Serving a Florida Statute s. 57.105 Motion for Sanctions

Posted by David Adelstein on July 21, 2018
Trial Perspectives / Comments Off on Serving a Florida Statute s. 57.105 Motion for Sanctions

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
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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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Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Posted by David Adelstein on June 23, 2018
Appeal, Trial Perspectives / Comments Off on Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Arbitration is a creature of contract, meaning if you want your disputes to be resolved by arbitration through an arbitrator (as opposed to litigation with a judge and/or jury), you need to include an arbitration provision in your contract.   A trial court granting or denying a party’s motion to compel arbitration is a non-final order that is immediately appealableSee Fla.R.App.P. 9.130(a)(3)(C)(iv).

There are times that a non-signatory to a contract with an arbitration provision wants to compel arbitration.  For example, a signatory to a contract (with an arbitration provision) files suit against a non-party and the non-party moves to compel arbitration based on the contract.  A dispute arises because the non-party is not a party to that contract, and thus, it needs a legal basis to compel arbitration under that contract.  That legal basis to allow a non-party to a contract to compel arbitration against a signatory to the contract is equitable estoppel: 

Courts have recognized that this [compelling arbitration] can be appropriate (1) when the signatory’s claims [against the non-party to the contract] allege “substantially interdependent and concerted misconduct” by the signatory and the non-signatory or (2) when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory

Beck Auto Sales, Inc. v. Asbury Jax Ford, LLC, 43 Fla.L.Weekly D1380a (Fla. 1st DCA 2018).

However, “even when a non-signatory can rely on equitable estoppel ‘to access [the arbitration] clause,’ the non-signatory can compel arbitration only if the dispute at issue ‘falls within the scope of the arbitration clause.’”  Beck Auto Sales, Inc., supra (citation omitted).  Even if one of the above equitable estoppel circumstances apply, the non-signatory still will not be able to compel arbitration if the scope of its dispute falls outside of the arbitration provision.

An example of the first circumstance was raised in Beck Auto Sales where a car dealership sued its former employee and the former employee’s new dealership/employer for a number of theories relating to their concerted effort to prevent the car dealership from winning a contract with a public entity. 

The former employee had an employment agreement with the car dealership that included an arbitration provision.  The trial court granted arbitration between the car dealership and former employee.  The new employer/dealership, a non-signatory to the employment contract, moved to compel the car dealership’s claims against it to arbitration under the employment contract.  It argued that the car dealership’s claims against it and the former employee (a signatory to the contract) allege substantially interdependent and concerted misconduct by the former employee (signatory) and it (non-signatory). The problem for the new dealership/employer, however, was that the arbitration provision in the employment contract was limited to disputes between the parties to the arbitration agreement.  The scope of the arbitration provision would not cover disputes involving the new dealership/employer; hence, it was unable to take advantage of an equitable estoppel argument to compel arbitration as a non-signatory to the employment contract.

 

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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Value of Severability Clause

Posted by David Adelstein on June 16, 2018
Trial Perspectives / Comments Off on Value of Severability Clause

 

 

 

Severability clauses have become fairly commonplace in contracts.  Cut and paste provisions.  However, these clauses can provide tremendous value.  A sample of a severability clause is as follows:

If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.

There are numerous ways to draft this type of clause with the essence being that if anything in the contract is deemed invalid or unenforceable, the balance of the provision and contract shall remain in full force and effect.  Such a provision, regardless of how it is worded, is known as a severability clause. 

An example of the application of the severability clause can be found in Premier Compounding Pharmacy, Inc. v. Larson, 43 Fla. L. Weekly D1340a (Fla. 4th DCA 2018), dealing with a non-compete agreement between a pharmacy and pharmacist. 

The non-compete agreement in the case contained language that the pharmacy (employer) could obtain injunctive relief without posting an injunction bond.  Requiring a temporary injunction to be posted without a bond is contrary to Florida Statute s. 542.335(j) which states in relevant part, “No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.”

Based on this statute, the language in the non-compete agreement that allowed the employer to move for a temporary injunction without posting a bond was not legal. 

Without going into all of the details of the case, the appellate court maintained that the language in the non-compete agreement that allowed the employer to move for a temporary injunction without posting a bond can be eliminated from the provision, with valid legal obligations remaining in the agreement, i.e., the temporary injunction can be  issued while requiring the employer to post a bond pursuant to Florida law.  

Additionally, the provision also allowed the employer to recover attorney’s fees in obtaining the injunctive relief.  The trial court denied the employer’s request for fees (although the injunction was entered) finding the provision unenforceable because of the preceding invalid sentence that allowed the employer to obtain an injunction without posting a bond.  No different than the appellate court eliminating the “without a bond” from the provision, the court held that, “because the extent of unenforceability of the provision goes solely to the ‘no bond’ requirement of the injunction, the remainder of the provision and the agreement is still enforceable, including the attorney’s fees provision.” Premier Compounding Pharmacy, Inc., supra.

Hence, while the provision at-issue was contrary to Florida law, the severability provision provided value in simply eliminating the invalid language and enforcing the remainder of the 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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Risk in Purchasing Property Subject to a Pending Foreclosure and Lis Pendens

Posted by David Adelstein on June 09, 2018
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When real property is the subject to a pending foreclosure action where there is a lis pendens, a buyer that purchases the property outside of the foreclosure “does so at his own risk because he is on notice that the property is subject to the foreclosure action [through the lis pendens].”  Bymel v. Bank of America, N.A., 159 So.3d 345, 346 (Fla. 3d DCA 2015).   The buyer is not permitted to intervene in the pending foreclosure action.  See id. at 346-47. 

