Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein on July 22, 2017
Trial Perspectives / Comments Off on Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides:

Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity.

It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.”   A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent.   In doing so, a defendant must identify the nonperformance or nonoccurrence of conditions precedent with specificity. Any generality in this regard could end up hurting the defendant, especially if the defendant has a legitimate defense based on the plaintiff failing to comply with conditions precedent.  Hence, make sure to consider applicable conditions precedent and identify those with particularity that deny the plaintiff’s allegation that all conditions precedent have been performed or have occurred.

In a construction dispute, a contractor argued that the subcontractor failed to comply with conditions precedent. However, the contractor’s affirmative defense was general in nature – no particularity.   This may have been a legitimate defense supported by facts since the contractor argued the subcontractor’s failure to comply with conditions precedent to payment meant that the contractor was not obligated to pay the subcontractor. But, based on the generality of the contractor’s affirmative defense, the appellate court held that the contractor failed to property preserve the defense in its affirmative defenses:

In its amended answer, DFI [contractor] asserted, as an affirmative defense, that HRI [subcontractor] “has failed to allege, nor can it establish that it had meet [sic] each and every condition precedent to recovering payment in this cause pursuant to its Complaint.” Contrary to the requirements in Florida Rule of Civil Procedure 1.120(c), DFI did not specify which conditions precedents HRI did not comply with or how HRI failed to comply with them. Consequently, DFI’s answer to the complaint failed to preserve its right to demand proof that HRI complied with the conditions precedent to progress payments and final payment. See Fla. R. Civ. P. 1.120(c); Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 2016) (“[T]o construct a proper denial under the rule, a defendant must, at a minimum, identify both the nature of the condition precedent and the nature of the alleged noncompliance or nonoccurrence.”); Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 2015); Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 648 So. 2d 772, 774 (Fla. 1st DCA 1994).

 

 

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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Insurance Policy Construction is a Question of Law

Posted by David Adelstein on July 15, 2017
Appeal, Standard of Review / Comments Off on Insurance Policy Construction is a Question of Law

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to protect you or your business’s needs or risks.   You may have even been involved in an insurance coverage dispute or have had issues dealing with insurance coverage.

If you read any one of your insurance policies, you will probably be left with more questions than answers. You will be asking yourself “what does this mean?” or “what does this say?” and will often be left bemoaning “huh!?!” with every other sentence you read.  This is the exact reason why there are insurance coverage disputes.

When it comes to insurance coverage disputes and the interpretation of the language in an insurance policy, the Florida Supreme Court importantly explained:

Insurance policy construction is a question of law subject to de novo review.  Courts construe insurance contracts according to their plain language.  However, “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.”  A provision is ambiguous if it is “susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage.”  The ambiguity must be genuine, and the lack of a definition for an operative term “does not, by itself, create an ambiguity “When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.” 

Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017) (internal citations omitted).

Obviously, if you have an insurance coverage dispute, you want to make sure you are represented by an attorney that understands the complexities of insurance coverage.  Nonetheless, it is imperative that you understand that insurance policy construction is a question of law for the Court with a de novo standard of appellate review.

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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Courts do Not Favor the Technical (Oops!) Wins

Posted by David Adelstein on July 09, 2017
Trial Perspectives / Comments Off on Courts do Not Favor the Technical (Oops!) Wins

Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred.   Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error.

An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla. L. Weekly D1526a (Fla. 5th DCA 2017), where the lender in a mortgage foreclosure action received requests for admissions, a common discovery tool to get a party to admit or deny certain facts. Those admissions of fact help narrow issues for purposes of trial because they narrow the facts in dispute since they serve as stipulated facts.  Based on these admissions, a party can move for summary judgment based on the lack of any genuine material fact in dispute.

The lender’s counsel, due to a calendaring error, failed to respond to the request for admissions for well over a year. During this time, discovery continued. The lender’s counsel realized the error (over a year later) and filed a motion in the court for the court’s permission to file a late response based on excusable neglect (the calendaring error). The lender also claimed that many of the requests in the requests for admissions would have been denied by evidence already in the record and filed with the lender’s verified complaint. After the lender filed this motion, the debtor moved for summary judgment arguing that the lender’s failure to timely respond to the request for admissions should be deemed an admission as to all of its requests. The court agreed and granted summary judgment (based on the technical error of not timely responding to the request for admissions). A technical win!

On appeal, the Fifth District reversed stating that Florida favors disputes to be decided on the merits rather than technical rules. In this case, the court found that even though the lender failed to respond to the request for admissions for well over a year, (1) discovery continued in the case, (2) there was evidence in the record contradicting some or all of the requests, (3) the debtor did not move for summary judgment until after the lender filed a motion for permission to file a late response, and (4) the debtor could not prove how it was prejudiced by the late admissions. Wells Fargo Bank supra (“In sum, the trial court erred in entering summary judgment based on the technical admissions because there was record evidence contradicting the admissions. In addition, the Sheltons failed to make a sufficient showing of how granting relief from the admissions would have caused prejudice.”) 

