A restrictive covenant that runs with the land places restrictions on the use of real property.  As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.”   Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019).  These are important things to remember when enforcing or challenging a restrictive covenant.

For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant of land.  The restrictive covenant provided that the property “will not be used as a parking lot, storage yard facility or for a garage or tow truck company.”

The plaintiff wanted to build a parking garage on the property.  The defendant contended that a parking garage was restricted by the restrictive covenant.  The plaintiff filed a lawsuit for a declaratory judgment claiming ambiguities with the restrictive covenant, specifically with the word “garage.”  The parties did not dispute that the term “parking lot” referred to a surface parking lot as opposed to a parking garage.  The plaintiff was looking for a declaration from the court that the restrictive covenant did not restrict its use to build a parking garage on the property.  The appellate court, affirming the trial court, agreed.

Given the intent and meaning of ALL of the words in the restrictive covenant, the plaintiff could not use the property to conduct the business of activities of a garage company or tow truck company.  Beach Towing Services, supra (“The question thus becomes how to construe the words ‘for a garage or tow truck company,’ since the parties agree that the only dispute in this case is whether the word ‘garage’ as used in the Covenant prohibits Plaintiff from construction of a parking garage on the Property. Applying the series-qualifier, the Court must read the term ‘company’ as modifying both the term ‘garage,’ as well as the term, ‘tow truck,’ and the Covenant must therefore be read to mean that the Property cannot be used for either a ‘garage company’ or a ‘tow truck company.’  Indeed, there is no determiner before the words ‘tow truck’ that would indicate that the term ‘company’ modifies only ‘tow truck’ and not ‘garage’ (i.e., the Covenant does not say ‘for use as a garage or a tow truck company’).  Moreover, when reading the Covenant’s prohibition on a “garage company” in context, as the Court must do, ‘garage company’ is clearly associated with ‘tow truck company.’”) (internal citations omitted).  But, here, the plaintiff was not looking to engage in the business activities of a garage company or tow truck company.  Thus, nothing restricted the use of the property as a parking garage.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

It is permissible for non-Florida persons/entities to agree to arbitration in Florida.  Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida.

Section 682.18(1) of Florida’s Arbitration Code provides in material part:

The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause in the manner provided in this law.

This was at-issue in the opinion, Ancla International, S.A. v. Tribeca Asset Management, Inc., 44 Fla. L. Weekly D2189a (Fla. 3d DCA 2019), involving two non-Florida entities dealing with an out-of-country transaction.  Here, a Columbian company (owned by a Florida resident) entered into an agreement with a Panamanian company.  The underlying transaction was to occur in Columbia.  

The agreement contained the following arbitration provision:

SEVENTH. APPLICABLE LAW. This agreement will be governed by the laws of the State of Florida of the United States of America (USA), a jurisdiction accepted by the parties irrespective of the fact that the principal activity of the beer project will be conducted in Colombia. The parties agree that, in the event that differences arise between them as a result of or in relation to the present Agreement, they will attempt to resolve their differences via direct negotiation. For this purpose, the parties will have a period of thirty (30) business days, counting from the date on which either of the parties presents a request in this regard. This term may be extended by mutual agreement for additional thirty-day periods. If a solution is not reached within these stipulated periods, the differences will be submitted to an Arbitration Board, whose ruling with carry the force of law.

Although this provision is perhaps not a model of clarity relative to arbitration, the issue was whether the trial court had personal jurisdiction over the defendant to compel the parties to arbitration.   The parties agreed that personal jurisdiction stemmed from s. 682.18(1) of Florida’s Arbitration Act.  The Third District Court of Appeal held that the trial court had personal jurisdiction over the defendant “[b]ecause the parties accepted the power of Florida courts to enforce the Agreement.”   Ancla International, supra.   Hence, a Florida court could enforce the parties’ agreement to compel the parties to arbitration even though they are non-Florida entities dealing with a non-Florida transaction.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Many contracts have dispute resolution provisions.  If not, they should.  It is important that dispute resolution provisions are reviewed and complied with PRIOR TO the initiation of a dispute.  Failure to comply could result in you being “S*** Out of Luck” with your claim, as exemplified in the recent opinion in Guan v. Ellingsworth Residential Community Association, Inc., 44 Fla. L. Weekly D2155a (Fla. 5^thDCA 2019). 

This case involved a dispute between a homeowner and her homeowner’s association.  There was a Declaration of Covenants recorded in the public records.  The Declaration, no different than any Declaration, created a contract between a homeowner and homeowner’s association.  The Declaration also contained a dispute resolution provision that required: (a) the parties to first negotiate, in person, a resolution to their dispute; (b) submit the dispute to mediation within 30 days if the negotiation reaches an impasse; and (c) submit the dispute to binding arbitration with the American Arbitration Association within 30 days if the mediation reaches an impasse or else the dispute is waived.

