14 May

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Fraud in the Performance of a Contract

Claims for fraudulent inducement and fraudulent misrepresentation are claims that are oftentimes pled despite there being a contract being the parties. Besides these claims being fact-based and challenging to prove in certain instances, they are harder when there is a contract between the parties. Fraud is only actionable if it is separate and distinct from the contract. In other words, fraud needs to give rise to a tort claim independent of the contract; a breach of contract is not fraud because the fraud is not independent of the contractual breach. See Peebles v. Puig, 42 Fla.L.Weekly D1080a (Fla. 3d DCA...

29 April

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Strict Construction of Restrictive Covenants

Posted by David Adelstein

in Trial Perspectives

Restrictive covenants are to be strictly construed. Restrictive covenants show up in Declarations or Covenants recorded in the public records that restrict a landowner’s (or unit owner's) use to do something with his/her property. Just keep in mind that a restrictive covenant will be strictly construed in favor of the landowner. See Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015). Hence, the precise language of the restrictive covenant is important because of the requirement of strict construction. An example of such strict construction can be found in the recent opinion of Santa Monica Beach Property Owners Association, Inc....

14 April

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Litigating the Amount of Contractual Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action. There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993). What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of...

07 April

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Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The...

31 March

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Punitive Damages for Business Torts

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Punitive damages can be warranted in business torts, although you are dealing with a much tougher threshold. Typically, the misconduct warranting the punitive damages needs to be intentional, i.e., the defendant had knowledge of the wrongfulness of the conduct and its high probability of damage and engaged in the misconduct anyway. See Fla. Stat. 768.72. This is because “‘the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for the wrongful conduct and to deter similar misconduct by it and other actors in the future.'” See Bistline v. Rogers, 42 Fla. L. Weekly...

25 March

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Significant Relationship between Claim and Agreement to Arbitrate

Posted by David Adelstein

in Trial Perspectives

Just because you have an agreement to arbitrate does not necessarily mean that every conceivable claim, including those unrelated to the agreement, are subject to arbitration. For instance, if there are separate agreements—one with an arbitration clause and another without—does not mean that a claim related to the agreement without an arbitration clause will be subject to arbitration per the separate agreement. There needs to be a “significant relationship” between the agreement containing the arbitration provision and the claim, as best explained as follows: "[T]he mere coincidence that the parties in dispute have a contractual relationship will ordinarily not be enough...

23 March

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Ebook: Innovative Attorney’s Fee Arrangements – Providing Value To YOUR Business Objectives

Posted by David Adelstein

in Trial Perspectives

Are you interested in learning more about innovative attorney's fee arrangements that provide value to your business and are outside of the boring, traditional hourly billing model. If so, check out my ebook on Innovative Attorney's Fee Arrangements: Providing Value To YOUR Business Objectives. You can also check out this ebook for Nook. Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1....

13 March

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Strict Construction of Condominium and Homeowner Association’s Declarations

Posted by David Adelstein

in Trial Perspectives

Do you live in a condominium or in a homeowner’s association? If so, then you know you are governed by a Declaration of Condominium (in the case of condominium unit ownership) or a Declaration of Covenants (in the case of home ownership). Please review these in addition to any amendments that may modify any of the paragraphs or covenants. These are recorded in the official, public records where the condominium or homes are located. So, you can obtain these documents online with ease. Declarations are covenants running with the land operating as a contract between the governing association and owners. See Woodside...

26 February

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Don’t Neglect Mediation!

Posted by David Adelstein

in Trial Perspectives

I believe in the process of mediation for all disputes, particularly complicated factual business disputes. I use the word "process" because that is what mediation really is – a series of actions to achieve a particular end. Mediation can be a tiring process. A frustrating process. An informative process. A continuing process. A result-oriented process. In certain instances, a futile process. Oftentimes, mediation is a mixture of all of the above. Mediation allows parties to make a business decision based on their perception of risk -- the risk of losing or the risk of damages award (greater or lesser than...

11 February

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein

in Trial Perspectives

Florida Rule of Civil Procedure 1.525 provides: Any party seeking a judgment taxing costs, fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party. This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made...