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Standard for Petition for Writ of Certiorari

Posted by David Adelstein on August 18, 2019
Appeal / Comments Off on Standard for Petition for Writ of Certiorari

To invoke an appellate court’s certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal.

State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted). 

This is the standard for a petition for writ of certiorari.

An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s order can be found in State Farm Florida Ins. Co. v. Sanders, which dealt with a property insurance coverage dispute. 

In this case, after the policyholder filed a lawsuit against his insurer, the insurer filed a motion to compel the parties to the appraisal process mandated by the property insurance policy.  An issue arose as to the parties’ selection of “disinterested” appraisers as required by the policy.  The policyholder wanted to use his public adjuster, which the insurer contested because the public adjuster is hardly disinterested – he is an agent for the policyholder. Notwithstanding, the trial court entered an order allowing the policyholder’s public adjuster to serve as the disinterested appraiser prompting the insurer to file a petition for writ of certiorari.

The appellate court granted the petition because allowing the public adjuster to serve as a disinterested appraiser is a harm that could NOT be corrected in a post-judgment appeal. A major reason for this is the nature of the property insurance appraisal process is a binding process, as more particularly outlined in the property insurance policy. 

If you are considering filing a petition for writ of certiorari, know the standard you need to satisfy to get the appellate court to entertain the petition and quash the trial court’s order.

 

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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Supplemental Property Insurance Claim

Posted by David Adelstein on August 10, 2019
Trial Perspectives / Comments Off on Supplemental Property Insurance Claim

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost.  The insured then filed a new suit against his property insurer for the same damages.  The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer.  The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the new lawsuit concerns a supplemental claim.

An issue on appeal concerned what actually constitutes a supplemental property insurance claim.  The appellate court stated: “We agree with the learned trial court that a supplemental claim means an additional claim made after an insured has actually undertaken or commenced repairs arising out of damages for a covered loss and after the insurer has tendered initial payment based upon its determination of actual cash value.”  Chavez, supra.

Thus, for there to be a supplemental claim, the insured has to actually undertake repairs.

 

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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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein on July 28, 2019
Discovery, Trial Perspectives / Comments Off on Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis.  And, frankly, delay tactics should not work as an intentional means to delay the inevitable.  This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.  

In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units and commercial units that had an active business function were assessed dues. The commercial owner, however, decided it was not going to pay assessments and, apparently, never did. The association foreclosed on the unit and filed a motion for summary judgment.  Right before the hearing on the motion for summary judgment, and after previous motions for continuance, the commercial condominium owner filed another motion for continuance to take another deposition, a motion to compel discovery, and a motion for leave to amend to add affirmative defenses.  The commercial condominium owner also filed an affidavit with conclusory averments that conflicted with the deposition testimony of its corporate representative.  The commercial condominium owner tried to argue that it was exempt from assessments because, among other things, it did not have an active business function although its corporate representative testified to the contrary (and there was other record evidence to refute this averment).  

The trial court, as affirmed by the appellate court, was not having any of what it perceived to be intentional delay.  The Third District explained:

The affidavit in opposition to summary judgment is replete with statements that are conclusory, speculative, contains hearsay or would otherwise not be admissible at trial. Moreover, the affidavit specifically contradicts the testimony by Weisser Realty’s [commercial condominium unit owner] designated corporate representative….

***

Despite having had two years since service of the complaint in which to schedule depositions and seek further discovery, it was only a week before the specially set summary judgment hearing that Weisser Realty moved to set the Association’s corporate representative’s deposition, and three days before the hearing that Weisser Realty filed motions to compel discovery and for leave to amend its affirmative defenses. As the Fifth District recently explained,

[i]f there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. . . . However, if the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending.

The trial court found no justification in the record for the last minute motions to continue discovery or to add additional affirmative defenses where the facts appeared to be well-established and sufficient to address at summary judgment. The trial court was within its discretion to grant summary judgment, where the filings mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.

