14 July

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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...

13 July

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

Posted by David Adelstein

in Trial Perspectives

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...

04 July

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Attorney’s Fees on Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

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...

15 June

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Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein

in Trial Perspectives

In the premise liability context: [T]he obvious danger doctrine provides that a landowner "is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party...

08 June

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Exculpatory Clauses MUST be Clear and Unequivocal

Posted by David Adelstein

in Trial Perspectives

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...

01 June

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Two Proposal for Settlement Considerations

Posted by David Adelstein

in Trial Perspectives

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...

27 May

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A General Release is Not Absolute

Posted by David Adelstein

in Trial Perspectives

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...

19 May

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Asserting Basis for Punitive Damages against Corporate Entity

Posted by David Adelstein

in Trial Perspectives

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...

11 May

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

Posted by David Adelstein

in Trial Perspectives

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. ...

04 May

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Suing Third-Party for Spoliation of Evidence

Posted by David Adelstein

in Trial Perspectives

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...