04 June

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Restrictive Language in Employment Agreement

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....

14 May

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Fraud in the Performance of a Contract

Posted by David Adelstein

in Trial Perspectives

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 dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1....