By no means am I in favor of committing or excusing technical errors, and by no means am I in favor of technical victories.  Waiting well over a year to try to respond to requests for admissions is ridiculous. (Also, the opposing party should have inquired as to the status of the admissions versus waiting over a year to try to obtain a technical victory.)  A calendaring error makes sense in this case because there really was no upside for the lender to not timely respond to these admissions – they were probably all easy denials. There was no strategic value to delay. But, over a year is a LONG time. And, the court provides no substantive discussion as to when a party is prejudiced by a technical error versus when a party is not. For instance, what if the debtor had moved for summary judgment before the lender realized it neglected to respond to the admissions? What if the parties were on a trial docket? What if the denials to the admissions were not so readily apparent from the record evidence? And, what if the debtor’s counsel tried to get the lender’s counsel to respond to the admissions months earlier?

 

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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Civil Conspiracy – Not Just a Claim in the Criminal Context

Posted by David Adelstein on July 01, 2017
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We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that co-conspirators conspired to commit an intentional tort or an intentional wrong.  

The Third District Court of Appeal in MP, LLC v. Sterling Holding, LLC, 2017 WL 2794218 (Fla. 3d DCA 2017) recently explained a claim for civil conspiracy:

The elements of a claim for civil conspiracy are: “(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). There is no requirement that each co-conspirator commit acts in furtherance of the conspiracy; it is sufficient if each conspirator knows of the scheme and assists in some way. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008).

The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 951 (Fla. 3d DCA 1984); see also Phelan v. Lawhon, 2017 WL 1177595 (Fla. 3d DCA 2017) (civil conspiracy claim must show independent wrong that would be an actionable wrong if it was committed by one person); Morris USA Inc. v. Boatright, 2017 WL 1356285 (civil conspiracy claim holds co-conspirators liable for “harm caused by other members of a conspiracy to commit an intentional tort.”); Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5th DCA 2006) (action for civil conspiracy generally requires underlying wrong or tort).

As mentioned, a civil conspiracy claim requires an agreement between two or more parties – co-conspirators. Generally, a company cannot conspire with its officers, employees, and agents. Mancinelli v. Davis, 2017 WL 1278074, *2 (Fla. 4th DCA 2017). The only exception to this would be if an agent has a personal stake in the underlying activities that is distinct from the company’s interest that results in more than an incidental benefit to the agent. Id.

Proving a conspiracy is always challenging so parties need to engage in legwork figuring out what elements they can prove on the front end and what specific discovery they need to focus on in order to connect the dots and prove a civil conspiracy. However, asserting this claim just to assert it is a mistake (in my opinion) without having an understanding as to what you think you can prove.

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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Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein on June 25, 2017
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Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).

 

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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Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Posted by David Adelstein on June 18, 2017
Trial Perspectives / Comments Off on Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too.   This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse.  For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain conditions from occurring that are required to consummate the transaction? Is this type of bad faith accepted?

Head v. Sorensen, 42 Fla. L. Weekly D1380 (Fla. 2d DCA 2017) is a case that touches on seller’s remorse in the context of a seller of a condominium unit backing out of a signed deal and undertaking efforts to prevent conditions from occurring required to consummate the transaction.   The seller and buyer signed a purchase and sale contract for $405,000 with closing to occur 2 months later. A day or so later, the seller received a call from another owner in the condominium that told her that her sale price was too low and she could have gotten more money.  Based on this call, the seller signed a cancellation of contract and sent it to the buyer. The buyer refused to sign the cancellation and indicated his intent to close on the unit.

The purchase and sale contract provided that the sale was conditioned on the condominium association’s approval. This is not an uncommon rider to a purchase and sale contract. The buyer filed his application with the association for the requisite approval. However, the seller, because she wanted the deal to die, contacted the association and told them that she did not want to go through with the transaction and there were legal issues that that might prevent closing from taking place (although she never explained what those legal issues were). She also told the association to investigate the buyer’s ability to pay costs associated with the condominium. The association then rejected the contract based on the purported low sales price prompting the buyer to sue claiming, among other counts, breach of contract and specific performance.

The seller argued that the condition to closing—the association’s approval—did not occur so the buyer could not close on the unit.   The seller also creatively argued that the contract terminated by its own terms because there was a title defect (the association’s lack of approval) that rendered the title to the unit unmarketable and this defect was not cured.   The title commitment / defect provision is standard in real estate contracts that allows the buyer to notify the seller prior to closing of any title defects; the seller then has time to cure the title defects. If the seller cannot cure the defects after reasonable diligent effort, the contract terminates.

