18 August

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Caveat Emptor = Buyer Beware = Watch Out!

Caveat Emptor. Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property. In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million. The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was...

06 August

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Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein

in Trial Perspectives

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages. This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available. Additionally, the statute maintains that, "There shall be a rebuttable presumption that the person named in or obtaining the benefits of...

22 July

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Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent

Posted by David Adelstein

in Trial Perspectives

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity. It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.” A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent. In...

09 July

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Courts do Not Favor the Technical (Oops!) Wins

Posted by David Adelstein

in Trial Perspectives

Many rules of civil procedure are liberally construed to prevent the "oops!" or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred. Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error. An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla....

01 July

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Civil Conspiracy – Not Just a Claim in the Criminal Context

Posted by David Adelstein

in Trial Perspectives

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that co-conspirators conspired to commit an intentional tort or an intentional wrong. The Third District Court of Appeal in MP, LLC v. Sterling Holding, LLC, 2017 WL 2794218 (Fla. 3d DCA 2017) recently explained a claim for civil conspiracy: The elements of a claim for civil conspiracy...

18 June

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Seller’s Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith

Posted by David Adelstein

in Trial Perspectives

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too. This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse. For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain...

11 June

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Cause of Action for Tortious Interference with a Business Relationship

Posted by David Adelstein

in Trial Perspectives

Business relationships are important. It is all about relationships in all walks of life! What if someone interferes with your business relationship? What if that interference is intentional or unjustifiable? There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st DCA 1996) (“Tort liability for interference with prospective contractual relationships is generally recognized.”) A plaintiff asserting this cause of action must PROVE the following elements: (1) The existence of a business relationship; (2) The defendant had knowledge of the business relationship; (3) The defendant intentionally and unjustifiably interfered with the...

04 June

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Restrictive Language in Employment Agreement

Posted by David Adelstein

in Trial Perspectives

Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal? There are many professions that want certain employees to sign an employment agreement that includes a restrictive covenant, i.e., anti-compete or anti-solicitation language. The employer does not want to train the employee, give the employee access to its trade secret information, customer lists, internal marketing material, pricing...

27 May

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Malicious Prosecution Arising from Judicial Proceedings–There are Consequences

Posted by David Adelstein

in Trial Perspectives

There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution. The litigation privilege does NOT bar a claim for malicious prosecution because, as mentioned above, there are consequences for malicious conduct. See Debrincat v. Fischer, 2017 WL 526508 (Fla. 2017). This issue was recently confirmed by the Florida Supreme Court where the Court explained...

21 May

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Motion for Summary Judgment – No Genuine Issue of Material Fact

Posted by David Adelstein

in Trial Perspectives

A motion for summary judgment is a dispositive motion that is popularly filed before trial. However, it is a motion that is denied far more than it is granted because of the burden imposed on the party moving for summary judgment in order to prevail on the motion. “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Lin v....