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What is a Covenant Running with the Land?

Posted by David Adelstein on July 14, 2019
Trial Perspectives / Comments Off on What is a Covenant Running with the Land?

What is a covenant running with the land?   A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land:

“Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate’ . . . [and] are divided into two categories, real and personal.”  A real covenant, or covenant running with the land, “differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the property granted.”  “A real covenant binds the heirs and assigns of the original covenantor, while a person[al] covenant does not.” 

The primary test whether the covenant runs with the land or is merely personal is whether it concerns the thing granted and the occupation or enjoyment thereof or is a collateral or a personal covenant not immediately concerning the thing granted. In order that a covenant may run with the land it must have relation to the land or the interest or estate conveyed, and the thing required to be done must be something which touches such land, interest, or estate and the occupation, use, or enjoyment thereof.

Therefore, “to establish a valid and enforceable covenant running with the land . . . , a plaintiff must show (1) the existence of a covenant that touches and involves the land, (2) an intention that the covenant run with the land, and (3) notice of the restriction on the part of the party against whom enforcement is sought.”

Hayslip v U.S. Home Corp., Fla. L. Weekly D1798a (Fla. 2d DCA 2019) (internal citations omitted).

This recent case dealt with an issue of first impression, that being whether an arbitration provision in a special warranty deed was a covenant running with the land such that a subsequent purchaser would be bound by the arbitration provision (as the subsequent purchaser would be on notice of the special warranty deed recorded in the official records).  The Second District found that the arbitration provision in the special warranty deed was a covenant running with the land and, therefore, the subsequent purchaser would have to arbitrate its construction defect dispute against the homebuilder.   Please review this posting for more information on 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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Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

Posted by David Adelstein on July 13, 2019
Trial Perspectives / Comments Off on Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

 

Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation.  It provides:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. 

In a recent opinion, Mazur v. Baraya, 44 Fla. L. Weekly D1795b (Fla. 2d DCA 2019), the issue was whether this pre-suit notice condition precedent requirement extended to alleged defamation in books and movies.  The plaintiff in this case sued book publishers and move production companies over his false portrayal in books and movies.  The Second District Court of Appeal, affirming the trial court, held that it did not apply to books and movies.  “Florida courts have consistently interpreted section 770.01 to apply only to news media, i.e., the press.”  Mazur, supra (explaining pre-suit notice requirement is meant to apply to the free press that publishes news quickly since they can issue retractions quickly as provided for in Florida Statute s. 770.02 to mitigate damages).   Although the statute includes the language “or other medium” (underlined above), it still applies to the news media with this language designed to “cover new technologies used to disseminate the news, such as internet publishers and blogs.”).  Id. “Although books and movies may address topics of public interest, they are not part of the traditional news media press….”  Id.

 

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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Attorney’s Fees on Attorney’s Fees

Posted by David Adelstein on July 04, 2019
Trial Perspectives / Comments Off on Attorney’s Fees on Attorney’s Fees

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends.

Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.  Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception.

The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created entitlement to attorney’s fees allowed to prevailing party to recover fees incurred for litigating the amount of attorney’s fees).

Entitlement to attorney’s fees is a creature of contract or statute.  

Statutory bases for entitlement to attorney’s fees are not really going to allow you to recover “fees on fees.” 

Contractual provisions may IF there is language in the contract that would allow such recovery.  Typically, there will be a provision that expresses that a prevailing party can recover attorney’s fees including attorney’s fees incurred in litigating the reasonable amount of attorney’s fees. 

While there are times I include or agree to such language, I am generally wary of this language because it disincentivizes a party from agreeing to settle the reasonable amount of attorney’s fees in advance of an evidentiary hearing to determine the reasonable amount because they know they will get “fees on fees.”   For example, what if the other side prevailed and they incurred $150,000 in attorney’s fees.  You want to settle the issue for $120,000.   The other side may likely be disincentived from settling this amount because not only do they know a court may award them more than the $120,000 in reasonable attorney’s fees, but now they get reasonable fees for litigating the amount that should be deemed reasonable.  Thus, you may be better off agreeing to the $150,000 because you would have to incur attorney’s fees too in litigating the amount of fees.  Something to consider when agreeing to or dealing with this provision.

 

 

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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Striking an Affirmative Defense

Posted by David Adelstein on June 30, 2019
Appeal, Standard of Review / Comments Off on Striking an Affirmative Defense

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant’s (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial.

The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of discretion.” Estrada, supra (internal citations omitted).

