12 May

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Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Here is a case that may give associations some degree of consternation. I think it should because it supports permanent injunctive relief against an association to comply with its governing documents when managing or maintaining a surface water management system / stormwater management system. This case, discussed below, would extend beyond a surface water management system to any covenant in the governing documents. In Coconut Creek Homeowner's Association, Inc. v. Gonzalez, 43 Fla.L.Weekly D1045a (Fla. 4th DCA 2018), a homeowner sued her homeowner's association for failing to manage the association's surface water management system. The homeowner sued the association...

13 April

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Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein

in Trial Perspectives

Generally, people do not like to spend money on lawyers. There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees. Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with. But, money is important and decisions cannot be made in a vacuum without understanding associated costs. I get that not everyone wants to have to...

30 January

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Requests for Admissions as a Discovery Tool

Posted by David Adelstein

in Trial Perspectives

Requests for Admissions are one of my favorite discovery tools in litigation. Requests for Admissions are designed to narrow the disputed facts by requiring the recipient of the request to admit or deny the requested fact. These should be served with the objective of having the recipient admit the requested fact. If the recipient does admit the fact, then the fact is a stipulated fact – it does not need to be proved at trial because it is stipulated to. Florida Rule of Civil Procedure 1.380(c) provides: (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any...

17 December

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Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

Posted by David Adelstein

in Appeal

An order denying a motion for attorney's fees is generally reviewed under a de novo standard of appellate review. In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney's fees after the jury's verdict. In this case, the insured moved for attorney's fees pursuant to statute -- Florida Statute s. 627.428. The trial court denied the insured's motion. The insurer moved for attorney's fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79. The trial...

19 October

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The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein

in Trial Perspectives

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo! This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney's fees. (For example, if the Court determines that an attorney’s reasonable...

25 June

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Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein

in Appeal

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion! Appeals take time...

14 April

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Litigating the Amount of Contractual Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action. There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993). What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of...

18 February

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Innovative or Alternative Fees Can be a Win-Win!

Posted by David Adelstein

in Uncategorized

What is the traditional model of lawyering? Simply put, it is hourly billing. There is nothing wrong with this model; however, there are other alternative or innovative attorney's fee models out there that factor in performance, results, and efficiency. These are models that incentivize performance which is always in a client's best interest. Stepping out of a comfort zone is tough considering we are all creatures of habit. But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint. If you are interested in learning more about...

11 February

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein

in Trial Perspectives

Florida Rule of Civil Procedure 1.525 provides: Any party seeking a judgment taxing costs, 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 of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party. This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made...

08 January

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein

in Appeal

After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues...