If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract.  Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute. 

For instance, the provision may say something to the effect, “The exclusive venue for any dispute arising out of or relating to this contract shall be in Miami-Dade County Florida.”   This means that if you plan to sue you need to do so in a court located in Miami-Dade County, Florida, even if you have an argument that the venue should be in a different, more preferred location.  Venue and forum selection provisions are important provisions because they contemplate where a lawsuit must be brought in the event such a lawsuit occurs down the road.  While of course you hope for the best with any agreement, you know that disputes occur, so you plan for the potentiality of that risk.

As a contracting party, you have the right to contractually agree to a forum selection / venue provision; you can contractually agree to the forum governing your dispute.  Baker v. Economic Research Services, Inc. 43 Fla.L.Weekly D643a (Fla. 1^st DCA 2017).  Absent limited exceptions, these provisions will be deemed enforceable.  Id.   A judicial order as to venue is also the type of non-final order that can be appealed immediately.  Id.  Thus, even if you sued in a venue contrary to the forum selection provision in your contract and the trial court agreed with you, the other side can appeal this order immediately arguing that the forum selection provision places venue in a different location.

In Baker, employees entered an employment agreement that contained a forum selection provision that placed venue in Delaware.  The employees left to work for a competitor and the employer sued its former employees in Leon County, Florida.  An argument the employees raised was that the lawsuit should have been filed in Delaware, not Florida, based on the forum selection provision.  The trial court denied the motion.  But, remember, an order as to venue can be appealed immediately so the employees appealed.  The appellate court reversed the trial court finding that claims arising out of or relating to the agreements need to be filed in Delaware based on the forum selection provision.  The forum selection provision survives any termination of the agreements such that if the employer’s claims have a significant relationship (nexus) to the agreement, then the claims must be brought in Delaware.

As you can see, forum selection provisions are important because they will largely dictate where a party must sue or be sued.  Take such provisions into consideration when entering an agreement.

For more information on forum selection / venue provisions, you can also check out this article.

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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Lawsuits oftentimes involve multiple parties.  This could include multiple defendants or third-party defendants, whatever the case may be.  During the course of the dispute, there are avenues for settlement.  With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out.  Sometimes, a party needs to settle with some, but not all, of the defendants.  This means the plaintiff will need to try the case against the remaining defendants (or parties).  The remaining defendants, obviously, want the settlements with the settling defendants to be used to set-off any damages or judgment entered against them.  For example, if the plaintiff settles with multiple defendants for $1 Million and recovers damages against the remaining defendants for $1.5 Million at trial, the remaining defendants want the $1 Million in pre-suit settlements to be set-off from their damages award.  This means their exposure is not a $1.5 Million judgment, but instead, a $500,000 principal judgment — a big difference, right!  

The issue of set-off is an issue that should not be overlooked in multi-party disputes, specifically from the plaintiff considering pre-suit settlements.  Time should be dedicated to trying to craft settlements to truly prevent a set-off, which is designed to prevent the plaintiff from recovering a gratuitous windfall.  For more information on a construction defect case where the issue of set-off hurt a plaintiff based on the broad wording in settlement agreements, view this article.  Due to pre-suit settlements, the plaintiff’s damages against the remaining defendants at trial were reduced by the total sum of the settlements.  All because of this set-off doctrine; had the settlement agreements been drafted differently, perhaps the plaintiff’s damages awarded at trial would not have been set-off by the pre-suit settlements.

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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There is a Florida statute not universally known called the “Bert J. Harris, Jr., Private Property Rights Protection Act” and oftentimes called the “Harris Act” for ease of reference.   The Harris Act is embodied in Florida Statute s. 70.001 (found here) and it deals with the protection of private property rights.  More specifically, it provides a private cause of action when the existing use (or vested rights) of property is inordinately burdened by the Florida government (including agencies thereof).  The Harris Act has some teeth in certain situations, as demonstrated below in a case example, and is a good Act to know because it does create a private cause of action.

The Harris Act was enacted by the Florida Legislature in 1995 as a mechanism to protect and compensate any landowner whose property is affected by government action not rising to the level of a taking. To prevail under the Harris Act, the property owner must prove that “a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.” Accordingly, when a claim under the Harris Act is presented for judicial review, the court must first consider whether a claimed “existing use of the real property” or a claimed “vested right to a specific use of the real property” actually existed. If it finds either, it must next determine whether the government action inordinately burdened the property. If the court also finds that there was an inordinate burden, then it must impanel a jury to determine the total amount of compensation to the property owner for the loss caused by the inordinate burden to the property. The party seeking relief under the Harris Act bears the burden of proof. 

Ocean Concrete, Inc.  v. Indian River County, Board of County Commissioners, 43 Fla. L. Weekly D577a (Fla. 4^th DCA 2018) (internal citations omitted).

The Harris Act starts off as follows:

(1) This act may be cited as the “Bert J. Harris, Jr., Private Property Rights Protection Act.” The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

(2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section.

The term “existing use” as used in the Harris Act means:

(3)(b) (1) An actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use; or

(3)(b)(2) Activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.

The term “inordinately burdened” as used in the Harris Act means:

(3)(e)(1) Mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

(3)(e)(2) Do not include temporary impacts to real property; impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property; or impacts to real property caused by an action of a governmental entity taken to grant relief to a property owner under this section. However, a temporary impact on development, as defined ins. 380.04, that is in effect for longer than 1 year may, depending upon the circumstances, constitute an “inordinate burden” as provided in this paragraph.

In determining whether reasonable, investment-backed expectations are inordinately burdened, consideration may be given to the factual circumstances leading to the time elapsed between enactment of the law or regulation and its first application to the subject property.

