07 July

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Quick Note: Interpretation of a Contract (Policy) is for the Court, Not the Jury

The construction / interpretation of a contract including an insurance policy is a question of law. This means it is for the court, not the jury, to interpret a contract. While there are times parties may prefer to delegate this responsibility to a jury, this is not allowed. In a recent property insurance coverage dispute, the insured, over the insurer's objection, was able to get jury instructions instructing to the jury regarding the interpretation of the insurance policy. On appeal, the appellate remanded the case back to the trial court for a new trial, as the interpretation of the policy...

28 June

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Condominium’s Declaration is a Contract

Posted by David Adelstein

in Trial Perspectives

A condominium’s declaration is a contract. As a unit owner, it serves as your contract and will govern your rights with your condominium association. Just like any contract, disputes arise between a unit owner and the association regarding the interpretation of the declaration. And, no different than any contract, the interpretation of a declaration is reviewed under a de novo standard of appellate review. See Lenzi v. The Regency Tower Ass’n, 43 Fla.L.Weekly D1397a (Fla. 4th DCA 2018). Lenzi serves as an example of a dispute involving a condominium unit owner and his association regarding the interpretation of a provision in...

23 June

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Equitable Estoppel Circumstances to Allow Non-Signatory to Compel Arbitration

Posted by David Adelstein

in Appeal, Trial Perspectives

Arbitration is a creature of contract, meaning if you want your disputes to be resolved by arbitration through an arbitrator (as opposed to litigation with a judge and/or jury), you need to include an arbitration provision in your contract. A trial court granting or denying a party’s motion to compel arbitration is a non-final order that is immediately appealable. See Fla.R.App.P. 9.130(a)(3)(C)(iv). There are times that a non-signatory to a contract with an arbitration provision wants to compel arbitration. For example, a signatory to a contract (with an arbitration provision) files suit against a non-party and the non-party moves to compel...

16 June

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Value of Severability Clause

Posted by David Adelstein

in Trial Perspectives

Severability clauses have become fairly commonplace in contracts. Cut and paste provisions. However, these clauses can provide tremendous value. A sample of a severability clause is as follows: If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. There are numerous ways to draft...

09 June

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Risk in Purchasing Property Subject to a Pending Foreclosure and Lis Pendens

Posted by David Adelstein

in Trial Perspectives

When real property is the subject to a pending foreclosure action where there is a lis pendens (a formal notice), a buyer that purchases the property does so at his own risk because he is on notice that the property is subject to the foreclosure action [through the lis pendens]. Bymel v. Bank of America, N.A., 159 So.3d 345, 346 (Fla. 3d DCA 2015). The buyer is not permitted to intervene in the pending foreclosure action. See id. at 346-47. In a recent case, The Bank of New York Mellon v. HOA Rescue Fund, LLC, 43 Fla.L.Weekly D1312b (Fla. 2d DCA 2018),...

03 June

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Account Stated and Open Account — Separate Causes of Action

Posted by David Adelstein

in Trial Perspectives

There are two different causes of action known as account stated and open account. Although these are separate causes of action, and have different burdens of proof, they are oftentimes pled together and confused for one another. These are causes of action that would be asserted when a party / creditor claims another party / debtor owes it money from a transaction. ACCOUNT STATED An account stated is a cause of action when there is an “agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” Farley v. Chase Bank, U.S.A., N.A.,...

28 May

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General Understanding of Collateral Estoppel and Res Judicata

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

There are two similarly related legal doctrines known as collateral estoppel and res judicata. The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata). These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application. Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit. Collateral Estoppel =...

12 May

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Injunctive Relief + Attorney’s Fees Awarded in Favor of an Owner and Against Her Association

Posted by David Adelstein

in Trial Perspectives

Here is a case that may give associations some degree of consternation. I think it should because it supports permanent injunctive relief against an association to comply with its governing documents when managing or maintaining a surface water management system / stormwater management system. This case, discussed below, would extend beyond a surface water management system to any covenant in the governing documents. In Coconut Creek Homeowner's Association, Inc. v. Gonzalez, 43 Fla.L.Weekly D1045a (Fla. 4th DCA 2018), a homeowner sued her homeowner's association for failing to manage the association's surface water management system. The homeowner sued the association...

05 May

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Mid-litigation Monetary Settlement with Co-Defendant

Posted by David Adelstein

in Trial Perspectives

I recently discussed a doctrine that applies in negligence cases known as the undertaker's doctrine. Some may also call this the no good deed goes unpunished doctrine. Just kidding; but, this undertaker's doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a duty to prevent the beneficiary of that service from harm. For instance, a tenant sued the owner of the condominium he (and his family) was renting and his real estate agent for water intrusion and mold problems in the unit. The tenant claimed the real...

30 April

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Florida’s Uniform Trade Secrets Act cannot be used to Restrict Competition

Posted by David Adelstein

in Trial Perspectives

Florida's Uniform Trade Secrets Act is contained in Florida Statutes Chapter 688. This Act authorizes courts to take reasonable steps to preserve the confidentiality of trade secrets including ordering injunctive relief to prevent a party (such as a former employee) from misappropriating trade secrets. Norton v. American LED Technology, Inc., 43 Fla.L.Weekly D951a (Fla. 1st DCA 2018). However, as confirmed by the First District in Norton, Florida's Uniform Trade Secrets Act cannot be used as a sword to restrict or stifle direct competition. In other words, it is improper for a trial court to issue a temporary injunction restricting direct...