16 June

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Value of Severability Clause

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...

22 April

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Summary Judgment Entered in Favor of Defendant on Equitable Subrogation Claim

Posted by David Adelstein

in Appeal, Trial Perspectives

I recently wrote an article how there are times when a party is seeking reimbursement for solely economic losses, their best recourse is an equitable subrogation claim. The article also discusses the application of equitable subrogation dealing with an actual fact pattern. Equitable subrogation, you say? In an equitable subrogation claim, a party pays for damages (or a debt) it believes were caused by another party. The party then pursues reimbursement against the party it believes primarily responsible for the damages or debt. No one wants to pay for damages or a debt it believes were caused by a third...

13 April

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Attorney’s Fee Arrangements can be Creative or Innovative

Posted by David Adelstein

in Trial Perspectives

Generally, people do not like to spend money on lawyers. There are certainly exceptions where clients value the relationship with a lawyer knowing that the services provided and advice given is worth the fees. Ideally, this should be the sentiment from anyone that feels they need a lawyer, even if the advice paid for is to steer you in a more focused direction based on the pros/cons of the claims and issues you are dealing with. But, money is important and decisions cannot be made in a vacuum without understanding associated costs. I get that not everyone wants to have to...

31 March

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Forum Selection / Venue Provisions in Contracts are Enforceable

Posted by David Adelstein

in Appeal, Trial Perspectives

If you have a dispute, one of the first considerations should be “where do I sue?” If the dispute may arise out of or relate to a contract, you want to look at your contract. Many contracts contain forum selection or venue provisions identifying the exclusive venue governing your dispute. For instance, the provision may say something to the effect, “The exclusive venue for any dispute arising out of or relating to this contract shall be in Miami-Dade County Florida.” This means that if you plan to sue you need to do so in a court located in Miami-Dade County,...