In this case, the jury was not able to consider the application of an affirmative defense because the trial court struck the affirmative defense prior to trial.  The trial court also would not allow the defendant to amend the affirmative defense.  There would not have been any prejudice to the plaintiff in allowing an amendment since the substance of the amended defense was based on facts already in the record. “Because we are unable to conclude that this error was harmless and that the jury would have rejected this defense, we are compelled to reverse the final judgment on review and remand for a new trial.”  Estrada, supra.  Stated differently, the appellate court ordered a new trial because the jury was not able to consider this affirmative defense and there was nothing to indicate the jury would have rejected this defense (had the jury considered it). 

 

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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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein on June 23, 2019
Evidence / Comments Off on Hearsay within a Medical Record (Double Hearsay)

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019).   What about a party’s statement within a medical record (double hearsay – hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such exception that could apply is an admission by a party opponent

For instance, in Strong, a person driving a motorcycle collided with an SUV.  The motorcyclist sued the driver of the SUV.  An issue on appeal pertained a statement in a medical record by the motorcyclist’s treating physician as to how the accident occurred (double hearsay – a hearsay statement within a business record). 

The motorcyclist told her treating physician’s staff that one of her tires blew and she collided with the SUV, and this was included by her treating physician in the medical report.  The trial court denied the admissibility of the statement at trial because it was not made directly to the doctor, but to someone on his staff. The appellate court held the motorcyclist’s statement contained in the medical record was admissible under the hearsay exception–an admission by a party opponent–even though the statement was not made directly to the doctor since it was included in the business record (medical report) and the doctor prepared the report based on information transmitted to him by a person with knowledge of that statement:

[A] statement is not rendered inadmissible merely because it passed through two declarants. Rather, the statement will be admissible as long as each level of hearsay is covered by an exception.  Here, irrespective of which trauma team employee actually took Mrs. Underwood’s [motorcyclist] statement, the conveyance of the statement to Dr. Cheatham [treating physician] would have occurred between two employees of the same company in the course of business.  Dr. Cheatham would then have prepared the report from information transmitted by a person with knowledge of the statement.  As such, even if the statement was not made directly to Dr. Cheatham, each layer of hearsay is covered by the business records exception.

Strong, supra(internal citations and quotations omitted).

 

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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Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein on June 15, 2019
Trial Perspectives / Comments Off on Premise Liability and the Obvious Danger Doctrine

In the premise liability context:

[T]he obvious danger doctrine provides that a landowner “is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party….”  However, this protection does not extend to situations where the landowner “should anticipate the harm despite the fact that the dangerous condition is open and obvious.” To determine whether the obvious danger doctrine applies, a court must “consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.” 

Shipman v.  CP Sanibel, LLC, 2019 WL 2301599, *4 (M.D.Fla. 2019) (internal citations omitted). 

For example, in Shipman, the plaintiff was an invitee of a resort.  She slipped and fell on water that accumulated on a non-slip resistant tile floor in an open-air lounge adjacent to the pool. There is a sign at the open-air lounge that advises patrons to towel off before walking on the tile.  There is also usually a wet floor sign to warn patrons that the tile floor might be wet; however, on the day the plaintiff slipped, the wet floor sign was not present.

On a summary judgment motion in federal court, one issue was the application of the obvious danger doctrine.  The trial court found that there was an issue of fact as to whether the obvious danger doctrine applied. Even if water on the tile in the open-air lounge was open and obvious, there was a factual issue as to whether the resort should have warned the plaintiff of the condition, i.e., the resort should have anticipated the harm that water on the lounge’s tile floor poses.  This is supported by the fact that the resort usually has a wet floor sign to warn patrons of this fact, but did not have the sign on the date in question.  Moreover, there was also a factual issue as to whether the resort kept its premises in a reasonably safe condition by allowing non-slip resistant tile to remain wet in a location adjacent to the pool.

 

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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Exculpatory Clauses MUST be Clear and Unequivocal

Posted by David Adelstein on June 08, 2019
Trial Perspectives / Comments Off on Exculpatory Clauses MUST be Clear and Unequivocal

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect.

By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him.  The gym relied on a waiver and release document the plaintiff signed in order to become a gym member claiming the plaintiff released it of all liability. 

A waiver and release clause in a document is referred to as an exculpatory clause.

Exculpatory clauses, such as the one at issue here, that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.  In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. 

Fresnedo, supra (internal quotations and citations omitted).

The court analyzed the entire waiver and release document (since it was reviewed in pari materia with the other clauses in the document) and determined that the exculpatory clause (waiver and release) did NOT clearly and unequivocally waive the gym’s liability for the type of negligence alleged by the plaintiff in his complaint.  In particular, the waiver and release was not unequivocal that it released the gym if the plaintiff was injured from an altercation with another person at the gym. 

