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ProveMyFloridaCase.com > Articles posted by David Adelstein (Page 8)

A General Release is Not Absolute

General releases, unfortunately, are not absolute.  A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling.    In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim.  In theory, this makes sense since a future claim should not be barred.  It is one thing if the facts giving rise...

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Asserting Basis for Punitive Damages against Corporate Entity

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.”  Fla. Stat. s. 768.72(1).   There are times a plaintiff wants to attribute an employee’s defamation of character to...

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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney's fees.  Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs.  But, what if the other party has to enforce the contract or prevails in the other party's enforcement action.  ...

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Suing Third-Party for Spoliation of Evidence

There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim against a third-party – a party the plaintiff did not originally sue-- and known as a third-party spoliation of evidence claim.   If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of...

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The Contractual Right to Arbitrate a Dispute Can be Waived

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...

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

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. 4thDCA 1993), explained: Haisfield looks back at losses that were actually suffered by a property...

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Affirming Summary Judgment when there are Competing Expert Affidavits

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 evidence to 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...

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Proving Entitlement to a “Trade Secret”

A recent case, Managed Care of North America, Inc. v. Florida Healthy Kids Corp., D735a (Fla. 1st DCA 2019), discusses the standard in proving entitlement to a "trade secret," as defined by Florida law (below).   In this case, bidders submitted proposals to a public body in response to an Invitation to Negotiate. In responding to the proposal, one of the bidders marked certain pages confidential as a trade secret, which is not uncommon.   A losing bidder sought to obtain this information under Florida’s Public Record’s Act and the bidder maintaining the trade secret protection filed a motion for declaratory relief asking...

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Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.”Zurich Am. Ins. Co. v. Puccini, LLC, 2019 WL 454222, *1 (Fla. 3d DCA 2019) (citation omitted).   The standard of review associated with reviewing a trial court’s order granting a motion to dismiss with prejudice is de novo.  Id.   In Puccini, a commercial tenant operating a restaurant caused a fire. The fire...

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement). For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant.  In Cassedy, Jr. v. Wood,44 Fla.L.Weekly...

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