Weisser Realty Group, supra (internal citation 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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Damages Under Florida’s Public Whistleblower Act

Posted by David Adelstein on July 27, 2019
Trial Perspectives / Comments Off on Damages Under Florida’s Public Whistleblower Act

In a prior article, I discussed damages recoverable under Florida’s Whistleblower Act, which concerns employees working for private employers.  An employer cannot retaliate against an employee for reporting or objecting to violations of laws, rules, and regulations.

But, Florida also has a Whistleblower Act concerning employees or independent contractors working for public employers.  This is embodied in Florida Statute s. 112.3187 (also known as Florida’s Public Whistleblower Act) and designed to prevent the retaliation against such persons that report to an appropriate agency violations of law or any person that discloses information to an appropriate agency regarding the gross waste of funds, gross neglect of duty, or improper use of governmental office, on the party of any public agency or officer.  Fla. Stat. s. 112.3187(1). 

Damages recoverable under Florida’s Public Whistleblower Act are as follows:

Relief.–In any action brought under this section, the relief must include the following:

(a) Reinstatement of the employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief.

(b) Reinstatement of the employee’s full fringe benefits and seniority rights, as appropriate.

(c) Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.

(d) Payment of reasonable costs, including attorney’s fees, to a substantially prevailing employee, or to the prevailing employer if the employee filed a frivolous action in bad faith.

(e) Issuance of an injunction, if appropriate, by a court of competent jurisdiction.

(f) Temporary reinstatement to the employee’s former position or to an equivalent position….

Fla. Stat. s. 112.3187(9).

In a recent case, Iglesias v. City of Hialeah, 44 Fla.L.Weekly D1896a (Fla. 3d DCA 2019), the Third District held that a person suing under Florida’s Public Whistleblower Act can also recover noneconomic compensatory damages.  Id. (“The [Florida Public Whistleblower Act] mandates that an award include the remedies explicitly identified within the statute, but does not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under applicable law.”).

 

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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Damages Under Florida’s Whistleblower Act

Posted by David Adelstein on July 20, 2019
Trial Perspectives / Comments Off on Damages Under Florida’s Whistleblower Act

Florida’s Whistleblower Act is designed to protect an employee who is wrongfully retaliated against (i.e., suspended, terminated, demoted, etc.) for objecting to or refusing to participate in his or her employer’s illegal practices.  Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 912 (Fla. 4thDCA 2013) (citation and quotation omitted). This is set forth in Florida Statute s. 448.102.  

If you believe you have been retaliated against for threatening to blow the whistle (or refusing to participate and objecting to your employer’s illegal activities), it is important to consult with counsel immediately to ensure your rights are protected.  

Also, if you believe you have information about your employer’s illegal activities and are considering blowing the whistle, you should absolutely consult with counsel to best protect your interests. 

In a Florida whistleblower action, a court may award the following damages or relief:

(a) An injunction restraining continued violation of this act.

(b) Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position.

(c) Reinstatement of full fringe benefits and seniority rights.

(d) Compensation for lost wages, benefits, and other remuneration.

(e) Any other compensatory damages allowable at law.”

Fla. Stat. s. 448.103(2).

Lost wages generally refers to back pay and potential front pay.  Aery, 118 So.3d at 914. 

In awarding back pay, “the trial court must determine what the employee would have earned had she not been the victim …, and must subtract from th[at] figure the amount of actual interim earnings.”  Front pay, on the other hand, “is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.”  While reinstatement, when feasible, is typically “the preferred remedy” for a wrongful firing, front pay may be applied where “ ‘reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result’ ” of the firing.

***

In seeking back or front pay, the plaintiff “must mitigate her damages by seeking employment ‘substantially equivalent’ to the position [from which] she was” terminated. 

Aery, 118 So.3d at 914-15 (citations omitted).

As to compensatory damages under Florida’s Whistleblower Act: 

[G]iven the FWA’s [Florida Whistleblower Act] liberal construction, damages in the form of emotional distress are recoverable…as a form of compensatory damage. Thus, even if [the whistleblower] were not entitled to lost wages, his suit still could proceed on the theory that the wrongful discharge caused him mental anguish.

Punitive damages, on the other hand, are not recoverable.  Branche v. Airtran Airways, Inc., 314 F.Supp.2d 1194, 1196 (M.D.Fla. 2004).

 

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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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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