Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

Posted by David Adelstein on February 17, 2019
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I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement).

For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant. 

In Cassedy, Jr. v. Wood,44 Fla.L.Weekly D422a (Fla. 1st DCA 2019), a landlord sued his tenants for breach of a lease when the tenants vacated the property and stopped paying rent.  The lease agreement provided that if collection was required by the landlord, the tenant was required to pay 10% of the judgment amount to cover attorney’s fees.  I have no clue why the attorney’s provision in the lease included this language versus the standard prevailing party attorney’s fees language.

The landlord, obviously knowing the lease would not make him whole for purposes of recovering his attorney’s fees based on that interesting attorney’s fees language, also served a proposal for settlement on each of his tenants.  The proposal for settlement required each tenant, independent of the other tenants, to pay the landlord $25,000.   If the landlord recovered a judgment 25% greater than any proposal for settlement amount, the landlord would now have an argument to recover his attorney’s fees from the date he served the proposal for settlement on forward.

The landlord recovered a judgment of $83,657.60 against the tenants.  The tenants were jointly and severally liable for this amount, meaning they were ALL on the hook for this total amount and the landlord could collect this judgment amount from any one or a combination of the tenants.  This makes sense since likely all of the tenants were on the lease and signed the lease.

The trial court denied attorney’s fees pursuant to the proposal for settlements, which was subject to a de novo standard of appellate review.  The appellate court reversed.

The tenants argued the separate $25,000 proposal for settlement amounts should be aggregated (totaling $75,000) for purposes of determining whether the judgment amount was 25% greater than the proposals for settlement amount for purposes of determining whether attorney’s fees should be awarded.  This was shot down on appeal.  There is no requirement that separate proposals for settlement be aggregated and there was no dispute that the landlord recovered a judgment against all the defendants ($83,657.6) 25% greater than the $25,000 proposal for settlement amounts, especially since all of the tenants were jointly and severally liable for the judgment.

The tenants also argued that the landlord could not recover attorney’s fees pursuant to the lease and also through a proposal for settlement.  This was shot down on appeal.  “Based on the imposition of a penalty pursuant to section 768.79 [Florida Statutes] and its mandatory application if all requirements are met, we find a party is not precluded from receipt of attorney’s fees under a contract and the [proposal for settlement] statute simultaneously.”  Cassedy, Jr., supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Posted by David Adelstein on February 10, 2019
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Even with an open and obvious dangerous condition, there may still exist a duty to maintain the property and repair that same condition

In Middleton v. Don Asher & Associates, Inc., 44 Fla.L.Weekly D301d (Fla. 5th DCA 2019), the plaintiff was a unit owner in a condominium for 15 years. She slipped and fell while she was walking on the condominium’s premises.  In particular, she slipped and fell on a sidewalk that contained uneven joints between two concrete segments.  She sued her condominium association and property manager for negligence in a premise liability action.  The sidewalk was apparently a common element required to be maintained by the association. 

The condominium association and property manager filed a motion for summary judgment claiming that the plaintiff’s premise liability claim fails as a matter of law because the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.  The plaintiff countered that even if the condition was open an obvious, a fact issue remained whether the association and management company should have anticipated that condominium residents would use the sidewalk and, therefore, repair that condition.   The trial court granted summary judgment holding that the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.   This was reversed on appeal.

[T]he duty owed to invitees is ‘1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier.’… The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their own senses.” Middleton, supra (internal citations omitted).

The plaintiff was an invitee as she lived in the condominium.  There is law that finds that uneven floor levels are an open and obvious condition, so this did not appear to be a disputed issue.  Yet, although this means an owner may not have a duty to warn others of the open and obvious condition, this does not discharge the owner’s duty to “maintain the property in a reasonable safe condition by repairing conditions that they foresee will cause harm.”  Middleton, supraStated differently, the obviousness of a dangerous condition does not relieve an owner’s duty to repair that same condition.   

