Quick Note: Competent Substantial Evidence to Support Mitigation of Damages

Posted by David Adelstein on September 15, 2018
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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 for competent substantial evidence.  If competent, substantial evidence supports the trial court’s findings, the ruling would not be disturbed on appeal. At trial, however, there was NO competent substantial evidence presented by the contractor that the owner failed to mitigate his damages. Forbes v. Prime General Contractors, Inc., 43 Fla.L.Weekly D2094a (Fla. 2d DCA 2018) (“Here, there is no competent substantial evidence that the Forbeses [owner] could have taken any measure without undue effort or expense to avoid [mitigate] the damages they sought.”).

 

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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You Can’t Sue Someone for Unjust Enrichment when there is a Contract

Posted by David Adelstein on September 08, 2018
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You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties.  You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability).  

For example, in Sterling Breeze Owners’ Association, Inc. v. New Sterling Resorts, LLC, 43 Fla.L.Weekly D2040c (Fla. 1st DCA 2018), a condominium association sued the developer for, among other claims, unjust enrichment.  The claim stemmed from the fact that the developer (in developing the condominium) reserved in the condominium documents ground floor units for its own commercial use.  The developer was required to maintain the interior of the units and pay for expenses including utilities relating to the units. The association claimed the developer did not pay and the association sued the developer under a theory of unjust enrichment for the collection of those expenses. However, the developer was already responsible for paying the expenses through the condominium documents.  Thus, the appellate court held the association had NO unjust enrichment claim: “[T]he agreement [in the condominium documents] specifically addresses the expenses for unpaid services and utilities sought in the Association’s lawsuit. Because a contract [i.e., the condominium documents] covers this matter, we reverse and remand the judgment on Count III and direct that judgment be entered for New Sterling Resorts [the developer] on this quasi-contractual claim.” Sterling Breeze Owners’ Association, Inc., supra.  The association could have sued on the contract, but it could not circumvent the contract by suing on an unjust enrichment theory!

 

 

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 Claims and Duties of Owners to Invitees

Posted by David Adelstein on September 01, 2018
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Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees? 

The owner or occupier of real property owes two duties to business invitees, namely [1] a duty to “use ordinary care in keeping the premises in a reasonably safe condition” and [2] a duty to warn of latent or concealed hazards that the owner/occupier knew or should have known about and which are not known to the invitee in a timely manner. The open and obvious danger doctrine may discharge the duty to warn, but it “does not apply when negligence is predicated on breach of the duty to maintain the premises in a reasonably safe condition.” 

TruGreen Landcare, LLC v. LaCapra, 43 Fla.L.Weekly D2027a (Fla. 5th DCA 2018) (internal citations omitted).

The open and obvious doctrine, referred to above, is a defense to owners in a premise liability claim and applies to the second duty — the duty to warn of latent dangerous conditions / defects.  But, this duty does not apply to dangerous conditions / defects that are open and obvious. 

The open and obvious danger doctrine “provides that an owner or possessor of land 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, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.”  “This doctrine rests upon the generally accepted notion that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the ordinary use of their senses.”  In analyzing whether a danger is open and obvious, “the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

TruGreen Landcare, LLC, supra (internal citations omitted).

As mentioned, if a potentially dangerous condition on the property is open and obvious, i.e., it is not latent / hidden, than an owner has a strong defense to an injured invitee’s premise liability claim. However, this open and obvious defense does not apply when a plaintiff claims that an owner or possessor negligently maintained the property in a reasonably safe condition (and this caused their injury).   “Thus, an issue of fact for the jury exists when the plaintiff alleges the owner/occupier breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious.”  TruGreen Landcare, LLC, supra

In TruGreen Landcare, LLC, the plaintiff bypassed a sidewalk and walked in a landscaped area in front of a movie theater in a plaza.  As he was walking in the landscaped area, he tripped and fell in a depressed area.  The landscaped area was surrounded by sidewalk and was referred to as a palm tree planter square which was a grassy area with artificial turf with a palm tree in the center.  The plaintiff sued, among other parties, the landscaper for negligently maintaining the landscaped area (palm tree planter square) in a reasonably safe condition. The landscaper contended that it owed no duty to the plaintiff to keep that area in a safe condition or warn of any dangerous condition because, as a matter of law, landscaped areas are not dangerous conditions.  The landscaper further argued that the issue that caused the plaintiff to trip was open and obvious.