While the contract and closing was conditioned on the association’s approval, the problem was that the seller proactively assisted the association’s rejection of the buyer and deal, or proactively ensured that the condition would not occur. Naturally, the buyer’s title commitment reflected the association’s approval as a closing condition. The seller certainly didn’t go out of her way to ensure the association would approve the sale, which a seller would typically do when they have a buyer in place and a relatively short closing time. Had the seller sold the sale to the association, or not actively hindered the association from approving the buyer and transaction, the association probably would have approved the deal and any title defect would be removed.

Surprisingly, based on these facts, the trial court granted summary judgment in favor of the seller. On appeal, the Second District reversed stating:

When there are questions of fact as to whether one party to a contract has acted in bad faith by helping to procure an event that would cause the contract to terminate, summary judgment in favor of that party is improper….Here, such questions do exist. Therefore, Sorensen [seller] was not entitled to summary judgment in her favor on the issue of whether the contract terminated under the condominium rider, and the trial court erred by entering final summary judgment….

***

To limit the buyer to just the return of his deposit creates an incentive for the seller to dishonor the contract: “This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.”… Creating an incentive for a seller to breach the contract is anathema to the law.

Head, supra, (internal citations omitted).

Seller’s remorse has consequences, particularly when the seller proactively ensures conditions associated with the deal do not occur.

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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Cause of Action for Tortious Interference with a Business Relationship

Posted by David Adelstein on June 11, 2017
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Business relationships are important.  It is all about relationships in all walks of life!  What if someone interferes with your business relationship?  What if that interference is intentional or unjustifiable?

There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st DCA 1996) (“Tort liability for interference with prospective contractual relationships is generally recognized.”)

A plaintiff asserting this cause of action must PROVE the following elements:

(1) The existence of a business relationship;

(2) The defendant had knowledge of the business relationship;

(3) The defendant intentionally and unjustifiably interfered with the business relationship; and

(4) The plaintiff has been damaged as the result of the intentional and unjustifiable interference.

Southeastern Integrated Medical, P.L. v. North Florida Women’s Physicians, P.A., 50 So.3d 21, 23 (Fla. 1st DCA 2010); Harllee v. Professional Service Industries, Inc., 619 So.2d 298, 299-300 (Fla. 3d DCA 1992).

An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.” ISS Cleaning Services Group, Inc. v. Cosby, 745 So.2d 460, 462 (Fla. 4th DCA 1999).  

The claim requires a tortious interference with present or prospective customers or relationships and not the community at large; for this reason, the claim requires an “actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla. 1994); see also Ferguson Transp., Inc. v. North American Van Lines, Inc., 687 So.2d 821 (Fla. 1996) (plaintiff must prove business relationship with identifiable customers to support claim for tortious interference with a business relationship).

 

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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Restrictive Language in Employment Agreement

Posted by David Adelstein on June 04, 2017
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Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal?

There are many professions that want certain employees to sign an employment agreement that includes a restrictive covenant, i.e., anti-compete or anti-solicitation language. The employer does not want to train the employee, give the employee access to its trade secret information, customer lists, internal marketing material, pricing lists, or other business data only for the employee to leave and use that acquired information to start-up his/her own business or work for a competitor. From a common sense standpoint, this makes sense. No one wants to invest in an employee that leaves and takes what he/she learned to a rival company or to start a competitor.

All too often, the employee does not really understand the implications of the restrictive covenant language he/she is signing. The mindset is if I don’t sign the employment agreement I will not be hired and the money or opportunity or location is way too good to pass up. All of this may be 100% true.  But, this does not mean you should not truly appreciate the implications of such language or try to negotiate the language to more favorable terms (if possible).  The fact that you are in a position asked to sign an employment agreement means you have had other jobs in the past or are viewing this job as a stepping stone opportunity. You know there is a lot that could happen: you don’t like the job, the job isn’t what you thought it was, a better opportunity surfaces, you want to make a job change, you want to start your own business, etc. Life happens which is why the job you are in today may not be the job you are in a few years down the road.

In a recent case example, Collier HMA Physician Management, LLC v. Menichello, 42 Fla. L. Weekdly D1228b (Fla. 2d DCA 2017), a doctor signed an employment agreement with a physician group that operates hospitals that provided during the course of the agreement and for a 12-month period after the agreement is terminated or expired, the doctor agrees not to work for specifically named physician groups or hospitals identified in the agreement (that were within the same geographical area). (Yes, medicine is a business too!).  

The doctor became dissatisfied with his job and went to work at a hospital included in the restrictive covenant language.   His prior employer moved to enforce the restrictive covenant language by filing a lawsuit for injunctive relief – to prohibit the doctor from working for the hospital identified in the restrictive covenant language in the employment agreement.