Here, if the property manager and association anticipated others would use the sidewalk and encounter the open and obvious condition, they still had a duty to maintain the sidewalk in a reasonably safe condition.  If they could anticipate others would use the sidewalk with the open and obvious dangerous condition, then, naturally, it could be anticipated that others could be harmed by that condition.  This does not mean that the plaintiff would not be found comparatively negligent for getting hurt on the open and obvious condition, it just means the association and property manager may have been negligent for not acting reasonably to maintain and repair the condition.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule

Posted by David Adelstein on February 04, 2019
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The recent decision in Coachwood Colony MGP, LLC v. Kironi, LLC, 44 Fla.L.Weekly D340a (Fla. 5thDCA 2019) discusses the burden an upper landowner owes to a neighboring lower landowner when it comes to stormwater runoff / drainage.  The upper landowner is at a higher elevation than the lower landowner so the issue becomes the flow of stormwater from the upper landowner’s higher elevation property to the neighboring lower elevation property.  The flow of stormwater can result in washout, flooding, and loss of use and enjoyment to the lower elevation property, which is where the issue lies.

The Florida Supreme Court discussed the “reasonable use” rule that is applied to BOTH the upper and lower landowners:

The principle that an upper landowner enjoys an easement across the lower tract for all naturally occurring surface water continues to apply to land in its natural state. However, when any party improves his land, thereby causing surface waters to damage his neighbor’s property, the reasonable use rule shall be applied in order to settle the controversy. The rule applies not only in cases involving the conduct of the upper owner but also to improvements by the lower owner, such as the construction of dams designed to protect against the natural flow of surface waters across the lower land. Regardless of whether a counterclaim has been filed when both parties have made improvements, the reasonableness of the conduct of each will be in issue and may be compared in order to arrive at a fair determination.

Coachwood Colony MHP, LLC, supra, quoting Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989). 

In Coachwood Colony, the lower landowner sued its neighboring upper landowner for damages and permanent injunctive relief arguing that the stormwater runoff from the upper landowner “adversely affected its property due to increased water flow, constituted a continuing nuisance, and interfered with the use and enjoyment of its property.”  Under the reasonable use rule, the reasonableness of BOTH parties’ conduct comes into play.  This would include the lower landowner’s reasonable attempts to control the stormwater runoff in addition to the upper landowner’s use of its property, specifically with respect to stormwater diversion.  Hence, if there is a controversy between landowners of different elevations regarding stormwater runoff, the reasonable use rule will apply.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Disgorgement for WRONGDOING

Posted by David Adelstein on January 27, 2019
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What is disgorgement and what are the proper measure of damages when seeking disgorgement?  If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2019), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of fiduciary duty, defamation, conspiracy, slander per se, tortious interference, and violation of Florida’s Deceptive and Unfair Trade Practices Act.  You name it, this case seemed to include it!  Applicable here, however, is the damages associated with disgorgement which is designed to prevent a wrongdoer from profiting from his/her/its own wrongdoing or illicit conduct. 

In the first appeal, the appellate could held that the trial court’s award of disgorgement damages to the plaintiff was inadequate.   On remand, the trial court entered the same award mistakenly believing the appellate court thought that the damages were inadequately explained as opposed to just inadequate.  The trial court tried to explain the damages it found for disgorgement focusing on the plaintiff’s lack of business skills (or unsophistication) as a means to limit the disgorgement damages.  But, this was wrong as best explained by the appellate court in a subsequent appeal discussing disgorgement (including the citations that help explain the purpose of disgorgement and corresponding damages):

The trial court’s focus on the appellants’ supposed lack of business skills as a basis to limit disgorgement shows a complete misapprehension of the principles applicable to disgorgement. Disgorgement is a remedy designed to deter wrongdoers by making it unprofitable to engage in the wrongful behaviorSee Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So. 3d 689, 698 (Fla. 3d DCA 2018) (“‘Disgorgement is an equitable remedy intended to prevent unjust enrichment.’ ” (quoting S.E.C. v. Monterosso, 757 F. 3d 1326, 1337 (11th Cir. 2014))); Restatement (Third) of Restitution and Unjust Enrichment § 1 (Am. Law Inst. 2011) (“A person who is unjustly enriched at the expense of another is subject to liability in restitution.”); Restatement (Third) of Restitution and Unjust Enrichment § 3 (“A person is not permitted to profit by his own wrong.”). The point of disgorgement is to deter wrongdoers by stripping them of the gains from their conduct:

