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...

12 June

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The Bench Trial and Competent Substantial Evidence

Posted by David Adelstein

in Appeal, Standard of Review

In another posting, I discussed the doctrine referred to as the anticipatory repudiation of a contract. The anticipatory repudiation of a contract amounts to a breach of the contract as a party is prospectively repudiating their obligations in the contract. However, for purposes this article, that same case explains the difficulty in overturning a judgment from a non-jury (or bench) trial. This is because of the competent substantial evidence burden where a trial court will be affirmed if there is competent substantial evidence. If you are appealing a judgment from a bench trial, you are dealing with a harder standard or...

15 September

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Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein

in Appeal, Burden of Proof

I recently discussed the defense of mitigation of damages as it applies to contract cases. An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract. In the case referenced in the article, the trial court did not award the owner certain damages at trial finding that the owner should have mitigated his damages. The owner appealed this issue which was reversed on appeal. The reason it was reversed is because the trial court's finding that the owner failed to mitigate his damages is reviewed on appeal...