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Apparent Authority of Agent to Bind Principal

You may have heard the terms actual authority and apparent authority. This pertains to the authority of an agent to bind its principal.  Focusing on apparent authority, a recent case provided a worthwhile definition: The doctrine of apparent agency stems from “the policy ‘that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent.' ”  To show apparent agency, a plaintiff must establish “(a) a...

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Unclean Hands Affirmative Defense

In Florida, and many jurisdictions, there is an equitable affirmative defense known as unclean hands.   Most of the time, it is pled as an affirmative defense incorrectly.  It is asserted, but not really a defense a party can ever prove. It is a hard defense to prevail on because it is akin to fraud: Unclean hands is an equitable defense much like fraud.  The defense applies to bar an equitable claim no matter the claim's merits when “the plaintiff has engaged in some manner of unscrupulous conduct, overreaching, or trickery that would be ‘condemned by honest and reasonable men.' ”  U.S. Bank...

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Lost Profits – Not so Easy to Prove

One of the hardest types of damages to prove is lost profit damages.  People don’t always believe this, or want to hear this, but it is a hard damage to prove because another party will always combat such damages by claiming they are speculative. Even if you get such damages awarded at the trial level, there is risk that these damages will get reversed on appeal. Typically, “a business seeking to recover lost profits must prove that 1) the defendant’s action caused the damage and 2) there is some standard by which the amount of damages must be adequately determined.”   Bass...

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Serving the Civil Remedy Notice (CRN) to Perfect a First-Party Bad Faith Insurance Claim

In order for an insured under a first-party insurance policy (e.g., property insurance policy) to have a bad faith claim against their insurer, they must first file a Civil Remedy Notice (known as a “CRN”) per Florida statute s. 624.155 identifying the alleged bad faith violation.   The CRN gives the insurer sixty days to cure the alleged bad faith violation. In a recent opinion, Apex Roofing and Restoration, LLC A/A/O Derrick v. State Farm Florida Ins. Co., 47 Fla.L.Weekly D1423c (Fla. 5th DCA 2022), the Court looked at two things.  First, whether the sixty-day cure period in s. 624.155 is tolled...

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Breach of Express Contract is Exception to Sovereign Immunity

Public entities are entitled to sovereign immunity in certain situations. That situation does not exist when the public entity enters into a contract.  “Florida law recognizes a limited waiver of sovereign immunity where the municipality breaches an express written contract.”  City of Miami v. Cruz, 47 Fla.L.Weekly D1353b (Fla. 3d DCA 2022).  A public body cannot hide behind sovereign immunity to escape obligations under a written contract. By way of example, in Cruz, the plaintiff sued the City for breach of a settlement agreement.  The City moved to dismiss based on sovereign immunity claiming the plaintiff’s action was barred.  The City’s...

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Moving for and Challenging a Protective Order under the Apex Doctrine

Florida codified the Apex doctrine in 2021.  Florida Rule of Civil Procedure 1.280(h), codifying the Apex doctrine, provides: A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking...

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Purchase-and-Sale Contract: Your Right to Modify Them

Real estate purchase-and-sale contracts govern the buyer’s and seller’s rights in the transaction.  Although standard form contracts are utilized, this does not mean modifications cannot be made.  In numerous cases, modifications should be made to clarify the intent of the parties to the transaction.   In a recent case, Inlet Colony, LLC v. Martindale, 47 Fla.L.Weekly D1175a (Fla. 4th DCA 2022), the purchase-and-sale contract had a drop dead closing date. There was an addendum to the contract with specific closing terms that stated: Seller and Buyer make the following terms and conditions part of the Contract; Closing will occur [the] later of...

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Premise Liability and Duty Owed to Business Invitees

A premise liability action is a negligence action. As with any negligence action, a focus is on the duty the defendant (the landowner or possessor of real property) owes to the plaintiff.  In a premise liability action, a focus is on the duty an owner or possessor owes to an invitee. An owner owes two duties to a business invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be...

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Recovering Attorney’s Fees in Litigating the Amount of Attorney’s Fees

The expression “fees for fees” or “fees on fees” generally refers to a situation where a party is awarded their attorney’s fees for litigating the amount of attorney’s to be awarded.  Typically, litigating the amount of fees to be awarded to a prevailing party is not recoverable. Nazarova v. Nayfeld, 47 Fla. L. Weekly D1089B (Fla. 3d DCA 2022). However, such fees can be awarded if the contract in which attorney’s fees is based includes applicable language or  is "broad enough to encompass fees incurred in litigating the amount of fees."  Id. (internal quotation and citation omitted). In Nazarova, the fee provision...

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Business Interruption due to COVID-19 NOT Covered under Commercial Property Insurance Policy

Florida has come out with an appellate opinion dealing with business interruption and COVID-19 under a commercial property insurance policy.  In this matter, a restaurant/bar filed suit against its commercial property insurance carrier seeking declaratory relief that the policy covered its “business income losses it suffered when its suspended its operations during the COVID-19 pandemic.”  Commodore d/b/a Greenstreet Café, Inc. v. Certain Underwriters at Lloyd’s London, 47 Fla.L.Weekly D1044a (Fla. 3d DCA 2022). The commercial property insurance policy at-issue did not contain a virus exclusion. During the COVID-19 pandemic, Miami issued emergency measures impacting the occupancy of businesses.  Such measures ordered certain...

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