Restitution requires full disgorgement of profit by a conscious wrongdoer, not just because of the moral judgment implicit in the rule of this section, but because any lesser liability would provide an inadequate incentive to lawful behavior. If A anticipates (accurately) that unauthorized interference with B’s entitlement may yield profits exceeding any damages B could prove, A has a dangerous incentive to take without asking — since the nonconsensual transaction promises to be more profitable than the forgone negotiation with B. The objective of that part of the law of restitution summarized by the rule of § 3 is to frustrate any such calculation.

Id. § 3 cmt. c; see also § 51 cmt. e (“The object of the disgorgement remedy — to eliminate the possibility of profit from conscious wrongdoing — is one of the cornerstones of the law of restitution and unjust enrichment.”).

***

However, the measure of damages for disgorgement is not the profits the appellants might have made absent the wrongdoing — the measure of damages for conscious wrongdoing is the appellees’ “net profit attributable to the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(4); see also Duty Free, 253 So. 3d at 698 (“The equitable remedy of disgorgement is measured by the defendant’s ill-gotten profits or gains rather than the plaintiff’s losses.”). “When the defendant has acted in conscious disregard of the claimant’s rights, the whole of the resulting gain is treated as unjust enrichment, even though the defendant’s gain may exceed” the claimant’s loss.” Restatement (Third) of Restitution and Unjust Enrichment § 3 cmt. c. In fact, disgorgement may be awarded even if the claimant has not sustained any loss. Restatement (Third) of Restitution and Unjust Enrichment § 3, reporter’s note a. (“[I]t is clear not only that there can be restitution of wrongful gain exceeding the plaintiff’s loss, but that there can be restitution of wrongful gain in cases where the plaintiff has suffered an interference with protected interests but no measurable loss whatsoever.”).The trial court’s comments regarding the appellant’s business acumen are misplaced in determining a disgorgement award.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Disability Discrimination: Synopsis

Posted by David Adelstein on January 20, 2019
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When it comes to disability discrimination, there are two key federal statutes.  The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act.  Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities.  There are numerous federal cases discussing both the ADA and the Rehabilitation Act and their application to a given factual scenario.  For purposes here, this synopsis will merely highlight key components to a disability discrimination claim.  It is important that a person that believes they have been discriminated against because of a disability to consult with counsel to ensure they understand their rights. 

To prove a claim for disability discrimination, a plaintiff must prove the following three elements: 1) he/she is disabled; 2) he/she is a qualified individual; and 3) he/she was subjected to unlawful discrimination because of his/her disability. 

There is no disability discrimination claim without a plaintiff proving each of these three elements.

 

First Element.  A person is disabled if he/she has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”  See ADA and Rehabilitation Act.  “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  Id

 

Second Element.  A person is a qualified individual with a disability if they “with or without reasonable modifications to rules, policies, or practices…meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  See ADA and Rehabilitation Act.  

 

Third Element.  To prove unlawful discrimination, a plaintiff can either establish disparate treatment or failure to provide reasonable accommodations. 

Disparate treatment requires the plaintiff to prove animus such that they were singled out / discriminated against because of their disability (and people without a disability were treated differently).   In this instance, a defendant can counter this by establishing they had a legitimate reason for its action in which the burden will shift back to the plaintiff to argue that the plaintiff’s so-called legitimate reason is nothing but a pretext for disability discrimination.

A failure to provide reasonable accommodations requires the plaintiff to request reasonable accommodations that would allow them to perform essential functions of the job.  A defendant can counter this by arguing they denied the requested accommodation because it posed an undue hardship, i.e., it was not a reasonable accommodation.    

