30 October

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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;...

05 October

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Amended Complaints and the “Relation Back” Doctrine

Posted by David Adelstein

in Appeal, Trial Perspectives

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...

28 September

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Uneven Floor Level Does Not, in of Itself, Support Premise Liability Claim

Posted by David Adelstein

in Trial Perspectives

Does an uneven floor level, in of itself, support a premise liability claim? No! Uneven floor levels are not so uncommon. The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor. A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit. The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not...

08 September

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Considerations when Enforcing or Challenging Restrictive Covenant

Posted by David Adelstein

in Trial Perspectives

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...

02 September

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Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

Posted by David Adelstein

in Appeal, Trial Perspectives

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...

24 August

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Comply with the Dispute Resolution Provision in Your Contract

Posted by David Adelstein

in Trial Perspectives

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. 5thDCA 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...

21 August

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Condominium Unit Owner Suing Condominium Unit Owner under Florida’s Condominium Act

Posted by David Adelstein

in Trial Perspectives

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...

10 August

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Supplemental Property Insurance Claim

Posted by David Adelstein

in Trial Perspectives

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...

28 July

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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Posted by David Adelstein

in Discovery, Trial Perspectives

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...

27 July

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Damages Under Florida’s Public Whistleblower Act

Posted by David Adelstein

in Trial Perspectives

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...