Arbitration is a form of dispute resolution.  Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator.  Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute.  The parties either agree to an arbitrator or an arbitrator is appointed through a selection process.  With everything, there are pros and cons to arbitration to be discussed in detail with your counsel.  There are many disputes I prefer arbitration and there are many disputes I do not.

Arbitration is a creature of contract so if you are interested in arbitration as your form of dispute resolution then you need to include that in your contract.   However, the contractual right to arbitration can be waived.  Just because parties contractually agree to arbitrate a dispute is not an absolute — the right can be waived.  

The right to arbitration, like any contract, can be waived.  Waiver is the voluntary and relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.  The right to arbitration must be safeguarded by a party who seeks to rely upon that right, and the party must not act inconsistently with the right.  

Ship IV Harbour Island, LLC v. Boylan, 44 Fla. L. Weekly D831a (Fla. 5th DCA 2019) (internal quotations and citations omitted).

One way a party can waive the right to arbitration is by filing a lawsuit (without a contemporaneous motion to compel arbitration) since filing the lawsuit, in of itself, is inconsistent with the party’s desire to arbitrate the dispute.  

Another way a party can waive the right to arbitrate is by engaging in discovery in a litigation since this would be inconsistent with that party wanting to arbitrate the dispute. See Ship IV Harbour Island, supra (“[E]ngaging in merits discovery is inconsistent with an arbitration request and constitutes a waiver of the right to arbitration.”).  

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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What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)?  These are damages that should be accounted for in a lis pendens bond. 

The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4^thDCA 1993), explained:

Haisfield looks back at losses that were actually suffered by a property owner from a lis pendens found to be unjustified, rather than at prospective losses that might be suffered. Its methodology is the best yardstick for evaluating the market value component of damages that may result from a wrongfully-filed lis pendens. Haisfield instructs that such damages, if any, are measured by any decline in market value between the time the lis pendens is recorded and the time it is discharged. The proponent of a lis pendens might pay no damages if the market value increased substantially during that time. 

Haisfield also recognizes that the expenses of preservation and maintenance of the property subject to a lis pendens may be awarded for the interval between recordation and discharge if the lis pendens is found to be unjustified and the expenses are a consequence of the unjustified lis pendens.

Now, what about loss of investment return / lost opportunity?  For example, what if the lis pendens impacts a sale where there is a net market value for the property of “X” after taking the fair market value and deducting brokerage commissions, mortgage debt, and past due taxes.  This amount would ultimately represent equity in the property that if the party had could then earn interest—in other words, there is a loss of use of that equity.  See, e.g., LB Judgment Holdings, supra (party posting lis pendens bond proffered expert to produce computation to support what lis pendens bond amount should be; although the court required a higher lis pendens bond amount).  However, this loss of investment return / lost opportunity could be a damages methodology in different situations as it pertains to a real property dispute depending on the circumstances of that dispute.

Also, attorney’s fees should be factored into the lis pendens bond that “foreseeably may be incurred in discharging a lis pendens.”   S and T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006); accord LB Judgment Holdings, supra (rejecting argument that attorney’s fees include fees incurred during entire litigation as entire litigation is beyond fees incurred in discharging lis pendens).

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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Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidenceto determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law.

A court considering summary judgment must avoid two extremes. On the one hand, “a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact.” On the other hand, a “party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict.”

Gonzalez v. Citizens Property Ins. Corp., 2019 WL 1141236, *3 (Fla. 3d DCA 2019) (internal citations omitted).

The case of Gonzalez is a summary judgment case that I do not agree with it because it involves competing experts — a common scenario in many types of litigation.  It is a case where an insured sued its insurer for coverage under a property insurance policy.  Each side had an expert witness that opined as to the cause of a leak, which was an important issue as it pertained to whether the water damage was covered under the property insurance policy. 

The insurer moved for summary judgment based on its expert’s opinion that the leak was the result of normal wear and tear and thereby excluded under the policy.  The insured countered the summary judgment with an affidavit from its expert that the leak was due to wind damage which was covered under the policy.   The insured’s expert, however, inspected the roof after the roof was already replaced and, thus, the court concluded that this opinion was nothing more than conjecture that lacked “the required ‘discernible, factually-based chain of underlying reasoning’ necessary for an expert opinion to be admissible in evidence.”  Gonzalez, 2019 WL at *4.  The expert also based his opinion on wind speed which caused the damage that led to the leak by reviewing wind speeds in other locations around the day of the incident.  The court found that this was also nothing more than conjecture since relying on wind speed in one location to determine wind speed in a different location is not reliable.  Id. at *5. 

The reason I do not love this opinion–where the appellate court affirmed summary judgment in favor of the insurer–is because there were competing experts that rendered different opinions as to the cause of a leak.  There is nothing uncommon about competing experts and nothing uncommon about the fact that experts differ as to causation (or anything else regarding their respective opinions).  Experts rely on hearsay and assumptions and there are many times holes can be poked in the assumptions or the opinions extrapolated from the assumptions.  But, in my opinion, this should create a genuine issue of material fact for a jury to determine while assessing the credibility of the expert’s opinion and which opinion makes most sense as to the cause of a water leak.   An expert is not going to have personal knowledge because most experts, even the insurer’s expert in this case, are retained after-the-fact, e.g., after the leak occurred, the damage was discovered, and the loss reported to the carrier. 

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