Had the waiver and release clause in the document been clear and unequivocal, the plaintiff would probably be out of luck in his suit against the gym.  The fact that the gym’s waiver and release was not clear gave the plaintiff the ability to bypass the waiver and release and sue the gym for negligence.

 

 

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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Two Proposal for Settlement Considerations

Posted by David Adelstein on June 01, 2019
Trial Perspectives / Comments Off on Two Proposal for Settlement Considerations

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney’s fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving a proposal for settlement.  

Two things to note when serving a proposal for settlement:

 

  • The proposal for settlement cannot be served right off the bat.  A proposal for settlement to a plaintiff cannot be served until 90 days after the action has been commenced.  A proposal for settlement to a defendant cannot be served until 90 days after the defendant was served with the lawsuit

 

  •  A trial court’s stay of the lawsuit does not stay the proposal for settlement requirements.  For instance, in Old Dominion Ins. Co. v. Tipton, 44 Fla. L. Weekly D1102a (Fla. 2d DCA 2019), a lawsuit was stayed and as soon as the stay was lifted the defendant served the plaintiff a proposal for settlement.  The plaintiff argued that the prior stay precluded the defendant from serving the proposal because, when factoring in the stay, the proposal was served prematurely before the expiration of the 90-day period.  The appellate court disagreed finding that the stay, itself, did not toll the proposal for settlement requirements.

 

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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A General Release is Not Absolute

Posted by David Adelstein on May 27, 2019
Trial Perspectives / Comments Off on A General Release is Not Absolute

General releases, unfortunately, are not absoluteA recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling.   

In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim.  In theory, this makes sense since a future claim should not be barred.  It is one thing if the facts giving rise to the claim occurred AFTER the execution of the release such that the release does not cover circumstances arising from these facts.  It is another if the facts giving rise to the claim occurred BEFORE the execution of the release.  In the latter case, such claims should be included by virtue of the general release which is the reason why the word “unknown” is included, at least in my opinion.  The Court, however, found differently.

In Falsetto, parties entered into a release that included the release of past and present claims, “known and unknown.”  This is common language in a general release. 

A subsequent dispute arose between the parties and one of the parties counter-sued for fraud based on facts that occurred prior to the date in the release. The party, however, claimed it did not learn about the facts surrounding the fraud until the subsequent lawsuit. The Court held that because a fraud claim “accrues” when the last element occurs or “when the plaintiff knew, or through the exercise of due diligence should have known, of the facts constituting the fraud,” there was a factual issue as to when the fraud claim accrued.  Falsetto, supra (internal citation and quotation omitted).   Accordingly, the party asserting the fraud argued that while the facts may have taken place before the date in the general release, it did not know or learn about the fraud until after-the-fact–the fraud did not accrue until the party learned of the fraud.  The other party is now forced to argue that the party “knew or should have known” about the fraud, which in my opinion, results in a watering down effect of a general release. With a general release, the parties are looking for closure through the date of the release. This closure becomes difficult if the word “unknown” is going to be cast aside if a claim, such as fraud, did not accrue until after-the-fact based on a party learning of the fraud, even though the facts predate the release.

The safe play now is to add the phrase “known or unknown and accrued or unaccrued” in the general release to avoid this issue.   But, in fairness, this language also creates problems because a release through a set date should not operate to bar claims that occur after the release and no party should realistically want a release to be broadly construed to release a future claim that did not arise until after the release. 

 

 

 

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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Asserting Basis for Punitive Damages against Corporate Entity

Posted by David Adelstein on May 19, 2019
Trial Perspectives / Comments Off on Asserting Basis for Punitive Damages against Corporate Entity

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.”  Fla. Stat. s. 768.72(1).  

There are times a plaintiff wants to attribute an employee’s defamation of character to that employee’s company.  The employer is likely the deep pocket so punitive damage against the employer carries much more weight than suing the employee, individually, for punitive damages.

If a plaintiff wants to add a punitive damages claim against a corporate entity based on an employee’s conduct, a reasonable showing must be made that:

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or

(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

Tallahassee Memorial Healthcare, Inc. v. Dukes, 44 Fla. L. Weekly D1306c (Fla 1stDCA 2019) quoting Fla. Stat. s. 768.72(3).

Therefore, if you want sue a corporate employer –the deep pocket–for the defamation committed by an employee and assert a basis for punitive damages, you will need to proffer evidence establishing a reasonable showing that corporate management “actively and knowingly participated in such conduct [or] knowingly condoned, ratified, or consented to such conduct [or] engaged in conduct that constituted gross negligence that contributed to the loss…suffered by the claimant.” 

 

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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