As often is the case, and many times justifiably so, the doctor challenged the enforceability of the restrictive covenant language. Restrictive covenants in employment agreements in Florida are governed under Florida Statute s. 542.335 to ensure that the language is reasonable in time, area, and business, and they don’t operate to unreasonably restrain competition or trade. (Check out this statute here.)  

At first blush, the restrictive covenant at-issue does not appear to be unreasonable. It was for a period of 12-months, was limited to a geographic area, and made specific reference to those hospitals or physician groups the employee could not work for during this restrictive period.

The doctor, however, argued that the agreement should not be deemed enforceable because of a change in the corporate structure of the employer, particularly due to a parent company merger.

The doctor made this argument because s. 542.335(1)(f) provides:

The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:

1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.

2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.

The doctor claimed that the restrictive covenant could not be enforceable because the corporate change in ownership meant that the agreement was being enforced by a successor entity and the employment agreement states that no third-party beneficiaries could enforce the agreement. The appellate court shot down this argument because the entity enforcing the agreement was the doctor’s former employer (the physician group). The corporate change (merger) regarding the parent company did not impact the validity of the restrictive covenant. The parent company was not enforcing the employment agreement, nor could it.  And, the name of the employer did not change—the parent company’s merger did not result in a new successor entity being formed for the employer.

From an employee’s perspective, there are many reasons and circumstances to challenge the enforceability of restrictive covenant language in an employment agreement.  This does not mean, however, that you should ignore any risk associated with this language when signing the employment agreement.

From an employer’s perspective, there are many reasons and circumstances to enforce the restrictive covenant language in an employment agreement.  This does not mean, however, that you should ignore any restrictive language that may be unreasonable or contrary to Florida Statute s. 542.335.

 

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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Malicious Prosecution Arising from Judicial Proceedings–There are Consequences

Posted by David Adelstein on May 27, 2017
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There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution.   The litigation privilege does NOT bar a claim for malicious prosecution because, as mentioned above, there are consequences for malicious conduct. See Debrincat v. Fischer, 2017 WL 526508 (Fla. 2017).

This issue was recently confirmed by the Florida Supreme Court where the Court explained that a claim for malicious prosecution exists when there is the following:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.

Debrincat, 2017 WL at *2 quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).

As the Court reasoned, there would never be a claim for malicious prosecution if the litigation privilege barred malicious or bad faith conduct that occurred in the original proceeding.

Another recent case, AGM Investors, LLC v. Business Law Group, P.A., 42 Fla. L. Weekly D886b (Fla. 2d DCA 207), also involved a claim for malicious prosecution (and related tort claims) against a party and law firm.  Here, the Second District went a step further to state that “tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration.” AGM Investors, supra (finding that law firm’s recording of condominium assessment liens was not absolutely protected under the litigation privilege unless such action was necessarily preliminary to future lien enforcement litigation contemplated in good faith).

Remember, just like anything else, there are potential consequences to decisions and actions made with malice / bad faith, even if such conduct was made prior to or during the course of an original judicial proceeding.

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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Motion for Summary Judgment – No Genuine Issue of Material Fact

Posted by David Adelstein on May 21, 2017
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A motion for summary judgment is a dispositive motion that is popularly filed before trial. However, it is a motion that is denied far more than it is granted because of the burden imposed on the party moving for summary judgment in order to prevail on the motion.  

Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Lin v. Demings, 2017 WL 1534824, *1 (Fla. 5th DCA 2017) quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006).   A motion for summary judgment is not designed to determine the credibility of a witness or even weigh the evidence; that is what trial is for. Id.

Think about the key issue moving for a summary judgment: “there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.”   The burden is on the party moving for summary judgment to establish that there is irrefutably no genuine issue of material fact. Lin, supra, at *1; ALX Maxim I, LLC v. Katsenko, 2017 WL 1683126, *1 (Fla. 2d DCA 2017). If there is a genuine issue of material fact, or even the slightest inference or doubt that a material factual issue exists, that doubt must be construed against the moving party and the motion denied. Id. quoting Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011); Lee County Department of Transportation v. The Island Water Association, Inc., 2017 WL 1403359, *2 (Fla. 2d DCA 2017).  This is why more motions are denied than granted. 

When drafting a motion for summary judgment, it is important that the party truly consider those material factual issues applicable to the legal argument supporting the summary judgment. For example, when drafting a summary judgment, I always have a solid understanding of the law I am going to be relying on. Based on this law, I focus on identifying those specific material facts relative to the issue. It is these facts that that will support the basis of the legal argument(s). A good motion for summary judgment is not an instantaneous motion. It requires time organizing and itemizing those specific facts and crafting legal analysis around those specific facts.   These facts will help determine whether moving for a final summary judgment or a partial summary judgment as to liability or damages or an issue in the case.  Plus, even if a party loses a motion, at a minimum, they want to be in position to inform the court about their case and 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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