Both the ADA and the Rehabilitation Act contain an anti-retaliatory framework. So, let’s assume a person requests accommodations and those accommodations were denied and then that person was dismissed from their employment or educational status.  In this instance, the person may argue the defendant violated the ADA and the Rehabilitation Act by failing to provide them a reasonable accommodation.  The person may further argue that they were retaliated against by the defendant through their dismissal.  Similar to the above regarding disparate treatment, the defendant can rebut this by arguing they had a legitimate reason for plaintiff’s dismissal (that had nothing to do with the disability) in which the burden shifts back to the plaintiff to establish that the defendant’s proffered reason is a pretext for disability discrimination.

 

As mentioned above, there is a lot to disability discrimination claims and it is imperative a person that believes they have been discriminated against because of their disability consult with counsel to understand the nuances of the law and the application of the law to their specific factual claims.  This is just a synopsis relative to the framework of a disability discrimination claim.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Arbitration Clause – Narrow or Broad

Posted by David Adelstein on December 22, 2018
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Arbitration, as a method of dispute resolution, is a creature of contract.  If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract.  If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified in your contractual arbitration provision.  Conversely, if you want certain disputes not to be arbitrated or carved-out from arbitration, you want to clarify this in the arbitration provision.  The more clarity, the better, as it will avoid an issue down the road as to whether the dispute at-issue is subject to the arbitration provision.

Arbitration being a creature of contract was discussed in Vancore Construction, Inc. v. Osborn,43 Fla.L.Weekly D2769b (Fla. 5thDCA 2018) (internal citations omitted), which dealt with a contract between a purchaser and a homebuilder. This case, in particular, discussed the difference between a narrow arbitration provision and a broad arbitration provision. It is good practice to understand the difference, specifically if you negotiate or enter into contracts that contain an arbitration provision. As stated by the Vancore Construction Court:

Because arbitration provisions are contractual in nature, they are subject to the rules of contract interpretation.  The determination whether a dispute must be arbitrated “turns on the parties’ intent,” which is manifested in the plain language of the contract itself.  In general, courts favor arbitration provisions and “will try to resolve an ambiguity in an arbitration provision in favor of arbitration.”  Thus, if the language of the arbitration provision is sufficiently broad, courts will apply a liberal construction and require arbitration. 

Two types of arbitration provisions have emerged — those that are narrow in scope and those that are broad in scope.  Narrow arbitration provisions generally require arbitration for claims or controversies “arising out of” the subject contract, whereas arbitration provisions that are broad in scope usually require arbitration for claims or controversies “arising out of or relating to” the subject contract. When a contract contains a narrow arbitration provision, arbitration is only required when a litigant’s claims have a direct relationshipwith the terms and provisions contained in the contract.  In contrast, when a contract contains a broad arbitration provision, the court will compel arbitration when the party’s claims have a “significant relationship” to the contract.  The test to determine whether a “significant relationship” exists has been described as follows:

A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Abuse of Discretion Standard of Review when Expert Deemed Unqualified

Posted by David Adelstein on December 16, 2018
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In a recent article I discussed the importance of an expert’s qualifications — hiring an expert witness to render an opinion within his or her qualifications (training, knowledge, or expertise).  If an expert is not qualified to render an opinion, a trial court has the discretion to preclude that witness from offering the opinion at trial. 

For this reason, the standard of review in an appeal where the trial court deemed a witness unqualified is abuse of discretion.  See White v. Ring Power Corp., 43 Fla.L.Weekly D2729a (Fla. 3d DCA 2018) citing Brooks v. State, 762 So. 2d 879, 892 (Fla. 2000) (“holding it is ‘within the trial court’s discretion to determine a witness’s qualifications to express an opinion as an expert, and the court’s determination in this regard will not be reversed absent a clear showing of error.’”).   

In White v. Ring Power Corp., a trial court did not allow the plaintiff’s expert witnesses to render an opinion on a particular issue because the witnesses did not have the qualifications to do so.  They did not have the knowledge, training, or expertise to interpret the data for which their expert opinions were based.  Therefore, the appellate court affirmed the trial court finding that the trial court did NOT abuse its discretion in precluding the expert opinions / testimony at trial.  

