21 July

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Fraudulent Inducement Renders Contract Voidable, but Induced Party can Still Ratify Contract

Here’s an interesting tidbit when it comes to fraudulent inducement of a contract: the inducement renders a contract voidable (not void). See Buyer’s Choice Auto Sales, LLC v. Palm Beach Motors, LLC, 49 Fla. L. Weekly D1512a (Fla. 4th DCA 2024) (citation omitted). This means if a party claims they were fraudulently induced into entering a contract, and elects to sue for damages on the contract, even a contract procured by fraud, the election to sue for damages on the contract “ratifies the contract and ensures that a party who accepts the proceeds and benefits of a contract remains subject...

22 June

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Nondelegable Duty Doctrine

Posted by David Adelstein

in Trial Perspectives

The recent Fourth District Court of Appeal decision, Publix Super Markets, Inc. v. Safonte, 49 Fla.L.Weekly D1337a (Fla. 4thDCA 2024), discussed what is known as the nondelegable duty doctrine: A business establishment owes a non-delegable duty to an invitee “to maintain the premises in a safe condition.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 431 (Fla. 4th DCA 2014). “[A] breach of [this] duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.” Id. Thus, a business establishment...

15 June

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Preferred Contractor Endorsement in Property Insurance Policies

Posted by David Adelstein

in Trial Perspectives

Certain property insurance policies have what is known as a preferred contractor endorsement. It can be written in numerous ways, but the objective is to allow the insurer to perform covered repairs through its preferred contractor. In a recent case, the property insurance policy contained this endorsement: That policy includes a preferred contractor endorsement which states that when a covered loss occurs to the insured's property “and repairs are necessary to protect property from further damage,” the insured must notify People's Trust [insurer] “before authorizing or commencing repairs so [People's Trust], at [its] option, may select Rapid Response Team, LLC, to make...

09 June

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Unit Owner vs. Association Dispute Regarding “Duty to Repair”

Posted by David Adelstein

in Trial Perspectives

If you live in a community governed by an association – whether it is a condominium association or homeowner’s association – you may find yourself at odds with the association over certain issues. Or the association may find itself at odds with you over positions you want to take. This seemed by the dynamics of a recent appeal dealing with the duty to repair damage. In this matter, a unit owner notified its condominium association over leaks and mold in its unit. A driving leak was caused by a leak from an upstairs unit. The association did not remediate the unit...

28 May

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Difference Between Conversion and Civil Theft

Posted by David Adelstein

in Trial Perspectives

A recent case discusses the distinction between a conversion claim and a civil theft claim. Guess what? It’s a minor distinction, but one with a huge difference. In Batista v. Rodriguez, 49 Fla.L.Weekly D1099a (Fla. 3d DCA 2024), the allegations were that people wrongfully received checks from a woman’s bank account. These checks were the result of people taking advantage and exerting undue influence over the woman. A letter was sent demanding a return of the money and the money was not returned. The woman was found to be incapacitated and the woman’s guardian filed a lawsuit for conversion and civil...

19 May

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Don’t File a Meritless Claim You Know is Meritless (You May be Exposed to a 57.105 Motion)

Posted by David Adelstein

in Trial Perspectives

Florida Statute 57.105 is a statute designed to deter meritless filings: “The central purpose of section 57.105 is, and always has been, to deter meritless filings and thus streamline the administration and procedure of the courts.” Mullins v. Kennelly, 847 So. 2d 1151, 1154 (Fla. 5th DCA 2003). Subsection (1) of the statute provides: (1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil...

04 May

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There can be Consequences when Voluntarily Dismissing Lawsuit

Posted by David Adelstein

in Trial Perspectives

There can be consequences when you voluntarily dismiss a lawsuit simply because you don’t want to deal with the claim anymore. Or, you realize there are problems with your claim. Such consequences can arise if there is a basis for the prevailing party to recover attorney’s fees. Thus, don’t think you can just voluntarily dismiss your case without dealing with attorney’s fees. These are consequences you may need to deal with if you want to voluntarily dismiss your lawsuit. “The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the ‘prevailing party' within the meaning of...

14 April

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Equitable Estoppel SOMETIMES Allows a Non-Signatory the Right to Compel Arbitration

Posted by David Adelstein

in Trial Perspectives

“Where a contract subjects to arbitration claims between certain enumerated parties, that limiting language matters. Under appropriate circumstances, a non-signatory might invoke equitable estoppel to access an arbitration clause, but not to excavate it and fill it with new terms.” Florida Roads Trucking, LLC v. Zion Jacksonville, LLC, 49 Fla.L.Weekly D819a (Fla. 5th DCA 2024). Arbitration is a creature of contract. In Florida Roads Trucking, a non-signatory to a contract tried to compel arbitration of a dispute arguing that the arbitration provision in the plaintiff’s contract with another party should apply. This argument is based on a theory of equitable estoppel: Florida and federal...

31 March

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Home Venue Privilege Applies to Government Defendants

Posted by David Adelstein

in Trial Perspectives

“Governmental defendants in Florida are entitled, absent waiver or exception, to “home venue privilege,” i.e., to be sued in the county where their headquarters are located.” Florida Pace Funding Agency v. Pinellas County, 49 Fla.L.Weekly 660a (Fla. 2d DCA 2024). This home venue privilege is important to governmental entities since it ensures they are sued in their home county, i.e., where their taxpayers and residents will serve on a jury. A remote exception to this home venue privilege is known as the sword wielder exception. The sword wielder exception allows a plaintiff to sue a government defendant outside of the home county...

24 March

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Election of Remedies Doctrine

Posted by David Adelstein

in Trial Perspectives

A recent case out of Florida’s Third District Court of Appeals provides a worthy discussion of the election of remedies doctrine: The Florida Supreme Court has stated: The election of remedies doctrine is an application of the doctrine of estoppel and operates on the theory that a party electing one course of action should not later be allowed to avail himself of an incompatible course. The purpose of the doctrine is to prevent a double recovery for the same wrong. Under Florida law, however, the election of remedies doctrine applies only where the remedies in question are coexistent and inconsistent. . ....