04 May

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There can be Consequences when Voluntarily Dismissing Lawsuit

There can be consequences when you voluntarily dismiss a lawsuit simply because you don’t want to deal with the claim anymore. Or, you realize there are problems with your claim. Such consequences can arise if there is a basis for the prevailing party to recover attorney’s fees. Thus, don’t think you can just voluntarily dismiss your case without dealing with attorney’s fees. These are consequences you may need to deal with if you want to voluntarily dismiss your lawsuit. “The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the ‘prevailing party' within the meaning of...

25 February

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Attorney’s Fee Awards

Posted by David Adelstein

in Evidence, Expert Testimony

Attorney's fee awards can be frustrating. The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees. An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees. Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

07 January

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Attorney’s Fees only Flow to Plaintiff-Payee in Statutory Worthless Check Claim

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 68.065 is Florida’s worthless check statute – it creates a statutory cause of action against the payor of the worthless check. It further provides a statutory basis for attorney’s fees to the plaintiff-payee that prevails on the worthless check claim. Fla.Stat. s. 68.065(6) (“Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim.”). Well, what if the payee loses and the defendant-payor prevails on the worthless check claim – does the defendant get attorney’s fees? This was the...

11 June

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Draft Agreements with Clarity or…

Posted by David Adelstein

in Appeal

If you ever want to know why a contract or any agreement should be clearly written, here is the reason. In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

05 March

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Attorney’s Fee as an Element of Compensatory Damages

Posted by David Adelstein

in Trial Perspectives

When attorney’s fees are being sought as an element of compensatory damages, there is NO requirement for an expert to opine as to the reasonableness of the attorney’s fees. Rodriguez v. Altomare, 261 So.3d 590, 592 (Fla. 4th DCA 2018). “If, however, a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.” Id. See also Sea World of Florida, Inc. v. Ace American Ins. Companies, Inc., 28 So.3d 158,...

12 February

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Reasonable Attorney’s Fee Hearing – Does Attorney Need to Testify at Hearing

Posted by David Adelstein

in Trial Perspectives

Does an attorney at the law firm performing the work need to testify at an evidentiary attorney’s fees hearing to support the reasonableness of the rate and number of hours? Seems like an attorney at the law firm seeking to recover attorney’s fees would absolutely testify, right? Who better to speak about the work performed, number of hours expended, and the reasonableness of the rate than an attorney at the law firm performing the work. Interestingly enough, this was the issue decided by Florida’s new 6th District Court of Appeal in CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club,...

21 January

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Voluntarily Dismissing a Lawsuit that Gives Rise to Attorney’s Fees (Oh No!)

Posted by David Adelstein

in Trial Perspectives

When you plead a cause of action that triggers a basis for attorney’s fees (i.e., a statutory basis or contractual basis), you can also give the other side a strong argument that they are entitled to attorney’s fees if you voluntarily dismiss your lawsuit. This kind of operates under the “be careful what you ask for” scenario. An “Oh No!” moment. This was the scenario in Ward v. Estate of Lillian K. Wasserman, 48 Fla.L.Weekly D96c (Fla. 4th DCA 2022). The plaintiff filed a lawsuit predicated on Florida’s civil theft statute (Fla. Stat. s. 772.11) that gives a basis for statutory...

08 October

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Petition for Writ of Mandamus – Directing Trial Court to Take Action

Posted by David Adelstein

in Appeal, Trial Perspectives

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.” “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.” Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.” If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.” Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

17 September

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

Posted by David Adelstein

in Trial Perspectives

When it comes to proposal for settlements from a defendant, there is both good news and bad news. If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed. The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

27 August

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You Cannot Intentionally Render Moot a Plaintiff’s Lawsuit

Posted by David Adelstein

in Trial Perspectives

After a lawsuit is filed, a defendant cannot intentionally try to moot a plaintiff's lawsuit in its favor. This sentiment is shown in the case of The Collins Condominium Association, Inc. v. Riveiro, Fla.L.Weekly D1741b (Fla. 3d DCA 2022). In this case, a condominium unit owner filed a lawsuit against his condominium association to stop the association from preventing him from installing a safety barrier around the perimeter of his outdoor balcony. In addition to filing a lawsuit, the unit owner also initiated administrative code enforcement proceedings against the association. The association, thereafter, installed alarm devices on the sliding glass doors...