In a recent case, The Bank of New York Mellon v. HOA Rescue Fund, LLC, 43 Fla.L.Weekly D1312b (Fla. 2d DCA 2018), the bank (mortgagee) filed a foreclosure action and lis pendens.  After the bank’s action was pending, the mortgagor’s homeowner’s association foreclosed an unpaid assessment lien.  A buyer obtained the property at the foreclosure sale of the assessment lien and then moved to intervene into the bank’s previously filed foreclosure action, which the trial court allowed.  (It appeared the bank, although its action was previously filed, did not aggressively prosecute the foreclosure and was fine with allowing its action to sit idle.)

Two issues were addressed on appeal. 

First, the buyer that purchased the property through the homeowner’s association’s foreclosure of an assessment lien should NOT have been allowed to intervene.  “A purchaser of property that is the subject of a pending foreclosure action in which a lis pendens has previously been recorded is not entitled to intervene in that foreclosure action.”  The Bank of New York Mellon, supra.  This language is the reason why filing a lis pendens is powerful!  The lis pendens puts the subsequent buyer on notice that he is purchasing the property at his own risk knowing the title to the property is subject to a pending lawsuit.

Second, even if the buyer could intervene, the buyer purchased the property subject to a superior interest.  In other words, the mortgage was superior to the homeowner’s association’s assessment lien so when the buyer purchased the property at the foreclosure sale of the assessment lien, the purchase was always subject to the superior mortgage.   Even if intervention was proper, the buyer still would not be able to participate in the bank’s foreclosure action as if the buyer were a party to the original note and mortgage. 

It is extremely important in situations like this that you get a Foreclosure Lawyer involved to go through the case with you. It is a very complex situation to be in, and I would recommend not doing it alone.

 

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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General Understanding of Collateral Estoppel and Res Judicata

Posted by David Adelstein on May 28, 2018
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There are two similarly related legal doctrines known as collateral estoppel and res judicata.   The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata).  These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application.   Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit.

 

Collateral Estoppel = Issue Preclusion

 

The doctrine of collateral estoppel is also generally known as issue preclusion. 

Collateral estoppel applies when the following five elements are satisfied: “(1) the identical issues were presented in a prior proceeding; (2) there was a full and fair opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior litigation were a critical and necessary part of the prior determination; (4) the parties in the two proceedings were identical; and (5) the issues were actually litigated in the prior proceeding.”  Pearce v. Sandler, 219 So.3d 961, 965 (Fla. 3d DCA 2017) quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004).  

When these elements are satisfied, “[c]ollateral estoppel precludes re-litigating an issue where the same issue has been fully litigated by the parties or their privies, and a final decision has been rendered by a court.”  Id. quoting Mtge. Elec. Registration Sys., Inc. v. Badra, 991 So.2d 1037, 1039 (Fla. 4th DCA 2008).   The underlined phraseology “or their privies” refers to one who is in privity with a party to a lawsuit.  “To be in privity with one who is a party to a lawsuit, or for one to have been virtually represented by one who is a party to a lawsuit, one must have an interest in the action such that she will be bound by the final judgment as if she were a party.”  Pearce, 219 So.3d at 965.

A trial court’s ruling regarding the application of collateral estoppel is reviewed under a de novo standard of appellate review.   PNC Bank, Nat. Ass’n v. Inlet Village Condominium Ass’n, Inc., 204 So.3d 97 (Fla. 4th DCA 2016).

 

Res Judicata = Claim Preclusion

 

The doctrine of res judicata is also generally known as claim preclusion.

Res judicata applies when the following four identities are satisfied: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.”  Professional Roofing and Sales, Inc. v. Flemmings, 138 So.3d 524, 527 (Fla. 3d DCA 2014) quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004).

An identity of the cause of action refers to “whether the facts or evidence necessary to maintain the suit are the same in both actions.”  Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) quoting Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984).   

Another way to consider res judicata has been stated as follows: “A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated determined in that action.”  Tyson, 890 So.2d at 1209 quoting Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So.2d 1049, 1050 (Fla. 4th DCA 2002). 

A trial court’s ruling regarding the application of res judicata is also reviewed under a de novo standard of appellate review.  Philadelphia Financial Management of San Francisco, LLC v. DJSP Enterprises, Inc., 227 So.3d 612 (Fla. 4th DCA 2017). 

 

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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Preserving an Objection for Appeal

Posted by David Adelstein on May 20, 2018
Appeal, Expert Testimony / Comments Off on Preserving an Objection for Appeal

Preserving an objection for appeal.  Preserving an objection for appeal.  Preserving an objection for appeal.  Repeat again and again, because this is important.  The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida,  43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife.  Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder.   The jury found that the man was guilty of attempted murder.

An issue on appeal dealt with the scope of an expert’s testimony that tied the defendant to the scene of the crime.  Prior to the expert’s trial testimony, the defense argued that the prosecution’s expert was going to be rendering an opinion outside of his expertise as demonstrated by prior deposition testimony.  The defense argued to exclude this testimony.   The judge held that the prosecution needed to lay the proper predicate (foundation) for the expert’s opinion, and he will entertain an objection at a later time.  The prosecution’s expert rendered the opinion and the defense never renewed the objection.  Because the defense never renewed this objection and there was never a definitive ruling on the motion to exclude the testimony, the defense never preserved this issue for appeal. Pierre, supra (“But because Pierre [defendant] then failed to renew his objection during Silvia’s [prosecution’s expert] testimony or obtain a ruling on his earlier motion to exclude the testimony, this argument was not preserved for review either.”).  Moreover, the appellate court held that the trial court permitting this opinion, even if the trial court was wrong, was not a fundamental error (i.e., it was harmless error) because the jury could have convicted the defendant based on eyewitness testimony alone.

Remember, it is important to preserve an objection for appeal, particularly if it will be the basis of a potential appeal. 

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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