Remember, the open and obvious defense does not apply when the plaintiff is claiming that the owner or possessor of the property negligently failed to maintain the property in a reasonably safe condition. While this is generally an issue of fact for the jury, there are:

[S]ome conditions [that] are considered so obvious and not inherently dangerous that they do not, as a matter of law, support liability for the breach of the duty to maintain the premises in a reasonably safe condition.  In particular, landscaping features “are generally found not to constitute a dangerous condition as a matter of law.”  Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose or to warn that they are not safe for walking.  In these situations, the rule “is to absolve the landowner of liability unless the landowner should anticipate or foresee harm from the dangerous condition despite such knowledge or obviousness.” 

TruGreen Landcare, LLC, supra (internal citations 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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Incentive for Taking Case on Contingency – the Contingency Fee Multiplier

Posted by David Adelstein on August 26, 2018
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A recent appellate decision came out regarding contingency fee multipliers–the incentive for taking a case on contingency.  

I included a thorough discussion on the requirements establishing a contingency fee multiplier here.  Check out this discussion that goes into establishing reasonable attorney’s fees and then the contingency fee multiplier.

Notably, in this case, the appellate court affirmed that the elements associated with establishing an entitlement to a contingency fee multiplier are as follows:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel (i.e., whether there are attorneys in the relevant market and would have taken the case on contingency absent the availability of the multiplier);

(2) whether the attorney was able to mitigate the risk of nonpayment in any way; and

(3) whether any of the factors set forth in Rowe (the reasonable attorney’s fees factors) are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.  This is looked at through the lens of the counsel at the time the counsel takes the case, and not with the benefit of hindsight.

There are a number of reasons for an attorney to take a matter on contingency.  While there is certainly a risk, there is also the prospect of an award, and with the contingency fee multiplier, the incentive is that a multiplier could be added to reasonable attorney’s fees to increase the amount of awarded fees. 

 

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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Sufficient Factual Detail to Support Four Prongs of Temporary Injunction

Posted by David Adelstein on August 20, 2018
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An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.”  XIP Technologies, LLC v. Ascend Global Services, LLC,  43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018).  A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongsId.

A trial court has discretion to grant or deny a motion for temporary injunction.  Its discretion, however, is not absolute and will be reviewed under an abuse of discretion standard of appellate review.  It will be deemed an abuse of discretion if an injunction is issued where the moving party has an adequate remedy at law or there has not been strict compliance with the factual detail needed to support the injunction.

In XIP Technologies, LLC, a defendant provided software that allowed the plaintiff to accept credit card payments from its customers and tracked all customer information, transactions, and purchases.  Due to a dispute, the defendant stopped transferring credit card payments to the plaintiff, stopped providing the plaintiff the tracked customer data, and stopped accepting credit card payments from the plaintiff’s customers.  The plaintiff stopped paying the defendant the required monthly fee for the software.  The plaintiff sued the defendant and moved for a temporary injunction that, among other things, required the defendant to pay the plaintiff the withheld credit card payment amounts, provide the plaintiff the tracked customer data, and continue to accept credit card payments from the plaintiff’s customers. The trial court granted the injunction.

