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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 4)

Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action

There used to be an argument that if a corporation becomes administratively dissolved for failing to to file a routine annual report, the corporation cannot prosecute a lawsuit, or even defend itself in a lawsuit, until it becomes reinstated.   Not so much anymore. The Second District Court of Appeal in Hock v. Triad Guaranty Ins. Corp., 45 Fla. L. Weekly D493g (Fla. 2d DCA 2020) held that a corporation that becomes administratively dissolved for failing to file an annual report may prosecute or defend an action “in order to wind up its business and affairs.”    This means that any administratively dissolved...

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Application of the Non-Party Fabre Defendant

In an earlier posting, I wrote about the defense concept known as the non-party Fabre defendant.  This is an affirmative defense raised by a defendant in negligence scenarios to get a non-party on a jury verdict form so that the jury assigns a percentage of fault / liability for the plaintiff’s damages to this non-party.   By assigning a percentage of fault to the non-party, the defendant’s liability for the plaintiff’s damages is reduced.   By way of example, if the plaintiff has $100,000 in damages and sues the defendant for these damages, the defendant may claim that "X" should be responsible...

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Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument

  A lis pendens serves as a cloud against real property.  A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens...

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Limitation on Real Estate Broker’s Procuring Cause Doctrine

  Here is the scenario? A commercial owner enters into an exclusive listing agreement with a real estate broker that gives the broker the exclusive right to sell or lease property within 1 year in exchange for 6% commission.   The exclusive listing agreement provides that the broker is entitled to the commission “if the property was sold or leased within twelve months after termination of the agreement to any buyer to whom the property was submitted for sale during the continuance of the agreement.”  This is the broker's protection period. The broker introduces the commercial owner to a couple.  However, the couple does...

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The Declaration of Condominium “Says what It Says”

There are lawsuits that don’t make sense.  They just don’t.  Granted, we do not know all of the ins-and-outs of the lawsuit, but the facts described in the case give an aura of irrationalness by one of the parties.  Here is one – in what appears to be a condominium association taking an unreasonable position giving the unit owner no choice but to sue. In Cool Spaze, LLC v. Boca View Condominium Association, Inc., 45 Fla. L. Weekly D165a (Fla. 4th DCA 2020), a purchaser bought a unit in a condominium.  He transferred the unit to a limited liability company he...

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Employer cannot Retaliate against Employee for Workers’ Compensation Claim

In prior postings, I talked about Florida’s private Whistleblower Act and Florida’s Public Whistleblower Act dealing with retaliatory terminations.   Besides these whistleblower protections, there is also protection in Florida’s Workers’ Compensation Law that states: 440.205 Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law. To support an employment retaliation claim: [A] plaintiff must prove the following three elements: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and...

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Enforcement of Non-Compete and Non-Solicitation Provision

Non-compete provisions are not always fair.  The same can probably be said about non-solicitation provisions.  Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment.  But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought.    Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335.  A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood...

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Absolute Immunity Protects Public Officials from Defamation

Thinking about suing a public official for defamation?  Think twice (or three or four times) before doing so.  Public officials acting within the scope of their duties enjoy absolute immunity from statements they make.  Stated differently, they are absolutely immune from a defamation lawsuit.    In Quintero v. Diaz, 45 Fla. L. Weekly D51b (Fla. 3d DCA 2020), a former Director of Parks and Recreation for a city sued the Mayor of that City for defamation per se based on public defamatory statements contained in a termination letter.  The parties stipulated that the Mayor was acting within the scope of his...

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The Duty of Care Element in a Negligence Action is a Question of Law

There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages.  Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused damages to the plaintiff. Whether a duty of care exists is a question of law, meaning it is a question for the court.  Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019).  If there is no duty, there is no...

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