The homeowner’s association wanted to enforce a restrictive covenant against the homeowner.  Negotiation and mediation failed.  The association then initiated a lawsuit, not an arbitration, against the homeowner.   The association failed to comply with its own dispute resolution provision by filing the lawsuit instead of submitting the dispute to arbitration within 30 days. 

The appellate court held that the association waived its claims against the homeowner “when it failed to submit the dispute to arbitration within thirty days after termination of mediation.”  Guan, supra.   Oops!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

If you are a condominium unit owner, you might find this to be of interest.   If you are not a condominium unit owner, you likely will not. 

In a recent case, an issue was whether a particular provision of the Florida Condominium Act provided a private cause of action between unit owners.  Stated differently, the issue was whether one owner could sue another owner for a statutory violation.  The appellate court held it did not: “Nothing in the language of this [particular] statute or in the statutory structure indicates that a private cause of action between unit owners was contemplated by the legislature in enacting this statute.”    Universal Property & Casualty Ins. Co. v. Loftus, 2019 WL 3676433, *3 (Fla. 4^thDCA 2019).

The point is that if a unit owner is being sued by another unit owner for a violation of specific provision in Florida’s Condominium Act, they may be doing so purely to create a private statutory cause of action that does not otherwise exist in order to support statutory attorney’s fees.  However, this does not make it right.  Sure, there may be a basis in ordinary negligence, but there is a difference between a unit owner suing another unit owner in negligence versus a statutory violation in a private cause of action under the statute that may give rise to attorney’s fees. Potentially, this is a big difference.

If you are a condominium unit owner sued by another unit owner in a private statutory cause of action under Florida’s Condominium Act, make sure you consult with counsel.  Do not concede that a unit owner can sue you in a statutory private cause of action if no such right exists.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost.  The insured then filed a new suit against his property insurer for the same damages.  The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer.  The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the new lawsuit concerns a supplemental claim.

An issue on appeal concerned what actually constitutes a supplemental property insurance claim.  The appellate court stated: “We agree with the learned trial court that a supplemental claim means an additional claim made after an insured has actually undertaken or commenced repairs arising out of damages for a covered loss and after the insurer has tendered initial payment based upon its determination of actual cash value.”  Chavez, supra.

Thus, for there to be a supplemental claim, the insured has to actually undertake repairs.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis.  And, frankly, delay tactics should not work as an intentional means to delay the inevitable.  This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.  

In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units and commercial units that had an active business function were assessed dues. The commercial owner, however, decided it was not going to pay assessments and, apparently, never did. The association foreclosed on the unit and filed a motion for summary judgment.  Right before the hearing on the motion for summary judgment, and after previous motions for continuance, the commercial condominium owner filed another motion for continuance to take another deposition, a motion to compel discovery, and a motion for leave to amend to add affirmative defenses.  The commercial condominium owner also filed an affidavit with conclusory averments that conflicted with the deposition testimony of its corporate representative.  The commercial condominium owner tried to argue that it was exempt from assessments because, among other things, it did not have an active business function although its corporate representative testified to the contrary (and there was other record evidence to refute this averment).  

The trial court, as affirmed by the appellate court, was not having any of what it perceived to be intentional delay.  The Third District explained:

The affidavit in opposition to summary judgment is replete with statements that are conclusory, speculative, contains hearsay or would otherwise not be admissible at trial. Moreover, the affidavit specifically contradicts the testimony by Weisser Realty’s [commercial condominium unit owner] designated corporate representative….

***

Despite having had two years since service of the complaint in which to schedule depositions and seek further discovery, it was only a week before the specially set summary judgment hearing that Weisser Realty moved to set the Association’s corporate representative’s deposition, and three days before the hearing that Weisser Realty filed motions to compel discovery and for leave to amend its affirmative defenses. As the Fifth District recently explained,

[i]f there is good faith discovery still in progress, the trial court should not grant the moving party’s motion for summary judgment. . . . However, if the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant summary judgment even though there is discovery still pending.

The trial court found no justification in the record for the last minute motions to continue discovery or to add additional affirmative defenses where the facts appeared to be well-established and sufficient to address at summary judgment. The trial court was within its discretion to grant summary judgment, where the filings mere days prior to a noticed summary judgment hearing appeared to be intended to delay the proceedings.

Weisser Realty Group, supra (internal citation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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 funds, gross neglect of duty, or improper use of governmental office, on the party of any public agency or officer.  Fla. Stat. s. 112.3187(1). 

Damages recoverable under Florida’s Public Whistleblower Act are as follows:

Relief.–In any action brought under this section, the relief must include the following:

(a) Reinstatement of the employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief.