Hiring and selecting the right expert for your case is important.  The selection starts with the qualifications of the expert based on the subject matter you are looking for the witness to opine.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Then-Existing State of Mind Hearsay Exception

Posted by David Adelstein on December 09, 2018
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While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind.  Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play.  

For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and stop them from playing loud music.  The friend did so and a fight ensued where a gun was brandished and discharged.  The friend was prosecuted for this incident. During the trial, the prosecution called the neighbors and they testified that the woman threatened to whoop them and she was going to send somebody to put a “cap in your a**.”   This testimony came in over the objection of the defense because the pregnant woman did not testify and she was not the defendant. 

The prosecution argued that the neighbor’s testimony about what the woman said to them was admissible to prove the then-existing state of mind of the defendant (friend of the woman).   But, there were two main problems.  

First, the prosecution used the statement to prove the then-existing state of mind of the defendant, not the woman (as she was not on trial). “It is well-settled, however, that this hearsay exception applies only to the declarant’s state of mind, not to someone else’s state of mind.”  Rodriguez, 2018 WL at *2 (internal quotations and citation omitted).

Second, the woman was not the victim.  Thus, the neighbor’s testimony about what the woman said was not admissible to establish the declarant-victim’s state of mind since, again, the woman was not the victim. While the defendant-friend’s state of mind was an issue since he went to the neighbor’s house on behalf of the woman, the woman’s state of mind was not at-issue. 

Thus, the out-of-court statement of the woman (declarant) was hearsay and was improperly admitted since (i) the then-existing state of mind exception cannot be used to establish someone else’s state of mind, in this case the declarant’s friend, and (ii) it could not be used to establish the declarant-victim’s state of mind since the woman-declarant was not the victim.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Posted by David Adelstein on December 03, 2018
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Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period.

For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel.   The company hired employees to serve as instructors and made them sign non-solicitation agreements that the employees would not solicit employment with any other company associated with the program or six months after their employment period. 

During the course of the program, three employees left to join another subcontractor providing analagous services under the program.  The company then sued its former employees for violating the non-solicitation agreement.   The issue was whether the former employees’ behavior were proactive in soliciting employment with the other company, regardless of who made the initial contact (the employee or the other company). 

The First District Court of Appeals found this to be a question of fact: “[W]hether the terms of the non-solicitation agreements were violated here is largely predicated on the inferences to be drawn from the facts of Appellees’ [former employees] behavior prior to, and during, their negotiations with Epsilon [other company].

When signing an employment agreement with a non-solicitation clause, it is important to consider the ramifications of the clause and how it could impact your employment, particularly if you are looking to explore other similar opportunities.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein on December 02, 2018
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While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered.  But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for attorney’s fees regardless of the conflicting case law in effect.  Proposals for settlement, in my opinion, have become head scratchers. 

 

The case of Starboard Cruise Services, Inc. v. DePrince, 43 Fla. L. Weekly D2581a (Fla. 3d DCA 2018) exemplifies the confusing nature of proposals for settlement.  In this case, the defendant served a proposal for settlement conditioned on the plaintiff releasing all claims asserted in his amended complaint and dismissing the amended complaint with prejudice.  The plaintiff’s amended complaint contained claims for monetary relief and a specific performance claim for equitable relief (where non-monetary damages were sought).  Prior to trial, the plaintiff dismissed his equitable claim and proceeded to trial only on his claim for monetary relief. The jury found in favor of the defendant and the defendant filed a motion for attorney’s fees based on its proposal for settlement (that the plaintiff did not accept).  The trial court denied the defendant’s motion for attorney’s fees finding that the proposal for settlement was invalid since it applied to plaintiff’s claims for monetary relief and equitable relief. 

The appellate court agreed with the trial court finding that the defendant’s proposal for settlement was invalid because it was conditioned on the plaintiff releasing all his claims—his claims for monetary relief and his claim for equitable relief (where non-monetary relief was also sought).   A proposal for settlement only applies to claims for money damages.

Due consideration is required when serving a proposal for settlement.  Even with that consideration, there is still the possibility that the proposal for settlement will be deemed invalid, as was the circumstance in this case.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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