On appeal, the defendant argued that it was wrong to order it to pay the plaintiff the withheld credit card payments because that payment constitutes an adequate remedy at law and injunctive relief is only when a party does NOT have an adequate remedy at law.  The appellate court agreed:  “If indeed XIP [defendant] is determined to be in breach of the parties’ contract, Ascend [plaintiff] will have an adequate remedy at law in the form of damages to replace the withheld revenue.  Because damages are available, there is no irreparable harm.” XIP Technologies, LLC, supra

The appellate court, on the other hand, found that injunctive relief could be appropriate relating to the customer data and refusal of the defendant to continue to process credit card payments of the plaintiff’s customers.   However, the trial court’s order was insufficient in that it did NOT contain sufficient factual detail supporting all of the four prongs to justify the issuance of a temporary injunction.  In particular, the trial court’s order did not include factual detail regarding requirements 3 (the substantial likelihood of success on the merits) and 4 (considerations of public interest).  For this reason, as to these issues, the appellate court remanded back to the trial court to enter a temporary injunction as to these issues “but only if it includes the required findings as to each of the necessary four prongs.”  XIP Technologies, LLC, 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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Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Posted by David Adelstein on August 12, 2018
Appeal, Trial Perspectives / Comments Off on Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Earlier this year I wrote an article regarding proving the defense of unilateral mistake.  In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake.  Based on this opinion, a party moved for a rehearing en bank under Florida Rule of Appellate Procedure 9.331–see applicable portion of 9.331(d)(1)–arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. 

The appellate court granted the rehearing en bank to address this undeniable conflict and lack of uniformity holding that inducement is NOT a required element in proving unilateral mistake:  “We conclude that inducement is not an element of unilateral mistake. A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.”  DePrince v. Starboard Cruise Services, Inc., 43 Fla.L.Weekly D1734a (Fla. 3d DCA 2018).   Without the inducement element, the defense of unilateral mistake becomes easier to prove.

 

 

9.331(d)(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by rule 9.330, a party may move for an en banc rehearing solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A response may be served within 10 days of service of the motion. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

 

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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Serving a Florida Statute s. 57.105 Motion for Sanctions

Posted by David Adelstein on July 21, 2018
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Appellate courts have been all over the place regarding how to serve a motion for sanctions under Florida Statute s. 57.105 that it has become borderline ridiculous.  Of course, this is my opinion, but the ridiculousness prompts the question mark in the photo.  

 A motion for sanctions under s. 57.105 is served when a claim or defense is NOT supported by material facts or is NOT supported by the application of then-existing law to the material facts and the party or party’s counsel knew or should have known of same.  Stated more simplistically, this motion gives rise when a claim or defense has a frivolousness component. 

The motion is served at least 21 days before it is filed to give the other party an opportunity to withdraw the claim or defense.  It is a safe-harbor provision to allow the other party to consider the merits of the motion for sanctions to determine whether to withdraw the potentially frivolous claim or defense.  In other words, if a party’s claim or defense cannot be supported by the facts or the law, the motion for sanctions is served giving the party the 21-day safe-harbor to determine whether to withdraw the claim or defense.  If they do not, and the motion is filed and the court agrees, the court shall award reasonable attorney’s fees, including prejudgment interest, to the prevailing party in equal amounts by the losing party and the losing party’s attorney.

However, losing parties have been able to argue the motion was not properly served to trigger the application of attorney’s fees.  Parties who filed claims or defenses that fell below the statutory threshold in Florida Statute s. 57.105 have been able to skirt the imposition of attorney’s fees by arguing that the motion was not properly served in strict compliance with Florida Rule of Judicial Administration 2.516 and there are conflicting decisions on this issue (even though the party had actual notice and received the motion).  See, e.g., Goersch v. City of Satellite Beach, 43 Fla. L. Weekly D1629b (Fla. 5th DCA 2018) (finding that motion for sanctions under s. 57.105 needs to be served in strict compliance with Florida Rule of Judicial Administration 2.516 and because the motion was not served in strict compliance the losing party is not responsible for fees). I’m sorry but the strict compliance requirement and the conflicting decisions is ridiculous and merely waters down the intent of s. 57.105 which is designed to eliminate frivolous claims or defenses. 

