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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 7)

Damages Under Florida’s Public Whistleblower Act

In a prior article, I discussed damages recoverable under Florida’s Whistleblower Act, which concerns employees working for private employers.  An employer cannot retaliate against an employee for reporting or objecting to violations of laws, rules, and regulations. But, Florida also has a Whistleblower Act concerning employees or independent contractors working for public employers.  This is embodied in Florida Statute s. 112.3187 (also known as Florida’s Public Whistleblower Act) and designed to prevent the retaliation against such persons that report to an appropriate agency violations of law or any person that discloses information to an appropriate agency regarding the gross waste of...

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Damages Under Florida’s Whistleblower Act

Florida’s Whistleblower Act is designed to protect an employee who is wrongfully retaliated against (i.e., suspended, terminated, demoted, etc.) for objecting to or refusing to participate in his or her employer’s illegal practices.  Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 912 (Fla. 4thDCA 2013) (citation and quotation omitted). This is set forth in Florida Statute s. 448.102.   If you believe you have been retaliated against for threatening to blow the whistle (or refusing to participate and objecting to your employer’s illegal activities), it is important to consult with counsel immediately to ensure your rights are protected.   Also, if you believe...

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What is a Covenant Running with the Land?

What is a covenant running with the land?   A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land: “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate' . . . [and] are divided into two categories, real and personal.”  A real covenant, or covenant running with the land, “differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the...

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Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation.  It provides: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.  In a recent opinion, Mazur v. Baraya, 44 Fla. L. Weekly D1795b (Fla. 2d DCA 2019), the issue was whether...

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Attorney’s Fees on Attorney’s Fees

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends. Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.  Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception. The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created...

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Striking an Affirmative Defense

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

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Hearsay within a Medical Record (Double Hearsay)

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019).   What about a party's statement within a medical record (double hearsay - hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such exception that could apply is an admission by a party opponent.  For instance, in Strong, a person driving a motorcycle collided with an SUV.  The motorcyclist sued the driver of the SUV.  An issue on appeal pertained a statement in a medical record by the motorcyclist’s...

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Exculpatory Clauses MUST be Clear and Unequivocal

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect. By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him.  The gym relied on a...

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Two Proposal for Settlement Considerations

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney's fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving...

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