that to be deemed the prevailing party for purposes of attorney’s fees, particularly under a contractual based claim, a party needs to prevail on the significant issues in the case. What if a plaintiff has asserted a claim against a defendant and a defendant has a asserted a claim against the plaintiff and both parties LOSE on their affirmative claims? Can a party still be deemed to prevail on the significant issues in the case? That answer is yes based on the holding by the Second District Court of Appeals in Carrollwood...

10 May

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Appeal of Discovery Order — Not so Easy!

Posted by David Adelstein

in Appeal, Discovery

In litigation, there will be disputes as to the scope and perceived relevance of discovery (e.g., scope of document production, depositions, and interrogatory answers). It may not occur in every case, but it will occur. There is no such thing as discovery orders always going in your favor. Not possible. Some discovery orders entered against you are understandable. Others lead to a certain amount of frustration. And, others leave you with consternation such that you feel that you need to appeal based on the perceived prejudice. The appeal of a discovery order, however, is through a petition for writ of...

01 March

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Application of the Non-Party Fabre Defendant

Posted by David Adelstein

in Trial Perspectives

In an earlier posting, I wrote about the defense concept known as the non-party Fabre defendant. This is an affirmative defense raised by a defendant in negligence scenarios to get a non-party on a jury verdict form so that the jury assigns a percentage of fault / liability for the plaintiff’s damages to this non-party. By assigning a percentage of fault to the non-party, the defendant’s liability for the plaintiff’s damages is reduced. By way of example, if the plaintiff has $100,000 in damages and sues the defendant for these damages, the defendant may claim that "X" should be responsible...

12 January

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Enforcement of Non-Compete and Non-Solicitation Provision

Posted by David Adelstein

in Trial Perspectives

Non-compete provisions are not always fair. The same can probably be said about non-solicitation provisions. Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment. But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought. Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335. A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood...

28 July

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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein

in Discovery, Trial Perspectives

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis. And, frankly, delay tactics should not work as an intentional means to delay the inevitable. This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it. In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units...

28 May

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General Understanding of Collateral Estoppel and Res Judicata

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

There are two similarly related legal doctrines known as collateral estoppel and res judicata. The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata). These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application. Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit. Collateral Estoppel =...

20 February

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The Nonparty Fabre Defendant

Posted by David Adelstein

in Burden of Proof, Trial Perspectives

I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases. “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].” Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007). As further explained in Florida Statute s. 768.81(3): (3) Apportionment of damages.--In a negligence action, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the...