The recent, factually complicated case, Ocean Concrete, Inc., discusses the application of the Harris Act.   Here, a plaintiff purchased undeveloped property that was zoned light industrial.  The plaintiff wanted to build a concrete batch plant.  The light industrial zoning allowed for this use.  

During the site plan review and application process with the County, a neighboring city and other members of the community asked the County to deny the proposed concrete batch plant project.   They wanted the County to modify the industrial light zoning code to preclude using the property as a concrete batch plant or any plant that processes large quantities of materials and would generate loud noise and dust. The County’s Board of Commissioners voted to approve the modification to the zoning code without any exception as to vested rights.  After dealing with certain administrative nuances and appeals and the plaintiff ultimately losing the property through foreclosure, the plaintiff asserted a claim against the County under the Harris Act.   

The trial court held there was no violation of the Harris Act by the County so the plaintiff’s damages were not presented to a jury.  In a de novo appellate standard of review, the appellate court reversed and found that the County did violate the Act and remanded the case back to a trial on damages.

Applying the applicable law, nothing about the physical or regulatory aspects of the property at the time of the government regulation made Appellants’ [plaintiff] expectations for the development of a concrete batch plant unreasonable. A concrete batch plant was a permitted use under the zoning code as a matter of right and throughout the site-plan approval process, Mr. Maib [plaintiff] was led to believe that approval was inevitable. Further, Mr. Maib obtained the services of an expert engineer who told him that the development was feasible. Finally, the property abutted a railroad and Mr. Maib was able to install a spur to facilitate the importation and exportation of materials. That the overall undertaking may have been expensive and a significant task does not invalidate the fact that, based on the property itself, Appellants’ investment-backed expectations were reasonable.

Ocean Concrete, Inc., supra.

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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Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case.  This is a common motion after the plaintiff in a bench trial puts on his/her case.  No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff.  

Florida Rule of Civil Procedure 1.420(b) authorizes motions for involuntary dismissal as indicated by the emphasized language below:

Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under rule 1.090(d). After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

In a bench trial, motions for involuntary dismissal are appropriate if the plaintiff fails to establish a prima facie case, i.e., the plaintiff fails to introduce evidence that establish the elements of his/her claim(s) against the defendant.  Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4^th DCA 2003).  “To rule on the motion for involuntary dismissal, the trial court was required to view the evidence in the light most favorable to the plaintiff, resolving every conflict and inference in its favor.”  Id.   See also Nationstar Mortgage, LLC v. Silva, 43 Fla.L.Weekly D548a (Fla. 3d DCA 2018) (“A motion for involuntary dismissal should only be granted ‘when there is no reasonable evidence upon which a [fact finder] could legally predicate a verdict in favor of the non-moving party.’” (quoting Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012)).

In ruling on a motion for involuntary dismissal, the trial court is NOT supposed to rule on the credibility of a testifying witness.  Deutsche Bank Nat. Trust Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016).  This is because when:

[T]he movant [party moving for involuntary dismissal] admits the truth of all facts in evidence an every reasonable conclusion or inference based thereon favorable to the non-moving party [e.g., plaintiff].  Where the plaintiff has presented a prima facia case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal.

Id. quoting Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989).

Importantly for appellate purposes, if a plaintiff is appealing a trial court’s granting of a motion for involuntary dismissal in a bench trial, it is reviewed under a de novo standard of appellate review.  Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4^th DCA 2016).

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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“But he did NOT have the authority….”   This is the beginning of a sentence that does not start well.  

Agents have the authority to bind their principal.  “Even where there is no express agent/principal relationship, a principal may be bound by the acts of an agent acting with apparent authority.”  Clayton v. Poggendorf, 43 Fla.L.Weekly D436a (Fla. 4^th DCA 2018). 

Apparent authority sometimes gets lost in the shuffle and the reason why the sentence, “But he did not have the authority…,” does not start well.  If the person is deemed to have apparent authority then he did have the authority to bind you or make decisions on your behalf.

“Apparent authority arises from the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by this actions or words holds the agent out as possessing.”  Clayton, supra.  If the principal creates the appearance of the agent’s authority, then the agent will have apparent authority.  Id quoting Regions Bank v. Maroone Chevrolet, L.L.C., 118 So.3d 251, 255 (Fla. 3d DCA 2013).

In Clayton, a settlement agreement with installment payments was entered into.  The settlement agreement provided that if payments were not timely made, the payee would provide the payor a notice to cure.  If there was no cure, the payee could move for a judgment against the payor.  These are common settlement terms when dealing with installment payments.  

In this case, notices to cure were sent to the payor’s counsel when the payor failed to timely pay.  The payee’s counsel even inquired whether the payor’s counsel was still representing the payor and no response was ever provided.  In prior instances, the payor cured the nonpayment after his counsel received the notice to cure.  However, when the payor ultimately did not cure, the payee moved for a judgment against the payor per the terms of the settlement agreement.  The payor argued that the notices to cure should not have been sent to his counsel because his counsel did not have the authority. This was not a successful argument:

Apparent authority rests on the doctrine of estoppel. Estoppel requires: 1) representation of a material fact by the party estopped (Clayton) [payor] to the party claiming the estoppel (Poggendorf and Thomas) [payee] that is contrary to the fact later asserted by the estopped party; 2) reliance on that representation by the party claiming the estoppel; and 3) the party claiming estoppel detrimentally changed their position due to such reliance.  Clayton [payor], by his conduct in allowing Tittle [payor’s attorney] to accept the notices of default, represented that the notices of default complied with the Settlement Agreement. Poggendorf and Thomas [payee] clearly relied on that representation by continuing to send the email notices to Tittle. Finally, Poggendorf and Thomas changed their position by not sending the notices directly to Clayton.

So, yes, apparent authority does exist!

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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