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Trial Perspectives

What is a Covenant Running with the Land?

Posted by David Adelstein on July 14, 2019
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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
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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
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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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Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein on June 15, 2019
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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
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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
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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
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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
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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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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein on May 11, 2019
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The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees. 

Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party’s enforcement action.   Is that attorney’s fees provision reciprocal? The answer is YES based on Florida Statute’s s. 57.105(7) mutuality of obligation requirement.  Section 57.105(7) provides:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

“The purpose of section 57.105(7) is simply to ensure that each party gets what it gives.  However, “[t]he statute is designed to even the playing field, not expand it beyond the terms of the agreement.”  CalAlantic Group, Inc. v. Dau, 44 Fla. L. Weekly D1004b (Fla. 5thDCA 2019).   “[I]f a claim is within the scope of an attorney’s fees provision, the party defending against that claim is entitled to attorney’s fees pursuant to section 57.105(7) if the party prevails.”  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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Suing Third-Party for Spoliation of Evidence

Posted by David Adelstein on May 04, 2019
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There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim against a third-party – a party the plaintiff did not originally sue– and known as a third-party spoliation of evidence claim.  

If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of evidence and does NOT give rise to an independent cause of action.  Shamrock-Shamrock, supra, n.1.   First-party spoliation can be dealt with directly in the underlying action.

A third-party spoliation of evidence cause of action is not easy to prove and is not intended to be easy to prove.

To establish a [third-party] spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. 

Shamrock-Shamrock, supra

The recent decision in Shamrock-Shamrock dealt with the “duty” element, i.e., did the third-party owe a duty to the plaintiff to preserve evidence.  The duty element is based on the “existence of a contract, statute, or properly served discovery request.”  Shamrock-Shamrock, supra.    

In this case, the plaintiff sued the third-party after the third-party obtained a new computer and destroyed the records on her old computer, although she did not know whether her old computer had relevant records to the underlying action.  In the underlying action, she was served with a deposition notice.  That deposition notice/subpoena was later amended a number of times and she was ultimately noticed for deposition duces tecum or with the requirement to bring documents.    Her computer was destroyed and replaced between the time she was originally noticed for deposition (without the duces tecum requirement) and the time she was noticed for deposition with the duces tecum requirement. 

The plaintiff argued that the third-party had a duty to preserve evidence on her computer based on the foreseeability of the underlying lawsuit and her actual knowledge of the lawsuit.  The appellate court, however, and at least in this case, was not going to extend the duty this far – it was not going to extend a third-party’s duty to preserve evidence based on the foreseeability or knowledge of litigation.  The reason being that such a “broad pronouncement would be tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits.”  Shamrock-Shamrock, supra.  

The outcome of whether a duty existed would presumably have been different if the third-party destroyed her computer AFTER she received a subpoena duces tecum for deposition requiring her to produce documentation at the deposition. In this situation, there would be an argument that the duty of preservation arose once she received the subpoena requiring her to produce the documentation.   The plaintiff would still need to prove the other elements to a third-party spoliation of evidence claim, but it would at least establish a duty existed on behalf of the third-party to preserve evidence.

 

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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