Restrictive covenants are to be strictly construed.   Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner’s) use to do something with his/her property.   Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015). Hence, the precise language of the restrictive covenant is important because of the requirement of strict construction.

An example of such strict construction can be found in the recent opinion of Santa Monica Beach Property Owners Association, Inc. v. Acord, 42 Fla. L. Weekly D984a (Fla. 1^st DCA 2017).   This case dealt with property located in a subdivision near the beach. A restrictive covenant was recorded in the public records relating to the subdivision that provided:

“Said land shall be used only for residential purposes, and not more than one detached single family dwelling house and the usual outhouses thereof, such as garage, servants’ house and the like, shall be allowed to occupy any residential lot as platted at any one time; nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage.”

Owners of property within the subdivision were advertising and using their property for short-term vacation rentals (so others could rent their residential property). The governing association contended that this violated the restrictive covenant because this was a business purpose and not a residential purpose. The problem, however, was that the restrictive covenant stated nothing about vacation rentals or that such rentals constituted a prohibited business purpose. Since the restrictive covenant is to be strictly construed, the court stated:

Finally, even if the restrictive covenants were susceptible to an interpretation that would preclude short-term vacation rentals, the omission of an explicit prohibition on that use in the covenants is fatal to the position advocated by the Association in this case because “[t]o impute such a restriction would cut against the principle that such restraints ‘are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.’ ”  Indeed, the need for explicit language in the covenants is particularly important where the use in question is common and predictable, as is the case with short-term rentals of houses near the beach to vacationers.

Santa Monica Beach Property Owners Association, supra (internal citation omitted).

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Depositions are an integral part of a dispute’s “truth seeking” discovery process. This is where parties can depose a witness under oath and explore key factual issues and parties’ positions, both from a liability and damages perspective.   Certain depositions can be introduced for purposes of substantive evidence at trial.   Other depositions can be used for purposes of impeachment in case a witness changes his/her position or story at trial. The significance of a deposition of a material witness in a civil case cannot be understated.

If an opposing party wants to limit or prevent a deposition from moving forward, that party will file a motion for protective order based on its good cause reasoning to restrict that deposition. The burden is on that party to support its good cause reasoning. If the court grants the motion for protective order, an appellate issue arises. “When a party has been denied the right to depose an alleged material witness without finding of good cause to preclude the deposition, the trial court departs from the essential requirements of law.”   Akhnoukh v. Benvenuto, 42 Fla.L.Weekly D882 (Fla. 2d DCA 2017). This gives the denied party the right to move for a writ of certiorari: “Certiorari jurisdiction generally exists to review the denial of a motion to compel the deposition of a material witness.” Id. (further explaining that a witness can be material even if relevant information can be obtained from a party).

For instance, in Akhnoukh, the plaintiffs obtained a protective order that prevented defendants from deposing plaintiff’s minor son (who was not a party). The son was the only passenger in the car at the time of the accident; he was eight year’s old at the time of the car accident and eleven year’s old at the time of the protective order. The defendants wanted to take the minor’s accident since he was sitting in the front passenger seat and an eyewitness to the accident and could shed value on the moments before the accident, the impact of the accident, whether the mother was wearing a seat belt, and the mother’s activities after the accident. Nonetheless, the trial court granted the protective order. The appellate court, however, quashed the motion for protective order:

The trial court did not require Benvenuto [plaintiff] to establish good cause for the protective order. She based her argument on her [minor] son’s age, lack of maturity, and experience but provided no evidence. She also did not provide any evidence of how the taking of the deposition may be detrimental to her son. The trial court made no findings of good cause and departed from the essential requirements of law in prohibiting the deposition.  Thus, we grant the petition and quash the trial court’s order granting the motion for protective order. The trial court in its discretion may take protective measures if necessary for the minor’s well-being, such as requiring that the deposition take place before the court or a magistrate.

Akhnoukh, supra.

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Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action.   This oftentimes results in litigating the amount of fees.

There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993).

What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of contractual fees?  The answer is it depends on the contractual attorney’s fees provision. The broader the scope the greater the chance a party will be entitled to attorney’s fees for litigating the amount of contractual fees owed to the prevailing party.

In Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 42 Fla.L.Weekly D848a (Fla. 2d DCA 2017), the Second District addressed whether a prevailing party is entitled to recover contractual attorney’s fees associated with litigating the amount of reasonable attorney’s fees.   The Court held yes based on the scope of the contractual attorney’s fees provision since contracting parties are free to contract on the scope and issue of attorney’s fees.

The provision at-issue read in material part:

…prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

The court held that this language in the attorney’s fees provision was broad enough to encompass fees associated with litigating the amount of fees.

Remember, contracting parties are fee to negotiate and contract on the issue of attorney’s fees.  Based on the provision, a prevailing party will be entitled to attorney’s fees for litigating the amount of fees.  This perhaps may make a party think twice regarding litigating the amount of contractual fees if the issue can get resolved without an evidentiary proceeding on the amount. 

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Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6^th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The corporation is not required to designate ‘the witness with the most knowledge’ of the designated subject matter; indeed the witness is not required to have any personal knowledge whatsoever. And there may be a good reason why a corporation does not produce the most knowledgeable witness for deposition. For example, the person with the greatest knowledge of the subject matter ‘may not totally embrace the corporation’s position.’” Instead, the corporation is required to prepare the designated witness to testify regarding the designated subject matter.) (internal citations omitted).

Typically, the corporation can designate the representative(s) it wants to testify about the designated topics. With that said, the Second District in Sybac Solar explained that a deposing party that does not like the designated representative(s) can move the trial court to depose another corporate representative of its choice subject to the discretion of the trial court to issue a protective order.  

In this case, the deposing party moved to compel the opposing party to designate a certain individual as a corporate representative. The trial court granted the motion. The opposing party appealed –through a writ of certiorari since orders compelling a deposition can result in irreparable harm that cannot be undone on a final appeal. The Second District reversed in part because the individual had interests that were adverse to that of the company and would not be a proper corporate spokesperson; thus, the individual could not be a corporate representative for those topics.

I find this case frustrating. An entity should be entitled to designate those person(s) it wants to speak on the designated topics. The entity has a duty to prepare the person(s) to speak about the topics and the entity’s position because the person may not have, and is not required to have, the most knowledge about the topic. As long as the person is sufficiently prepared, the story should end.   If the person says “I don’t know” or “I don’t recall” during the entire deposition or gives wishy-washy answers (based on their lack of preparation), than that it is a different story.  But assuming the person is prepared, if the opposing party does not like the answers they are not precluded from taking depositions of other persons, or even the designated representatives, based on their personal knowledge. Otherwise, everyone will move to depose the person they want to serve as the corporate representative (which is probably the person with the most knowledge) which waters down this rule.

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