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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 5)

Giving Rise to the Exception to Sovereign Immunity Against a Public Officer, Employee, or Agent

In an important opinion stemming from the tragically horrific and deplorable mass shooting at Stoneman Douglas High School in February 2018--an incident that eternally weighs heavily in hearts --the school resource officer assigned to the school was sued under negligence theories.  Peterson v. Pollack, 44 Fla. L. Weekly D2983b (Fla. 4th DCA 2019).  The school resource officer moved to dismiss the lawsuit under sovereign immunity (i.e., that he was statutorily immune from such a lawsuit), and specifically, protection afforded to him under Florida Statute s. 768.28(9)(a).  This subsection provides in pertinent part: No officer, employee, or agent of the state or of...

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Deficient Jury Instruction could Amount to Reversible Error

In a recent case, Cooper v. Federated National Insurance Company, 44 Fla. L. Weekly D2961a (Fla. 5th DCA 2019), involving an insured suing their property insurer for bad faith, discussed in more detail here, a jury returned a verdict in favor of the insurer and against the insured.  The insured appealed arguing that the trial court’s bad faith jury instruction amounted to reversible error.  The trial court refused to present to the jury the jury instruction drafted by the insured and instead went with a standard form bad faith jury instruction.   The appellate court agreed that the standard form jury...

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Fiduciary Duty Owed by Escrow Agent

When it comes to buying property, there's quite a lot of documentation involved. The use of escrow agreements and escrow agents is common when purchasing one of the san diego homes for sale, or well any kind of property, in fact. They are used in relationship to purchase-sale of real estate contracts. They are also used in relationship to certain settlement agreements. The escrow agent may be a third-party, such as a title company or financial institution, or it may be a law firm representing a party in the transaction or case. An escrow agent owes a fiduciary...

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Code Enforcement Board Appeal

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11: An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of...

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How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney's fees as the prevailing party.  When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides: (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred...

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Refuting Affirmative Defenses in Motion for Summary Judgment

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses.   Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency.  Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses.   “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’”  Hurchalla v. Homeowners...

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Authentication of Photograph at Trial

A photograph needs to be authenticated at trial just like any other evidence.  A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated. In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk.  The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of.  The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on...

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Must be a Meeting of the Minds for there to be a Settlement

A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement.  Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement.  However, what if it is not memorialized in a written settlement agreement? As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.”  An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer;...

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Party Recovering Judgment Entitled to Recoverable Costs

Florida Statute s. 57.041(1) provides, “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.”  Thus, in most cases, when it comes to the recovery of recoverable costs, if you obtain a judgment against the other party, you are entitled to such costs under section 57.041.   There is no analysis as to which party truly prevailed in the case (which is oftentimes the analysis when dealing with attorney's fees). See...

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Amended Complaints and the “Relation Back” Doctrine

There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations.  Assume an original complaint was filed within the applicable statute of limitations.  Assume after the statute of limitations expired, an amended complaint is asserted with new claims.  Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations?  The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1st DCA 2019) explains Florida’s liberal policy in answering this question: Whether...

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