21 January

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Voluntarily Dismissing a Lawsuit that Gives Rise to Attorney’s Fees (Oh No!)

When you plead a cause of action that triggers a basis for attorney’s fees (i.e., a statutory basis or contractual basis), you can also give the other side a strong argument that they are entitled to attorney’s fees if you voluntarily dismiss your lawsuit. This kind of operates under the “be careful what you ask for” scenario. An “Oh No!” moment. This was the scenario in Ward v. Estate of Lillian K. Wasserman, 48 Fla.L.Weekly D96c (Fla. 4th DCA 2022). The plaintiff filed a lawsuit predicated on Florida’s civil theft statute (Fla. Stat. s. 772.11) that gives a basis for statutory...

14 January

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Equitable Relief: One seeking Equity MUST do Equity

Posted by David Adelstein

in Appeal, Trial Perspectives

How about this longstanding maxim: “One maxim of equity is that a litigant going into equity must go with clean hands, and another is that he who seeks equity must do equity.” Davis v. Verandah at Lake Grady Homeowners Association, Inc., 48 Fla.L.Weekly D142a (Fla. 2d DCA 2022) quoting Engebretsen v. Engebretsen, 11 So.2d 322, 329 (Fla. 1942). When you read it, it is hard to disagree with it, right? It just makes sense. In Davis, the 2007 plat for a subdivision was recorded by a developer. The developer subsequently advertised its subdivision as a deed-restricted community. The plaintiffs were interested...

01 January

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Exculpatory Clauses will be Strictly Construed to Determine Enforceability

Posted by David Adelstein

in Trial Perspectives

Do you know what an exculpatory clause is? My guess is that you signed more than one document with such a clause even if you are unfamiliar with what the clause is called. I know I have signed way more than one document with such a clause. An exculpatory clause is basically a full-blown liability waiver / damages waiver and release clause that you are signing on the frontend before an incident may occur. However, because of the devastatingly harsh effect these clauses can have if an incident does occur (by serving as a get out of jail free cause...

17 December

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Do Yourself a Favor: Get a Court Reporter at that Impactful Hearing

Posted by David Adelstein

in Trial Perspectives

In a recent article, I discussed a trial court granting a defendant’s motion to discharge a lis pendens. The plaintiff appealed by filing a petition for a writ of certiorari since the discharge of a lis pendens would constitute irreparable harm to support certiorari relief. However, at the hearing with the trial court on the motion to discharge the lis pendens, there was no court reporter. As a result, the appellate court applied the presumption of correctness to the trial court’s ruling: "[T]he transcript is necessary for our review of the issue alleged, particularly when [the defendant] asserts that [the plaintiff's] entitlement...

11 December

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Real Estate Brokers are NOT Immune from Liability

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Real estate brokers are NOT immune from liability when it comes to misrepresentations regarding the property they are selling. A recent Florida appellate opinion supports this point. See Dziegielewski v. Scalero, 47 Fla.L.Weekly D2608a (Fla. 5th DCA 2022). If you are a real estate broker, consider this, particularly if you are marketing a property with misrepresentative statements. In this case, a condominium unit was listed for sale. The MLS listing for the property made a representation regarding garage spaces tied to the unit: “Not one or two, but three deeded garages come with this unit…” In actuality, the unit came with...

03 December

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Res Judicata and 4 Requirements that Must be Demonstrated

Posted by David Adelstein

in Standard of Review, Trial Perspectives

A recent case discusses the doctrine of res judicata after the trial court dismissed the plaintiff’s complaint with prejudice based on this doctrine. “The doctrine of res judicata provides that a judgment on the merits in an earlier suit bars a later suit on the same cause of action between the same parties or others in privity with those parties.” Res judicata bars a subsequent lawsuit when the following identities exist in both the original lawsuit and the subsequent lawsuit: “(1) identity of the thing being sued for; (2) identity of the cause of action; (3) identity of the parties; and...

19 November

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Mandatory Forum Selection Provisions

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When reviewing a contract, check to see if there is a forum selection provision. This provision will dictate where a dispute shall or may be brought. Forum selection provisions are construed as either mandatory forum selection provisions (the dispute has to be brought in this exclusive forum) or permissive forum selection provisions (the dispute may be brought in this forum, but other forums would work too). Be mindful of forum selection provisions because they will come into play if a dispute unfolds. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and...

12 November

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Doctrine of Respondeat Superior

Posted by David Adelstein

in Trial Perspectives

The doctrine of respondeat superior provides that “an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” “An employee's conduct is within the scope of his employment, where (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part...

08 October

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Petition for Writ of Mandamus – Directing Trial Court to Take Action

Posted by David Adelstein

in Appeal, Trial Perspectives

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.” “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.” Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.” If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.” Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

01 October

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Considerations: Independent Tort Doctrine and Claim Known as Equitable Accounting

Posted by David Adelstein

in Trial Perspectives

A recent Florida opinion discussed the importance and application of the independent tort doctrine. Please check out my post on the independent tort doctrine here. In a nutshell, as stated in the post, “Florida law does not allow a party damaged by a breach of contract to recover exactly the same contract damages via a tort claim.” Bedoyan v. Samra, 47 Fla.L.Weekly D1955a (Fla. 3d 2022). In addition to the independent tort doctrine, this case also discussed an affirmative claim known as equitable accounting. As stated by the claim, it is an equitable claim. “To state a claim for an equitable...