If you are serving a s. 57.105 motion for sanctions, and you have a really good basis under the material facts and existing law as recited in the motion, make sure it is served in strict compliance with Florida Rule of Judicial Administration 2.516.  Otherwise, the merits of the motion will be watered down by the argument that you did not strictly comply, even if you have substantially complied with the service requirements.

While I very rarely serve this a of motion for sanctions under s. 57.105 (and in the rare occasions I actually serve one it is a detailed motion that details both facts and law), there is value if a claim or defense is undeniably frivolous. 

 

 

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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Quick Note: Action for Declaratory Relief to Obtain a Certificate of Title

Posted by David Adelstein on July 13, 2018
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Recently, I have received a spate of phone calls relating to filing a lawsuit for declaratory relief to establish ownership of a motor vehicle.  As a result of these calls, I decided to write a quick note about this subject.

This issue is prompted by a person going to Florida’s Department of Highway Safety and Motor Vehicles (“DMV”) and the DMV telling the person, or sending the person a letter, that he/she needs to file a lawsuit for declaratory relief in order to obtain a court order awarding ownership of the motor vehicle to the person and directing the DMV to issue the person a certificate of title.   This procedure to obtain an order directing the DMV to issue a certificate of title is issued in accordance with Florida Statute s. 319.28(2)(a) and s. 86.011.  The court in which to file the action for declaratory relief (county court or circuit court) is predicated on the value of the vehicle. 

Certain counties will have packets with the papers a person needs to file in order to obtain the court order.  The packets can be overwhelming because they do require work for the person to do and certify to establish ownership and file a lawsuit.  This does take work because a lawsuit for declaratory relief would need to be filed and served on the last known person holding title.  Naturally, this is better done with an attorney’s assistance, but many times people think the value of the property (i.e., car) should dictate the amount of work.  This is not the case because again, a lawsuit would need to be filed for declaratory relief action because the end game is always the same – getting an order from the court awarding ownership of the vehicle to the person and directing the DMV to issue a certificate of title to the person.

 

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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Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

Posted by David Adelstein on July 07, 2018
Appeal, Trial Perspectives / Comments Off on Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract.

While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed.

In a recent property insurance coverage dispute, the insured, over the insurer’s objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy.  On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy was a role reserved for the judge, not the jury.  See Citizens Property Ins. Corp. v. Mendoza, 43 Fla. L. Weekly D1523a (Fla. 4th DCA 2018) (finding other errors that occurred in the trial and maintaining it was the trial judge’s job to instruct the jury that certain exclusions in the policy were not in conflict or sustain objections as to arguments to the contrary).

The judge interprets the policy; the jury, in an insurance coverage dispute, determines whether the facts fall within the scope of coverage.

 

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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Condominium’s Declaration is a Contract

Posted by David Adelstein on June 28, 2018
Trial Perspectives / Comments Off on Condominium’s Declaration is a Contract

A condominium’s declaration is a contract.  As a unit owner, it serves as your contract and will govern your rights with your condominium association.  Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration.  And, no different than any contract, the interpretation of a declaration is reviewed under a de novo standard of appellate review.  See Lenzi v. The Regency Tower Ass’n, 43 Fla.L.Weekly D1397a (Fla. 4th DCA 2018).

Lenzi serves as an example of a dispute involving a condominium unit owner and his association regarding the interpretation of a provision in the condominium’s declaration. In this case, the unit owner wanted the court to interpret a word used in the declaration restrictively, which the trial court rejected and the appellate court affirmed. 

When it comes to terms in a declaration (or any contract), terms are to be given their plain and ordinary meaning such that terms are construed in their ordinary sense.  See Lenzi, supra.  Unless a specific word is a defined term in the declaration (or contract), words are to be construed by their generally understood definition. Id.

If you are in a dispute with your condominium association regarding a provision or the interpretation of your declaration, make sure to consult with counsel to make sure your interpretation or basis of your dispute is colorable.   

 

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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