(b) Reinstatement of the employee’s full fringe benefits and seniority rights, as appropriate.

(c) Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action.

(d) Payment of reasonable costs, including attorney’s fees, to a substantially prevailing employee, or to the prevailing employer if the employee filed a frivolous action in bad faith.

(e) Issuance of an injunction, if appropriate, by a court of competent jurisdiction.

(f) Temporary reinstatement to the employee’s former position or to an equivalent position….

Fla. Stat. s. 112.3187(9).

In a recent case, Iglesias v. City of Hialeah, 44 Fla.L.Weekly D1896a (Fla. 3d DCA 2019), the Third District held that a person suing under Florida’s Public Whistleblower Act can also recover noneconomic compensatory damages.  Id. (“The [Florida Public Whistleblower Act] mandates that an award include the remedies explicitly identified within the statute, but does not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under applicable law.”).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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. 4^thDCA 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 you have information about your employer’s illegal activities and are considering blowing the whistle, you should absolutely consult with counsel to best protect your interests. 

In a Florida whistleblower action, a court may award the following damages or relief:

(a) An injunction restraining continued violation of this act.

(b) Reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position.

(c) Reinstatement of full fringe benefits and seniority rights.

(d) Compensation for lost wages, benefits, and other remuneration.

(e) Any other compensatory damages allowable at law.”

Fla. Stat. s. 448.103(2).

Lost wages generally refers to back pay and potential front pay.  Aery, 118 So.3d at 914. 

In awarding back pay, “the trial court must determine what the employee would have earned had she not been the victim …, and must subtract from th[at] figure the amount of actual interim earnings.”  Front pay, on the other hand, “is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.”  While reinstatement, when feasible, is typically “the preferred remedy” for a wrongful firing, front pay may be applied where “ ‘reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result’ ” of the firing.

***

In seeking back or front pay, the plaintiff “must mitigate her damages by seeking employment ‘substantially equivalent’ to the position [from which] she was” terminated. 

Aery, 118 So.3d at 914-15 (citations omitted).

As to compensatory damages under Florida’s Whistleblower Act: 

[G]iven the FWA’s [Florida Whistleblower Act] liberal construction, damages in the form of emotional distress are recoverable…as a form of compensatory damage. Thus, even if [the whistleblower] were not entitled to lost wages, his suit still could proceed on the theory that the wrongful discharge caused him mental anguish.

Punitive damages, on the other hand, are not recoverable.  Branche v. Airtran Airways, Inc., 314 F.Supp.2d 1194, 1196 (M.D.Fla. 2004).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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 property granted.”  “A real covenant binds the heirs and assigns of the original covenantor, while a person[al] covenant does not.” 

The primary test whether the covenant runs with the land or is merely personal is whether it concerns the thing granted and the occupation or enjoyment thereof or is a collateral or a personal covenant not immediately concerning the thing granted. In order that a covenant may run with the land it must have relation to the land or the interest or estate conveyed, and the thing required to be done must be something which touches such land, interest, or estate and the occupation, use, or enjoyment thereof.

Therefore, “to establish a valid and enforceable covenant running with the land . . . , a plaintiff must show (1) the existence of a covenant that touches and involves the land, (2) an intention that the covenant run with the land, and (3) notice of the restriction on the part of the party against whom enforcement is sought.”

Hayslip v U.S. Home Corp., Fla. L. Weekly D1798a (Fla. 2d DCA 2019) (internal citations omitted).

This recent case dealt with an issue of first impression, that being whether an arbitration provision in a special warranty deed was a covenant running with the land such that a subsequent purchaser would be bound by the arbitration provision (as the subsequent purchaser would be on notice of the special warranty deed recorded in the official records).  The Second District found that the arbitration provision in the special warranty deed was a covenant running with the land and, therefore, the subsequent purchaser would have to arbitrate its construction defect dispute against the homebuilder.   Please review this posting for more information on this case.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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 this pre-suit notice condition precedent requirement extended to alleged defamation in books and movies.  The plaintiff in this case sued book publishers and move production companies over his false portrayal in books and movies.  The Second District Court of Appeal, affirming the trial court, held that it did not apply to books and movies.  “Florida courts have consistently interpreted section 770.01 to apply only to news media, i.e., the press.”  Mazur, supra (explaining pre-suit notice requirement is meant to apply to the free press that publishes news quickly since they can issue retractions quickly as provided for in Florida Statute s. 770.02 to mitigate damages).   Although the statute includes the language “or other medium” (underlined above), it still applies to the news media with this language designed to “cover new technologies used to disseminate the news, such as internet publishers and blogs.”).  Id. “Although books and movies may address topics of public interest, they are not part of the traditional news media press….”  Id.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.