17 December

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

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...

14 October

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Arbitration is an Appealable Non-Final Order

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator. There are three considerations when determining whether a dispute is subject to arbitration: 1) Is there a valid written agreement to arbitrate (such as an arbitration provision in a contract)? 2) Is there an arbitrable issue? And 3) Has the right to arbitrate the issue or dispute been waived? Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017) quoting Jackson v....

15 July

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Insurance Policy Construction is a Question of Law

Posted by David Adelstein

in Appeal, Standard of Review

I am sure you have an insurance policy...

06 March

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Insurance Coverage Disputes where the Focus is the Policy Language

Posted by David Adelstein

in Standard of Review

Insurance coverage disputes are fairly common between an insured and his/her/its insurer. These are important disputes to an insured, particularly when they have been damaged and their insurer refuses to defend them from a third-party claim or otherwise denies coverage. An insured never wants to be in this position—understandably so. On the other hand, an insurance policy is not designed to cover every single risk under the sun as there are exclusions identified in policies for risks or perils that are not covered. This ultimately means an insured needs to have an appreciation of those risks or perils not covered...

17 January

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Quick Note: So You Want to Appeal an Injunction Entered Against You…

Posted by David Adelstein

in Appeal

So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context - check out this article as an example.) “If the injunction rests on factual findings, then a trial court's order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review...

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...

25 November

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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein

in Appeal

Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction. When there is a dispute regarding the transaction, this gives rise to a breach of contract claim. It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently. As explained: [C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for...

17 November

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What Constitutes an Enforceable Contract?

Posted by David Adelstein

in Appeal

An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id. The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in...

24 July

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Appealing Trial Court’s Interpretation of Contract

Posted by David Adelstein

in Appeal, Standard of Review

Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation. The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo...

21 May

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Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein

in Evidence, Standard of Review

After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.) The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for...

de novo Tag